1701799 (Refugee)

[2020] AATA 932

1701799 (Refugee) [2020] AATA 932 (16 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701799

COUNTRY OF REFERENCE:                   China

MEMBER:Angela Cranston

DATE:16 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 March 2020 at 12:05pm

CATCHWORDS

REFUGEE – protection visa – China – imputed political opinion – complaints against corruption by employer and district official – beating and second applicant’s miscarriage – religion – conversion to Christianity in Australia – credibility – inconsistent evidence – delay in applying for protection – church attendance to strengthen claim for protection – decision under review affirmed

LEGISLATION          

Migration Act 1958 (Cth), ss 5J(6), 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.

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 20 January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants who claim to be citizens of China, applied for the visas on 6 May 2016. In the application, the primary applicant stated as follows:

My name is [the first applicant] and I was born on [date] in Fushun City Liaoning province. My wife is [the second applicant] and she was born on [date] in Chaoyang City Liaoning province. My wife and I had to leave China as we were persecuted by Chinese government. We departed from China via Shanghai [in] November 2015 and arrived Melbourne [the next day in] November 2015 on tourist visa. Now both of us live in Sydney. Our 3 month tourist visa has expired but we intend to lodge an application for subclass 866 protection visa due to our special reason. We hope that we can be protected by Australian government.

My wife and I both worked in [Company 1] in Tianjin city. The legal representative of the company is [Mr A]. The company is located in [Town] Wuqing district Tianjin City. This company mainly operates [a] service and the annual average revenue is about RMB [Amount]. I am the [Occupation 1] in [Department 1] and my wife is [an Occupation 2] in [Department 2].

As a [service] enterprise, it transforms from a traditional [service] to a modern [service] under the impetus of economic globalisation and electronic commerce. The characteristics of a modern [service] are strengthening the integration of resources and the optimisation of the whole [service] process and the core of a modern [service] is information technology. The [service] enterprise plays a critical role in the economic development in the city. [Mr A] saw the numerous opportunities beyond the [service] industry and therefore started his [service] business. Additionally the district [official] of Wuqing District is [Mr A]’s [relative] which supports his business to a large extent. It is very common to establish the business model of combination of government and businessmen. [Mr A] started operating his business without getting a valid operating license. But the associated departments such as administration and [another department] shut their eyes to the fact as they clearly knew the special kinship between [Mr A] and the district [official]. According to the national law many projects require the tendering system. But our company became the monopoly in this industry because the functional departments of the government received the benefits from [Mr A]. Many of the officials received numerous commissions from this. There were various problems during the [service] [process]. Moreover there were many jerry built constructions existing due to bad quality of [materials] which directly threatened people’s life. The financial accounts in the company had been in a mess all along and I didn’t know where exactly the profits went. The collusion between government and businessmen like [Mr A] had become severer and the complaints are heard everywhere. The most disappointing was that our employees do not get any bonus at the end of the year while [Mr A] himself was getting a lot.

[My wife] and I have working in this company for many years as old employees in this company. Both of us have been working hard all the time and we also have contributed a lot to the development of the company. We could not bear the collusion and bribery between the officials and [Mr A]. Also, we have persuaded them to operate the company in a legal way for many times. Our kind and considerate heart not only not help to change his behaviour, but also to get them even angry. Because of this, [Mr A] often cursed and threatened us. In the early of 2015, [my wife] and I did not want to go along with them in their evil deeds so we went to the city authorities for complaining about illegal behaviour of [Mr A], the district [official] and other officials. I hope that the city authorities is able to inspect the corruption strictly and not to be tolerant the evil. However, I have never thought about that both my wife and I were suffered the revenge from both the district and city. My [pregnant] wife was beaten which resulted in abortion. I also usually was threatened and hit badly. In contrast, nothing was happened to [Mr A] as he still enjoyed his life very much in Wuqng district. And now I totally understand that [Mr A] and the officials in the district and the city are in the powerful network constituting the dirty interests chain. We are experiencing a hardship and we have no one to complain about because Chinese officials shield one another.

My wife and I are despaired and disappointed about the cruel reality completely. [In] November 2015 in order not to be persecuted in China we fled secretly to Australia after my wife had a miscarriage. I know that the Australian government is democratic and the environment here is safe and peaceful. I hope that this land can be our shelter. Now we dare not return to China because we know too much about the inside story of [Mr A] and other associated officials. We will face very disruptive situation once we back to China. They even said that just a car accident could let us disappear forever. At the time I arrived in Australia I didn’t know about the protection visa. I was so worried after our visitor visa was expired. One day I accidentally found the information on the Internet. Therefore I lodge the application for my wife and me immediately. I really appreciate for your help in understanding because we will only be safe in Australia.

