1620972 (Refugee)

[2020] AATA 3779

1620972 (Refugee) [2020] AATA 3779 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620972

COUNTRY OF REFERENCE:                   China

MEMBER:Angela Cranston

DATE:26 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2020 at 12:00pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Local Church (Shouters) – membership and activities – injured by police – father arrested and sentenced to labour/re-education camp – brother holds protection visa – credibility – inconsistent and unconvincing evidence – limited church attendance in Australia in order to strengthen claim – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

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 dependants.

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 15 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

3.    The Tribunal’s reasons for decision appear in the Consideration of Claims and evidence section.   The applicant’s evidence appears immediately below.

4.    The applicant who claims to be a citizen of China, applied for the visa on 1 March 2016. In his application, he stated the following:

On [date], I was born in [Village 1], [town], Fuqing City, Fujian Province, China. I am the youngest child of my parents. I have one brother and one sister. My brother [Mr A] ([date of birth]) is currently in Australia. My brother is the holder of protection visa as he is regarded as a person whom Australia has protection obligations under the Refugees Convention as amended by the Refugees protocol.

I was mainly brought up by my mother, because my father spent many years in Guiyang city, Guizhou Province, where was quite far away from my hometown in Fujian. In 2005, my mother converted to a Christian of the Local Church (a.k.a. Shouters) when she worked in a [shop] run by [Ms B] who was in charge of a sister gathering group of the Local Church. The Local Church is regarded as evil cult by the PRC authorities. Considering our safety, my mother did not let us, including me, my brother as well as my sister, get involved in the activities of the Local Church while we were very young. Therefore, I did not attend any gatherings of the Local Church before 2010.

When I was about [age] years old in July 2010, my mother arranged me to attend a secret youth Bible study group of the Local Church, just like that she had done for my brother previously. [In] February 2011 I was baptised. I have become a genuine Christian of the Local Church since then.

[In] March 2011, my father was arrested by the Public Security Bureau. He was regarded a leader of evil cult and accused of organising illegal gatherings together with another evil cult leader [Mr C] who ran a [shop] in Guiyang City. In the end, my father was sentenced to 2 years re-education through labour and [Mr C] was sentenced to 3 years re-education through labour. [In] April 2011 they both were sent to [Labour Camp 1].

My mother, as well as some of church sisters and brothers of the Local Church, did their best to save my father and [Mr C] with a lot of money, but they were unable to get successful. On the contrary, my mother and some of relatives or friends who had close relationship with my family were implicated by my father’s case. They were subjected to investigation by the PSB. My mother was questioned by the police for many times.

When my parents got into troubles with the PRC authorities, I was studying in [year] for my junior high school courses at [Middle] School. I was subjected to serious discriminations at school. I was questioned, warned and threatened by the teachers. I was humiliated, abused and bullied by students. It was really difficult for me to concentrate on my study. Therefore, I did not go to a senior high school after I reluctantly completed my junior high school courses at [Middle] School in July [year].

During following two years, I had to remain at home, assisting my mother to do farm work. My entire family lived in difficulties. Furthermore, the police always kept their eyes on my family as my father was kept in [Labour Camp 1]. We had to consider our own safety, and we were also afraid of bringing troubles to other members of the Local Church. Therefore, we dared not to attend gatherings of the Local Church, but had to study Bible and pray to Lord Jesus at home secretly.

In April 2013 my father was released from [Labour Camp 1]. However, my family’s situation was not changed at all. Instead the police paid much more attention to us, because my father was regarded as a dangerous person who used to be a leader of the evil cult. On the other hand, I was [age] years old at the year but it was very difficult for me to find any normal jobs owing to my family’s special background. In order to let me have a chance to start a new life my parents arranged me to go to Beijing and worked together with [Mr D], a church brother of the Local Church.

In August 2013 I arrived in Beijing. [Mr D] rent a unit at [address], Liulitun, Chaoyang District Beijing. He opened a small [business] along [named] Road where was close to his residential place. The [business] was called [business name]. [Mr D] arranged me to work at his [business] and lived together with him. At the restaurant, I did general jobs, such as [job tasks]. Major customers of the [business] were the people from Fujian who studied or worked in Beijing including students at the universities, staffs at the companies, businessmen or construction workers.

