1616966 (Refugee)

1616966 (Refugee) [2019] AATA 6781 (25 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616966
COUNTRY OF REFERENCE:                   China
MEMBER:Mila Foster
DATE:25 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 October 2019 at 2:19pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – physical assault – detention – illegal gathering – limited Christian activities in Australia – bribes – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The delegate refused the visa on the basis that the applicant was neither a refugee nor owed complementary protection.
The applicant, who claims to be a citizen of China, arrived in Australia [in] December 2013 and applied for the protection visa on 23 December 2015.
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 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, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT issued such a report in relation to China on 3 October 2019.
SUMMARY OF CLAIMS AND EVIDENCE
The applicant is seeking protection so that he does not have to return to China where he claims he would be persecuted for reasons related to his Christian religion.
The applicant presented his claims and evidence in his protection visa application and at a Tribunal hearing conducted over two days on 31 May 2019 and 20 September 2019. The protection visa application included written statements made by the applicant, [Sister A], who said she was the applicant’s [sister], and [Relative A], who said he was the applicant’s [relative].
According to information provided in the protection visa application form, the applicant is [an age] year old Chinese national who lived in Jiangxi province from birth until October 2006 when he moved to Fujian province for work. He lived in Fujian province until he came to Australia in December 2013. He married and has [children]. His wife came to Australia with him but returned to China in July 2015 because she missed the children. His father is deceased. His mother and [sisters] live in China.[1] He is a Christian who had been a member of an underground family church in China; he was arrested twice and listed in the ‘black names’. If he returned to China he would be deprived of his ‘belief right’ and persecuted mentally and physically for adhering to his belief.
[1] At the hearing the applicant said he also had [another relative] in China.
In his written statement the applicant claimed that his family had been Christians for generations. He said the government wanted believers to worship in government-sanctioned churches but the fathers and priests in those churches served the government so true and sincere believers worshipped secretly at home with friends and family. The government accused the underground church of being a criminal evil cult and house church members who were caught by the police were detained, verbally abused, beaten, forced to write a statement of remorse, fined, sent to a forced labour camp and given a gaol sentence. He was a member of a house church organised by an uncle. There were nine members of his house church – himself, his mother, his uncle, his aunt, [sister A], [Relative A], his [Relative B], [and two named people].[2] Each Sunday morning his uncle organised their Bible learning, holy song singing and religious storytelling. The house church had to change the location of its Sunday service every week to avoid being a target of the police but he was detained by the police twice while attending gatherings. He gave the following account of what happened on those two occasions:
At about 9:00am on [a day in] June 2006 when we had gathered at the lounge of my [Relative B’s home] to learn the Bile(sic), four policepersons suddenly forced their way in. According to the police, they had received information of our engagement in the illegal cult activities. We were ordered not to move. The police searched the home of my [Relative B]. Our Bibles and pictures of Jesus were also seized. We were taken to the police station for questioning. I was questioned when I joined this cult organization, who introduced me to this organization and what kind of cult activities I had taken part in. I told the police: “Our family had been a sincere Christian family for generations. I was born a Christian. We would gather together each Sunday for worship, for Sunday service, for Bible learning, for holy songs singing and from time to time for visiting or helping the sick and needed. All the Christian believers have a kind and warm heart. They are the law-abiding citizens. They do not do any thing against the government or the communist party. So it is unfair for your people to treat us this way, let alone accusing our Christianity of being criminal evil cult. God does not tolerate the groundless accusation. Those who do no respect God would be punished.”
One of the policepersons, while using his police baton to beat me brutally, shouted at me: “You are such a diehard evil cult member. It is unlikely you would show any remorse if not being given a lesson. I just want to beat you to see how your God would punish me!”. Another policeperson yelled at me: “Give him a good beating. He is bold even talking to us about his cult belief. Beat him! Beat Him!” I had suffered a blackout and fell on the ground. By the time I regained consciousness, I found my wife being with me. She helped me up. Seeing blood all over my face, my wife became so distressed that her tears were streaming down the face. She told me that the police station contacted my wife to pick me up at the police station. Police said it was my first-time offence, so this matter was only handled at the local police station by ordering me to write a sincere statement of remorse and to pay a fine of [amount 1] yuan instead of reporting it to the higher level of authority. Both the statement of remorse and the fine were given to the police station the next morning.
…
… [In] November 2013, I took some leave to return home [from Fujian province] for my brother-in-law's wedding. On [a date in] November, a Sunday, my mother told me to join a gathering at the home of my first uncle with her. Mother cited the reason that there were not many chances for me to join such gathering as I spent most of my time away from home.
