1617923 (Refugee)

[2019] AATA 6661

1617923 (Refugee) [2019] AATA 6661 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617923

COUNTRY OF REFERENCE:                   China

MEMBER:L. Symons

DATE:20 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2019 at 2:51pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian Shouter – purportedly targeted by authorities for preaching – new claims raised at hearing – fears harm from relative’s disgruntled customers – delay in applying for protection – inconsistent evidence – credibility issues – fabricated claims to obtain Protection visa – decision under review affirmed

LEGISLATION          
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, arrived in Australia on 5 July 2015 as the holder of a [temporary] visa that was valid until 5 October 2015. On 9 October 2015, he was granted a Bridging A visa in association with his application for a Protection visa. That visa remains in effect and he resides onshore as a lawful non-citizen.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 28 September 2015 and the delegate refused to grant the visa on 30 September 2016. On 27 October 2016, he applied to the Tribunal for a review of that decision. 

4. The applicant appeared before the Tribunal on 10 October 2019 and 31 October 2019  to give evidence and present arguments. The Tribunal heard evidence from his sister, [Ms A]. The hearing was conducted as a joint hearing with the application for a Protection visa lodged by his sister [Ms A], with their consent, as the claims arose from the same set of circumstances. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·     He was born into a Christian family. His whole family are devout Christians and preach the Gospel.

    ·     He and his family gathered together at family gatherings to worship Jesus. They were not able to go to public Churches as these were controlled by the government. Family gatherings are not allowed because there is no religious freedom in China.

    ·     In his home village [family] gatherings were strictly monitored. They had to be very careful when attending family gatherings. Sometimes they attended family gatherings at [Ms B’s] house and sometimes at his house. At the gatherings, they worshiped God, prayed and sang songs together. 

    ·     [In] December 2012, his sister was imprisoned for participating in a family gathering. He was elsewhere at the time and was lucky to survive. She was detained for [a number of] days and fined [an amount of] yuan.

    ·     In May 2013, he was reported for preaching the Gospel and arrested by the Police. He was taken to the local Police Station. The Police tried to persuade him to stop believing in his faith. He was told that the Communist Party is the only true faith and that all other faiths including Christianity are heresy.

    ·     He strongly believes that what he is doing is right and he told the Police that Christianity is not a heresy and it would never endanger the government. The Police hit him and released him after his wife paid a fine of [an amount of] yuan.

    ·     [In] July 2014, he and his sister organised a family gathering at his house. They were reported and although his sister escaped he and the other [siblings] were caught.

    ·     He was sent to a labour camp because he was the organiser. He was forced to undergo introspection without food, sleep and a seat. He felt pain and exhaustion. The Police hit him because he refused to give up his faith. He was scared and in poor health. He was released after paying a fine of [an amount of] yuan and told to stop participating in illegal gatherings for worship.

    ·     He had to report to the Police Station once a week and the Police would also go to his house and search it. He was fearful to live in this atmosphere and wanted to escape from China. He and his sister decided to go abroad.

    ·     He and his sister found a Chinese Church in Australia that gives them a sense of belonging. He has found religious freedom here. He is worried about his wife and son and tried to contact them. They stopped him from returning to China.

    ·     He fears returning to China.

13. The applicant has filed with the Department a copy of the bio data page of his Chinese passport. 

14. The applicant attended an interview with the Department on 3 August 2016. During that interview, he made the following new claims:

    ·     His parents have been devout Christian Shouters for twenty years. His sister became a Christian Shouter in 1999. He became a Christian Shouter in 2011 because of the influence of his mother and sister.

    ·     He spread the Gospel in China. He has been participating in family gatherings in China since 2011 and attended once a week. He was targeted by the authorities because he spread the Gospel at least once a week.

    ·     When he was arrested [in] July 2014, he was put in jail for [a number of] months.

    ·     He has been attending Church in Australia every Sunday since [July].

    ·     If he returns to China he will spread the Gospel. Friends will inform on him to the authorities and he will be imprisoned.

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 30 September 2016. He has also filed with the Tribunal a Weekly Newsletter and a leaflet titled ‘Who is Jesus?’ from [a church] of NSW. 

    Country of reference

16. The applicant claims to be a citizen of China and has provided copies of the bio data page of his Chinese passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the country of reference for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

17. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of claims

18. The applicant gave evidence to the Tribunal that his migration agent prepared his application for a Protection visa based on his instructions which were true and correct. He stated that he is satisfied that his visa application is accurate and complete. He stated that there have not been any changes in his circumstances since he filed his visa application. 