3.    The delegate refused to grant the visas and the applicants applied for review.

4.    The primary applicant and secondary applicant appeared before the Tribunal on 31 January 2020. The Tribunal spoke to the applicants about giving evidence and the secondary applicant was also given the opportunity to give evidence. The parties also chose for the secondary applicant to remain in the room while the applicant gave evidence.

5.    The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant stated he came to Australia [in] November 2015 on a visa that ceased after three months in February 2016. The Tribunal put to him that it understood the visa ceased [later in] November 2015. He stated he did not know and was told that he had a three month visa. The applicant stated he married [in] April 2015 and went [overseas] in June 2015 for around [number] days on his honeymoon. He stated his current wife had been pregnant but lost the child in [2015].

7.    The applicant stated he applied for a protection visa in May 2016.

8.    The applicant stated a friend wrote his answers and statement in English and repeated what had been written and it was correct. He did not want to add or change anything.

9.    The applicant stated his last job in China before he came to Australia was as a [service] team member where he had worked from 2008 until he left China in November 2015. He then stated he worked up until the end of September. When asked why he had just said he worked up until he departed China he stated he was persecuted and had no way to resign. He also stated that his wife worked in the same company but after she was hospitalised in August she didn’t work.

10.      The applicant stated he and his wife had faced violence but his family did not, that is he once faced violence in July 2015 and his wife faced violence in August. He stated that when he was about to leave work and go home a dozen people stopped his car, pulled him from it and hit and beat him which caused the loss of [a] tooth. When asked about other injuries he stated his body was beaten, he had serious injuries and his body was full of blood and he went to a clinic for treatment. He then stated it was only a skin injury that was not so light because he had been beaten heavily. When asked for more information and whether the clinic had told him what had happened to him he stated the serious injury was his [tooth]. The Tribunal put to him he had just said that his body was full of blood and asked him about that. He stated after a certain period his body recovered and he had treatment for his tooth. When asked what the clinic told him about his injuries, he stated he did not have severe internal injuries. When asked about his treatment he stated he was cleaned with alcohol and had a dressing and his tooth was treated.

11.      The applicant stated he was beaten because he had lodged a report against the people who beat him [in] March 2015 with Tianjin Peoples Government. He stated he was a party member and people were sent to see him. When asked if he complained to anyone else he stated he approached the government twice because at the end of 2014 he found an agreement between the [service] team; [Mr B] and [Mr C] and the Wuqing District. The Tribunal put to him that in his statement he mentioned someone else and he stated that the general manager was [Mr A]. The Tribunal put to him that in his statement he said there was an agreement between [Mr A] and Chinese officials and he agreed and said he discovered this at the end of 2014. When asked how he discovered it he said he found an agreement between three parties that said [materials] from his company would be mixed with fake goods and sold to the government. When asked who signed the agreement he stated [Mr A] and [Mr C] who was [an official] of Wuqing district, that is the agreement was between his organisation and a city official. When asked why they would sign a document that let everyone know they were corrupt he stated they didn’t trust each other and took their own copy to restrain each other. When asked how they would do that given that it could not be enforced he stated everyone had their own evidence and they were all in the same boat.

12.      The applicant confirmed that the first time he found out that the organisation he was working for was corrupt was in 2014. The Tribunal put to him that he told the department that he knew in 2009 when a [structure] collapsed. He stated he discovered evidence in 2014. The Tribunal put to him that the 2009 [structure] collapse was not in his statement and it imagined the collapse of a [structure] which he thought his company was responsible for because of corruption would be a significant event. He stated there was too much information.

13.      The applicant stated he came to Australia because he was afraid of being persecuted by company officials and local officials and after discussing this with his wife they decided to find somewhere else to live. He also stated that the power of these people was very big. When asked why it took time to apply for a protection visa he stated when he came he did not understand, they needed to survive and somewhere to live and later he had assistance from a friend. He said in China he had heard that Australia could accept them.

14.      When asked if there was any other reasons why he could not return to China, he did not identify any other claims.

15.      The secondary applicant also stated there were no other specific reasons why they could not return to China except for the incidents occurring in Wuhan city.