We were the first group of visitors to arrive at the uncle's place. Uncle and Aunt were particularly happy to see me. I gave uncle some souvenirs such as the picture of Jesus Christ and Virgin Mary and the [Jesus' crucifix] that I bought from the market in [a named] City. Uncle also asked me about how I was doing in Fujian, about my Bible learning and my daily praying.
I told uncle six of us stayed together in one courtyard home. Each Sunday morning, we together would learn the Bible, sing holy songs and pray. We were quite safe there. While talking, the rest of the fellow believers came one after other. Uncle then handed my souvenirs to the fellow believers. These souvenirs proved quite popular among the believers. Afterwards, uncle started taking lead reading Bible with the believers. Shortly after that, there were rough knocks on the door. Uncle assured us not to get panic. He asked aunt to put away the Bibles and then went to answer the door. The police entered the lounge and declared what we were doing was the unlawful gathering and the criminal cult activities. It was a violation of the public security and order. We were taken to the police station for questioning. The police also seized the Bible, Jesus' picture and crucifix from uncle's room. We were pushed into the police van and taken to the police station.
We were questioned individually. I was worried as this was my second time for being located by the police. I had been warned if I was caught again I would be sent to the forced labour camp. So when being questioned, I refused to answer the police questions. The police then used their baton to beat me. I still refused to say anything. I was hit again and fell off on the ground. I was detained for two days. During my detention, I had only been given one single meal and one glass of water. On the third day, my wife came to pick me up. My wife said: "When I learned you were taken to the police station for the second time and would be sent to the forced labour camp, I was badly frightened. Once you are sent to the labour camp, the fate of our whole family would be sealed. So I immediately went to see my uncle, [named], for his help. According to uncle, your case is a serious one. He was a bit hesitated for fear of being involved. However, my aunt said we must take, the risk no matter how big it is. It is about fate of a family member. How can we sit doing nothing about this? Try to find one of your past comrades-in-arm to see if they can offer some help? We could offer them some money. So my uncle thought of a friend, a schoolmate and a comrade-in-arm. When this friend was discharged from the army, he started working as [a police role]. His surname is [Official A]. Uncle first gave this [Official A] [amount 2, larger] yuan. [Official A] went to see the police station chief with this [amount 2] yuan. However, the words were sent back from [Official A] that [this amount 2] yuan was not enough to work around for such a serious case. Under this circumstance, another [amount 3, even larger] yuan was offered. You were then released. I am the one to blame for this happening as U should not tell you to come back for my brother's wedding. If you did not come, you would not join the party. Neither would you be taken to the police detention."
[2] His [relative] according to his protection visa application: see Department of Home Affairs file [number] at f. 48.
In their written statements, the applicant’s sister and [Relative A] stated that they attended the same house church as the applicant in Jiangxi province, they too were picked up by the police on [the same date in] June 2006, and they went to Fujian province with the applicant where they participated in Sunday religious gatherings with the applicant. The sister and [Relative A] also described the applicant’s detention in November 2013.
On the first day of hearing the applicant gave evidence to an authorised officer pursuant to s.428 of the Act and on the second day he gave evidence before me. The authorised officer largely confirmed or clarified the applicant’s responses to questions on the protection visa application form and did not discuss the applicant’s reasons for claiming protection in any depth. I refer to the oral evidence the applicant gave at the hearing below in my consideration of his claims and evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
Having considered the claims and evidence before me, I find for the following reasons that the applicant was not a credible witness and that the decision under review should be affirmed.
Credibility
The oral evidence the applicant before me was generally vague, unforthcoming and inconsistent with his written statement. The following are the most significant examples.
Religious practice in China
Asked how he practised his religion in China from childhood until he left, the applicant told me that he grew up and had to work to support himself and the conditions were not as good as they are in Australia where you can go to church every Sunday. Asked again how he practised his religion in China from childhood until he left China in 2013, the applicant replied that in China Christianity teaches people to do good deeds so that is what the older generation taught them. Asked whether he practised his religion by doing anything other good deeds, the applicant hesitated and then replied, vaguely, ‘Just like the Lord Jesus, something like that’. If, as the applicant detailed in his written statement, he was born into a Christian family, attended a house church in his home province which gathered every Sunday to study the Bible, sing songs and tell religious stories, and then attended gatherings in Fujian province every Sunday where he prayed, learned the Bible and sang holy songs I expect the applicant would have referred to those activities in a clear and direct manner in response to being asked how he practised his religion in China. Instead it took a considerable number of further direct questions to gradually elicit from the applicant that he attended a house church in Jiangxi province and religious gatherings in Fujian every Sunday. If the applicant had attended a house church in Jiangxi province since childhood and religious gatherings in Fujian province every Sunday then I expect he would not have required so much prompting to disclose that religious practice.