From then on I spent more than two years in Beijing. During this period, I not only worked and lived together with [Mr D], but also assisted him to develop secret gathering groups of the Local Church in Beijing. Until November 2015 [Mr D] totally established 4 secret gathering groups of the Local Church in Beijing including a student’s gathering group and three normal gathering groups. Each gathering group had around 20 members. [Mr D] was an elder for all gathering groups. I was a liaison person taking responsible for liaison with different gathering groups.

[In] December 2015,[Mr E], a responsible brother for the student gathering group who studied at [a university] who was a responsible brother for the student group was arrested by the police as he was suspected to spread evil cult among the students.  [Mr D] tried his best to save [Mr E] in every possible ways. Meanwhile [Mr D] had to consider my safety. As a liaison person of the Local Church I had contact with [Mr E] frequently, and he knew me very well. If [Mr E] confessed to the police I would certainly become a target of the police. Just for in case, [Mr D] firstly asked me to leave Beijing and hide in a church brother’s home in Fujian. He then organised my trip to the overseas through his friends.

Following days many church brothers or sisters of the Local Church in Beijing not only in the students gathering group but at other gathering groups as well were subjected to investigated or even arrested by the PSB. [Mr D] had to close his [business] and left Beijing in the end as he was also in great danger. [In] December 2015 I was arranged by [Mr D]’s friend to leave China from Fuzhou. However shortly after that [Mr D] and his wife [Ms F] were arrested by police in Sichuan.

My parents got big troubles again. They were taken to the PSB and subjected to interrogation by the police because the police wanted to know whether my parents had supported my illegal activities of the evil cult in Beijing behind me.

Since I arrived in Australia, I have been attending the Local Church regularly and actively. 

5.    Also on the departmental file is a letter dated 23 October 2016 identified as being from the Local Church stating that the applicant has been meeting with the Church since January 2016 and purportedly signed by [Mr G] and [Mr H]. Also provided were photos of the applicant wearing various bandages including on his head and arm and photos of people, presumably including the applicant, sitting on crates mostly reading, although in some photos their hands are together and they are without reading material. Other photos show people, presumably including the applicant on chairs reading.

6.    The delegate refused to grant the visa and the applicant applied for review.

7.    The applicant appeared before the Tribunal on 5 August 2020 by MSM Teams (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a NAATI Level 3 interpreter in the Mandarin and English languages.

8.    The applicant stated he came to Australia in January 2016. He also stated that his lawyer had completed the protection visa application in English after the applicant had told him the answers. He had also repeated his answers back to him in Mandarin and they were correct.

9.    The applicant stated that prior to arriving in Australia, he had lived in Beijing since 2013, and before that,  at [Village 1] with his parents and older siblings since birth. He stated that when he was at home in [Village 1], his father left for Guizhou to become a contractor of [a] project when the applicant was 14 and had been away from 2008 until 2013. When asked if he left at any other time, he stated no. When asked if he was always there other than when he left to become a contractor, he repeated that he was away from 2008 until 2013. He also stated his mother had always been at home and had never left.

1. The applicant stated he did farm work between 2011 and 2013 and worked on a construction site for one or two months in 2012. He then went to Beijing.

2. The applicant stated he was harmed by police during his second year at the construction site in 2012. The Tribunal put to him he had just said he was working at the construction site for one month. The adviser then stated the applicant had said he had been working there in 2010 and was misinterpreted. The interpreter denied that and said she had heard ‘second year’ at the construction site.

3. The applicant stated he had been reported to police who stated he was trying to spread the cult at the construction site. The applicant stated he had done this.  When asked about his injuries, the applicant stated he had hand injuries, that is a bone in his hand was cracked. He confirmed that he had no other injuries.

4. The Tribunal put to him he told the Department he was beaten unconscious, his left arm was fractured and his head was bleeding. He agreed. The Tribunal put to him that sounded different from what he had just said which was that a bone in his hand was cracked. He stated his memory escaped him when he felt nervous. The Tribunal also put to him that it did not understand, if his father was imprisoned why he did not indicate that as a reason why his father was away from home. The Tribunal put to him that in his statement he had said his father was arrested in March 2011 and released in August 2013 yet when asked at hearing if his parents were at home when the applicant was at home he said his father was away working. He stated his father was in a detention centre in [Labour Camp 1]. The Tribunal put to the applicant he had said his father was working between 2008 and 2013. He stated the question was about whether his father was at home and not about anything else.

5. The Tribunal put to the applicant that if his father had been arrested because he was a Local Church member then why would the applicant be trying to convert people on a construction site. He stated because people were here to glorify God. The Tribunal put him that if he was trying to convert people on a construction site then why didn’t the police arrest him. He stated because someone reported him to the police but they didn’t have any other evidence. The Tribunal put to him that a first-hand account sounded like substantial evidence. He stated he could deny it and there was nothing they could do. The Tribunal put to him his father was in prison and he had been identified as proselytising on a construction site. He stated they didn’t have anything substantial and couldn’t prove it.

6. The Tribunal asked if he had any other interactions with the police other than on the construction sites and he stated there was another occasion in Beijing when a man was arrested by police but when further asked if there were any other interactions that he had had with police, he stated no. The Tribunal put to him that it understood that he had told the Department of Immigration that he had been asked to assist with police investigations five or six times after his father was arrested in March 2011. He agreed and stated that he thought the question was about matters that concerned him personally and not generally. The Tribunal put to him why the incident on the construction site and the police’s request for his assistance in investigations not included in his protection visa application. He stated it probably was.

7. The applicant confirmed that he became a Local Church member because of his mother who became a member of the Local Church in 2005. His father became a Local Church member probably in 2009.

8. The applicant stated his father was in prison between 2011 and 2013. When asked if his mother ever visited his father in prison he stated no. The Tribunal put to him that his brother said his mother visited his father once in jail. He stated he was not aware of that so how would he know. The Tribunal put to him that may be something that his mother would tell him. He stated he didn’t think parents would tell a young child.

9. The applicant stated he came to Australia because someone at the church was arrested and he was that person’s liaison officer and he feared that the authorities would become aware of him. He stated he could not return to China because he might face persecution from the Chinese authorities who would consider him a cult member. There were no other reasons.

10. The applicant also stated his older brother was in the Local Church.

11. The applicant stated he attended the church in Australia and that they knew that he was applying for a protection visa. The Tribunal put to him that when he talked to the Department of Immigration he told them they did not know and that he did not know who [Mr G] or [Mr H] were even though they had given him a support letter. He stated he thought the question was referring to something else and did not think the question was about whether he knew them.

12. The applicant stated he did not celebrate Christmas or Easter. The Tribunal put to him it understood that he told the Department that he originally said no and then said he only celebrated festivals mentioned in the Bible and then said he celebrated Easter. He stated he thought that this was the first time he had been asked that question. He then stated he thought his response was he didn’t celebrate Christmas or so forth.

13. The Tribunal put to the applicant that it had concerns about whether he was a Local Church member either in China or Australia . The Tribunal put to him that when it initially asked if his father spent time away from home he had said that his father spent time away from home for work from 2008 to 2013 and his brother told the Refugee Review Tribunal that in November 2011 his mother had gone into hiding. He stated he was too young to remember or know anything about that and his parents withheld certain things from him but his brother was probably old enough to know. The Tribunal put to him that his brother had said in November 2011 his mother had gone into hiding and travelled around China in order to avoid been arrested. The Tribunal put to the applicant that he said he was on a construction site and started preaching and the police turned up and cracked a bone in his hand however none of that was his protection visa application and it may find he told the Department that he sustained other injuries at that time. The Tribunal also put to him that it may find it difficult to accept the police didn’t arrest him at that point if they had witnesses telling them that he was trying to convert them and his father was in prison because he was a Local Church member. The applicant stated if he had the financial resources he could get his own witnesses and did the Tribunal think they could convict him.

14. The Tribunal also put to the applicant that his brother had said that his mother visited his father once when he was in jail but the applicant did not say that to the Tribunal. He stated he was too young and he may have been emotionally impacted by such news. The Tribunal put to him that he would have been [age] at the time. The Tribunal also put to him that at the Departmental interview he said that the Local Church did not know he was applying for a protection visa and he did not know who [Mr G] or [Mr H] were even though he had produced a support letter from them. The Tribunal also put to him that he initially told the Department that he did not celebrate Christmas and Easter but then his evidence changed and he said he celebrated Easter. The applicant stated the question had not been put to him previously and the first time he been asked was by the Tribunal. The Tribunal put to him it may not be satisfied that he was a Local Church member either in China or Australia or that anything had happened to him or his family in China. The Tribunal put to him that it still had to think about his activity in Australia and had looked at the photos but may not be satisfied that he had been attending the Local Church in Australia for the period claimed, that he may attended once or twice. It also indicated it was unsure what the photos showed. The applicant stated that he had provided all the material he had and if the Tribunal formed the view that there were concerns then what could he do.

15. The Tribunal put to him it had to think about the fact that his brother had obtained a protection visa on the basis that he was a Local Church member. The Tribunal put to him that just because his brother got a protection visa did not mean that the applicant was a member of the Local Church.

16. The Tribunal indicated it needed to think about whether the applicant was a genuine Local Church practitioner and if not, then it would discount any Australian activity for the purposes of the refugee definition but would still need to consider it in relation to significant harm.  The Tribunal talked to the adviser and indicated that it had to think about the applicant’s activities in Australia but would also need to consider whether the Chinese authorities would know about those activities and if they did know whether they would be interested.

17. Following the hearing, the Tribunal sent the following:

Number of times you allegedly interacted with police
At an interview between you and the Department held on 27 October 2016 where you
stated that you understood the interpreter, it is orally recorded that the following
conversation occurred:
Q. Were you ever harmed or arrested or detained by the authorities in China

because of your religious activities?
A. Yes
Q. what happened to you?
A. sometimes I was asked to help them to do the investigation. Sometimes I
would be monitored by the police
Q. who asked you to assist in the investigation?
A. police.
…
Q. Earlier on you spoke about being asked to assist investigations and been
monitored?
A. That was because of my father.
Q. So when was this?
A. I can’t remember exactly. In 2011 my father was arrested [in] March 2011.
Q. Your father was arrested [in] March 2011?
A. Yes.
Q. And these demands on you to assist in the investigation did this happen
before or after your father’s arrest?
A. After.
Q. How often did you encounter this sort of request?
A. 5 to 6.
Q. 5 to 6 times? You also mentioned been monitored. How were you been
monitored?
A. just feel that I am been stalked, I don’t know where.
Q. Why do you feel as if you were been monitored?
A. Well for example if someone had been watching over you, you would have a
feeling.
This is relevant because the Tribunal may find it inconsistent with what you stated at
hearing on 6 August 2020 which was when asked if you had any interactions with
police other than on the construction site and in Beijing, you stated no. If the Tribunal
finds your answers inconsistent, then subject to your comments the Tribunal would
affirm the decision under review.

Injuries you sustained when the police allegedly harmed you
At departmental interview on 27 October 2016 it is orally recorded the following
conversation occurred:
Q. Where were you hit before you became unconscious?
A. On my arm and on my head
Q. Which arm were you hit on?
A. Right.
Q. Are you sure? you seem quite hesitant about which arm was hit on?
A. Yes.
Q. You said that you were hit on the head and on the right arm and became
unconscious. Were you given medical treatment?
Q. Yes.
….
Q. Did you sustain injuries?
A. Yes.
Q. Did you have any fractures or cuts, lacerations requiring stiches?
A. No, the wound was not big and no stiches.
Q. What treatment did you have?
A. The head was bleeding so it was dressed, and the left arm was fractured and then plaster was applied.
Q. You just mentioned the left arm was plastered, prior to that you said it was your right arm that was injured?
A. My right hand.
Q. Are you sure, was it your left, or right, or was it both?
A. Right.
Q. Your right arm? Did you just indicate it was your left arm?
A. My right arm, I didn’t indicate left, I indicated right.
Q. How long did you have plaster on your right arm for?
A. One month
This is relevant because it may be inconsistent with what you stated at hearing on 5 August 2020 which was that a bone in your hand was cracked but that you had no other injuries. If the Tribunal finds your answers inconsistent, then subject to your comments the Tribunal would affirm the decision under review.

Your mother’s whereabouts in China while you were in China
A Refuge Review Tribunal decision records that [Mr A] told the Tribunal at hearing on 20 December 2011 that in November 2011, his mother had to go into
hiding and travelled around China to avoid being arrested, that she was currently in
Yunan Province.
This is relevant because the Tribunal may find that your brother’s statement is
inconsistent with what you stated at hearing which was that when you were in China,
your mother was always at home. If the Tribunal finds the answers inconsistent, then
subject to your comments the Tribunal would affirm the decision under review.

Your brother’s evidence about whether your mother visited your father in prison
A Refuge Review Tribunal decision records that [Mr A] told the Tribunal at
hearing on 20 December 2011 that your mother had only been able to visit your father
once in jail.
This is relevant because at hearing you stated that your mother did not visit your father
in jail which may be something you would know if it had occurred. If the Tribunal finds
this, then subject to your comments the Tribunal would affirm the decision under
review.

