1616554 (Refugee)

[2019] AATA 6171

1616554 (Refugee) [2019] AATA 6171 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616554

COUNTRY OF REFERENCE:                   China

MEMBER:James Silva

DATE:4 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2019 at 9:45am

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – member of unregistered family church – delay in applying for protection – student visa cancelled – credibility concerns – level of interest in Christianity – harassment at the hands of local authorities – vague and inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 is a man in his late [age range] from Fujian, China (People’s Republic of China, PRC). He claims to be a citizen of China.

2. The applicant arrived in Australia [in] June 2007, as the holder of a student visa. On 4 November 2015, he applied for a protection (Class XA) visa. He purported to include his wife and son in the application, but their applications were assessed as invalid, as they had previously been refused the grant of protection visas, and s.48A applied to prevent them from making subsequent protection visa applications while still in Australia.

3. On 7 September 2016, the delegate refused the application in relation to the applicant, pursuant to s.65 of the Act.

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

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

   CRITERIA FOR A PROTECTION VISA

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

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Claims

7. The applicant claims to have been born into a Christian family who practiced in an unregistered family church in Fujian. He claims that the local authorities routinely harassed and threatened members of this church. In his later teens, his parents started to host family church gatherings in their home. A turning point came in January 2006, when local officials raided the home, arrested the applicant’s parents, and mistreated them. The applicant’s parents (or other churchgoers) arranged for him to come to Australia, sensing it was becoming too dangerous in China. Other family members fled to [Country 1] and [Country 2], and are now ‘scattered’.

8. The applicant fears that the PRC authorities will target him mainly because of his association with the illegal family church, and his family. He is unsure what they will do, but fears that it could involve serious harm amounting to persecution, or significant harm. He initially claimed that he cannot safely practice his faith in China, but he has since clarified that he has no real interest in Christianity or religion.

   Background

9. The applicant is a [age] year old man from a village near [Village 1], Fuqing city, Fujian province. His language is Chinese (Mandarin), and he indicated at hearing that he speaks reasonable English. On the application form, the applicant gave his religion as ‘Christian’, but he had more to say about that at the hearing.

10. The applicant lived at one address in Fuqing prior to his travel to Australia in June 2007. He attended primary and secondary school in Fujian, and came to Australia to continue his studies.

11. The applicant grew up with his parents and [two siblings]. His family ties and their links with an illegal ‘family church’ form a central part of his protection claims, so there was discussion of his family at the hearing.

    §  The applicant said that his father had worked as a [Occupation 1] in the village, but he went to [Country 2] shortly after the applicant’s travel to Australia (for similar reasons, namely the local authorities’ oppression of their church). The applicant has lost contact with him, and knows nothing about his whereabouts or circumstances.

    §  The applicant said that his mother had also worked as a [Occupation 1]. She continues to live in the village in China. He used to have regular contact with his mother, about once a month, but he no longer contacts her.

    §  The applicant’s father also sent his brother abroad to [Country 1]. To the applicant’s knowledge, he is still there, but he had no details or recent contact.

    §  The applicant’s sister continues to live in China.

12. The Tribunal’s enquiries about the applicant’s efforts to locate and check on the welfare of his family members in China, [Country 2] and [Country 1] yielded little. It noted that communications between [Country 2], [Country 1] and Australia are good, and it wondered why he had no recent contact with his mother in particular, if only to enquire about her welfare. The applicant claimed that the family ‘scattered’ as a result of local officials’ actions against them and their church. He said that his mother does not tell him the whole story, intimating that the entire family are living in fear and are wary of contacting each other. He added that, ideally, he would like to bring his mother to Australia to join him and his family.

13. The Tribunal found the applicant’s account to be unforthcoming and unpersuasive. It does not accept that he has given a truthful account of his parents’ and siblings’ whereabouts and circumstances.