Religious practice in Australia
The applicant told the authorised officer that he sometimes attended church in Australia; he said he attended a small church in [a named suburb] sometimes every few weeks and did not practice his faith in Australia in any other way. The evidence the applicant gave me about his religious practice in Australia was vague and reticent and indicated he had engaged in little religious activity here. As the applicant had mentioned to me that it was possible to go to church every Sunday in Australia I asked whether he had attended church in Australia every Sunday. He replied that he had not. Asked how often he had attended church since he arrived, the applicant responded that he visited sometimes because he moved a lot so there was no regular place for him to go. Not only was he imprecise about how often he had attended church but according to his protection visa application since he had arrived in Australia he had lived at one address in Sydney and had told me earlier in the hearing that in Australia he had lived in Sydney except for the first 6 months when he lived in [a named city] and 1 or 2 months he spent in [another city] in 2014 or 2015. That does not indicate that the applicant moved around so much that there was no church he could have attended regularly if he had wanted to.
Asked what else he did to practise his religion in Australia other than attend church sometimes, the applicant replied that ‘they’ sometimes celebrated Christmas or Chinese New Year and there were some Mandarin speaking churches. When I sought clarify what he himself did, the applicant questioned whether I was asking if he worked for the churches. I put to the applicant that a Christian may pray, attend Bible study, preach to others, do charitable work with Christian groups, join a choir and sing hymns, or volunteer at Sunday school where young children are taught about Christianity. The applicant indicated that he did not engage in such activities; he said he may not have integrated into the church to that level and those were activities missionaries would do. I put to the applicant that it did not seem to me that it was necessary to be a missionary to read the Bible or pray regularly and that those were activities that could be done at home. The applicant then said that he did visit the family of some sisters and joined their Bible study; he said they did most of the talking and he just listened. I expect that if the applicant had participated in such activity he would have mentioned it when I first asked how he practised his religion in Australia. Further when I asked how often he attended such Bible study, the applicant was vague. He stated that it was not daily, just when it was available. Asked how often that was, he seemed to resist being precise. He stated that at the end of each gathering there was a discussion about when there would be a Bible study. That response did not indicate how often the applicant himself attended Bible study. Pressed about how many he attended, the applicant finally stated that it was hard to count, it was sometimes, dozens of times. It seemed to me that rather than having difficulty estimating how often he had attended Bible study in Australia the applicant was being intentionally evasive.
Asked why he had not attended church or Bible study more regularly in Australia given he had indicated he could practice his religion freely here, the applicant replied that he did and sometimes he didn’t attend church but he would pray sincerely at his own place. I had already questioned the applicant at length about his religious practice in Australia and specifically indicated that religious practice could include praying at home but he had not indicated that he prayed at home. It seemed he had invented that evidence to overcome a potentially adverse inference being drawn about his limited religious activity in Australia. While the nature and regularity of religious practice will vary from person to person, given the applicant referred to himself as a sincere Christian[3] who had been a Christian since he was a child of about 7 or 8,[4] a Christian who had to secretly attend a house church in his home town, and attended a religious gathering in Fujian province every Sunday where he prayed, sang holy songs and studied the Bible, I expect that he would have engaged in more regular religious practice in Australia where he was free to do so.
Religious beliefs
[3] Page 6 of his written statement.
[4] Evidence given at hearing.

The evidence the applicant gave at the hearing about his religious beliefs was extremely brief and hesitant.