19. During the hearing, the Tribunal discussed with the applicant his background, his family, his employment, where he lived in China, his reasons for leaving China and why he fears returning to China. The Tribunal found aspects of his evidence to be vague, evasive, implausible and unconvincing. There were contradictions within his evidence and inconsistencies between his evidence and his sister’s evidence. He made new claims during the hearing. The Tribunal finds that he is not a credible or reliable witness for the following reasons:           

20. First, during the hearing, the applicant gave evidence that he came to Australia because [one of his sisters] thought that he and his sister, [Ms A] (sister), were not safe in China so she brought them to Australia. When asked why he applied for a Protection visa, he responded that he is afraid to return to China because he will be “chased and killed”. When asked who he fears would do that, he responded that [one of his] sister’s husband ran a [business] for a local gang in Henan Province. He stated that the [business] made people go broke. He stated that the people who went broke will “chase and kill” his brother-in-law and if they cannot find him they will come after him and his sister.

21. The applicant stated that they had a family gathering in [City 1] [in] December 2014 and after that his brother-in-law was assaulted by “those people”. He stated that his brother-in-law was in a coma and his [sister] called an ambulance. He stated that his brother-in-law was taken to [Hospital] at [City 1] and was there for several days. When asked if this assault was reported to the Police, he responded no. He stated that his brother-in-law did not do so because he was running an illegal [business]. He stated that this was the only incident his brother-in-law was involved in. He stated that he had nothing to do with the [business] and was not involved in this incident.

22. The Tribunal asked the applicant why the people who assaulted his brother-in-law would be interested in him. He responded that they have strong family relationships in China and if they cannot find his [sister] they will come after him. When asked whether that was the only reason why he feared returning to China, he answered yes. The Tribunal sought to clarify exactly what his claims for protection were and asked him whether he was relying on the claims he had made previously to the Department. He responded that his previous claims are the same and he might be sent to gaol. He stated that he is afraid that he cannot save his life. When asked why he would be sent to gaol, he responded that he preaches “the Gospel to Christianity’ and it is also called a cult.

23. The applicant’s claims in relation to his brother-in-law, the [business] and the assault are new claims that had not been made previously. He initially stated that this was the only reason he feared returning to China. It was only after the Tribunal reminded him of his previous claims that he indicated that he also relied on those claims.

24. The Tribunal asked the applicant’s sister why she applied for a Protection visa and she gave a different answer. At no time did she mention that her brother-in-law was running an illegal [business], was attacked by unhappy customers and she feared they would come after her. The Tribunal put this information to the applicant and his sister, pursuant to s.424AA of the Act, and noted that the inconsistencies in their evidence raised concerns in relation to their credibility and the veracity of their claims. The applicant declined to respond. His sister responded that the heart of a [certain type of person] is very bad and if they capture a person they will beat the person to death. This response does not address the issue or alleviate the Tribunal’s concerns.

25. Second, the applicant attended an interview with the Department on 3 August 2016. He has filed with the Tribunal a copy of the Department’s Decision Record which indicates that during that interview he claimed that he became a Christian Shouter in 2011 because of the influence of his mother and sister. He claimed that he and his family gathered together at family gatherings in China to worship Jesus. He claimed that they sometimes attended family gatherings at [Ms B’s] house and sometimes at his house. He claimed that at the gatherings they worshiped God, prayed and sang songs together. He claimed that he has participated in family gatherings in China since 2011 and attended once a week.

26. During the hearing, the Tribunal asked the applicant when he became a Christian and he responded 2014. When asked what denomination of Christianity he belonged to, he responded “Jesus”. When asked whether he was Baptised in China, he answered no. When asked whether he was Baptised in Australia, he answered “not yet”. When asked how he practised his religion in China, he responded by spreading the Gospel. His evidence to the Tribunal raises doubts as to whether he was a Christian Shouter in China. Despite claiming in his visa application that he became a Christian Shouter in 2011, he was unable to tell the Tribunal what denomination of Christianity he belonged to and gave the Tribunal a different date in relation to when he became a Christian. The Tribunal would also expect that if he was a Christian in China, he would have been Baptised in China. If, for whatever reason, he was unable to be Baptised in China, the Tribunal would expect him to have sought Baptism as soon as possible after he started attending Church in Australia.

27. These issues raise concerns for the Tribunal in relation to his credibility and the veracity of his claims.

28. Third, in his visa application, the applicant claimed that his whole family were devout Christians. He claimed that they gathered together to worship Jesus in family gatherings and did not attend public Churches as they were controlled by the government. He claimed that family gatherings were not allowed and were strictly monitored. He claimed that they had to be very careful when attending family gatherings. He claimed that his sister was gaoled [in] December 2012 for participating in a family gathering.

29. During the hearing, the applicant gave evidence that the Church he attended was banned  [in] April 2014 because it was illegal. He stated that prior to that date there were no problems practising Christianity openly.

30. In her visa application, the applicant’s sister claimed that she attended family gatherings which were held in her friend [Ms B’s] house or at the applicant’s house. She claimed that she had to be careful when attending gatherings. She provided the Tribunal with some documents including photographs, a Sunday Worship Program and a Letter of Undertaking. The photographs are of a [Cathedral] being demolished and another Church which is built in a more modern style. She stated that the modern Church is not the Church she attended. She stated that that was an official Church. She stated that she attended the [Cathedral]. The Letter of Undertaking refers to an ancillary building to [Church 1] being demolished from [April] 2014 and the [Named Organisation] rectifying the roof and façade of [Church 1]. It refers to the plans being passed by the Church, the [Named Organisation] and the Country government and it being finalised by [April] 2014.

31. The Tribunal put this information to the applicant and his sister, pursuant to s.424AA of the Act, and noted that this evidence tends to indicate that the Church they attended was an official Church and that this was not consistent with the claims made by both of them that they attended family gatherings in people’s homes. The Tribunal noted that this raised concerns in relation to their credibility and the veracity of their claims. The applicant declined to respond. His sister responded that, in the beginning, the Church was supposed to be demolished but only part of the Church was demolished. She stated that the person in charge did not want to sign the document but was beaten, arrested and put in detention. Her response does not address the issue raised with her or alleviate the Tribunal’s concerns.

32. The Tribunal is of the view that this documentary evidence tends to indicate that the applicant’s sister either attended an official Church (and this is supported by the photographs, Letter of Undertaking and Sunday Worship Program provided) or she obtained these documents and provided them to support her case even though they had no relevance to her. In either case, it raises concerns in relation to her credibility and the veracity of her claims.

33. These issues also raise concerns in relation to the applicant’s credibility and the veracity of his claims.

34. Fourth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record which indicates that during his interview with the Department on 3 August 2016 he claimed that his parents have been devout Christian Shouters for twenty years. He claimed that he and his family gathered together at family gatherings to worship Jesus. He claimed that in his village family gatherings were strictly monitored and they had to be very careful when attending family gatherings. He made no claims in relation to his parents having any problems with the Chinese authorities.

1. During the hearing, the applicant gave evidence that his parents became Christians 20 years ago. He stated they attended gatherings in their home and preached the Gospel. When asked whether his parents had any problems with the Chinese authorities, he responded that they were sometimes summoned by the Police. When asked how many times this happened, he initially responded that he could not remember and then stated many times.

2. The applicant’s sister attended an interview with the Department on 3 August 2016 in relation to her application for a Protection visa. During that interview, she stated that her parents are devout Christians and spread the Gospel to their close friends. She stated that her parents did not experience any difficulties with the Chinese authorities. However, she gave evidence to the Tribunal that the Police gave her parents trouble. The Tribunal put this information to the applicant and his sister, pursuant to s.424AA of the Act, and noted that the contradictions in their evidence raised concerns in relation to their credibility and the veracity of their claims.

3. The applicant responded that his parents are very old. When the Tribunal reiterated that he was being given an opportunity to explain why he changed his evidence, he responded that he did not change his evidence and had nothing else to say. His sister responded that she did not change her evidence. The Tribunal does not accept their responses and they do not alleviate the Tribunal’s concerns.

4. Fifth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record which indicates that during his interview with the Department on 3 August 2016 the claimed that his sister became a Christian Shouter in 1999. In his visa application, he claimed that [in] December 2012 his sister was imprisoned for participating in a family gathering. He claimed that he was elsewhere at the time and was lucky to survive. He claimed that she was detained for [a number of] days and was fined [an amount of] yuan.