Your evidence at interview in relation to your Local Church activities in Australia
At an interview between you and the Department held on 27 October 2016 it is orally
recorded the following conversation occurred;
Q. You have a letter here from the Local Church in Sydney from [Mr G]
and [Mr H]. Who are these people?
A. I don’t know.
Q. These people have written a letter confirming that you have been meeting
regularly with the church since January of this year? Do you know them
personally?
A. I’ve never heard of these English names...
Q. Does your church in Australia, the Local Church know you are applying for a
protection visa?
A. No

This is relevant because the Tribunal may find at interview, you, as opposed to your
agent, did not display a knowledge of the people who wrote a letter of support for your
case and you also stated that the Local Church did not know you were applying for a
protection visa. If the Tribunal finds this, then subject to your comments the Tribunal
would affirm the decision under review.

Your knowledge of the Local Church
At an interview between you and the Department held on 27 October 2016 it is orally
recorded that you said:
Q. In your church do you celebrate Christmas and Easter?
A. No
Q. Is there any reason you don’t?
A. Because our Local Church only celebrate the festivals mentioned in the Bible
Q. Which festivals do you mean?
A. Easter
Q. I asked you if your church celebrated Christmas or Easter and you indicated
no they only celebrated festivals mentioned in the Bible. So which festivals
mentioned in the Bible does your church celebrate?
A. Sunday. I don’t think there is anything else. Maybe there is something but I
don’t remember.
This is relevant because the Tribunal may not be satisfied that you displayed a firm
knowledge of Local Church beliefs that is consistent with your alleged practice. If the
Tribunal finds this, then subject to your comments the Tribunal would affirm the
decision under review.

1. The Tribunal received the following response:

I accept that I said no when I was asked if I had any interactions with police other than on the construction site and in Beijing at the hearing on 5 August 2020. I also accept that my evidence given the hearing might be inconsistent with my previous evidence given at the interview with the Department on 27 October 2016.

At the Tribunal hearing I misunderstood the question put to me by the Tribunal. I thought what the Tribunal asked was whether I had interacted with police due to my involvement in the Local Church (a.k.a. shouters). So, I stated no.

As a matter of fact, I did get into troubles with the police after my father was arrested in 2011 because the police wanted me to assist their investigation against my father. I interacted with police for about 5 to 6 times. I also felt that I was monitored by police.

Injuries

I accept my evidence given at the Tribunal hearing in relation to my injuries owing to having harmed by police, might be inconsistent with my evidence given at the Departmental interview.

I have to say that it is really hard for me to explain the inconsistencies. I did forget something when I was asked about my injuries by the Tribunal at the hearing.

In fact I was seriously harmed by police. In support of my evidence, I submitted photos which were taken at a clinic after my injuries in China, to the Department before the departmental interview (please see appendix A).

My mother’s whereabouts in China

I accept my brother [Mr A] told the Tribunal at his hearing that my mother had to go into hiding and travelled around China to avoid being arrested and she was in Yunnan at that time. I also accept that my brother’s evidence might be inconsistent with my evidence given at the Tribunal hearing.

Frankly speaking, when I was asked about my mother at the Tribunal hearing I really forgot my mother’s whereabouts after my father’s arrest. It could be for various reasons. I might be too nervous to fully understand Tribunal’s question. Or, my mother did not want to let me know too much at that time, because she thought that I was still a child. Or, I was actually just a student at a junior high school when my entire family got into big troubles owing to my father’s case. I might be too young to remember what had exactly happened to my family during the particularly difficult period. As a matter of fact, I was also implicated deeply by my father’s case. I suffered a lot and experienced many difficulties. I even had to stop my schooling and went to Beijing in the end. But as a young man, I always believe that I should forget the past, live the present and dream the future. So, I really want to annul all unpleasant memories of my life. This may be another reason why I could not recall my mother’s whereabouts when I was asked at the Tribunal hearing.

My mother’s visit to my father in prison

I accept my brother told the Tribunal at his hearing that mother visited my father once when he was imprisoned. I also accept that my brother’s evidence might be inconsistent with my evidence given at the Tribunal hearing.

Again, it could be for various reasons. I might never know it at all. As I stated at the Tribunal hearing, I did not think that parents would tell everything to their children. Or, I was still young at that time, and thus I was unable to remember everything happened to my family during the particularly difficult period. Or, I really want to annul all unpleasant memories of my life.

My church activities in Australia

I do not accept that I have no knowledge of the people who wrote a letter of support my application because I certainly know that the letter was written by responsible brothers of our Local Church in Sydney.

As a matter of fact we normally call one another as brothers or sisters in our Local Church and communicate with one another in Chinese. So it is obviously not unusual that I do not know their English name, such as English names of those responsible brothers.

The Local Church certainly knew my applying for protection visa. Otherwise they would not write a supporting letter for me. Unfortunately, I misunderstood the question put to me at the Departmental interview.

Knowledge of the Local Church

At the departmental interview I clearly indicated that our Local Church did not celebrate Christmas and Easter from the beginning, and that our Local Church only celebrated the festivals mentioned in the Bibles. When I was further asked about which festivals, I wanted to say the Lord’s Day (a.k.a. Sunday) but saying Easter instead. It was a mere tongue slip. Particularly, I corrected it immediately. I clarified that it was Sunday and I did not think there is anything else.

Others

in China I was a member of the Local Church. In support of my evidence I did provide photos about my church activities in China to the Department before the Departmental interview (please see appendix B).

My brother [Mr A] is a holder of protection visa (subclass 866) as he is regarded as a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He has already spent more than 12 years in Australia since he left China in 2008. He has never ever dared to return to China because he is really afraid of being subject to persecution by the Chinese government.

Just like my brother I do indeed have a well-founded fear of been subject to persecution and return and I am a genuine refugee.   

1. Also provided were the original photos of the applicant wearing various bandages including on his head and arm and photos of people, presumably including the applicant, sitting on crates mostly reading, although in some photos their hands are together and they are without reading material.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

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

3. In his protection visa application, the applicant stated that he was brought up by his mother because his father spent many years in Guiyang city, Guizhou, that in 2005 his mother converted to a Christian of the Local Church and that when the applicant was about [age] years in July 2010, she arranged for him to attend a secret youth Bible study group and [in] February 2011 he was baptised. He also claimed to have become a genuine Christian of the Local Church since then. He further claimed that [in] March 2011 his father was arrested and sentenced to 2 years re-education, that his mother did her best to save him but was unsuccessful, that she was investigated and questioned by the police many times, that the applicant was subjected to discrimination at school and after school in July 2011, remained at home to assist his mother with farm work. He stated that after his father was released in April 2013, the applicant went to Beijing where he became involved with [Mr D] and the Local Church. He also stated that [in] December 2015, [Mr E] was arrested and [Mr D] organised for the applicant to hide and then go overseas but [Mr D] himself as arrested.

4. However at hearing, the applicant stated that his father left for Guizhoul to become a contractor of [a] project and was away from 2008 until 2013 and that his mother was always at home and never left.

5. While the applicant stated he understood the question at hearing to be about when his father was at home, the Tribunal finds it difficult to understand why the applicant stated at hearing that his father was away from 2008 until 2013 because he left for Guizhoul to become a contractor if the reason why his father was away from March 2011 until 2013 was because he was arrested in March 2011 and imprisoned until 2013. In addition, although he stated in his statement that he was mainly brought up by his mother and at hearing said she was always at home and had never left,  this is inconsistent with what his brother told the Refugee Review Tribunal which was that in November 2011 his mother went into hiding and travelled around China in order to avoid been arrested. When this was put to the applicant at hearing, he stated that he was too young to remember or know anything about that and that his parents withheld certain things from him, but his brother was probably old enough to know.

6. Following the hearing, the applicant stated he accepted that his and his brother’s evidence might be inconsistent and indicated that could be for various reasons, that is it was because he really forgot his mother’s whereabouts after his father’s arrest. He also suggested that he might have been too nervous to fully understand the Tribunal’s question or that his mother did not want to let him know too much at that time or he might have been too young to remember or that he wanted to annul all of the unpleasant memories of his life.   

1. The Tribunal finds the applicant’s cascading explanations unconvincing.  The Tribunal does not accept that the applicant, who was [age] in November 2011, was too young to remember his mother’s whereabouts if, as he initially claimed, she was always at home and never left.  Either his mother was always at home and never left or, after November 2011,  she was not and the applicant’s further explanations that his mother did not want to let him know too much or that he wanted to annul the unpleasant memories of his life do not explain the applicant’s evidence at hearing which was that his mother was always at home if she was not. Neither does the Tribunal accept the applicant’s post hearing submission that the applicant might not have fully understood the Tribunal’s question. That is because the applicant did not raise this as an explanation for the inconsistency at hearing and, having listened to the exchange, the Tribunal is satisfied that the conversation flowed in a way that was consistent with someone who not only understood, but answered the question.