Asked what the basic beliefs of Christianity were, the applicant questioned whether I was asking about ‘the book’ or his beliefs. Asked to tell me what his beliefs were as a Christian, the applicant hesitantly said he believed that the Lord Jesus gave himself for others. The applicant then seemed to stop abruptly. Asked if there was anything further, the applicant said hesitantly that he came to believe the Lord Jesus because he was inspired by some of the stories. Asked how Jesus gave himself for others, the applicant replied that he was crucified on the cross for the sake of other people but he could not retell many of the stories in the Bible. Asked if he could tell me about the stories that had inspired him, the applicant replied ‘the crucifixion of the Lord Jesus’. Asked why he found that inspiring the applicant said he could not say how. Asked what other stories in the Bible had inspired him, the applicant said after a long pause that he could not tell me. Asked what were some significant Christian celebrations the applicant replied, ‘Easter, when the Lord Jesus suffered’. Asked why Easter was significant to Christians the applicant repeated that it was the day Lord Jesus suffered. Asked the significance of Good Friday, the applicant said it was Friday that he suffered and then he rose back to life the next week so Good Friday and Sunday were two significant celebrations. The applicant subsequently said that it was three days later that Jesus rose back to life. Asked about the significance of Easter Sunday the applicant replied hesitantly, ‘new life’. Asked to elaborate the applicant said he did not know how to say it. I put to the applicant that for a person who claimed to have been a Christian his whole life and who had attended gatherings where the Bible was read he seemed unable to convey very much about Christian beliefs which could raise doubts about whether he was a Christian. The applicant replied that he was a Christian but was just not able to answer each question one by one.
I expect that the applicant would have been able to provide more detailed and forthcoming evidence about his religious beliefs if he was a Christian who had practised his religion since childhood. Much of the evidence he did give seemed like short rote-learned phrases primarily about Jesus’s crucifixion and Jesus suffering for others rather than spontaneous answers to my questions. Further, I expect the applicant would have been able to identify more than one story in the Bible if, as he claimed, he was inspired by some of the stories to believe in Jesus.
Arrests and detention
At the hearing the applicant confirmed that he was picked up by the police on two occasions while attending house church gatherings in his home town. However, the evidence he gave about what happened on those occasions was generally unforthcoming. His responses to open and simple questions were generally very brief or required clarification and he seemed to intentionally resist providing details.
For example, after noting that the applicant had indicated earlier in the hearing that he had experienced more serious problems with the police than the older members of his house church because he (like other younger members of the house church) approached the police, I asked how he approached the police on the first occasion and what he said. The applicant replied that the police said it was a heresy so the young people approached. That response did not reveal how the applicant approached the police or what he said to them. Asked again what he did or said when he approached the police, the applicant replied that the police threw insults at the Lord Jesus. Again he failed to answer a simple and direct question about what he did and said. Asked for a third time what he did or said the applicant finally answered that he said they were just followers and doing nothing illegal. If that is what the applicant said to the police then I expect he would have provided that information in a direct manner when first asked. It then took considerable questioning to obtain an account of what the police did to the applicant after that.
Asked how he came to attend the gathering when he was picked up on the second occasion in November 2013 given he told me had returned for the wedding of his wife’s younger brother, the applicant did not answer the question asked and instead replied that he went back to his home town for the wedding but was arrested on another day. Asked what happened at the gathering the applicant replied that he went to attend a gathering at his [Relative B’s] place, there were still house churches at that time, he brought something, there may have been an informant and the police arrived. It took considerable further questioning to elicit from the applicant why he had attended the gathering on that occasion, what happened at the police station after he was picked up on that occasion and under what circumstances he was released from detention. Furthermore, the evidence he gave about who arranged a bribe to be paid to secure his release from his second detention changed. First he told me it was his uncle who found someone to bribe, then that it was his wife and finally that it was his wife’s younger brother, the brother-in-law whose wedding the applicant had returned to his home town to attend. I expect that if the applicant was detained by the police when he returned to his home town for his brother-in-law’s wedding that he would be able to accurately recall that it was that brother-in-law and not his uncle or his wife who arranged a bribe to be paid to secure his release from detention.
Eventually I elicited the following accounts of the two occasions that the applicant claimed he was taken by the police from a gathering of his house church in Jiangxi province.
The applicant told me that the first occasion was on [a date in] June 2006, it was a Sunday. After the police came to a gathering at his uncle’s place and he spoke up, the police took the Bible and anything related to the church and took him to the police station. He said other people may also have been taken but separately. He had committed a serious offence but the others many not have. The others had trouble too but the police said he was the ‘serious one’ because he spoke up. At the police station the police gave him a lesson like all local police stations in China do; they give you a lesson and beat you. By a lesson he meant being slapped in the face, intimidation and being asked not to say ‘words like this’ and gather together for religious activities. They told him it was his first offence so they warned him not to do that anymore and let him go after 12 hours. He did not go to the hospital or a doctor after being released because he did not sustain serious injury, his injuries were superficial.