5. During the hearing, the applicant gave evidence that his sister became a Christian about 23 or 24 years ago. When asked whether she had any problems with the Chinese authorities, he responded that she was sometimes summoned by the Police. When asked how many times she was summoned by the Police, he responded that she was summonsed once [in] December 2012 for spreading the Gospel at home. He stated that the Police told her not to spread the Gospel and fined her the sum of [amount] yuan. He stated that she paid the fine on the following day and left the Police Station. When asked whether anything else happened to his sister, he responded no.

6. These inconsistencies in the applicant’s evidence in relation to when his sister became a Christian Shouter and for how long she was detained by the Police in December 2012 raise concerns in relation to his credibility and the veracity of his claims.

7. Sixth, during the hearing, the Tribunal asked the applicant about his claims that his sister spread the Gospel. When asked who she spread the Gospel to, he responded that she spread the Gospel to other Christians. When asked how that was ‘spreading the Gospel’, he showed the Tribunal two leaflets that were issued by a Church in Australia. When the Tribunal pointed out to him that the leaflets were issued in Australia, he responded that they have similar material in China. When asked what was written on the leaflets (in China), he responded that they asked people to “attend Christianity”. When asked to clarify what that meant, he responded that they asked people to “believe in Jesus and convert”. He stated that “Brothers in the Church” (in China) drafted the leaflets and he and his sister went to a printing shop in [City 1] and had them printed.

8. During the hearing, the applicant’s sister gave evidence that people in the Church in China printed the leaflets in a printing shop. She stated that the leaflets referred to Jesus and invited people to come and listen to preaching. She stated that she distributed the leaflets. Her evidence contradicts the applicant’s evidence in relation to who printed the leaflets and what was written on the leaflets.  

9. The Tribunal put this information to the applicant and his sister, pursuant to s.424AA of the Act, and noted that the inconsistencies in their evidence raised concerns in relation to their credibility and the veracity of their claims. The applicant and his sister declined to respond.

10. The Tribunal finds it implausible that the applicant would have printed religious material in a printing shop in [City 1] if it was unlawful to do so thus putting himself at risk of being reported to the Chinese authorities. The Tribunal also finds it implausible that he would have taken such a risk when all that the leaflets said was ‘believe in Jesus and convert’.  The Tribunal finds it even more implausible that the leaflets would have invited people to attend and listen to preaching (and presumably provided details of where and when they could do so) if the family gatherings were held in secret and were strictly monitored by the Chinese authorities as he claims. His failure to mention the leaflets in his visa application raises further concerns in relation to the credibility of these claims.

11. Seventh, in his visa application, the applicant claimed that he spread the Gospel in China. During the hearing, he made a new claim that he converted more than 10 people to Christianity in China. When asked how he spread the Gospel in China, he responded that he did so by printing leaflets that said “believe in Jesus and convert”. He stated that he would walk up to people in the streets in his home town and hand out the leaflets. When asked how providing someone with a leaflet that says “believe in Jesus and convert” would convince them to convert to Christianity, he responded that he told them to believe in Jesus and God. When asked whether that was all he said to them to make them convert to Christianity, he answered yes. When asked whether he had converted anyone to Christianity in Australia, he answered no.

12. The Tribunal finds the applicant’s evidence to be implausible for several reasons. The Tribunal finds it implausible that he would have distributed leaflets in his hometown, in public and to people in the streets if it put him at risk of coming to the adverse attention of the Chinese authorities. The Tribunal also finds it implausible that he thought that a leaflet that said “believe in Jesus and convert” would convince a non-believer to convert to Christianity. Further, the Tribunal finds it implausible that this resulted in him converting 10 people to Christianity in China. His failure to mention this claim in his visa application raises further concerns in relation to the credibility of these claims.

13. Eighth, in his visa application, the applicant claimed that in May 2013 he was reported to the Police for preaching the Gospel and was arrested by the Police and taken to the local Police Station. He claimed that the Police accused him of publicising evil beliefs and tried to persuade him to stop his beliefs. He claimed that he told the Police that Christianity is not heresy, it leads people to be good and would never endanger the government. He claimed that the Police hit him and released him after his wife paid a fine of [a certain amount of] yuan.