2. At hearing, the applicant also stated that he was harmed by police even though he failed to mention that and any of his other 5 or 6 alleged interactions with the police in his statement. He also stated at hearing that he had been reported to police who accused him of trying to spread the same cult that had led to his father’s imprisonment, although he stated eye witness accounts of his conversion attempts were nothing substantial and not enough evidence to persuade the police to arrest him. When the implausibility of this was put to him at hearing, the applicant said that he could get his own witnesses and did not think they could convict him. The Tribunal does not accept that eye- witness accounts of the applicant’s attempts to persuade people to join a criminal cult is insubstantial evidence, especially given that the applicant is allegedly the son of a convicted cult member who (according to his statement) was also regarded as an evil cult leader. In addition, the applicant’s evidence in relation to the other details of this alleged incident are unconvincing, that is the applicant provided inconsistent evidence in relation to the injuries he allegedly sustained when the police harmed him, that is he told the Department that his head was bleeding and his right, but later his left arm was fractured but told the Tribunal a bone in his hand was cracked.  The applicant stated post hearing that he forgot when asked about his injuries and in support, provided a number of photos showing bandages around his head and arm. Given the applicant’s failure to even mention the incident in his statement followed by his clumsy attempts to explain why he was not arrested by the police followed by his inconsistent evidence in relation to his alleged injuries, the Tribunal does not believe the applicant when he states that these photos are evidence of the alleged injuries.

1. All in all, the Tribunal finds that the applicant’s evidence about this alleged incident is  indicative of someone who is fabricating his claims rather than recalling an event that has occurred and the Tribunal does not accept that this incident occurred.

2. The Tribunal has also considered whether it accepts that the applicant’s father was in prison. In reaching its conclusion, the Tribunal has considered the applicant’s overall evidence in relation to his father’s alleged arrest and conviction. Firstly, the Tribunal has considered whether it accepts that the applicant was approached by police in relation to their investigation into his father as he claimed before the Department, however despite the fact that his protection visa states that his mother, relatives and friends were questioned many times, the applicant failed to mention his own alleged interrogation by the police and when specifically asked at hearing if he had had any other interactions with the police before the alleged interaction on the construction site, he said no. In addition,  there are the applicant’s clumsy and discredited claims that he himself was not arrested for being a cult member even though his father had allegedly been sentenced to 2 years re-education through labour for being an evil cult leader. The Tribunal has also considered the applicant’s evidence at hearing which was that his mother never visited his father in prison even though his brother told the Refugee Review Tribunal she had visited their father once. When this was put to the applicant at hearing, he stated he wasn’t aware of that and he didn’t think parents would tell a young child everything. Post hearing, he repeated this explanation adding that he wanted to annul all unpleasant memories of his life.

3. While the Tribunal has considered the applicant’s response, it also considers that it is more likely that if the applicant’s mother did visit his father in jail and if the applicant’s brother knew that, then it would be something that the applicant, who was over [age] when his father was allegedly detained, would also know.

4. The Tribunal’s overwhelming sense of the applicant’s evidence is that he is not talking about events that have occurred.  Although the applicant has provided photos of himself and others sitting on crates mostly reading although in some of the photos their hands are together and they are without reading material, the Tribunal does not believe the applicant when he states that these photos are evidence of his alleged Local Church activities in China.  

5. In summary, the Tribunal does not accept that the applicant’s mother arranged for him to attend a youth Bible study group of the Local Church when he was about [age] or that he was subsequently baptised. The Tribunal does not accept that he became a genuine Christian of the Local Church since then. The Tribunal does not accept that his father was arrested or sentenced to 2 years re-education through labour or that his parents got into trouble with the PRC authorities or that his mother went into hiding, or that the applicant was discriminated against at school. Neither does the Tribunal accept that the applicant nor anyone else was asked by police to help with their investigations nor that the applicant attempted to proselytise on a work site and was reported to police and beaten.  The Tribunal does not accept that the applicant developed a secret gathering group of the Local Church in Beijing or that he or anyone else was subjected to investigation or arrest as a result. Neither does the Tribunal accept that the applicant’s parents were approached by the PSB because of the applicant’s alleged activities in Beijing.   