16.      The Tribunal then put to the applicants that it was having difficulty accepting what the first named applicant said was true, that is it may find he had delayed in applying for a protection visa, his application said he worked for the company until October 2015 but at hearing he said he worked for them in November and it may find it difficult to find that a company that he said he complained about continued his employment. The Tribunal also put to him that it may find that his evidence about his injuries was vague, and that it was difficult to accept that people would record their criminal activity in a written contract that could then be found. The Tribunal also put to him it may find it difficult to accept that somebody who thought a [structure] had collapsed because of their company’s misconduct in 2009 would then wait until 2015 to complain to authorities, or that if he found evidence at the end of 2014 that he would then wait until March 2015 to report that evidence to authorities.

17.      The applicant stated that in 2009 he knew but had no evidence. He also stated his injury made him panic. He also stated that when he found the agreement at the end of 2014 and lodged his complaint in 2015 he had been thinking about his future. He also stated he was a Communist party member and should have done more for the people. He stated he delayed in applying for a protection visa because he was unfamiliar and had a language barrier. He also stated his statement was not complete and he just wrote down some major points and expected to say the rest at interview. The second named applicant did not want to add anything.

18.      When asked if there was anything else he wanted to say he stated he witnessed democracy and had learnt skills in Australia.

19.      The applicant then stated he was Christian, that in June 2019 he went to church and was baptised in September. He stated since he entered Church he attended Sunday service every week where he could learn the word of God. When asked where he practised his Christianity he stated an Anglican Church in [Suburb] that had English and Chinese services but could not name the Church and attempted to refer to written material. When asked how he practised his religion he stated every Sunday he attended worship where they sang hymns, read the Bible, listened to the Pastor’s sermon and made an offering. The Pastor also offered prayers, and they had communion. He also stated he had memorised the Lord’s prayer and the disciples words.

20.      When asked if he could name any Christian festivals, he said Passover. When asked if there was anything else, he said he was new to Christianity and had only read the New and Old Testament. When asked if he could recall any important Christian dates he said the most important dates were Christmas and Easter and the most important was the birth of Jesus Christ. When asked what he could say about Easter he said Jesus shed his blood and died for us on the cross. When asked about the lead up to when Jesus died he said Jesus was born 2000 years ago and was 33 when he died. When asked about the week before Jesus died, he said Jesus washed the feet of all the apostles and during supper said this is my body and the cup was his blood. When asked about the Sunday before Jesus died, he was unable to elaborate and said he only knew Jesus was betrayed and crucified.

21.      The Tribunal asked the applicant if he knew three stories Jesus told and the applicant asked if the Tribunal was referring to miracles. The Tribunal asked the applicant if he thought the miracles of Jesus were the same as his stories and the applicant repeated the question. The Tribunal again asked and the applicant said Jesus told the story of St John the Baptist, and the temple. When asked about the story of the temple the applicant said within three days he would build the temple.

22.      When asked why he was a Christian he stated because his wife requested a Bible when she was hospitalised in June last year.

23.      The Tribunal then put to him that the Sunday before Jesus’s death was called Palm Sunday and was when Jesus entered Jerusalem on a donkey.

24.      The Tribunal put to him it had to think about whether he was a Christian or whether he had attended a Christian church for the purposes of his protection visa application in which case the Tribunal would discount any attendance for the purposes of deciding whether he was a refugee but would still think about his attendance in relation to whether he would suffer significant harm if he returned to China but it also needed to think about whether the Chinese authorities would know of his attendance and if so, then whether they would care. The applicant stated he came to Australia in 2015 but went to church in June 2019 and if his purpose in doing so was to obtain a visa he should have attended earlier. He said he did not study the Bible a lot and could not remember many things but he had given himself up to the Lord

25.      The second named applicant stated they read the Bible every day but they could not remember it. She said she felt awful before she went to church but afterwards felt joyful but their belief was only for a short time.

26.      The Tribunal asked for the baptism certificates.

27.      Following the hearing, the Tribunal wrote to the applicants pursuant to section 424A as follows:

[The first applicant]’s alleged discovery that the company he worked for was corrupt
At departmental interview on 14 December 2016, the following conversation occurred between [the first applicant] and the department:
Q. you say that there were activities happening between the officials and [Mr A], is that correct?
A. Yes.
Q. when did you know, when did you find out about the activities…?
A. I discovered this on [in] July 2009 when [a structure] collapsed destroying [number] of my company’s vehicles and killing [number] personnel including [number] drivers and [number] supervisors...
This accident was not unnoticed by the central government however [Mr A] using his position and of variety of bribery managed to hide the fact from the central government.

