1703997 (Refugee)

[2017] AATA 1182

1703997 (Refugee) [2017] AATA 1182 (12 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703997

COUNTRY OF REFERENCE:                  China

MEMBER:Roslyn Smidt

DATE:12 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2017 at 2:30pm

CATCHWORDS
Refugee – Protection visa – China – Federal Circuit Court remittal – Religion – Almighty God Church – Credibility issues

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who is a citizen of China, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] April 2015. A copy of the delegate’s decision was provided to the Tribunal.

3. The applicant applied for review of that decision on 14 May 2015. The delegate’s decision was affirmed by a differently constituted Tribunal on 7 October 2016. [In] March 2017, the Federal Circuit Court remitted the matter to the Tribunal for consideration.

4. The applicant appeared before the current Tribunal on 12 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   THE RELEVANT LAW

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who: 

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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 THE APPLICANT’S CLAIMS AND EVIDENCE

   Background

10. The applicant is a [age] year old single man from [China]. He is an only child. His parents remain in China. He attended boarding school between about 2005 and 2009 when he obtained a qualification in [specific subject]. In 2010 he went to work [about] [distance] kilometres from his home.

11. The applicant obtained [a] visa for [Country 1] in 2013. While in [Country 1] he worked at a [workplace].  He arrived in Australia on a [temporary] visa in June 2014.

    Claims and evidence

12. In his protection visa application the applicant stated that his mother had become involved with the Almighty God church after member of the church brought documents [to] the [business] she owned in 2005. He said that he was present at the time and had read the document.  He said that his mother often had gatherings of the group at her home and as a result the family was often harassed by the police. They beat anyone who was at the house and detained members of the applicant’s family and some relatives. They were repeatedly questioned and forced to abandon the Almighty God religion. He said that his mother and relatives were still in detention and he feared he would be forced to admit to things he had not done if he returned to China.

13. In support of his claims the applicant provided several documents:

    ·     a translation of  a Notice of Detention from the Police Station [dated] [in]June 2014 which states that [a named person] had been detained for using a cult organisation.

    ·     A translation of a letter dated [in] November 2014 from [another named person] which states that he owned the [business] next door to the applicant’s mother and was aware that she had been persecuted because she belonged to the Cult Almighty God and that she had received a letter of detention from the police [in] May 2014.

    ·     A translation of a letter from [a third named person] dated [in] December 2014. The letter states that [she] attended the Almighty God Church with the applicant’s mother and can confirm that she was harassed and hit by the police and that she received a letter of detention [in] May 2014 and was still in detention.

14. The applicant was interviewed by a delegate of the Minister for Immigration [in] April 2015. He said that he had never been a member of the Almighty God church and did not believe in or follow any religion.

    15.      The applicant repeated the claim that his mother had become involved in the Almighty God church after reading documents about the church given to her [business]. When asked for details he said that his mother had told him that someone had come to the [business] with the documents. When asked about the problems his mother faced because of her religion he said that he did not speak to his parents often and he was not sure of when his mother had been detained. He referred the delegate to the notice of detention and said that he had heard about his mother’s detention just after he arrived in [Australia] in June 2014. He was unable to provide any further details about his mother’s detention, but stated that she had not been in detention when he called his family at  Chinese New Year [February 2014].

15. The applicant stated that his father had never been detained or experienced any other problems because of his mother’s religion. When asked why he believed that he was at risk of harm because of his mother’s religion given that his father had not faced any problems the applicant said that his father had gone to work early and returned home late, whereas he had been at home with his mother during the day and the authorities would assume he was interested in the religion.

16. The applicant’s mother’s claimed involvement with the Almighty God church was not discussed in detailed during his first hearing. When asked about his parents current circumstances he said that they had separated because of the problems caused by his mother’s involvement in the Almighty God religion. He said that he was no longer in contact with his mother and he did not know where she was or if she had been arrested again.

17. At the hearing held on 12 July 2017 the applicant confirmed that he had no religion. He also confirmed that he had had no difficulty obtaining a passport in 2013 travelling to and from [Country 1] in 2014. He said that he had returned to China in April 2014 to attend the funeral of his [relative]. The funeral was not held in his parent’s hometown but both of them attended.

18. I asked the applicant about his mother’s involvement in the Almighty God church and the problems this had caused. He said that she had joined the group after he went to [work], possibly in 2010. He said that he did not know how she became involved in the Church as he was not there at the time. He suggested that someone may have approached her. He said that his father had not joined the church and as far as he was aware none of his relatives joined either. He did not know much about his mother’s involvement with the church, but claimed that she had been arrested twice. I asked if he could tell me when she was first arrested. After some thought he said that she had been arrested in 2013 or 2014 but he did not know whether this was her first arrest.