Activities in Australia

1. The applicant stated that since his arrival in Australia he has attended the Local Church regularly and actively however at departmental interview, the applicant told the Department that the Local Church did not know he was applying for a protection visa and he did not know who [Mr G] and [Mr H] were, even though his protection visa application included a letter purportedly signed from them that said that the applicant had been meeting regularly with the church since January 2016. When this was put to the applicant for comment at hearing, he stated that Local Church brothers and sisters communicated with one another in Chinese, so it was not unusual that he did not know their English name and that the Local Church certainly knew he was applying for a protection visa otherwise they would not have written a supporting letter for him, however his answer to the Department at Departmental interview, where he confirmed he understood the interpreter was exactly the opposite. While the applicant has suggested that he misunderstood the Department’s question, there is nothing in the exchange between him and the Department to suggest that the applicant was confused, that is he did not ask for any clarification before answering the question immediately and his answer to the question suggests that he did understand. The applicant’s answer to the Department suggests to the Tribunal that not only was he unaware of who [Mr G] and [Mr H] were, he was also unaware that there was a letter from the Local Church in support of his protection visa application. While the Tribunal accepts that a plausible explanation for not knowing [Mr G] and [Mr H]’s name could be that the applicant’s Local Church communicates in Chinese, there is no explanation before the Tribunal as to why the applicant answered that the Local Church did not know he was applying for a protection visa when there was a letter from the Local Church in support of his visa application.

2. The Tribunal also finds that at Departmental interview, not only did the applicant’s answer in relation to what festivals his church celebrate change, his explanation in relation to the question became uncertain and vague, that is he initially stated they did not celebrate Easter, but then said they celebrated festivals mentioned in the Bible that included Easter, but then nominated Sunday as a festival mentioned in the Bible and did not think there was anything else but also said he did not remember. Post hearing the applicant stated he wanted to say the Lord’s Day rather than Easter which was a slip of the tongue. In the Tribunal view, the applicant’s answer to the Department lacked the certainty of someone who organically knew the answer because of the lived experience of someone who had been attending the Local Church since his arrival in Australia.

3. In sum, the Tribunal does not find the applicant credible and does not accept that he is a genuine Local Church member who has any genuine desire or intention to practice his faith in the reasonably foreseeable future. In reaching this conclusion, the Tribunal accepts that the applicant may have attended the Local Church in Sydney but finds he has done so in order to strengthen his protection visa claims and not for the periods claimed. Given his limited attendance, neither does the Tribunal consider that his attendance will be known to the Chinese authorities. While the Tribunal accepts that the applicant’s brother left China in 2008 and has been in Australia for more than 12 years and was granted a protection visa on the basis that he is a member of the Local Church, the Tribunal does not accept that the applicant’s family in China are Local Church members or that they have suffered any harm either because they are Local Church members or because they have been identified as Local Church members or because the applicant’s brother left China in 2008 and has been in Australia for more than 12 years and was granted a protection visa on the basis that he is a member of the Local Church.  Given this, neither does the Tribunal accept that the applicant will suffer harm if he returns to China because his brother was granted a protection visa.

1. Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will be persecuted for a refugee reason.

2. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

4. The Tribunal has rejected the applicant's claims of past harm and is not satisfied that the applicant is a genuine Local Church member who has any genuine desire or intention to practice his faith. While the Tribunal accepts that the applicant may have attended the Local Church in Sydney, he has also done so in order to strengthen his protection visa claims and not for the periods claimed. Given his limited attendance, neither does the Tribunal consider that his attendance will be known to the Chinese authorities. While the Tribunal accepts that the applicant’s brother left China in 2008 and has been in Australia for more than 12 years and was granted a protection visa on the basis that he is a member of the Local Church, the Tribunal does not accept that the applicant’s family in China have suffered any harm either because they are Local Church members or because they have been identified as Local Church members or because the applicant’s brother left China in 2008 and has been in Australia for more than 12 years and was granted a protection visa on the basis that he is a member of the Local Church.  Given this, neither does the Tribunal accept that the applicant will suffer significant harm if he returns to China because his brother was granted a protection visa.

5. The Tribunal is not satisfied that the applicant faces a real risk of significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. 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

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

Angela Cranston
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…