1709338 (Refugee)
[2021] AATA 5539
•11 November 2021
1709338 (Refugee) [2021] AATA 5539 (11 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1709338
COUNTRY OF REFERENCE: China
MEMBER:Dr Colin Huntly
DATE:11 November 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 November 2021 at 10:15am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Local church – particular social group – illegitimate and unregistered child – unmarried status – genuine and ongoing marriage relationship – social maintenance fee – education – delay in applying for protection – decision under review affirmedLEGISLATION
Australian Citizenship Act 2007, s 12
Migration Act 1958, ss 5AAA, 36, 65, 415, 424AA, 430, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v MI [2020] FCCA 2141
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZSHV v MIBP [2014] FCA 253Any 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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under
s 65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of the People’s Republic of China (China). The applicant was born in Australia on [date]. The applicant’s mother is also separately an applicant for a protection visa. The applicant’s mother applied for the visa on the applicant’s behalf on 19 June 2014, relying derivatively on the mother’s own protection claims.[1]
[1]Those claims were addressed contemporaneously, but separately, in the related Tribunal review decision Tribunal Ref: 1709337 by the Tribunal as presently constituted.
The delegate refused to grant the visas on 11 April 2017.
Related proceedings
As indicated, a separate application for a protection visa in Australia was also lodged by the mother of the applicant on 19 June 2014. That separate application for a visa was also refused by a delegate of the Minister, and the applicant’s mother lodged a separate application for review with the Tribunal, also on 19 June 2014. By and with the consent of the mother of the applicant, the related application for review was heard and determined contemporaneously with the present review by the Tribunal as presently constituted. The decision in that separate review was made on the same date as the present review.[2]
[2]See Tribunal Ref: 1709337.
No protection claims arise from the related review in the present review that are relevant to the operation of same family unit protection at s 36(2)(b) or (c) of the Act.
The mother of the applicant appeared before the Tribunal on behalf of the applicant on 26 July 2021 and again 27 August 2021 to give evidence and present arguments. The Tribunal then wrote to the applicant on 27 August 2021 confirming certain information that had been put by the Tribunal pursuant to s 424AA of the Act at the second hearing earlier that same day. This information would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.
On 15 September 2021, the applicant’s mother provided a written response to the invitation dated 27 August 2021 on behalf of the applicant.
WHAT IS THE BACKGROUND OF THIS APPLICATION?
Introduction
The applicant seeks protection in Australia under s 36(2)(a) of the Act, and derivatively claims to hold a well‑founded fear of persecution in China now and for the foreseeable future for the essential and significant reason of his mother being a child from a family of conscientious church-going Christians in China experiencing State-based persecution in that country. The applicant also derivatively fears returning to China because of his mother’s renewed personal association with a Local Church in Australia, his mother having been baptised into that communion in 2014. The applicant further fears persecution for having been born out of wedlock in Australia. The applicant has also asserted that he faces ongoing hardship on return to China because his mother is unable to marry his father because their parents do not approve of his parents’ relationship.
The applicant also asserts that he will experience persecution in China because he will be unregistered in that country and, therefore, be unable to access state services including education.
Delegate’s decision
In a written decision dated 11 April 2017, a delegate of the Minister refused to grant the applicants a protection visa on the basis that the applicant’s claims did not disclose an objectively well-founded fear of persecution on return to China now or in the reasonably foreseeable future for the purposes of s 36(2)(a) of the Act. The delegate also found that aspects of the applicant’s narrative were lacking in credibility when viewed in light of the extensive delay by his mother in seeking protection on her arrival in Australia. The delegate further found that the applicant does not engage Australia’s complementary protection obligations at s 36(2)(aa) of the Act.[3]
[3]Delegate decision record, 11 April 2017, at (6)-(15).
The Tribunal’s decision in summary
After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed.
In particular, I find that the applicant does not face a real chance of persecution if he returns to China now and in the reasonably foreseeable future for the essential and significant reason of his or his mother’s actual or imputed religion; or for any reason associated with being born out of wedlock or an unregistered child, or for any other reason from any person on return to China relevant to Australia’s refugee protection obligations under s 36(2)(a) of the Act.
I further find that none of the claims raised by the applicant engages Australia’s protection obligations under s 36(2(aa) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s 36 of the Act and Sch.2 to the Migration Regulations 1994. 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.
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).
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.
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’).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Relevantly, I note DFAT Country Information Report: People’s Republic of China (3 October 2019) addresses religious observance in that country at [3.28]–[3.118]. In particular, the following comments regarding religious observance in Fujian province:
3:33While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China. …
3.36DFAT assesses that individuals in Fujian have historically practised religion more freely within state- sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country …
I also note that the more recent UK Home Office publication Country Policy and Information Note, China: Christians (November 2019) at [2.4.14] states:
Members of groups that are considered to be illegal cults may be at risk of persecution, however this will depend on their actions and activities and whether these are likely to attract the local authorities’ attention. Cult leaders, however, may be able to demonstrate a real risk of persecution or serious harm.
A fear of being persecuted is well-founded if there is a ‘real chance’ of a given applicant being persecuted.[4] In Chan v MIEA, Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[5]
[4]Chan v MIEA (1989) 169 CLR 379 at 389, 406–407, 396–8, 428–9. Gaudron J did not adopt the ‘real chance’ test.
[5]Chan v MIEA (1989) 169 CLR 379 at 389.
The High Court has also emphasised that although the expression ‘real chance’ clarifies the term ‘well‑founded’, it should not be used as a substitute. Accordingly, I am mindful of the Tribunal’s obligation to apply the language of the Convention.[6]
A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:[7]
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[6]MIMA v Guo (1997) 191 CLR 559 at 572–3. In NACB v MIMA [2002] FCAFC 140 Sackville J (Beaumont J agreeing), referring to Guo, found that ‘decision-makers will be on very dangerous ground indeed if they employ an expression not found in the Convention (‘so remote as to be fanciful’) and assume that the negative (‘not so remote as to be fanciful’) is equivalent to the expression that is found in the Convention (‘well-founded’)’: at [58]. In SZRCI v MIAC (2012) 214 FCR 584 the Federal Court reiterated that use of language other than that in the Convention, such as ‘real chance’ will not necessarily give rise to error, and that the ultimate question is whether the phrase ‘well-founded fear of being persecuted’ was correctly applied: at [47].
[7]Chan v MIEA (1989) 169 CLR 379 at 389.
In the same case, Dawson J stated:[8]
... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.
[8]Chan v MIEA (1989) 169 CLR 379 at 397–398.
And Toohey J stated:[9]
A ‘real chance’ ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.
[9]Chan v MIEA (1989) 169 CLR 379 at 407.
Similarly, according to McHugh J:[10]
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.
[10]Chan v MIEA (1989) 169 CLR 379 at 429. However, this does not mean that the Tribunal must consider whether a 10 per cent chance of persecution has been established. In Altintas v MIEA (Federal Court of Australia, Nicholson J, 23 January 1997) the Court held at 10: ‘The ratio decidendi of Chan did not require the Tribunal to consider whether a 10 per cent chance of persecution was established. Rather the Tribunal was required to consider whether, on all the evidence before it, a “real chance” was established’.
Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11]
[11]MIEA v Guo (1997) 191 CLR 559 at 572. It is important, however, that this should not be viewed as an alternative test that there must be a risk of persecution shown on the probabilities, as that would involve an incorrect and more onerous test: see PW87/2001 v MIMA [2001] FCA 1083 at [7].
It is against the background of this judicial guidance that a decision-maker must reach the appropriate level of satisfaction for the purposes of s 36(2)(a) of the Act.
The issue in this case is whether or not Applicant 1 engages Australia’s protection obligations under s 36(2)(a) of the Act and Article 1A(2) of the Convention (the refugee criterion).
DECISION-MAKING FRAMEWORK
President’s Direction
I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:
·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[12] and
·that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[13]
[12]At [2.1] (consistent with AAT Act 1975 s 33(1)(b)).
[13]At [8.1].
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of applicant credibility. In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[14] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[14]E.g. Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
As noted by Nichols J in the recent Federal Circuit Court decision in DAJ19 v MI:[15]
[15][2020] FCCA 2141 (5 August 2020), at [69]–[71].
69.There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80] [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).
70.The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):
“30.The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision‑maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision‑making processes from scrutiny …
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”
71.… the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]‑[28]):
“41. For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision‑maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision‑maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”
In Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[16] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[17] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[16](1996) 40 ALD 445.
[17]At 482.
I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[18] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[19]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision‑maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.
[18](1996) 185 CLR 259.
[19]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant, nor are decision‑makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:
where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[20]
[20][1997] FCA 1198 at (11).
Nevertheless, as Burchett J counselled,[21] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[21]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[22]
[22]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies,[23] nor is there a rule that a decision‑maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[24]
[23]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.
[24]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[25] This is sometimes referred to as the ‘what if I am wrong’ consideration. I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[26]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[25]MIMA v Rajalingam (1999) 93 FCR 220.
[26](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. In this respect, in Iyer [27] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned) supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.
[27]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[28] I recognise that such a principle cannot be relied upon as an iron rule. However, it is potentially a useful illustration of the kind of weighing process that an objective decision‑maker must make when making findings relevant to the existence of a well‑founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
[28]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
In this respect, I note the comments of Flick J,[29] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision‑making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[29]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[30]
… Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
[30]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, I note that, later in the same judgement,[31] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9th Circuit Court of Appeals decision in Stoyanov v INS[32] (Stoyanov):
The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’:
[31]CQG15 v MIBP [2016] FCAFC 146 at [43].
[32](9th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.
I note also that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[33]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[33]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[34]
[34]At [8].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[35]
[35]At [17]–[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[36]
New claims and evidence
[36]At [27]–[28].
Applicants are required to present all claims and evidence to the primary decision‑maker unless they have a reasonable explanation for not doing so.
This principle is enshrined at s 5AAA of the Act, which clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, a Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[37]
[37]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
As a general principle, therefore, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Of particular relevance here is the ongoing requirement under s 104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity.
Accordingly, it may be open to the Tribunal to draw an inference unfavourable to the credibility of a claim or evidence where the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented at the first reasonable opportunity.
In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[38]
CONSIDERATION OF CLAIMS AND EVIDENCE
[38]At [9].
Country of reference
The Tribunal has received a copy of the birth certificate of the applicant. The Tribunal finds that the applicant is the natural child of [Ms A] and [Mr A], both citizens of China. The Tribunal finds on the basis of the foregoing that the applicant is a male, born in Western Australia on [date].
Prima facie, the citizenship of the applicant’s parents is determinative of the citizenship of this applicant under Australian domestic law. The relevant provision is found at s 12 of the Australian Citizenship Act 2007 as follows (underlining for emphasis):
Citizenship by birth
a.A person born in Australia is an Australian citizen if and only if:
(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
…
As the biological parents of the applicant are both citizens of China and hold no claim to alternative citizenship, by operation of s 12(1)(a) of the Australian Citizenship Act 2007, the Tribunal finds that the applicant is not an Australian citizen.
The Tribunal notes, however, that the applicant is, prima facie, a citizen of China by descent by virtue of Article 5 of the 1980 Nationality Law of the People’s Republic of China which provides as follows:
Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.
On the basis of the foregoing, therefore, the Tribunal finds that the applicant is a Citizen of China by descent.
Having regard to all the evidence, the Tribunal finds the applicant does not have a right to enter and reside in a third country. The applicant is, therefore, not excluded from Australian protection by the operation of s 36(3) of the Act.
Accordingly, the Tribunal, therefore, finds the applicant’s country of reference and receiving country is China for the purposes of s 36(2)(aa) of the Act.
Background
The Department of Immigration and Border Protection (the Department) files relating to this application indicate that the applicant’s mother entered Australia on a [Student] visa [in] June 2006. On 15 March 2010 the applicant’s mother’s [Student] visa expired. The applicant’s mother remained in Australia unlawfully after this date.
The applicant and his mother attended a protection visa interview with the delegate on 24 June 2015. As discussed above, the application for a protection visa was refused on 11 April 2017. The applicant provided the Tribunal with a copy of the delegate’s record of decision.
The delegate’s record of decision indicates that:
This significant delay in seeking protection, their behaviour in Australia raises doubts in my mind as to the genuineness of the applicant’s mother’s claim to fear serious harm PRC in order to escape being ill-treated by the PRC authorities.
On 28 April 2017 the applicant lodged an application the Tribunal for review of the decision of the delegate. The applicant was represented in the course of this review by his mother. All hearings were held with the assistance of interpreters, fluent in both the English and Mandarin Chinese languages. The applicant did not personally attend any of the hearings before the Tribunal.
Hearing 1
At the first hearing on 26 July 2021 I explained what documents the Tribunal had in its possession. I read to the applicant’s mother the summary of claims contained at Part 8 of the delegate’s decision record which was as follows:
· His mother is a Local Church member, and he will experience harm due to his mother’s religion on return to the PRC.
· His mother and her family have experienced difficulties due to their faith in the PRC.
· As he (and his brother) was born out of wedlock, a social maintenance fee will be levied against their parents, of which they will be unable to pay.
· He will also experience difficulties due to being an unregistered child and being unable to access government services until it is paid.
· His parents are unable to be married due to their families not approving of the relationship.
A request for further information was sent to the applicant on 15 February 2017, requesting any further information regarding his mother’s claims and that of her children, as well as if there was a chance [sic] in her personal circumstances. A reply was received on the 28 February 2017 stating that that both her children born in Australia would suffer due to their parents not being able to register to marry and that due to the fines being imposed from being born out of wedlock, being outstanding; resulting in them being unregistered and being unable to access government services. It also stated that her children will face prejudice due to their status as being unregistered and being children of unmarried parents. The statement also claimed that they are at risk of harm due to their parent's faith.
The mother of the applicant confirmed that the delegate had rendered a fair and accurate summary of the written claims for protection. The applicant’s mother confirmed that she did not wish to amend or add anything further to those claims. The applicant stated that she did not wish to introduce any new claims or evidence or to change any information in the documents held by the Tribunal. She also stated that she was content for the Tribunal to proceed based on the information discussed above.
The applicant’s mother consented on behalf of the applicant to having his application determined contemporaneously with his own claims, given that his claims were derived from those of his mother.
I explained to the applicant’s mother that her delay of eight years in seeking protection at the first instance raised significant questions about the credibility of the application that would need to be explored in greater detail at the future hearings.
Hearing 2
At the second hearing, held on 27 August 2021, the previous hearing was summarised, and the credibility issues raised with the applicant’s mother at both related hearings at the end of those hearings were put to the applicant’s mother as representative for the applicant.
As discussed in the related application decision (Tribunal Ref: 1709337) the applicant’s mother and father originate from the same part of Fuqing, Fujian and China. However, the two families did not know one another prior to the applicant’s parents meeting in Australia. The applicant’s mother has confirmed that she had first met the applicant’s father in June 2006 when they were both enrolled in [a school] in Sydney, NSW. The applicant’s mother stated that her relationship with the applicant’s father has been exclusive and one of mutual affection since that time. The applicant’s mother has stated that she had no idea of her husband’s previous involvement with religion of any kind prior to meeting him.
The applicant’s father has stated that the applicant’s father is still resident in Australia and that, although he had previously been an applicant for protection in Australia, he has not been successful. When asked if the applicant’s father keeps good health, the applicant’s mother has stated that the applicant’s father did not have very good eyesight and that he had sought treatment from doctors for this approximately five years ago.
Sometime in 2012 the applicant’s parents decided to have children. Although the applicant’s parents discussed their intentions with their parents in China, neither of their parents consented to this. In 2019, both the applicant’s parents obtained consent of their respective parents to marry.
Between 2006 and 2014 the applicant’s mother claims to have attended some home church services in Sydney, NSW, to pursue her religious devotion. When questioned about the basic foundations of her faith-beliefs, the applicant’s mother gave vague, confusing and unsatisfactory responses. As discussed in Tribunal Ref: 1709337, I have made adverse credibility findings about the mother of the applicant’s claims to have been involved with the Local Church movement in both China and Australia. I have also articulated concerns that the entity identified as “[Organisation 1]” in submissions made by the mother of the applicant in the course of these concurrent proceedings may not, in fact, be a legitimate church or religious body.
The mother of the applicant has stated her parents in China were not in bad health as far as she was aware and, to the best of her knowledge and belief, her parents did not attend church regularly, or often, and that church gatherings in her home village were infrequent.
I have put to the mother of the applicant that, given she is now legally married to the father of the applicant, his birth status no longer appeared to be a problem, nor did the likelihood of the applicant’s parents facing fines for having children born out of wedlock on return to China.
The mother of the applicant has stated that she would not be able to practise her religion freely as she would want to. I pointed out to the applicant’s mother that available country information shows that most Christians are free to practise their religion in China generally and Fujian in particular. The applicant’s mother has stated that Local Churches in China are subject to persecution. She has further stated that country information suggested that ordinary practitioners of the Christian faith from Local Churches faced persecution from the Chinese authorities because the practice of religion such as Local Churches (or Shouters) prefer to observe it is forbidden in China. The applicant’s mother has stated that she attends the gathering place on a Sunday morning and Friday evening; that there are team meetings for her children’s ministry. The applicant’s mother has stated that on these occasions the believers sing songs and read the Bible and share their faith.
As discussed in Tribunal Ref: 1709337, I noted that the applicant’s mother took eight years to apply for protection in Australia and that she had lived unlawfully in Australia for four years during this time. I asked the applicant’s mother why it was that she chose not to return to China in 2010 when her lawful visa expired. She stated that her parents encouraged her to stay in Australia. The applicant’s mother stated that, at this time, she approached a migration agent and discovered that their fees were too high. I have also asked the applicant’s mother if she had considered approaching the Department for help. The applicant’s response was that she did not know she could approach the Department for help.
424A letter
Immediately after the second hearing, I wrote to the applicant on 27 August 2021 pursuant to s 424A of the Act in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·An invitation (pursuant to s.424AA) was provided relating to [Mr A] (husband of the principle applicant in 1709337 and father of the infant applicants in both matters). [Mr A] was refused a Protection visa in 2010 and this was affirmed on review by the Tribunal differently constituted. Most recently, [Mr A] was refused a Medical Treatment (Visitor) visa in 2019 and on 21 April 2021 that decision was affirmed in on review by the Tribunal differently constituted. This information was known to [Ms A] and was not provided to the Tribunal in either matters currently before the Tribunal voluntarily at the fist reasonable opportunity;
·[Ms A] and [Mr A] were married in a registry office [in] March 2019. This information was known to [Ms A] and was not provided to the Tribunal in either matters currently before the Tribunal voluntarily at the fist reasonable opportunity;
·The information available to the Tribunal and put to [Ms A] at the hearing (in both matters) suggests that the church she claims to be associated with may not genuinely be a religious entity;
·[Ms A’s] identification of her unique scriptures as being the “Resumed Bible” which was not relied upon in other Christian denominations was unconvincing and unable to be corroborated at the hearing by electronic means;
·The decision of [Ms A] and [Mr A] to marry in a Registry Office appears inconsistent with the applicant’s claims to be a committed member of a genuine religious entity;
·The decision of [Ms A] to attend a predominantly English speaking church in Australia and not seek in any way at any time to locate a predominantly Mandarin speaking church community appears to be illogical and contradictory;
·Country Information discussed at the hearing suggests that Christians are able to practice their faith in China without necessarily experiencing persecution; and,
·The conduct of [Ms A] in both applications suggests that she has provided false or misleading information to the Department and the Tribunal over a period of years and has failed to correct this information at the first reasonable opportunity. This conduct is contrary to law, common-sense and the accepted teachings of Christ relating to dealings with the governing authorities as these are generally understood to apply.
This information is relevant to the review because this information suggests that the claims relied upon in both applications are not genuine or credible. If we rely on this information in making our decision, it would be the reason, or part of the reason, for affirming the decision under review.
A written response was ultimately provided by the applicant’s mother on the applicant’s behalf on 15 September 2021 in both the Mandarin Chinese written language and an accompanying English translation in the same terms as that provided to the equivalent letter in the related matter:
The following is my response and comments to the questions raised by the AAT in its letter dated 27th August 2021.
Regarding the date of marriage: The letter states: MY wedding date is on [a specified day in] March, 2019, which I am aware of, but I did not take the initiative to provide this information prior to the AAT hearing. In fact, I have already explained this question in the hearing. Here I would like to reiterate the fact that I did not know that I had to provide this information to the immigration office voluntarily at that time, and no one reminded me that I had to do so. In addition, I did not realize the importance of this information to my application. If my ignorance prevented the application from proceeding smoothly, or if my ignorance caused great inconvenience or trouble to the hearing trial, I deeply regret. But in any case, I definitely did not intentionally conceal the motive and purpose of my history. If there was any doubt, it was entirely a misunderstanding caused entirely by my ignorance, for which I sincerely apologize.
About church: According to the letter, my church may not genuinely be a religious entity, because the church I attend uses a “Resumed Bible” but cannot find information about it online. I recall that I explained this problem in the hearing, and I would like to add that the English translation of “Resumed Bible” is inaccurate (I found this problem with the help of people who know English in the church). According to the verification, the correct translation should be Bible Recovery Version. If you can't find Resumed Bible online, then the problem may be caused by the translation. I was informed of this by my church fellows. I was also told that the Bible Recovery Version should be available online, because it is the Bible particularly used by Local Churches that is different from other churches or denominations. Bible Recovery Version is a multi-language Bible translated and edited by brother Witness Lee. It has unique annotations on the scriptures by Local Churches under the revelation of God, which forms a clear contrast with other bibles in form and is the unique wealth and spiritual inheritance in Local Churches' beliefs. The Bible Recovery Version also focus on reflecting in the annotations with the Christian understanding of the holy revelation in the Bible over the past two thousand years, so as to help readers to make progress in this respect.
Regarding marriage registration: I also explained this question in the hearing. What I need to be further explained here is that, according to my understanding, the church is not a marriage registration office, but it can hold wedding ceremony for its members. Therefore, I first chose the marriage registration office designated by the government to go through the legal marriage registration formality. But the truth is that we didn't have a wedding, so we didn't alert the church. But our two people to witness our marriage are both members of our church, and they are right in the position to give evidence for our marriage. In fact, we had planned to hold a church wedding, but due to the impact of COVID-19 since 2020, the church is not able to hold a wedding ceremony for the time being, so we had to shelve our plan accordingly.
About the Church I attended in Australia: I also answered this question in the hearing. However I like to add that in fact, our church has people from different countries. English is not the only language spoken there. At large gatherings, English is used, but the translation is always provided. There are many Chinese in my church, so we always speak Chinese in our group meetings and private communication . That was something I valued the most when I was looking for a proper church fit me because I was satisfied with a church without the language barrier. Since my church is exactly what I want, I don't think it is necessary for me to switch to a purely Chinese-speaking Church again.
About churches in China: The letter says that according to national information, Christians are able to practice their faith in China without necessarily experiencing persecuted. I think I also answered this question in the hearing. Here my supplementary explanation is that although the Local Church and other churches all believe in Christ, the Local Church is essentially different from the "Three Self Patriotic Church ", the only officially recognized church in China. To further illustrate this point, I refer to information on this subject from Chinese websites, especially the historical evolution of Local Churches, in order to confirm the current Chinese government's hostile policy towards Local Churches. I have summarized the national information in this regard for your reference as follows.
·Local Church is a Christian movement founded in 1921 by watchman Nee and Witness Lee. Their origins and special parts are influenced by the English Brethren. It is also known in China as "Restoration of the Lord" and "Little Flock Gathering".
·In 1983, the Communist Party of China designated the Christian “Shouters” as a cult and cracked down on it at all levels. In 1995, the Local Church of independent Protestant Denomination, which was founded and led by Witness Lee, was listed as the "Shouters” sect. Local church books and periodicals, such as "Bible Recovery Version”, and "The Holy Word of Morning Recovery", used by Local Churches, was also identified as "cult" publications. The Communist Party is sinicizing the church in China. According to a report by the Association for the Protection of Human Rights and Religious Freedom, an international religious freedom group, since Xi Jinping took power in 2012, the China Communist Party (CCP) has called for the "Sinicization of Christianity" and intensified its crackdown on Christianity and Catholicism, persecuting and banning Christian house churches or underground churches. A nationwide campaign began in 2014 to remove crosses from church tops and many churches in Zhejiang province, where Mr. Xi once ruled. Then it forms a national action. The newly revised Regulations on Religious Affairs, which took effect on 1rst February, 2018, allow local governments to close house churches at any time. On 30th March the same year, the Cyberspace Administration of the CCP ordered a complete ban on the sale of bibles. House churches that refuse to obey follow CCP and refuse to join the Three Self Patriotic Church recognized by the government will be fully shut down. At the same time, CCP has been increasingly controlling the Three Self churches, monitoring their sermons, forcing them to preach CCP policies and controlling their money.
Questions about false information: I was asked this question in the hearing, but I didn't answer, because the hearing officer directly under the judgment at that time, by saying that I have been providing false or misleading information, and not take the initiative to submit the information, such as marriage certificate, this problem I've explained above already that I have no intention to conceal my background history indeed. If there's any doubt about it, I think it's a total misunderstanding.
Once again, I would like to thank the case officer for your painstaking efforts in my review. Although the trial process has gone through many ups and downs, for Christians suffering is a trial and frustration is a test. I confessed and repented before God and prayed for his mercy, hoping that God, through the hand of the judge, would save me as a sinner and give our Christian family a bright way out. Finally, I would like to face the reality by borrowing the prayer of Church congregation, oath of faith, loyalty to the law, the moral cultivation and teachings in faith over the past years. I wish to clarify the facts, and dispel misunderstandings. As a Christian, I can't set aside God's Word. I want to be committed, reconciled and joyful. I sincerely hope that you are able to listen, understand and accept my heart voice in good faith.
Relationship status
With respect to the relationship status of the applicant’s parents, I note that this is something about which the applicant’s mother was not straightforward and candid in any respect relevant to this application until she was directly questioned about the matter before the Tribunal at the first hearing on 26 July 2021 in the related review, Tribunal Ref: 1709337. I note the applicant’s evidence above, submitted by his mother on the applicant’s behalf, that:
I did not know that I had to provide this information to the immigration office voluntarily at that time, and no one reminded me that I had to do so. In addition, I did not realize the importance of this information to my application.
Given the centrality of Applicant 1’s relationship status to the core claims pressed by herself and her dependent children as having been born “out of wedlock”, the evidence provided on behalf of the applicant in this respect is inconsistent with prior sworn statements and lacking in credibility. I therefore find that this aspect of the evidence provided on behalf of the applicant is unsatisfactory and unpersuasive.
I further find that any state-imposed fees and charges relating to the birth or registration of the applicant would be applied to the applicant’s parents and not the applicant. Further, the applicant’s mother has not provided any corroborative evidence to suggest that such fees and charges, if imposed by the authorities in China, would cause or otherwise amount to conduct reaching the requisite threshold for significant harm to the applicant as envisaged by s 36(2)(aa) and (2A) of the Act.
Doctrinal and liturgical matters
As discussed in Tribunal Ref: 1709337, the extremely detailed nature of the doctrinal and liturgical information provided by the applicant’s mother in written form is remarkable, given the vague, confusing and unsatisfactory responses given by the applicant’s mother in person at the second hearing. The extent to which this evidence is at variance persuades me that the latter, written evidence is an artefact of recent invention and does not reflect the applicant’s mother’s own, longstanding beliefs. Accordingly, I place very little weight on this later information and prefer to base my conclusion on the applicant’s mother’s in-person evidence at the hearing.
Marriage ceremony
The written submission raises questions about the credibility and sincerity of the evidence provided by the applicant’s mother.
Choice of church community
As discussed in Tribunal Ref: 1709337, the applicant’s mother’s responses suggest that she is not, and never has been, in fact, a member of any genuine religious community in Australia.
Country information
As discussed in Tribunal Ref: 1709337, I have found that there is no apparent relevance of this information to the lived experience of the applicant or his family unit.
Misleading information
As discussed in Tribunal Ref: 1709337, I note the evidence of the applicant’s mother is unsatisfactory in numerous material respects.
Misleading information
As discussed in Tribunal Ref: 1709337, I note the evidence of the applicant’s mother is unsatisfactory in numerous material respects.
Delay
As discussed in Tribunal Ref: 1709337, the applicant’s mother has given evidence in connection with her delay in seeking protection in Australia which is entirely lacking in credibility in important respects. This undermines her claim to be a witness of truth in the present review.
COVID-19-related claims
It is acknowledged that the international public health crisis arising from the current COVID‑19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.
Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of China generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.[39]
[39]SZTAL v Minister for Immigration [2016] FCAFC 69.
FINDINGS
The evidence of the applicant’s mother about being a Christian in China before 2006, however this term might be defined, is equivocal and unsatisfactory with respect to its lack of detail in terms of actual lived experience and corroboration from available sources. I have found in Tribunal Ref: 1709337 that, whatever the applicant’s mother’s actual religious beliefs before 2006, they were not the cause of any adverse attention or inappropriate harassment to the applicant’s mother or any of her immediate family in that country at any time or from any person.
To the extent that the applicant’s mother has engaged in or participated in any activities in any community of faith in Australia since 2006, I find that this has been for the purpose of social cohesion or otherwise for the purpose of strengthening her claims to be a person in respect of whom Australia owes protection obligations. I do not accept that the applicant’s mother has a personal involvement with, or commitment to, the community of belief associated with the teachings of Watchman Nee now, or at any time in the past, whether known by the sobriquet “Shouters” or “Local Church” or anything related to this community of belief.
I do not accept, given the evidence provided on behalf of the applicant discussed above, that “[Organisation 1]” is a genuine religious entity. It follows, therefore, that I do not accept that the applicant faces a real chance of serious harm in China now or in the reasonably foreseeable future for the essential and significant reason of his parent’s religious beliefs, either actual or imputed from any person, for any reason.
I have, separately, found that the claims of the applicant derived from or related to the unmarried status of his mother and father as outlined in the related review application Tribunal Ref: 1709337 were not genuinely subjectively held by those persons when those claims were made or subsequently. Accordingly, given that I do not find the claims from which the applicant’s claims in this application are substantially derived to be credible, I do not accept that the applicant subjectively holds a genuinely well-founded fear of harm in China from any person, for this essential and significant reason now or in the reasonably foreseeable future.[40]
[40]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.
Further, for the reasons given above, I do not accept the claims of the applicant identified and discussed above to be credible. Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of an applicant’s claims.[41]
[41]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim. On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.
Refugee criterion
The Tribunal’s finding on the refugee criterion at s 36(2)(a) of the Act with respect to the applicant, based on the foregoing, is that the Tribunal is not satisfied that the applicant is a non‑citizen in Australia in respect of whom 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).
Complementary protection criterion
The Tribunal has considered the applicant’s eligibility for protection under s 36(2)(aa), which applies where a decision-maker is satisfied that an applicant is a non-citizen in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country, there is a real risk that the non-citizen will suffer significant harm.
As discussed above in this decision, the Tribunal finds that the applicant does not hold a genuinely well-founded fear of persecution if he was to return to China now, or in the reasonably foreseeable future from any person for any reason. The Tribunal notes that s 36(2)(aa) of the Act refers to a real risk of an applicant suffering significant harm. The Tribunal notes that the real risk test imposes the same standard as that adopted in the real chance test for the purposes of assessing a well-founded fear.
For the reasons canvassed above, the Tribunal finds, that with respect to the applicant, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China that there is a real risk he will suffer significant harm now, or in the reasonably foreseeable future from any person, for any reason. Therefore, the applicant is not a person in respect of whom Australia has protection obligations as provided at s 36(2)(aa) of the Act.
DECISION
102. The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Colin Huntly
Member
0
44
3