14. In Australia, the applicant has been in a relationship with a PRC national, Ms [A] (DOB [date]). They have an Australian-born son, [Master B] (DOB [date]). In his statement of claims, the applicant said that he and Ms [A] met shortly after he arrived in Australia, their common faith having brought the couple together. They were separated on some occasions, but eventually decided to spend their lives together. They then had their child. He implied that this was the sequence of events. The applicant was vague when asked for details of the relationship at hearing, such as where and when they met, and their periods of separation. It was difficult to elicit details, but the applicant appeared to say that the couple met some eight months or so after he arrived in Australia; that they separated at some point for a number of months, or ‘quite a long period’; and that they met in church and resumed the relationship. In response to questions, he said that they were separated prior to the birth of their son.

15. The couple married in a registry [in] October 2015, in the period between when the applicant signed his protection visa application form and when it was lodged. Asked about the timing of their marriage, the applicant vaguely commented that they had both matured, but was not more specific.

16. The applicant travelled to Australia on a PRC passport issued in Fujian in [2007]. It expired in 2017. He did not bring the passport to the Tribunal hearing, but rather a NSW driver’s licence. He told the Tribunal that he is not sure whether he can apply for a passport; he has not made any enquiries so far. He thought that he could try, but wondered aloud whether ‘they’ (the PRC authorities) might arrest him. The Tribunal formed the impression that the applicant is not motivated to obtain a PRC travel document, and has not given the matter much thought.

17. As noted above, the applicant entered Australia [in] June 2007, on a student visa. He told the Tribunal that he studied for the first year, but then struggled to find the money for his school fees. He started to work, and eventually his education provider reported him for non-attendance. The applicant felt that he was not given an opportunity to explain his non-attendance. He thought that the visa had been cancelled as early as 2008 although, as the Tribunal noted from the delegate’s decision record, in fact it was cancelled in April 2009.

18. The applicant said that he lived in [Suburb 1] for about a year, and since then has lived in [Suburb 2]. He currently does ‘odd jobs’, and Ms [A] works as [an Occupation 3]. Various friends, including workmates and ‘brothers and sisters’ from the church help them out financially.  

    Evidence

19. The evidence before the Tribunal includes the following:

    §The applicant’s protection visa application of 4 November 2015, attached to which is a statement of hid protection claims, in Chinese with English translation.

    §A partial photocopy (biodata page only) of his PRC passport, issued in [2007] and valid for ten years. Also attached were a marriage certificate dated [October] 2015, for the applicant and Ms [A] (DOB [date]); a partial photocopy of Ms [A]’s passport; and the birth certificate for their son, [Master B] (DOB [date]).

    §Audio recording of the protection visa interview (‘Department interview’) held on 2 September 2016, which the Tribunal has listened to.

    §Delegate’s decision record of 7 September 2016.

    §The applicant’s review application form received on 7 October 2016, attached to which is a copy of the delegate’s decision record.

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

20. The applicant attended a Tribunal hearing on 30 August 2019. The hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages, although the applicant made some comments in English. The applicant is unrepresented in this matter. He did not present any documents or witnesses.

    Credibility

21. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence.

22. The Tribunal has significant doubts about the entirety of the applicant’s claims and evidence. It considers that his evidence about his family in China and his relationship in Australia was unforthcoming and misleading. It is particularly concerned that his statement of claims, which he told the Tribunal he wrote in Chinese and signed, incorrectly states that he is a ‘committed Christian’ and a person who cannot give up his faith, when his evidence at hearing indicates that that was never the case in either China or Australia. It appears that the applicant’s claims have morphed over time from being directly involved in an illegal church in China and a regular attendant at church gatherings in Australia, to one where his primary concern arises from his association with his parents and their experiences at the hands of local officials.

23. In a similar vein, the Tribunal found the applicant’s evidence, including about his experiences in China, his involvement in religious matters in China and Australia, and his family’s (claimed) adverse experiences to be vague, uncertain and changeable. It formed the strong impression that he was not speaking from firsthand experience, but rather drawing on snippets of information that he had heard of or read about from third party sources.   

    Delay in seeking protection

24. The applicant lodged his protection visa application in November 2015, more than eight years after arriving in Australia (in 2007), and more than six years after his student visa was cancelled (in April 2009).[1] This lengthy delay raises serious questions about the truthfulness of his claims (that is, whether his family and/or church brothers and sisters arranged for his departure from China in response to threats and violence from local officials), and his need for protection.

    [1] This information is contained in the delegate’s decision record, which the applicant submitted with his application for review.

25. At hearing, the applicant variously said that did not know that there was such a thing as protection; that he felt dismayed and at a loss when a Department officer informed him he did not have a valid visa; and that, after fathering a child, he just wanted to have a normal life without being involved in such complicated matters. These comments referred back to a period of more than eight years, and it was difficult to elicit any more detail from the applicant about his thinking, except for his comment that he first heard about protection visas in about 2008.

26. The protection visa applications by the applicant’s wife and child add to the Tribunal’s concerns. As it put to the applicant pursuant to the procedure in s.424AA of the Act, his wife and child applied for protection visas in February 2012; the applications were refused in August 2012; and the Tribunal affirmed the decision to refuse the visas in June 2014. According to the applicant’s earlier evidence, he and his wife had separated for some time prior to the birth of their son in [month year], but they were together after his birth. This means that the applicant would have been aware of the availability of protection visas, and of his wife and child’s ongoing applications. It also means that he could have joined their applications, if he was in need of protection. The Tribunal informed the applicant of his options to provide comments/responses, if any. He opted to comment/respond orally, on the spot.

    §  He said that, contrary to his earlier evidence, he and his wife separated twice, and they were apart for a total of some four or five years. They stayed in contact through friends, but they were not co-habiting. Asked to clarify whether he meant that they were separated at the time of her protection visa application, he said that they were not together then, and that his wife lodged the protection visa application ‘just for the kid’. In further comments, he said that his wife presented claims for protection and that perhaps her claims were based on the relationship with him (the applicant).

    §  In other comments/responses, the applicant emphasised that he wished to do the best by his wife and child, and that he hoped the Tribunal would focus on the future in its assessment of his protection claims.

27. In the Tribunal’s view, the applicant’s explanation for his lengthy delay in seeking protection is unpersuasive. The Tribunal is also unimpressed by the applicant’s account of why he did not seek protection at the same time as his wife and child. His evidence about the couple’s claimed period(s) of separation was inconsistent and confused, and the Tribunal does not accept that this is a credible explanation of why he did not seek protection at the same time; or why he waited until November 2015 – another 15 months after the Tribunal had affirmed the decision to refuse to grant his wife and child protection visas – before lodging his own application. The applicant’s delayed lodgement of his protection claims suggests that he does not genuinely need protection, but rather that he has calculated that the family’s best prospects of staying in Australia are by lodging successive applications, consecutively.

    Christian faith

28. The applicant wrote in his statement of claims, in late 2015, that he is a committed Christian who cannot give up his Christian faith (page 3). He claimed that his parents are committed Christians who hosted illegal family church meetings in their homes. The applicant participated in these activities, and fears persecution or significant harm if he practises his faith and/or through his association with his family.  

    Practice in China

29. Original application: The applicant claimed to be from a Christian family, and that his parents are committed Christians. They go to ‘family churches’. They do not accept the official churches in their area, because they give priority to the Communist Party ahead of Christ.

30. The applicant claimed to have accepted Christianity in his later teens, and to have participated in church meetings. These gatherings took place in people’s homes, and the applicant’s family home was one of its main meeting places. During the services, participants pray and sing; study the Bible; transcribe parts of the Bible and share it around; and discuss their experiences.

31. Oral evidence: The applicant confirmed to the Tribunal his claim that his parents are Christians, and used to participate in family church activities in his village. His account of their practice and his exposure to religion included the following information:

    §  He knew his parents were Christian, but did not have much more information or insight. He was young at the time, and just used to follow them.

    §  His family lived in the southern part of the village, and his parents used to visit family churches in the northern part. The applicant and his siblings just stayed home. It was only later, when he was about [age] years old, that ‘sisters’ (family church members) started coming to the applicant’s home.

    §  Asked whether his parents brought him and his siblings up as Christians, the applicant said that they used to sing hymns, and later taught them to believe.  They did not teach him basic tenets of the faith, such as the significance of Jesus Christ and God. Instead they used to talk with the ‘sisters’ about miracles, such as the promise of eternal life if one believes in Jesus, and cures for cancer and other illnesses. He commented that he thought the miracle cures went too far; they were ‘nonsense’. Asked whether he knew of other principles or teachings, the applicant said that one should not do bad things to other people.

    §  The applicant said that these were the beliefs of his parents. He cannot forget that he and his whole family were made to suffer because of these practices (an apparent reference to his claim that local officials’ pursuit of them forced family members to ‘scatter’ away from Fujian, to [Country 2], [Country 1] and Australia). 

32. The Tribunal discussed with the applicant what observations he made of his parents’ own religious practices, and the gatherings that took place in his home, at least in the year or two before his departure for Australia.

    §  He confirmed that from the second year of junior high school – from when he was about [age] years old – the family church members used to visit his home. There were some 15 to 16 people. The Tribunal noted that he had mentioned only some five or six at the Department interview[2]. In response, the applicant said that it is ‘impossible’ that he said that.

    §  The Tribunal asked about the conduct of these gatherings. The applicant said that they prayed for a better life, with their hands held outwards. As for religious items in his family home, he said that his parents brought back ‘hymns’ from their visits to the other family church members’ homes. These were not Bibles. In response to questions, the applicant said that he did see Bibles in China, but his family church sang hymns.

    §  In further discussion, the applicant said that his parents tried to have him study religious materials, but he was not obedient. He agreed that he had little if any real exposure to Christianity and its teachings in China.

    §  Asked about his written statement that ‘we’ (i.e. his family church) would pray together, study together and transcribe parts of the Bible, the applicant replied obliquely that in Australia he went to church and learned about the ‘real’ Bible. The Tribunal asked whether (in China or Australia) he knew of a prayer starting with the words ‘Our Father’, he said he would need time to think about that.

    [2] This is clear from the delegate’s decision record, which the Tribunal has confirmed is an accurate record of the applicant’s statements at hearing.

1. By way of general background, the Department of Foreign Affairs and Trade (DFAT) noted in its most recent country information report[3] that official Chinese government statistics record about 100 million religious believers in total, including over 23 million Protestants. DFAT estimates the number of people in unregistered Protestant Christian organisations alone to be some 70 to 100 million. In Fujian province, DFAT assesses that large numbers of Protestants worship in places linked to the official Three-Self Patriotic Movement (TSPM). It notes one estimate that in 2011, 1.57 million Protestants worshipped in unregistered churches.[4] All of this provides some context and potential support for the applicant’s claim that his family are Christians, but it does not resolve the Tribunal’s concerns about his lack of direct knowledge or exposure.

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

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

2. During the latter part of the hearing, when discussing his Christian activities or contacts in Australia, the applicant said that he initially went to meetings of the ‘Shouters’ in Australia, the same religious group that his parents had been involved in and who helped organise his travel to Australia. He said that he was reluctant to name this group. According to DFAT’s latest report, the Shouters (also known as the ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are an offshoot of Watchmen Nee’s Little Flock in China, and were led by Nee’s student, Changshou Li (‘Witness Lee’). He created the ‘Recovery Bible’ by annotating the standard Bible, and he believed that salvation could be had by saying ‘O Lord’ three times. A unique worship practice is the stamping of feet while shouting.[5]

   [5] [5] DFAT, Country Information Report – China, 21 December 2017, paras 3.56-3.57.

3. The Tribunal has taken into account the suggestion in the applicant’s statement and oral evidence to the effect that his interest in and exposure to Christianity grew during his late adolescence, despite having Christian parents; and the passage of time since he wrote the statement (in October 2015). Even so, it has significant concerns about the inconsistencies between the applicant’s evidence relating to his practice and observations in China, including his family’s activities and his own level of commitment and interest. His observations and comments were so vague that the Tribunal does not believe they were based on any personal experiences in China.

   Practice in Australia

4. Original application: The applicant wrote that soon after arriving in Australia, he had financial difficulties and had to work. He met his wife, also a Christian, and their common faith underscored their relationship. ‘In these years, [he was] attending church gatherings and met many faithful brothers and sisters.’ Writing in October 2015, he described himself as a committed Christian who had found ‘true religious freedom’ in Australia.

5. Oral evidence: The applicant told the Tribunal that he has gone to church in Australia, but has no real interest in Christianity. The Tribunal nonetheless discussed with him the nature of his related activities, if only to gain some further insight into his and his family’s background in China, his profile and his possible future conduct.

   §  The applicant said that he used to go to a church in [Suburb 1], where he lived during his first year. It was a family (or local) church, just like the one he had attended in China. It had no name, but he recalled the name of the leader, [Mr C]. He reluctantly gave the name of the group as ‘Shouters’. He went there for a just a few months after arriving in Australia, sporadically.

   §  The applicant said that the group used to sing hymns, and nothing more.

   §  At the end of the hearing, the applicant said that he also used to attend a church in [Suburb 3]. He said that he had not wanted to mention this at the hearing. For about a year after his son was born (hence from about [month year] to [month year]), he used to go there and they offered some assistance.

6. The applicant was reluctant to talk specifics, and provided no supporting evidence or witnesses (including among the ‘brothers and sisters’ whom he claims to know from the church, and who support him and his wife). In light of his previous comments – that he did not know the details of Jesus’ relationship with God, or have insights into Christian teachings – the Tribunal observed that it appeared that he had no past or current interest in or commitment to Christianity. The applicant did not dispute that suggestion. However, he went on to say that it was his association with his parents and their illegal family church gatherings, and his past profile with local authorities that caused him concern.

7. Assessment: The Tribunal does not accept the applicant’s written claims that he is or was (including as of October 2015) a ‘committed Christian’, a person attached to his ‘Christian faith’, and/or a person who has engaged in religious practices such as praying, singing hymns, studying and annotating the Bible, and engaging in discussion of religious matters, in China or Australia. The applicant distanced himself from some of these claims at hearing, but the Tribunal goes on to find that they are wholly untruthful.

8. The Tribunal also does not accept that the applicant’s parents are Christian; that they introduced him to at least some Christian practices (such as singing hymns); or that he was exposed to any religious gatherings in his home or elsewhere. The Tribunal accepts that the applicant may have had fleeting contact with Christian Chinese in Australia, particularly in the context of persons offering him and his wife some support around the birth of their child. However, it does not accept that the applicant has been ‘attending church gatherings and met many faithful brothers and sisters’ during his stay in Australia; that he has practiced religion in any other form; or that he is a Christian who has become attached to his ‘true religious freedom’ in Australia. The Tribunal prefers the applicant’s own evidence that he is not really interested in Christianity or religion. Given its assessment of his past exposure to the faith and its conclusion that his parents are not Christian, it also finds that no one (including local officials) perceive him to be Christian as a result of his family membership.

   Mistreatment of Christians in Fujian

9. The applicant claims that local officials targeted his family (and other family church members) repeatedly, and this culminated in arrests and threats that prompted his family to send him to Australia. In light of the above findings – that neither the applicant nor his parents are Christian – the Tribunal finds it difficult to believe any of the applicant’s claims of past harm. It nonetheless proceeds to consider them, for the sake of completeness and to determine if there are any residual claims.

   Ongoing harassment

10. Original application: The applicant wrote that the local authorities often harassed and persecuted his family. He recalled some particular occasions:

    §  Just before Christmas in 2004, the applicant and his parents were at a brother’s home. At around 10pm, two police officers and some neighbourhood officials raided the house, took down the personal details of the participants and declared the meeting illegal. They lectured the group for over two hours, threatening to arrest and imprison them if the meetings continued.

    §  On many such occasions, neighbourhood officials, police or security agents arrived at the family church meetings, warning and threatening the participants.

    §  In January 2006, the applicant’s family was hosting a meeting in their home, attended by about 15 brothers and sisters. They had been singing, and then started Bible study. More than ten government officials entered the applicant’s home, yelling that they had received reports of an illegal meeting, and again warning of severe punishment if the participants were found to have breached regulations. They took personal details, and then transported the applicant’s parents to the police station, as hosts of the meetings.

11. At hearing, the applicant signalled that his family (in particular, his parents) were not free to practice their faith; that local officials were menacing; and that this explains in part why his family went to family church meetings in another part of the village, rather than host meetings in their own home (at least until the applicant was about 16 years of age).

12. The applicant spoke of low level harassment in general terms. Despite his written claims that police officers recorded his and other participant’s names at a meeting just before Christmas 2004; that local officials, security officers or the police would come by and issue warnings and threats; and that he was present in January 2006 when there was a major raid on his home, he struggled at hearing to give any instance which had involved him directly.

13. The applicant spoke about an alleged incident which he thought occurred a few months before his travel to Australia. He recalled that the police came and declared the family church meeting an illegal gathering. Some six or seven police entered the home, with others outside. There were ten people or more at the gathering. The applicant and his brother managed to slip out a door at the back.

14. The applicant said that the authorities took his father to a detention centre, where they held him for some 10 to 20 days. Some brothers told the applicant later what had happened to him. Asked about his mother’s experience, the applicant said that she was also detained for about the same period. The Tribunal put to the applicant that, in his written statement, he had said that the police tortured, slapped and kicked her, and then released her the following morning because she was too weak to endure any more. It noted its concern about the inconsistency between his written and oral evidence about his mother’s period of detention, an issue that, if true, would be significant to him. The applicant replied that, following the raid, he was sent to the ‘brothers’ (fellow family church members), who looked after him and arranged his travel abroad. He therefore did not have this information first hand.

15. The Tribunal noted the applicant’s claims that the authorities questioned all of those present. It drew on his written statement: ‘The next morning I was given a detention notice which claimed that my parents [were] involved in organising a cult meeting and refused to assist the police investigation […]’, and asked if the authorities handed him any paperwork in relation to the raid. This did not appear to resonate with him at all.

16. Assessment: The Tribunal is mindful of the passage of time since the alleged events (more than 13 years), the applicant’s age at the time, the passage of time since he lodged his protection visa application, and the difficulties that may arise in recalling traumatic events such as raids. However, its disbelief that the applicant and his parents were in fact involved in any Christian activities (including any family or other unregistered church) weighs heavily in its consideration of these claims. The applicant’s vagueness and inconsistencies in relation to the key event – supposedly in January 2006 – reinforce its doubts.

17. In light of these concerns, the Tribunal finds that the applicant and his family were not subject to any pattern of official harassment or persecution by local officials, for reason of any family church meetings or any other reasons. There was no home raid, interrogation, lecture and taking of personal details just before Christmas 2004. And it finds there was no major raid in January 2006, or any consequent harm, such as the questioning of the applicant and other churchgoers; the arrest of his parents; the detention and mistreatment of his father over two weeks or a similar period (including assaults, brainwashing, denial of sleep, water or food, indoctrination or a fine); or any related activity. The Tribunal also does not accept that the applicant was handed a detention notice relating to his father, or his more recent claim that he slipped away during the raid, that the ‘brothers’ offered him refuge, and that they arranged his departure from China, for his safety.

18. The Tribunal also does not accept that the applicant’s family was forced to ‘scatter’, including to [Country 1] and [Country 2], in response to the local threats they faced; that the family is unable to keep in touch for any related reasons; or that the applicant’s mother or any other relatives are living in fear. The Tribunal also does not accept that the applicant has had any such experiences that now cause him to fear for his or others’ safety, and inhibit him from talking about the Shouters or any other religious group, or making contact with them. The Tribunal finds that he does not engage in such discussions or activities because they are not of interest to him.   

    The applicant’s departure for China

19. In his original application, the applicant wrote that the incident in January 2006 – against a backdrop of ongoing harassment and persecution – caused his parents to worry about his (the applicant’s) safety. They resolved to send him abroad. In early 2007, they seized an opportunity to send the applicant to Australia to study.

20. Having rejected the applicant’s claims about his interest in Christianity, his association with it in China, and his and his family’s experiences, the Tribunal also does not accept that he fled China a year later, in response to the January 2006 raid or any similar event. It accepts neither his claim that his parents arranged this in response to such fears; nor the claim that the ‘brothers’ took him in and arranged his exit from China. It also rejects all associated claims, such as his suggestions that he had to pay a bribe to get a passport; and that he arrived in Australia disoriented and fearful as a result of such experiences.

    Other matters

21. The applicant mentioned at hearing that he had not enquired about or made efforts to obtain a PRC passport, but he wondered ‘what if they arrest me?’ He did not suggest that the PRC authorities have any adverse interest in him, other than in relation to the claims of religion and his association through his parents with the family church, claims that the Tribunal has rejected above. The Tribunal takes the applicant’s passing comment to be no more than a reminder that he does not wish to approach the PRC authorities, to obtain a passport or travel document, or to return to China.

22. The applicant referred to his wife’s and son’s protection visa applications, stating vaguely that she ‘perhaps’ sought protection because of her relationship with him. He did not ask the Tribunal to take evidence from her, and did not present any claims linked with her (for instance, from any religious issues or the fact of her having sought protection in the past).

    Findings

23. The Tribunal does not accept that the applicant grew up in a Christian family in China; that he engaged in or witnessed any religious activities, in his home or elsewhere; or that his family had any such contacts. It also does not accept that the applicant has ever identified as a Christian, or been perceived as one, in China or Australia. The Tribunal accepts that the applicant has had some contacts with Christian Chinese in Australia, and has gained some inkling of where there are churches or gatherings. The Tribunal does not accept that the applicant’s exposure to Christianity in Australia extends beyond such basic information.

24. The Tribunal does not accept that local officials or anyone have harassed, arrested, detained, mistreated or threatened him or any family members for religious or similar reasons; that the applicant has feared such treatment; or that he and his family members left China fearing for their safety. It finds that the applicant, his father and other family members left China for unrelated reasons.

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

    ASSESSMENT: REFUGEE CRITERION

26. The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1). The Tribunal takes into account the findings above, its assessment of his future conduct in China and relevant country information. At hearing, the applicant said that he finds it difficult to imagine what he would do if he were to return to China. The Tribunal accepts that this is a difficult proposition for him, given the period of his stay here and his family arrangements. The limited available evidence suggests that he would return to [Village 1] and stay with immediate family there, while trying to find work and longer-term accommodation.

27. In light of the above findings of fact, the Tribunal does not accept that the applicant is a genuine Christian (in a house church or any other); that the PRC authorities perceive of him as being an underground Christian (due to his family connections, or any other reason); or that he genuinely fears serious harm for any reason associated with religion, or other s.5J(1) reason. Similarly, the Tribunal does not accept that the applicant has any adverse profile, due to any family connections or past incidents. As noted above, it rejects his claims that local authorities in [Village 1] have targeted him or family members in the past, for any religious or similar reasons. It also does not accept that the applicant’s family is ‘scattered’ for any reasons linked with his protection claims, or that the applicant is genuinely apprehensive of approaching PRC officials in Australia to seek a replacement passport.

28. In light of these findings, the Tribunal finds there is no real chance of the local or other PRC authorities (including the police, security agents and others) targeting the applicant if he returns to China, for any reason linked with a past profile, or any actual or perceived links with illegal religious activities. As the applicant has no genuine interest in Christianity or religion, it follows that he would not need to refrain from any religious practice, in order to avoid persecution.

29. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds he does not face a real chance of serious harm amounting to persecution for reason of religion (actual or imputed involved in an unregistered church), or any related reason (such as an imputed political opinion for rejecting the official Chinese churches, or his membership of any putative particular social group of persons linked with family churches or his local community), or for any of the reasons set out in s.5J(1), now or in the reasonably foreseeable future.

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

    ASSESSMENT: COMPLEMENTARY PROTECTION

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

32. The Tribunal’s findings of fact above and its consideration of the applicant’s other circumstances (including his family situation in Australia and China, and the expiry of his PRC passport), do not give rise to substantial grounds for believing that anyone has an adverse interest in him, with the aim of inflicting significant harm on him. His circumstances do not suggest that there is a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. The Tribunal is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty. 

1. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   Conclusion

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

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

4. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   James Silva
   Member

   
   

   ATTACHMENT – RELEVANT LAW

   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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

   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.  

   If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.