1700761 (Refugee)

[2019] AATA 5553

1700761 (Refugee) [2019] AATA 5553 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700761

COUNTRY OF REFERENCE:                   China

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 May 2019 at 1:18 pm (VIC time)

DATE OF WRITTEN RECORD:                3 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 03 June 2019 at 3:39pm

CATCHWORDS
REFUGEE – protection visa – China – religion – banned Christian church – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 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 dependant.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 January 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 3 May 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The criteria for a protection visa are set out in section 36 of the Migration Act and schedule 2 to the Migration Regulations.

4. The applicant is either a person in respect of whom Australia has protection obligations under the refugee criterion or on complimentary protection grounds.  Where relevant, the tribunal has taken into account, the policy guidelines prepared by the Department of Immigration on refugee law and complimentary protection and any country information prepared by the Department of Foreign Affairs and Trade, in accordance with Ministerial Direction No. 56.

   CREDIBILITY

5. I note that before looking at my findings and questions of credit, I need to give the benefit of the doubt, but this should not lead to an uncritical acceptance of any and all allegations made.  It is for the applicant to make their own case, in as much detail as possible.  Greater weight may be given to one piece of evidence as against other evidence and there is no rule that there must be a positive state of disbelief before making adverse assessments.

   FINDINGS AND REASONS

   Country of Nationality

6. The applicant claims to be a citizen of the People’s Republic of China and has provided a copy of her passport to the tribunal with her application. She was born on [date] in Australia and is [an age]-year-old minor. I find the applicant to be a national of China, which is the receiving country for the purpose of refugee and complimentary protection assessments. There is no evidence before the tribunal to suggest that the applicant has a right to enter and reside in any third country, for the purposes of section 36(3) of the Act.

   SUMMARY OF CLAIMS

7. The applicant’s claims to the Department were considered in the Department’s decision of 6 January 2017, which was in response to a visa application of 9 November 2016.  In summary, her parents are from Christian families in China, where they have practised their beliefs from early childhood.  Her parents have continued their religious practice in Australia.  Her parents applied for a protection visa on the basis of their religious beliefs, but this application was not approved by the Department or the RRT, as the applicant’s father did not present his case well at interview.

8. The applicant’s parents’ church is called the [Church] and it has been banned by the Chinese Communist Party.  The church is classified as an evil cult and many of her family’s friends have suffered serious harm or persecution by the Chinese authorities.  Her grandfather, who is a devout [Church] member, was arrested [in] October 2016, by Fuqing public security bureau officers while hosting a church gathering in his house.  He was then detained, beaten and threatened not to participate in church activities.  Her grandfather is fearful that the applicant and her parents may face similar harm and persecution by the Chinese authorities, should they return to China. 

9. I note the applicant has submitted a document to the Department, which was a translation and original of the detention discharge certificate for the applicant’s grandfather, as described.  The tribunal has questioned the applicant in greater detail through her mother, who spoke for her.  Her mother is [Ms A] and the evidence given by the applicant’s mother was as follows.

10. The applicant’s parents were married in Australia.  They have been in Australia since 2008.  They were married in 2011.  The applicant’s mother had not looked at the decision of the RRT of 2012.  She was attached to her husband’s appeal and application and that appeal and application was decided on 2 March 2012, the primary applicant being Mr [B].  The tribunal affirmed the decisions not to grant the applicants protection visas. 

11. I will refer to the applicant’s mother as [Ms A].  Ms [A] could not remember in clear detail the husband’s claims, but could recall general aspects of them.  His parents were persecuted in China on religious grounds.  Ms [A] herself said she was not religious at that point.  The husband’s family were persecuted because of their church activities.  The husband’s family are from Fujian Province, although Ms [A] is not from that province.  Her husband was a churchgoer when he left China.  She did not know how frequently he went to church.  He has gone to church in Australia, most recently for a church gathering in [Suburb], the name of which she did not know.  She did not go herself.  The husband has been to church in the last month.  Ms [A] herself has only been a few times to church. 

12. When asked whether Ms [A] is a Christian, she replied it was a situation of half/half.  I asked Ms [A] what she adhered to and what she did not adhere to.  She said she was interested in the future aspects of the faith, where the church can tell the future.  She said that she was not interested in opinions they have on the past.  The stories of the founders of the religion, she had trouble with.  She knew the central figure of Christianity was Jesus.  Ms [A] said that her daughter, the applicant, had been baptised when the applicant went back to China.  This was in November 2012.  Ms [A], by this stage, was on a [working] visa in Australia and had long hours to work.  She arranged for her daughter, the applicant, to be looked after by a relative for a period of around three years.  It appears that the parents of the applicant, for a brief period, were not living together.  They are living together now.  The applicant’s father had concerns about his visa status. 

13. Ms [A] was asked about whether her husband had been persecuted, to which she replied that he had not, but the parents were persecuted.  He had left China as a student.  He was around about [age].  Her husband’s parents had a family church attendance and meetings.  The police barged in on a meeting, and tortured certain members and in 2016, this happened to her husband’s father.