14. The applicant has filed with the Tribunal a copy of the Department’s Decision Record which indicates that during his interview with the Department on 3 August 2016 he stated that he was arrested by the Police in May 2013 and detained for 24 hours. In her visa application, his sister claimed that he was arrested and detained in May 2013 for one week. During the hearing, the Tribunal asked him whether he had any problems with the Chinese authorities. He responded yes and referred to an incident on 4 July 2014. When asked whether he had any other problems with the Chinese authorities, he responded no. His failure to mention the incident in May 2013 is of concern to the Tribunal.

15. The Tribunal put this information to the applicant and his sister, pursuant to s.424AA of the Act, and noted that these inconsistencies in their evidence raised concerns in relation to their credibility and the veracity of their claims. He declined to respond. His sister responded that it did happen. The Tribunal does not find her response to be persuasive and does not accept it.

16. Ninth, in his visa application, the applicant claimed that [in] July 2014 he and his sister organised a family gathering at his house. He claimed that they were reported and although his sister escaped he and the other [siblings] were caught. He claimed that he was sent to a labour camp because he was the organiser. During the hearing, he gave a different version of events. He stated that [in] July 2014 he was sent to gaol because he was spreading the Gospel. He also stated that his sister was not present on 4 July 2014.

17. In her visa application, the applicant’s sister claimed that [in] July 2014 she and the applicant were reported for holding a gathering at his house, he and others were arrested but she managed to escape. However, during the hearing she gave evidence that after the incident [in] December 2012 when she was arrested and detained she had no further contact with the Chinese authorities. She also gave evidence that the applicant was arrested [in] July 2014 because he refused to sign a document.

18. The Tribunal put this information to the applicant and his sister, pursuant to s.424AA of the Act, and noted that these inconsistencies in their evidence raised concerns in relation to their credibility and the veracity of the claims. Both the applicant and his sister declined to respond.

19. Tenth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 30 September 2016. It indicates that during his interview with the Department he claimed that when he was arrested [in] July 2014 he was gaoled for [a number of] months. He gave evidence to the Tribunal that he is satisfied that his application for a Protection visa is accurate. In his application for a Protection visa (question 82), he stated that he resided at the same address in [City 1] from [date] (when he was born) until July 2017 (when he left China to come to Australia). The Tribunal would expect that if he was in gaol for [a number of] months in 2014, he would have indicated this in his visa application. His failure to do so raises concerns in relation to his credibility and the veracity of his claim.

20. Eleventh, the applicant and his sister gave evidence to the Tribunal that they were satisfied that their respective applications for Protection visas were accurate. In his visa application (question 87 on Form 866C and question 3 on Form 866B), the applicant stated that he had been found guilty or convicted of a crime [in] July 2014 and May 2013. He stated that he was the subject of an arrest warrant or Interpol Notice. In her visa application, his sister stated that she had been found guilty or convicted of a crime [in] December 2012 and was the subject of an arrest warrant or Interpol Notice.

21. The Tribunal put this information to the applicant and his sister, pursuant to s.424AA of the Act, and noted that, if this was the case, it is highly unlikely that either of them would have been issued with a passport or allowed to leave China. The Tribunal noted that this raised concerns in relation to their credibility and the veracity of their claims. The applicant declined to respond. His sister responded that when they left China their whole family prayed that the almighty God would help them to leave China. She stated that they continued to pray because they were afraid they would not be able to leave. This response does not address the issue raised by the Tribunal or alleviate its concerns.

22. Twelfth, in his visa application, the applicant claimed that he was born into a Christian family. He claimed that his whole family are devout Christians and preach the Gospel. He gave evidence to the Tribunal that he had a Bible in China and sometimes read it. He stated that he also has a Bible in Australia and reads it sometimes. He stated that he first started attending Church in Australia [in] July 2015. (This was [a number of] days after he arrived in Australia). When asked the name of the Church he went to, he looked at a piece of paper and stated that it was in [Named Suburb]. He stated that he did not know the address. He stated that he now attends a Church in [Suburb 1]. When asked when he started attending the Church in [Suburb 1], he responded 2016. He stated that he does not know the address of the Church in [Suburb 1] because he does not speak English. When asked the name of the Church, he responded “[Suburb 1] meeting area”. When the Tribunal noted that it was not the name on the leaflet he provided the Tribunal ([name deleted]), he responded that it should be.