The applicant told me that the second occasion was on a Sunday in November 2013, [date range]. His uncle had asked him to join the gathering because he had not been with them for a while and said the police would probably not come. Relatives of the applicant, such as his uncle, were present at the gathering. The police showed up suddenly. The police recognised him and said ‘oh, you again’. He repeated the same things, he said something like ‘we are doing nothing wrong’. The police took everyone to the police station where they were beaten. The police may have let the others go but were especially interested in him. He was detained for 2 or 3 days and beaten more severely than the previous occasion because it was meant to be retaliation. His wife’s younger brother found someone to bribe to have him released and his family collected the money to pay the bribe. The bribe was over [amount 3] yuan.
Not only was it difficult to elicit the above accounts from the applicant they varied in the following respects from his written statement.
Firstly, the applicant emphasised at the hearing that he was of particular interest to the police on the first occasion because he spoke out. However, he gave no indication in his written statement that he had spoken out or was of particular interest to the police. Asked about that at the hearing the applicant said that the account he had given me was based on his memory rather than his written statement. I do not accept that explanation. The account the applicant had given in his written statement was detailed. It included what he had said to the police once he was taken to the police station. If the applicant had been of particular interest to the police because he had spoken out against them at the gathering then I expect he would have mentioned that in his detailed written statement. It appeared the applicant had sought to embellish his written claims at the hearing by claiming that he spoke out and thus was of particular interest to the police.
Secondly, the applicant claimed in his written statement that the beating he sustained during his first detention resulted in him blacking out, falling to the ground and having so much blood all over his face that his wife cried when she saw him. That seems inconsistent with the evidence the applicant gave at the hearing that his injuries were superficial. When I put that to him at the hearing the applicant told me there may have been an error, that as far as he could recall that (the severe beating) had occurred during his second arrest. Given the applicant was only detained one two occasions I do not find it believable that he would not be able to recall whether it was during his first detention or his second detention that he was beaten so much that he become unconscious and his face was covered in blood.
Thirdly, the evidence the applicant gave at the hearing indicated that he was released from detention on the first occasion merely on the basis that it was his first offence. In response to being asked how he got out of detention on the first occasion, the applicant told me that they said it was a first offence so they wanted him not to do that anymore and let him go. The applicant gave no indication, as he stated in his written statement, that he was released upon making a statement of remorse and paying a fine. Asked why he had not mentioned a statement of remorse and fine at the hearing the applicant said it was too long ago and he could not call it clearly. Given the applicant was detained on just two occasions and he specified clearly in his written statement that he was released on each occasion under specific conditions and was even able to specify the amount of the fine that was paid, I expect the applicant would have been able to recall at the hearing that he was released on the first occasion not just because it was his first offence but also upon making a statement of remorse and paying a fine.
Fourthly, the applicant seemed to emphasise at the hearing that on the second occasion the police recognised him at the gathering and were particularly interested him. However, there was no indication in his written statement that the police recognised him or that he was of particular interest to them. Asked about that at the hearing the applicant said the statement was written long ago and he was not sure whether he had recalled that when he made the statement but he had come to understand that he was targeted because of the grievance the police bore against him. If the police specifically told the applicant the first time he was detained that they regarded him more seriously than the others because he spoke up and then recognised him years later when they picked him up on the second occasion I do not consider it believable that the applicant would not have realised when he wrote his statement in 2015 that the police were particularly interested him but would come to that realisation sometime after that.
Fifthly, the applicant eventually stated at hearing that it was his wife’s younger brother who arranged the bribe to be paid to secure his release from his second detention. According to his written statement several people were involved in arranging the bribe but there was no mention of the brother-in-law being involved. Further, the applicant was vague about how much the bribe was at the hearing saying it was over [amount 3] yuan but specified in his written statement that an initial amount of [amount 2] yuan was paid followed by an additional [amount 3] yuan. Asked about these matters at the hearing the applicant stated that he had always maintained that it was his wife’s younger brother and that he had never mentioned his uncle. The applicant’s written statement and oral evidence clearly contradict that assertion. He also added that he had always said it was about [amount 3] yuan because the money was raised from different people and the figure he had given the authorised officer of [even larger range] yuan included his children’s household registration and the bribe. I do not accept that explanation. The applicant had clearly stated in his written statement that the amount paid for the bribe was initially [amount 2] yuan and then an additional [amount 3] yuan. I have reviewed the evidence the applicant gave the authorised officer. He told her that he spent [the even larger range] on the last occasion to help him get released from the police station. I do not accept that he told the authorised officer that the figure of [even larger range amount] included household registration for his children. Hence the applicant has not ‘always’ said that the bribe was [amount 3] yuan.