14. I asked Ms [A] whether she had asked her husband if he had ever been persecuted himself, but she had never asked this.  She added that he was not in Fujian at the time, being [age] years old.  She thought that persecution may have only been occurring in Fujian Province.  I asked Ms [A] whether her daughter, the applicant, could in fact live outside of Fujian in that case.  Ms [A] said that her parents do not acknowledge her relationship or her daughter.  She said the parties had got married too early and her parents did not like this.  Her parents also do not like people from Fujian Province.  There had been some exchange in a video call or video calls. 

15. I asked Ms [A] whether the applicant had been to church.  She said sometimes on a Sunday if other activities were not on.  She said normally there were different classes.  Most of the time, she was doing something else.  Her daughter, the applicant, had been to Sunday school and understood it being about Christianity.  The applicant also went to a church school.  She had also learned about festivals, such as Christmas and Easter.

16. Ms [A] said that she had not discussed Christian matters with her husband.  I pointed out that this, on their case, was an important part of his life.  Ms [A] said that she had pointed out already that she was not religious.  Even if her husband had talked about Christianity, she would not have understood it.  I pointed out that a key feature of Christianity is for its followers to tell other people about it.  I indicated to Ms [A] that in the RRT’s decision of 2 March 2012, it was noted at paragraph 28, that her husband had said he had found peace and confidence when he became a Christian.

17. Ms [A] also had pointed out to her that there were allegations by her husband in their protection application that he had been beaten.  Ms [A] said she was not paying attention and that the matter had nothing to do with her.  She then discussed how her parents were opposed to her marriage and did not want them to be together.  Ms [A] also stated that there had been interpreting or translation problems, which I took as an attempt to reconcile the claim of being harmed by her husband and her statements in the hearing that her husband had not been harmed, it was only his relatives.  Ms [A] agreed her husband read the bible and followed Christian practice.

18. I asked Ms [A] what would happen if her daughter had to go back to China.  She said that she could not take her daughter back to her parents, because of their disapproval and she also had the dilemma of not being able to be with her husband’s family, as they were Christians and faced resultant dangers.  I discussed with Ms [A], the fact that the applicant, as a [young] child, lived in China for three years with a relative and I asked whether the applicant faced any persecution while she was in China for three years.  Ms [A] said no, this had not occurred.  She said that her daughter had not been sent to her husband’s parents but had stayed with her sister.

19. I put to Ms [A] that her daughter had lived in China for a prolonged period without persecution and she replied that her sister could no longer provide lodging and care for the applicant.  I asked Ms [A] whether the church involvement was with an official or unofficial church, to which she replied, “Not official”.  They gather in a person’s home in their basement.

20. The country information from the Department of Foreign Affairs was put to Ms [A] and that is from the DFAT Thematic Report, Fujian Province of 16 December 2016.  With respect to the situation for Christians in Fujian, various sources have consistently reported that Fujian is more relaxed compared to other provinces:

    Individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party.

21. I noted that DFAT further advises that the Communist Party of China is largely indifferent to individual religious practice, although Party members are not permitted to follow any faith, but it does obstruct religious practice at an organisational level.  I went on to note that there was current reporting about Christians in China or Christian practice, which involves strengthening controls on places of worship.  However, I observed that recent information suggests that underground Protestant churches typically maintain a low profile.  Ms [A] replied that a considerable amount of information in China does not get out of China and information about gatherings is hard to trace.  It is not a small gathering.  There are others who go.  Her grandfather was locked up for a few days in 2016.

22. The tribunal is concerned about the statutory declaration made on behalf of the applicant, where it was said under paragraph 4 that, “Mum and Dad are from Christian families in China”, when it appeared that Ms [A] herself was not.  The statutory declaration is of 9 November 2016 and this was put down to a translation error.  However, the tribunal notes that then in paragraph 5 of that same declaration, it reads:

    The church which Mum and Dad had been attending in both China and Australia are called [Church]. 

23. And the tribunal is puzzled about how these errors can keep perpetuating throughout the statutory declaration and is concerned about the credibility of Ms [A]’s evidence.  Ms [A] also added that there would be a difficulty for the applicant if she were returned to China, because she said the marriage would not be registered or properly registered, because she was under the age of 20, the prescribed age.  I asked how this would affect her daughter.  She said the Chinese authorities would not let the Hukou be obtained.

24. The information from the Department of Foreign Affairs about registration was read out to Ms [A] and specifically under 3.109 of the DFAT China report of 2017 and despite these issues, national law determines that children born before 2016 have a right to household registration and access to health and education services and what is more, provinces such as Fujian, prohibit authorities from trying to obtain social compensation fees as a requirement of applying for a Hukou.  Ms [A] said that no one can promise her the fine will not be imposed and added, “How could we afford that?”

25. I also discussed with Ms [A], the role of the applicant’s grandfather in a church, particularly whether or not he was in fact an organiser of the church.  Ms [A]’s response was that although he is perhaps an ordinary member, he has now been promoted from within the church and she disputed whether her daughter could practice Christianity in relative peace.