This is relevant because the Tribunal may find [the first applicant]’s answers different from what he said at hearing which was that the first time he found out that the organisation he was working for was corrupt was at the end of 2014.
If the Tribunal finds this, then subject to your comments, the Tribunal would find that
[the first applicant] is not credible and affirm the decision under review.

Your visa status
According to departmental records, you arrived in Australia [in] November 2015 on a three month visa that ceased [later in] November 2015. You did not apply for a protection visa until 9 May 2016.
This is relevant because if the Tribunal finds this, then subject to your comments, it would find that your delay in applying for a protection visa would be part of the reason it would affirm the decision under review.

28.      The Tribunal received the following response:

About the [structure collapse accident] you mentioned in the immigration department on 14 December 2016, you said it happened [in] July 2009 but changed to the end of December 2014.
Why?
Answer: The accident where a [structure collapsed] happened [in] July 2009. At that moment, my company had [number] vehicles and [number] drivers and [number] escort guards. They were all killed in that accident which shocked the state council of China. [Mr A] used his connections and bribes to cover things up. From that accident, I knew that [Mr A] had had some illegal income but I didn' t have any evidence.

At the end of December 2014, I went to [Mr A]' s office to report my work and pick up some documents. I accidentally found a three-party contract:
General Manager of Tianjin [Company 1]: [Mr A]
[Official] of Wuqing .District, Tianjin: [Mr C]
[Company 2] of Tianjin: [Mr B]

The content of this contract is the detailed evidence of their illegal income. For example, it contains the evidence that they adulterated the [material] and used the remaining waste for residential ‘development. These acts are serious crimes, so this contract is truly the evidence of that.  Therefore, the above are two different things.' I knew about the accident of 2009 but didn’t have any evidence. What I found in 2014 is the real evidence. And I didn’t amend the date of that accident.

2. My visa expired [in] November 2015, but why did I not apply for a renewal until 9 May 2016?
Answer: My wife and I had been under persecution in China because [Mr A] asked his powerful government officials and his mafia-type friends to threaten and assault us. They also hinted that they would "create a traffic accident to make me disappear". We were very fearful and sad. [In] July 2002 I joined the Chinese communist party. I strictly followed the party s principles and rules and tried my best to carry out my obligations and duties as a party member. I had sincerely worked for the party, but when I raised my hand to report corruption based on the party principles, what awaited me was their persecution. Why is that? I have always put this question to myself. Although we flew to Australia, we were actually fleeing our country after our lives had been under great risk. When I first came to Australia, I didn't know anybody, I don' t speak English, and encountered many obstacles, so I had to grope and learn little by little until I met a friend from our home town. He introduced a friend who can write in English for me. I didn't have much money, so I only gave him a meal and bought a pack of cigarettes for him.
That is why I didn't apply until 6 May 2016 after getting his assistance.
Dear Judge, it hasn't been easy for my wife and I to be living in an unfamiliar environment. Both of us have been deeply hurt in China. We don't understand much about Australian law. All we could do is to explore little by little and ask many questions for fear of getting hurt. We always worry about not being accepted by the Australian government. Thank you for your letter. Besides this statement, I have also written a letter to you expressing what I have experienced. Please read it also.

1. Also included was the following letter:

   I have been in Australia for over four years. My biggest reflection or achievement from this period is the transformation in my spirit and soul where I have changed from a Chinese communist party member to a real Christian.

   I was baptised on [in] September 2019, which is a significant turning point of my life. The reason for changing my faith is a traffic accident [in] January 2019 when I was driving to make a trip with [my wife]. My wife got a serious physical injury, and also suffered from a great psychological trauma after being shocked in the accident. She couldn't sleep at night and thought of killing herself several times. Later the doctor had to refer her to a hospital. In order to distract her from thinking about the accident and improve her condition, the psychologist of the hospital suggested we read the Bible. So we went to a church. There we felt so warm and welcomed like going back to our own family. This experience alleviated our feeling of hardship from these years of leading a wandering life outside China. We felt we've
   found our home. And we have become accustomed to a new life of going to church, studying in a community group and praying. Many of our prayers have been answered by the Lord, further strengthening our belief that God is calling and protecting us. My wife's condition was improving day by day. She gradually became happy again as she had been before. Thanks and praises be with our God!
   [In] December 2019 during the Christmas time, l went to a beach with friends for holiday. I like to swim, sol swam in the sea. All of a sudden, an undercurrent pulled me down. I tried to swim towards the shore and struggled with the current desperately. The shore seems so far away, and I became exhausted. Nobody could see me struggling. I was in despair and almost succumbed to the sea. My life was to come to an end like this. At that moment, I thought of Lord Jesus and cried out. Lord Jesus, save me. Lord Jesus, save me! And then a huge wave came behind my back and pushed me towards the shore. Then another wave came. These two waves were like a pair of warm hands, pushing me towards the shore.
   Thanks and praises to my Lord Jesus. It is he who saves me from death. I no longer live for myself but Jesus Christ lives in me. My life is given by Lord Jesus. Lord, I know I am a sinful person. I beg you to save me with Jesus' precious blood and forgive my sin. Let me live in you. I will study the Bible well, equip myself, and complete my mission of spreading your gospel so that those who haven't followed Jesus Christ will accept your grace without any sacrifice and live in the joy of Jesus!
   Dear judge, I hope you can understand my feeling of this moment. I give my thanks and praises to the Lord because he brought me from China in the distance to Australia.
   [In] July 2002, I joined the communist party by swearing that I would work hard for communism. But now I have become a real Christian, and I will work hard for the mission the Lord Jesus has given me. This is a great spiritual transformation of my life. In fact, for several years I have witnessed with my eye what is happening here and realise that Australia is truly a democratic country with a healthy democratic election system and a perfect administrative structure. The people here can truly enjoy fairness, justice and equality. I am so impressed by all of these.

   Now China is in the grip of the coronavirus outbreak, where more than
   one thousand people have died and tens of thousands have been infected. The pandemic is yet to be controlled. WHO is also very concerned about it. The organisation has named this pandemic as COVID-19. Right now, my family including my child is being quarantined in China, so I am afraid my life will be at a risk if I go back to China now.
   In the past few years in Australia, I have made many friends. I have also learned some skills [in trades]. I have worked in [an] industry. I have helped many people in need. I have used my professional skills to make my contributions directly and indirectly to building Australia. '

   30.      Also enclosed was a letter signed by [Mr D], stating he was assistant minister of [Suburb] Anglican church and [Rev E]. Also provided was a flyer from [Suburb] Anglican church for a family weekend away in September 2019 with the applicant’s photo and medical documents for the second named applicant.

   CRITERIA FOR A PROTECTION VISA

   31. 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.

   32.      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.

   33.      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).

   34.      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.

   35.      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

   36.      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

   37.      The issue in this case is whether the applicants have 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 their being removed from Australia to China, there is a real risk that they will suffer significant harm.

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

   39.      In his protection visa application statement, the first named applicant stated that because the company he worked for was corrupt, he complained to city authorities in early 2015 and as a result, suffered revenge from both the district and city. In addition, at hearing, he stated that the first time he found out that the organisation he was working for was corrupt was in 2014 however he told the Department that he first discovered there were corrupt activities in July 2009 when [a structure] collapsed however he failed to mention this event in his statement. When this was put to the applicant for comment, he stated that he first discovered evidence in 2014 and that he failed to mention the event because there was too much information.

   40.      However, the Tribunal does not accept that the applicant is credible for the following reasons:

   Claims that the company was corrupt

   41.      The applicant’s retelling of his claims was inconsistent, that is when asked by the Department how he discovered corrupt activities between his company and officials he referred to [a structure] collapse in July 2009 but then failed to identify that in his protection visa statement and told the Tribunal at hearing that the first time he found out that the company he was working for was corrupt was in 2014 but when told of the inconsistency, suggested that 2014 was when he found evidence of the corruption. While the applicant suggested that the evidence, a written agreement could be used against each signatory and that they were in the same boat together, the Tribunal also finds the applicant failed to provide a plausible explanation as to why his employer and officials would document their corruption or why the applicant could or would continue working for a company after he allegedly complained about it. 