19. I asked the applicant whether his father had experienced any problems because his mother belonged to the Almighty God religion. He said that his parents had separated while he was working [and] his father had not experienced any problems because he no longer lived with his mother.

20. I noted that there were some significant inconsistencies in the evidence which the applicant had provided in his previous submissions to the Department and the evidence he provided during the hearing and advised him that this could cause me to doubt the credulity of his claims. I noted that he had stated in his submissions to the Department that his mother had become involved in the Almighty God church in 2005 and that he had been present, but told me that his mother did not join until about 2010 and he did not know why she joined. In addition, in submissions to the Department he claimed that his home had been raided and his mother some of his relatives had been detained, but he had not repeated these claims during the hearing. I also noted that the Almighty God church had been banned in China in 1995 and observed that it therefore seemed unlikely that anyone from the church would have taken documents to a [business] such as the business his mother [owned].

21. The applicant said that some of these events had occurred a long time ago and in addition there had been a misunderstanding and he did not tell everything. When asked to explain the latter part of this statement he said that he could only remember who had approached him mother, but he could not recall the dates.

22. The documents provided by the applicant in support of his claims were discussed at the hearing. The applicant said that a policeman had given the document headed Detention Notice to his father because while he and the applicant’s mother were separated they were still married. He said that the letters of support had been written by friends of his mother.

23. I advised the applicant that it was my understanding that it was not difficult to obtain fake documents in China[1] and that in any event the notice of detention was a simple document which could have been easily manufactured by any with access to a typewriter. I advised him that given my concerns about his claims regarding his mother’s involvement in the Almighty God church I also had concerns about whether this was a genuine document. The applicant maintained that the document was genuine.

    [1] See for example, DFAT Country Report, People’s Republic of China, 3 March 2015 p.21

24. Finally, I noted that the applicant is not a member of the Almighty God church and there was no suggestion that he or his father had ever experienced any problems because of his mother’s religion and advised him that even if I accepted his claims at face value it appeared unlikely that he would face serious or significant harm if he returned to China. The applicant said that he had heard about the problems from his family and he was afraid to return to China.

    Findings of fact

25. I did not find the applicant to be a truthful or a credible witness. The evidence that he provided regarding his mother’s participation in the Almighty God church during the second hearing was vague, confused and at significantly at odds with the evidence he provided to the Department of Immigration. For example, as noted above he initially claimed that his mother had joined the church in 2005 after reading material given to her [and] that he was present at the time and had also read the material. During the most recent hearing he said that his mother had joined the church in about 2010 and he knew nothing about how or why she had joined. His initial statement suggests that a number of his relatives were also involved in the church and had been arrested because of this. At the hearing he said that he did not know if any of his relatives had joined the church.  In his initial statement he indicated that his mother had been detained more than once, but his evidence to the delegate suggested that he was only aware of one detention. At the hearing he told me she had been detained twice, but was unable to provide any coherent evidence on when these detentions occurred.

26. When ask comment on the inconsistencies in his evidence, the applicant said that he had difficulty recalling events because they had occurred some time ago. While I acknowledge that failure to recall all the details of past events or exactly when they occurred does not necessary indicate that someone is not telling the truth. However, I do not accept that the significant discrepancies in the evidence provided by the applicant can be explained in this way. I believe that his evidence was confused and inconsistent because he concocted the claim that his mother had joined the Almighty God church.

27. After considering all of the relevant evidence I do not accept that the applicant’s mother is or even has been a member of the Almighty God church. It follows that I do not accept that she was ever harassed or detained because of her membership of the Almighty God church.

28. In reaching this conclusion I have noted the documents provided by the applicant. However, as discussed at the hearing, it is not difficult to obtain fraudulent documents in China and the notice of detention provided by the applicant could easily have been manufactured by someone with a typewriting and a rubber stamp, which is also easy to manufacture. In light of my findings on the applicant’s overall credibility I do not accept that these documents are genuine.

29. With regard to the letters of support provided by the applicant, they were written by private individuals who appear to be friends of the applicant or his family and repeat claims that I have found to lack credibility. I believe that these documents were prepared at the applicant’s request and I have given them no weight.

    Does the applicant have a well-founded fear of persecution for any of the reasons in the Convention?

30. There is no credible evidence before me which suggests that there is a real chance that the applicant would suffer serious harm for any of the reason if he returned to China within the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons contained in the Refugee Convention.

    Does the applicant meet the complementary protection criteria?

31. There is no credible evidence before me which suggests that that there is a real risk that the applicant would face significant harm if he returned to China. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to China, there is a real risk that he will suffer significant harm

    CONCLUSION

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

33. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa)

34. 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

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

    Roslyn Smidt
    Member