26. The tribunal is in the invidious position of having the decision of the MRT of 2 March 2012 before it, which deals with the claims fundamentally made by a primary applicant, the applicant’s father, Mr [B].  After apparently thoroughly dealing with the evidence as to that applicant’s Christianity or otherwise, the Senior Member concluded that the tribunal did not accept his genuine commitment to Christianity or that he was Christian, nor did the tribunal accept that Mr [B] participated in unregistered church activities or was mistreated by the authorities in any way.

27. The applicant’s father, Mr [B], according to Ms [A], was unwell and unable to attend the hearing.  The tribunal is unable to ask him questions in detail about his faith or otherwise and the tribunal has concerns about the way in which the information has been presented to the Department and the tribunal, particularly the earlier claim that Ms [A] was involved in Christianity.  The tribunal is also puzzled about how little she knows about the persecution and the apparent alternating between him being persecuted and not being persecuted. 

28. Therefore, this creates doubts as to whether the applicant in fact goes to church and is a Christian.  The tribunal does not have any independent way of verifying her church attendance or her beliefs and due to her age, is concerned that questions about this will mystify her and that she will be unable to give meaningful evidence.  Therefore, the tribunal gives the benefit of the doubt to the applicant and it concludes and finds that she either identifies as a Christian or would be classified or imputed as a Christian.

29. The tribunal nonetheless is still concerned about other aspects of the evidence given in the hearing.  One of those concerns is about how the applicant lived in safety and peace for three years in China recently.  The only main reason it seems, for her no longer living in that situation is because a sister could no longer care for her.  The tribunal’s suggestion that the applicant could live in an area other than Fujian Province was dismissed by the applicant, because of a lack of relationship with family. The tribunal considers that this family here in Australia has been living without wider family for a number of years successfully and can see no credible reason why that would not continue in China. 

30. The tribunal then examined the very speculative situation if the applicant were to live in Fujian Province.  Speculative in the sense that Ms [A] speculated that harm would face her daughter.  Having examined the country information, I have come to the conclusion that restrictions in Fujian are more relaxed than in other provinces.  Ordinary members of churches are at less risk.  Speaking out against the government and being an organiser or an unregistered church is the riskier activity and the tribunal bears in mind that the applicant is [age] and has difficulty contemplating a situation where that would occur, now or in the reasonably foreseeable future.  At one stage, it was put by Ms [A] that her husband was [age] when he left China and he was therefore immune or unaffected by religious problems because of his age.  The tribunal concludes that that type of scenario is likely to occur for her daughter. 

31. The tribunal has also considered the registration aspects of the applicant’s case, which were inserted into the case during the hearing itself and the tribunal notes that aspects such as having a child out of marriage are not touched on by their family arrangements.  It also notes that the applicant is their one and only child and they had not had a child out of wedlock.  Their child has a People’s Republic of China passport and the only breach - if in fact it is a breach - is that Ms [A] married [number] year younger than the prescribed age. 

32. After discussing the national right of children to health and education services, by being born before 1 January 2016, the tribunal finds that the applicant would not be denied those services.  There might be a form of social compensation payable.  Nonetheless, the tribunal can only speculate on the figure and does not accept that the amount would be so crippling to this family as to amount to persecution. Also, the tribunal notes that provinces such as Fujian, prohibit a registartion requirement of paying such compensation.  For that reason, it simply does not accept these claims as grounds that there is a well-founded fear of persecution.

33. While I accept that the applicant has the possibility of being perceived as a Christian in China, I do not accept that she has a well-founded fear of persecution or that others would have that on her behalf within her family.  The parties may face some restrictions on their life in China.  They appear to be family-related restrictions and the final position of the applicant in the future is speculative, I have no reason to believe that she would attract the interests of the authorities in the reasonably foreseeable future.  The tribunal does not accept that if she returns, she would have any chance of being harmed.  The tribunal therefore takes into account, all of the country information and finds that there is not a well-founded fear of persecution for reasons of religion or registration reasons. 

34. Having found that the applicant does not meet the refugee criteria, the tribunal has considered whether the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.  For the reasons set out above, the tribunal does not accept that the applicant would suffer, for reasons of religion, any harm of a significant kind, for having a mother who married one year before the prescribed age or for religious reasons to do with being a Christian or that she is or will be of adverse interest to Chinese authorities. 

35. For the reasons above, the tribunal is not satisfied that the applicant is a person of whom Australia has protection obligations under section 36(2)(a). Having concluded the applicant does not meet the refugee criteria, the tribunal has considered the alternative complimentary protection criteria. The tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations, under section 36(2)(aa). There is no suggestion that the applicant satisfies section 36(2), on the basis of being a member of the same family unit as someone who meets either of these criteria. Therefore, the applicant does not satisfy the criterion in section 36(2).

1. The time is now 1.18 pm and the tribunal makes the following decision.

   DECISION

2. The Tribunal affirms the decision under review.

   Justin Meyer
   Member