   42.      The Tribunal also finds that the applicant’s evidence about his alleged injuries was vague and changed with each telling, that is when asked to describe his injuries he initially said he had serious injuries, that he was beaten heavily and that his body was full of blood but when asked for more details he stated that the serious thing was his [tooth]. The Tribunal finds that if the applicant had gone to a clinic after having been attacked by people in the manner described then he would have been able to provide more details about his injuries at hearing as opposed to the vague and limited detail that he actually gave. The Tribunal's overall impression of the applicant's evidence in relation to his alleged discovery of corrupt activities and the attack is that he has been making up his evidence as he goes along and that the way in which he allegedly discovered the corruption as well as the injuries that he would have sustained after such an attack or why he was able to continue working for his employer after he had complained about them mean little to him because he is not recalling events that have actually occurred.

   43.      In reaching all of these conclusions, the Tribunal has also considered that the applicants delayed in applying for a protection visa some six months after they arrived in Australia and some five months after they became unlawful.  When this was put to the applicants at hearing and after hearing, they stated that they were unfamiliar with Australia and there was a language barrier however they allegedly came to Australia because they were afraid of being persecuted and had heard that Australia could accept them.

   Christian claims

   44.   The applicant first raised the claim that he was Christian at hearing. While he stated that he went to church because his wife requested a Bible when she was hospitalised in June 2019 and that he had been going to Church since June 2019 and was baptised in September, he did not know the Church’s name he allegedly went to even though he allegedly attended every Sunday where there were both Chinese and English services. Neither was he able to talk about the Sunday before Jesus died, nor stories Jesus told.

   45.      The Tribunal does not accept that the applicant would not know the name of the church he regularly attended where there were both Chinese and English services if in fact he regularly attended. Neither does the Tribunal accept that he would not know stories Jesus told if as he said, they read the Bible every Sunday. While the Tribunal accepts that the applicant knew some things about Christianity and has attended Church, given the lateness of the claim and his lack of knowledge as identified at hearing, the Tribunal is not convinced of his sincerity when he states he has changed from a Chinese communist party member and that he and his wife are now Christian and does not accept the applicants are genuine or that they will proselytise in the future. It also finds that they have attended Church for the purposes of their refugee claims only. Accordingly, it disregards this conduct under section 5J(6).  In reaching this conclusion, the Tribunal has also considered the letter from the applicant dated 15 February 2020 in which he describes the way in which he was saved by Jesus Christ from death as well as an undated letter from [Mr D] who states he is Assistant Minister of [Suburb] Anglican Church who also states he started his role since [February] 2020, did not know the applicant and his wife for a long time but thought their goal was to grow in Christ. The Tribunal has also considered the letter dated [February] 2020 from [Rev E] that states the applicants had been members of [Suburb church] since September 2019 and had been recommended to attend church by a medical doctor as part of the recovery program. The letter does not explain how [Rev E] knew the applicants had been attending since September 2019 or indeed why they were attending and presumably he was told these things by the applicants themselves.  Given the Tribunal's concerns with the applicant's testimony at hearing including his inability to identify the church he has been allegedly attending since September 2019, the Tribunal is not persuaded these letters mean that the applicant or his wife are genuine Christians or genuinely interested in Christianity. The Tribunal has also formed the view that the applicants will say and do anything in order to get the protection visa.

   46.      While the applicants have also claimed that China is in the grip of the coronavirus (referred to at the hearing as the Wuhan incidents), the Tribunal does not consider a fear of coronavirus is for one or more of five specified refugee reasons.

   47.      On the evidence before it, the Tribunal is not satisfied that the applicants have suffered threats of harm or harm in the past, or that they have any anti-government political opinion, or that they will practice Christianity in the future. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of their membership of a particular social group if they return to China in the foreseeable future.

   48.      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).

   49.      Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has rejected the applicants claims that they have suffered any harm in China. While the Tribunal accepts that the applicants have attended Church on some occasions, it does not accept that they are genuine or that anyone will know of their attendance.  Accordingly, based on all the evidence before it, including cumulatively, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm because of their attendance at church on some occasions. Neither is the Tribunal satisfied that they are or will be perceived to be genuine Christians in China or that they will practice or proselytise Christianity in the future or that they have any antigovernment political opinion or will be perceived to hold any antigovernment political opinion.

   50.      While the applicants have also claimed that their lives may be at risk because of coronavirus, any risk from the random illness is not because of any intentional act or omission, arbitrary decision or deprivation by a third party. Neither is the Tribunal satisfied that the death penalty will be carried out, or that there is any intention to inflict torture, or cruel or inhuman treatment or degrading treatment or publishment.

   51.      The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

   52.      For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

   DECISION

   53.      The Tribunal affirms the decision not to grant the applicants protection visas.

   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.

   …

   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.

   …