23. The Tribunal asked the applicant the denomination of the Church he attended. He responded that it is Christian and they believe in Jesus. When the Tribunal pointed out that all Christians believe in Jesus, he did not respond. When asked how often he attends Church, he responded “once a week sometimes”. He stated that when he has time he goes to Church on Sundays. When asked what he does at Church, he responded that he listens to the “speech” by the priest and to the songs they sing. He stated that he spreads the Gospel in Australia by distributing bilingual leaflets. When asked if there was anyone from his Church who was at the hearing, he answered no.

24. The Tribunal asked the applicant what the difference was between the Old Testament and the New Testament. He responded that he can understand the New Testament but cannot understand the Old Testament. He stated that the difference is “not very big” and the New Testament is easy to understand. When asked his favourite story from the Old Testament, he responded “like Jesus”. He then stated that he did not remember. When asked his favourite story from the New Testament, he responded “the Last Supper of Jesus”. When asked why this was his favourite story, he responded because he was betrayed by others. When asked what Christianity means to him, he responded that he can be saved if he believes in God. When asked what it is that he believes in, he responded that because he believes in Jesus he will allow him to be safe. When asked whether he would practice Christianity if he returned to China, he responded yes. When asked why, he responded because he believed in Jesus the whole time.

25. The Tribunal does not purport to be an arbiter of Christian doctrine. Nor does the Tribunal expect the applicant to have a sophisticated understanding of Christian theology. However, in view of his claims, the Tribunal expects him to have a basic knowledge of the Bible such as the difference between the Old Testament and the New Testament. His poor knowledge of the Bible is not consistent with his claims. This raises concerns in relation to his credibility and the veracity of his claims.

26. The Tribunal raised this as an issue with the applicant. He responded that when he attended gatherings he only listened to what they said about the Bible or to the hymns and “did not read the Bible exactly”. The Tribunal reminded him of his earlier evidence that he had read the Bible and asked him whether that was not true. He responded that it was true. These contradictions in his evidence exacerbate the Tribunal’s concerns in relation to his credibility.

27. Thirteenth, the applicant’s conduct is not consistent with his claims. The records of the Department indicate that he arrived in Australia [in] July 2015 on a [temporary] visa that was valid for 3 months. He did not apply for a Protection visa until 29 September 2015 a few days before his [temporary] visa expired. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that if he was at risk of harm in China he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. The Tribunal noted that his delay in applying for protection may lead it to the conclusion that he lodged an application for a Protection visa to extend his stay in Australia and not because he is in need of protection.

28. The applicant responded that when they came to Australia they did not know how to lodge an application for protection. The Tribunal does not accept his explanation. He has proved himself to be very resourceful in his ability to find accommodation and employment in Australia despite his claim that he does not speak English. He claims to have started attending Church 3 days after he arrived in Australia. He would have been able to speak to the priest or other Church goers or colleagues at work to find out information about where he could get immigration advice. His conduct raises concerns in relation to his credibility and the veracity of his claims.

29. The Tribunal raised as an issue with the applicant its concerns that he is not a genuine Christian. He declined to respond.

    Other considerations

30. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

31. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

32. The Tribunal accepts that the applicant was born on [date] at [City 1] in Zhejiang Province in China. The Tribunal accepts that he got married in 1990 and has an adult son. The Tribunal accepts that his son is married and has a child.

33. The Tribunal does not accept that the applicant was born into a Christian (Shouters) family, that his whole family are devout Christians who preach the Gospel and that he was a Christian in China. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he came to Australia because his brother-in-law ran an illegal [business], was beaten up by unhappy customers and he feared harm from those customers.

34. The Tribunal does not accept that the applicant has been attending Church in Australia every Sunday since [July] 2015. The Tribunal accepts that he has attended Church in Australia. On the evidence before it, the Tribunal is not satisfied that he is a genuine Christian. The Tribunal does not accept that he will seek to practise Christianity on his return to China now or in the foreseeable future.  

35. The Tribunal does not accept that the applicant is of adverse interest to the Chinese authorities or to Interpol. It follows that the Tribunal does not accept that there is an outstanding arrest warrant or Interpol Notice for him.

36. The Tribunal does not accept that the applicant left China for the reasons claimed or that he fears returning to China for the reasons claimed.

37. The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?   

38. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his religion or any other reason set out in s.5J(1)(a) of the Act if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary      protection criterion?

1. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

2. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.    

3. 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 as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

4. 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) or s.36(2)(aa) of the Act.

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

   DECISION

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

L. Symons
         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.

…