Conclusion
In light of the above issues with the applicant’s evidence I find that he was not a credible witness.
Written statements of [Sister A] and [Relative A]
In assessing the applicant’s credibility and claims I have considered the statements of [Sister A] and [Relative A]. However, due to the following concerns about those statements I have concluded that they are not reliable and consequently have given them no weight.
Firstly, when first asked at the hearing who the statements were from the applicant told me they were from two brothers-in-law who were married to his sisters. He said he had called each brother-in-law and asked each one to write a statement and post it to him. However, according to the statements themselves, one is from a [Relative A] and the other from a sister. When I put that to the applicant at the hearing he replied that his sister does not know how to write so her husband probably helped her. I repeated the evidence the applicant had given earlier that both statements were from his brothers-in-law and that he had called each of them and asked them to prepare a statement. The applicant then said it was long ago so he could not recall. I do not accept that explanation. I expect that if the applicant could not recall who the statements were from he would have said so when I first asked him. Further, I do not find it believable that the applicant would not be able to recall who the statements were from if he personally called and requested the statements or that he would not be able to recall whether his own sister had provided a statement in support of something as significant as his application for a protection visa.
Secondly, the statements give an account of the applicant’s second detention in November 2013 but the applicant told me that his brothers-in-law (who he initially said had written the statements) were not present when he was detained on that occasion. When I queried how they could attest to what had happened when they were not eyewitnesses, the applicant said he was not sure if they were present or not because it was long ago. I do not accept that explanation. If the applicant could not recall whether his brothers-in-law were present on that occasion then I expect that is what he would have told me when first asked. It seemed that the applicant simply invented an excuse to avoid the potential of an unfavourable inference being drawn about the reliability of the statements. Further, the applicant, his sister and his [Relative A] indicated in their statements that they moved to Fujian together, and the sister and [Relative A] specify in their statements that the applicant returned to his home place to attend the wedding. Neither the sister nor [Relative A] state that they returned to the home town at that time. It seems implicit then that the sister and [Relative A] did not return to the applicant’s home town at the time he was detained in November 2013 and hence were not present when the applicant was detained on the second occasion.
Thirdly, the applicant’s evidence that his sister could not write indicates that she did not write her statement. Further, the statements are worded almost identically - the only real difference being what his sister and [Relative A] said to the police on [the day in] June 2006.[5] That indicates the statements are not the words or personal statements of each individual. I put to the applicant that this and the other issues I had raised could indicate that the statements were not reliable. The applicant responded that they were personal statements but must have been written together because he asked them to revive their memory so they had to sit down together and put the words down. The applicant’s response does not overcome my concern about the reliability of the statements given they are worded virtually the same and the preceding issues.
[5] Last paragraph of page 1 of the translation of each statement: Department file, ff.7,13.
Nationality
The applicant has consistently claimed that he is a Chinese national. He produced his Chinese passport at the hearing. I thus accept that the applicant is a national of China for the purpose of assessing his claims for protection.
Religion claims
Due to the applicant’s lack of credibility I do not accept the claims he has made relating to his religion. I do not accept that the applicant attended a house church or any religious gathering or engaged in any religious activity in his home town in Jiangxi province or in Fujian province as he has claimed. I do not accept that the applicant was ever picked up, detained or harmed by the police, or that his name has been placed on a list of ‘black names’ as he has claimed. I do not accept that the applicant has attended a church or engaged in any religious activity in Australia. I do not accept that the applicant is a Christian at all. As I do not accept the applicant is a Christian I find that he will not nor would wish to practice Christianity or engage in any Christian religious practice or activity if he returned to China.
Protection visa criteria findings
Having rejected the applicant’s claims and found that he neither will nor would want to practice or engage in any Christian religious practice or activity if he returned to China, I find there is not a real chance the applicant will be mentally or physically persecuted or harmed in any way by the police or authorities in China for the reasons he has claimed. I therefore find that the applicant does not have a well-founded fear of persecution within the meaning of s. 5J and is not a refugee as defined in s.5H. Hence, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), must consider the alternative criterion in s.36(2)(aa). As I have rejected the applicant’s claims and found that he neither will nor would want to practice or engage in any Christian religious practice or activity if he returned to China, I find that there is not a real risk that the applicant will be harmed by the police or authorities if he returned to China for the reasons he has claimed. I thus find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer significant harm. Hence, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mila Foster
Member

ATTACHMENT - 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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2019] AATA 6781

25 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies