1713554 (Refugee)

[2021] AATA 1104

1713554 (Refugee) [2021] AATA 1104 (28 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713554

COUNTRY OF REFERENCE:                   China

MEMBER:Frank Russo

DATE:28 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 28 January 2021 at 6:27pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – victim of stabbing – delay in applying for protection – not currently a practicing Christian – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169 70
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 31 May 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

3. On 24 November 2020, in accordance with measures introduced in response to the COVID-19 pandemic, the Tribunal invited the applicant to attend a hearing by way of video conference.

4. The applicant appeared before the Tribunal by video conference on 15 December 2020. Following the taking of his evidence, the applicant informed the Tribunal that the charge on his telephone battery was low (17% charged) and that he may lose the connection to the hearing. The applicant’s connection with the video conference subsequently dropped out. Accordingly, the Tribunal adjourned the hearing.

5. The video conference hearing was resumed on 8 January 2021.

6. Both hearings were conducted with the assistance of interpreters in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that they will suffer significant harm.

14. The applicant provided with his application for review, a copy of the decision of the delegate and notice of the decision. He provided responses to the hearing invitations, but otherwise did not provide any documents in support of his claims.

15. At the conclusion of the second hearing, the applicant requested further time to provide the Tribunal with copies of documents which are referred to at question 97 of his Protection visa application, and for which he indicated at the time of the visa application that he would obtain English translations and provide to the Department at a later stage. The Tribunal granted the applicant a further 14 days from the date of the second hearing to provide the documents, together with certified English translations. No further documents were provided within the 14 days following completion of the hearing, and as at the date of this decision no further documents have been provided. The Tribunal has therefore proceeded to make its decision on the evidence and information available to it.

16. The Tribunal also has a copy of the Department file and has had regard to the documents on that file. In addition to his visa application and statement, the applicant attached a copy of his passport photo page and a document headed ‘Expert conclusion notification’, together with a non-certified English translation. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.

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

    Identity

18. The applicant provided a copy of his Chinese passport to the Department. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.

19. The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.

    Claims

    Claims made with visa application

20. In a statement attached to his Protection visa application, the applicant makes the following claims:

    a.That he is from Shandong, China and has been a Christian since he was a teenager;

    b.That it was not a normal activity to attend the church in China, especially in his city, and that if you told anyone you were Christian, they would be scared to talk to you, as people believed that Christians are evil, and the local government took actions against Christian activities in his hometown. He claims that he never told his family members that he was Christian and he attended regular worship in a ‘private area’;

    c.In 2004 a big action was taken in his city. This involved the dispatch of police and officers of the local authorities to most of the ‘family Churches’ to look for Christians. During this action, he claims that he was seriously injured. He claims that he was stabbed and hit all over his body. He claims that on the same day he was sent to hospital and stayed there for 15 days;

    d.He claims that the police reported this to his manager, and that he therefore lost his job. He claims that he nearly lost his life. He states that his family could not believe what he had done ‘in the past’ and did not want to talk to him. He claims that he laid in bed in hospital, depressed and hopeless;

    e.He claims that a voice told him that God loves him and would save him from danger, and after this he started to seek justice from the local government. He claims that he got his injury identified and went to the police station ‘for compensation’ but everything ended up with no result. He claims that he was nearly locked up in the police station;

    f.He claims that after he returned home, his wife and son did not talk to him anymore, and that he decided to leave the city and look for a better place to serve God. He claims that a brother in his family church saved him and helped him to get a passport and visa to Australia.

    Departmental interview and delegate’s decision record

21. The applicant attended an interview with the Department on 16 June 2017. The delegate’s decision record indicates that at the interview:

    a.The applicant was asked whether anyone helped him prepare his Protection visa application, to which he responded ‘an agent’. The interviewing officer put to him that in his application form, in response to the question ‘Did you receive assistance in completing this form’, he responded in the negative. It was put to him that it appeared he had provided false information in his application, to which he agreed;

    b.The applicant’s previous travel was discussed with him, including a departure stamp in his previously issued passport, which indicated he had departed [Country 1] [in] July 2008. The applicant indicated that he had travelled to [Country 1] from July or August 2006 to roughly July 2008. He stated that he went to [Country 1] to work and confirmed he returned to China in 2008, before coming to Australia in 2009;

    c.The applicant claimed that he obtained his visa to come to Australia through a friend in China, who he met at church. The interviewing officer put to him that he had provided false employment details to the visa processing office, to which the applicant denied. The interviewing officer put to him that it was hard to accept that an associate from a church would provide false information, and did not accept his claim that a church friend had assisted him;

    d.When asked why he came to Australia, the applicant stated, ‘because I got bullied in China.’ When asked who bullied him, he stated, ‘because of my religious belief I was hurt by some other people.’ When asked who had hurt him, he stated that after he was hurt he found out. When asked again who had hurt him, he responded, ‘should be policeman’;

    e.The applicant was questioned as to why he had resided unlawfully in Australia from 2009 to 2016. He responded, ‘for that I am not sure.’ When asked why he arrived in Australia in 2009 and waited seven years to apply for a Protection visa, he stated that he saw an advert in the newspaper saying that if you have a visa issue you can approach the government to fix this problem;

    f.The applicant stated he could not return to China because he was worried he would be persecuted by the government. When asked why he feared being persecuted by the government, he said it was because of his previous experience. The interviewing officer put to the applicant that he had not provided much information about his experience;

    g.It was put to the applicant that a person fearing Chinese authorities would not normally approach the Chinese authorities to have his passport renewed, but he had done so, and he had not articulated in a clear way why he could not return to China;

    h.It was put to the applicant that he had submitted a statement, but it was apparent that he had no idea of the statement’s content. It was put to the applicant that he had not really provided any information at the interview and he was asked if he wished to provide any more information. The applicant took out a document which appears at folios 2 and 3 of his Department file (the ‘Expert conclusion notification’). The interviewing officer put to him that they did not consider the document to be genuine and it was not consistent with the type of document it purported to be. It was put to the applicant that documents could be procured for a price and the document would not be given any weight;

    i.The delegate’s reasons indicate that the applicant then said the word ‘fear.’ It was put to the applicant that he had not provided any basis on which it could be concluded that he was a genuine applicant for protection, after which the applicant responded, ‘then OK.’;

    j.The applicant was asked again whether he wished to provide any more information, to which he did not respond. He was asked again if he had anything else he wanted to say, to which he did not respond.

22. On the basis of the evidence presented and the information provided at the interview, the delegate was not satisfied that the applicant’s claims were credible or that he has a genuine fear of persecution.

23. The delegate also considered that the evidence supports a finding that the applicant provided false information in his Protection visa application regarding whether he had been assisted with the application and whether he had travelled elsewhere prior to coming to Australia. The delegate also noted that Departmental records indicate that bogus documents were submitted in support of the applicant’s subclass 456 visa application. The delegate considered these matters contributed to an adverse finding in regards to the applicant’s credibility.

24. The delegate also found the applicant’s acquisition of a valid passport in his own name through the Chinese Consulate in Sydney in 2014 was incompatible with his claim to fear persecution from Chinese authorities, as was his delay in applying for the Protection visa for over seven years.

25. The delegate found that the applicant was given a number of opportunities at interview to articulate what had happened to him in China and why he could not return, but considered his responses were vague, lacking in detail and bore no resemblance to his written claims. The delegate did not accept that the applicant left China for the reasons claimed or that he has a genuine fear of returning to China.

    Evidence at the hearing regarding preparation and contents of application

26. At the hearing the applicant gave evidence that he remembered making the Protection visa application and that a friend of his had helped him with it. When asked whether his friend had any qualifications or specialised skills, he stated that it was four years ago so he could not remember clearly, but it was probable that his friend knew a little bit. When asked whether the contents of the form were read back to him, he stated that his friend wrote them down according to what he had told him. He stated that the contents of the application are true and correct. He confirmed that he did not wish to make any changes to his application form or add to the claims which he had made.

    Evidence regarding the applicant’s background

27. The applicant gave evidence that prior to arriving in Australia he travelled to [Country 1] from 2006 to 2008 and that he returned to China in July 2008. When asked why he had gone to [Country 1], he responded it was because something had happened, so he went to [Country 1] to hide.

28. The applicant gave evidence that immediately before leaving China he lived in Wendeng District, Weihei City, Shandong Province, that this was his hukou and he had lived there since birth. He confirmed that he had not lived at any other addresses in China.

29. When asked about his marital status, the applicant confirmed he has a wife, whom he married in 2008. The applicant cried as he gave this information. He stated that he has one son, who was born in [Year 1]. He stated that they are both in Wendeng District and live at the same hukou. He stated that his mother is still alive, that she also lives in Wendeng District, although in her own house. He has one sister, who also lives in Wendeng District.

30. The applicant gave evidence that he finished technical secondary school in China. He graduated from school at the age of 19 and stated that he worked in the business industry. He then clarified that he worked in a shopping mall. When asked what kind of job he did, he stated he was a salesperson. When asked whether he did any other jobs in China other than salesperson, he stated no, and that he had worked for the same employer for six years, after which he lost his job, and then he also worked for another small business in a shopping mall. He stated that he also worked as a salesperson in that jobm and that he sold [Product 1]. He stated that he probably had this job for four or five years, but that he had forgotten the details.

31. When asked what work he did in [Country 1], he stated that he worked in [a Material 1] plant, and explained the plant used [Material 1] to produce [Product 2]. He stated that he did not have a job in China after he returned there.

32. The applicant gave evidence that he first arrived in Australia [in] July 2009, and that he travelled by plane from Weihei to Guangzhou, then to [Country 1] and then Sydney. He travelled with his own passport and arrived in Australia holding a [temporary] visa, which was valid for one year. When asked why he came to Australia, he stated that he ‘just didn’t want to stay in that place,’ so his friend helped him, and he went overseas. When asked who had organised his visa for him, he stated it was a friend from his church. When asked how much it cost him to come to Australia, he stated that he could not remember, that his family helped him to pay the money and he did not know how much it was.

33. The applicant confirmed that he travelled to Australia alone. When asked why he had not travelled with his wife or son, he stated it was because his wife was different to hin and she ‘felt good to stay’ in China, but he had a sense of fear and wanted to leave.

34. The applicant stated that he was living in [location] with friends. When asked if he was working, he stated that he has to have a job to live. When asked what kind of work he does, he stated he works at a building site.

    Applicant’s claims for protection

35. The Tribunal noted that the applicant’s claims in his application were that he is a Christian and a member of a family church and that he was subject to persecution in China because of his religious beliefs. The applicant confirmed that this was correct, and he had no additional claims.

    Evidence of practice of Christianity in China

1. The applicant gave evidence that he was not raised as a Christian and his parents were not religious. When asked when he started to identify as a Christian, he stated that it was when he lost his job in a shopping mall and found another job in a different shopping mall. He stated that he was 28 or 29 years old at the time.

2. The applicant gave evidence that he was introduced to Christianity by a friend from his workplace. The applicant stated that he worked for a business which was owned by the Chinese government and there were 600 to 700 workers. He stated that he sold ‘[items] to make [Product 1]’ (as translated) and then [Product 3]. When asked the name of his friend who introduced him to Christianity, the applicant had a strained look on his face, and indicated that it was many years ago and he couldn’t remember the friend’s name.

3. When asked how he practiced his faith in China, the applicant again had a strained look on his face and stated that he sometimes attended the church and listened to the classes. He stated that he went to church and gatherings of people.

4. When asked whether his church in China had a name, he stated that it didn’t, and that it was a ‘family type’. When asked whether his church belonged to a particular denomination, such as Protestant or Catholic, he stated that ‘It is the Christian Church.’ He stated that he attended worship sometimes once a week, sometimes once per fortnight. When asked what happened in services, he stated the teaching of classes and reading of the Bible. He gave evidence that he was not involved in any other Christian activities besides attending services.

5. When asked why he considers himself to be Christian, the applicant stated that when his friend introduced him to it, they were quite good people and were helping others and they did not have any troubles, so he believed in it.

6. When asked where the family church services were held, the applicant stated ‘Just in the family at the place where we lived.’ When asked whether he was referring to the place where he lived, he responded no, that they were held somewhere else, and then stated ‘The person from the church.’ He stated it was in the same place he was from, in Wendeng District.

7. When asked when he first attended family church services, after a long pause, the applicant responded it was in 2003. As to whether anyone led the services, he stated that it was just people from the church. When asked whether there was a priest who did the preaching, he stated it was just one of the members of the church, and then stated it was the organiser of the church. When asked when he last attended a service at the church, he stated it was probably in the Summer of 2004.

8. The applicant confirmed that he had not been baptised, and when asked why this was the case, he stated it was because it was just a family church and was just for people who had the same beliefs. He stated that they could not reach ‘that extent’ because in China they held their church secretly.

9. When asked whether he had read the Bible, the applicant stated that he had. When asked whether there were any parts of the Bible that are important to him or that attract him in particular, he stated that there was one sentence, ‘To be a human being you should be kind-hearted and you shouldn’t do bad things.’ When asked whether he knew who had said this or which part of the Bible it was from, he said he had forgotten. When asked whether there was anything he could tell the Tribunal about the Bible, he stated that he just feels like you should be kind-hearted and shouldn’t do anything wrong and should treat others with care and shouldn’t verbally abuse others. He stated he had not read any other Christian literature besides the Bible.

10. As to whether there were any particular prayers that were said in his church, the applicant stated yes. When asked to give an example, he stated, ‘I’m just beg the God to bless you so everyone in the family would always be safe.’

11. It was put to the applicant that what he had expressed was very general and may apply to a number of religions. He was asked whether there was anything specific about his Christian beliefs that he was able to tell the Tribunal, to which he responded that you just need to believe in God and there will be no difficulties for you, and if you do, then God will serve you. He stated that there will be no problems for people who believe in God, and even if there were, these would be temporary.

12. When asked what you must believe to be Christian, the applicant stated that after joining the church he didn’t have that many troubles. The Tribunal again questioned the applicant whether he was able to tell it anything specific that Christians believe it, to which his response was unclear to the interpreter. The applicant then responded, ‘Yes, there were these kinds of beliefs.’ When asked if he could elaborate, following a long paused, he stated that if there was an issue, God could help you, and that God could help everyone.

13. When asked whether he was able to explain what Easter is about, the applicant stated, ‘It’s about the Jesus.’ He then stated that after Jesus experienced ‘the hardship’, he came back alive again. When asked if he could tell the Tribunal about one of the parables, he asked for the question to be repeated, and then stated that he didn’t study the Bible to that extent.

14. When asked why he became a member of a family church and not one of the officially-recognised churches in China, the applicant stated that at the time there was probably no official church. He then stated that he was introduced to the church by his friend.

    Evidence regarding applicant’s current practice of Christianity

15. The applicant gave evidence that he does not currently attend a church in Australia and then confirmed that he has never attended a church in Australia. When asked whether there was a reason for this, he stated because in China is you believe in this you are treated very badly and that he has already experienced this, and so he believes that so long as you have it in your heart, you don’t really need to attend a church.

    Evidence of persecution in China and incident in 2004

16. As to the reasons why he fears returning to China, the applicant stated it is because there are many scars on his body that resulted from a knife, and that because he believed in Christianity he nearly died. When asked what harm he fears if he were to return to China, he stated that he has already experienced it, so he is already scared and definitely does not want to go back to China. When asked who would inflict this harm, he stated that it would be the government or local police. When asked whether you are allowed to be a Christian in China, he stated that being a Christian is not allowed.

17. Later in the hearing the applicant stated that he fears suffering harm in China, and his family prefers him to stay in Australia because they know he has fear and does not want to go back. When asked why this was the case, he gave a vague response, stating that it was because he attended the church and that this might impact on people from the government or impact the achievements from their work.

18. The Tribunal asked the applicant to tell it about the incident that occurred in China, that made him fear returning there. The applicant stated that at the time he attended the church. He stated that there was a pedestrian street at his church and that someone hurt him with a knife. He stated that he has a report from the hospital and a certificate. He stated that he is afraid that if he goes back to China, the same thing might happen to his family.

19. As to when the incident occurred, the applicant stated it was in 2004, and at the time the incident has a big impact on him. He stated that it should have been in August or September, in the summer of 2004. When asked who was responsible for the harm, the applicant stated that he can’t say that clearly. He then stated this is because it is quite hard to say, and that this is why he ran away from the place. When asked who was responsible for cutting him, the applicant was vague in his response. He stated that it probably happened because he offended someone, and also stated that it ‘affected the official’s achievements’. When asked where he was when he was stabbed, he stated that he was just at his place near the shopping mall. When the Tribunal sought clarification of what he meant by this, he stated that it was at the place where he was born. When asked whether anyone was with him at the time, he stated no, though he then stated that there were probably some people who had businesses nearby who knew him.

20. When asked why he believes this event occurred, the applicant responded just because he believes in the church and in Christianity. The Tribunal questioned how the person(s) who did this would know that he was a Christian, to which the applicant responded that it was quite easy to know. The Tribunal put to him that he had given evidence that the family church was in someone’s home, and it therefore questioned how people would know he had attended a church if there was nothing to distinguish it. The applicant responded that he didn’t know, and that probably there were people telling them.

21. As to what happened after the incident, the applicant told the Tribunal that the incident had a big impact locally. He stated that the ‘government just pretended to stop it and there was no result.’ He stated that he was hospitalised, and when asked for how long, he stated two weeks. As to the injuries he received, the applicant stated he had knife scars on his body. He stated that he didn’t know the reason for this, but others thought that he was ‘the bad person’.

22. The Tribunal questioned the applicant whether he went anywhere or took any action after he left hospital, to which he responded that he stayed home and didn’t dare go outside, and that he left home only rarely. When asked whether he sought any help from the authorities, the applicant responded that it was impossible for them to protect him, that they regarded it as his problem and did not care about him. He stated that they cared only about those who had harmed him. When asked whether anything else happened in China to make him afraid, he confirmed that there were no other incidents. In response to a separate question, he confirmed that nothing else happened to him in China.

23. When asked what his family’s reaction was to this incident, the applicant stated that they knew he was a good person, so they did not dislike him and they tried to help him.

24. The Tribunal questioned the applicant as to whether he returned to his church after this incident. He stated that he didn’t because of what had happened to him, which meant that he did not have the courage to go back to the church. He stated that so long as he had it in his heart, he wouldn’t need to go to the church, and so he was not that insistent on going to church.

25. The Tribunal questioned the applicant about his trip to [Country 1] in 2006 and his reasons for going there. He stated that it was because of the fairness. He stated that he tried to leave the place and change his life. The Tribunal questioned whether he had looked into whether he could have claimed asylum in [Country 1]. The applicant responded that at the time his visa to [Country 1] was only valid for two years and he had to leave because his employer asked him to leave.

26. The Tribunal questioned the applicant as to whether his plan when he came to Australia was to claim protection. He stated that at the time he didn’t know. He stated that he just came to Australia and he didn’t know about the Protection visa, which is why he only applied after seven years.

27. The Tribunal noted the event the applicant gave evidence of had occurred 16 years earlier, and questioned why he would be of interest to Chinese authorities. The applicant stated it was because he has not returned to China for many years, and they would doubt him if he returned to China suddenly. He stated that in addition many people knew about the incident, so if he returns the authorities would pay more attention to him.

28. The Tribunal noted that in his visa application, the applicant stated that there were other documents that he said he had, which he would provide at a later stage. The applicant did not provide these documents to the Department. The Tribunal noted that a further two-and-a-half years had passed since the delegate’s decision, and yet the documents had not been provided. The Tribunal asked the applicant whether he knew what these documents were and why they had not been provided. The applicant responded that this was probably because the person who helped him with the application did not understand this, and he also did not understand this, and so he did not realise that he had to provide any further documents.

29. At this point in the hearing the applicant advised that his phone battery was low and that he did not have a charger with him. He stated that he wanted to continue with the hearing so he could ‘solve this issue’, but advised that his phone might cut out. The applicant confirmed his evidence that there was no other reason why he does not want to return to China , and there was no other evidence which he wished to give about his religious practice. Shortly after this, the applicant’s connection to the hearing was lost. The hearing was accordingly adjourned to another day.

    Second hearing – information put to applicant under s.424AA

30. At the second hearing the Tribunal used the procedure set out in s.424AA of the Act to put information to the applicant from internal notes contained in the Department file. The Tribunal notes that no non-disclosure certificate was issued by the Department in relation to these notes. The Tribunal noted at the hearing that some of this information had been put to the applicant in a general manner at the Departmental interview, and this was referred to in the delegate’s reasons for decision, but the Tribunal would nonetheless put the information to him formally.

31. The Tribunal explained to the applicant that the information being put to him was from internal notes contained in the Department file, which contained information he had provided with his [temporary] visa application in 2009. The Tribunal explained that the particulars if this information include that in his [temporary] visa application, he stated that he was employed at the Vice-General Manager of [Employer 1 in Industry 1], and that he had worked in this role for 8 weeks. The information indicates that this was checked with a Mr [A], who was the sales officer of the company, and that an officer of the Department had also talked to someone purporting to be the applicant at his workplace. It was put to the applicant that a file note from March 2010 indicated that he had provided a marriage certificate, which was consistent with records held in the Marriage Registration Office in Wendeng City. The file note also indicated that information he had provided about his employment details matched those contained in another file, which had been confirmed as bogus.

32. The Tribunal informed the applicant of the relevance of this information, in particular that it indicated that the applicant may have provided false information to the Department about his employment details in his application for the [temporary] visa, and this may raise questions about the credibility and truthfulness of the claims made in his application for the protection visa. The Tribunal invited the applicant to comment or respond to the information and informed him that he could seek additional time to comment or respond to the information if needed.

33. When asked how he wished to proceed, the applicant responded, ‘Should be no.’ When asked what he meant by this, the applicant gave an incoherent response that the interpreter could not translate. The applicant then responded that the Department had said the information was false, so there was therefore no need for him to explain more. The Tribunal questioned whether he had ever worked as a vice-general manager for an [Industry 1] company, to which he responded no. He stated that he did not have any information as to how this false information had been provided to the Department and claimed that he had not been called by the Department, nor had he spoken to the Department in connection with his [temporary] visa application.

    Second hearing – potential concerns raised regarding the applicant’s claims

34. The Tribunal put a number of concerns to the applicant and gave him an opportunity to respond to each as a matter of procedural fairness. The Tribunal raised various inconsistencies between the evidence he had given at the hearing, and previous information provided to the Department. The Tribunal noted that in his written statement accompanying the visa application, the applicant stated that after the event which he claims happened in 2004, when he returned home his wife and son did not talk to him anymore. Whereas in the application form itself, he stated that he was married in 2007 and his son was born in [Year 1]. At the hearing he gave evidence that he was married in 2008 and his son was born in [Year 1].

35. In response, the applicant stated that the information was not inconsistent. The Tribunal again explained the inconsistent information about whether the applicant was already married in 2004. The applicant then explained that the statement was referring to his first marriage, and that he had been married twice. He stated that he was first married when he was 25. The Tribunal then asked the applicant how many children he has, to which he responded, ‘One.’ He then confirmed that his son was born in [Year 1]. The Tribunal put to the applicant that, if this was the case, why did his written statement refer to his son not wanting to talk to him anymore in 2004. The applicant responded that this was probably a mistake, and that he had a wife at the time, but not a child.

36. The Tribunal put to the applicant that the evidence he had provided about his claims was vague, lacking in detail and inconsistent with his written claims, which raised questions about his credibility and the veracity of his evidence. The Tribunal noted he had made inconsistent claims regarding when he became a Christian, noting that in his written claims he stated he had been a Christian since he was a teenager, whereas at the hearing he stated he became Christian after he lost his job at a shopping mall and went to work at a different shopping mall, when he was 28 or 29. The applicant responded that there was probably a mistake in the written statement, though when asked again when he started to identify as a Christian, he contradicted his oral evidence by stating it was when he started to work in [year], when he was 19 years old.

37. The Tribunal put to the applicant that he had provided only vague information about the person who had introduced him to Christianity and his reasons for becoming a Christian. When asked if he wished to respond, the applicant answered, ‘No.’

38. The Tribunal put to the applicant that based on the information and evidence he had provided, it was not convinced that he was a genuine Christian. The Tribunal provided a number of examples from the applicant’s evidence, and the Tribunal put to him that these examples indicated little knowledge of Christianity and no evidence to suggest that he is currently a practicing Christian. The applicant did not respond to this concern. Similarly, the Tribunal put to the applicant that his evidence that he hasn’t attended a church since 2004, and has never attended church in Australia, is not consistent with the claims of a genuine Christian. The applicant did not respond to this concern.

39. The Tribunal put to the applicant that on the evidence he had given, there was no reason to believe he would attend a church in China if he returned there, and therefore it was unlikely that his activities would be of any interest to authorities. The Tribunal also put to the applicant that if he did decide to attend a family church in China, based on the country information (which is set out below, and which had already been discussed with the applicant), he could do so as an ordinary worshipper, with the chance of him coming to harm or being noticed by the authorities being very remote. The applicant did not respond to either concern.

1. The Tribunal put to the applicant that he had provided inconsistent details regarding the persecution he claims he experienced in China, and that his evidence was vague and unconvincing. The Tribunal elaborated with a number of examples, including inconsistency regarding where the claimed stabbing attack occurred, who was responsible and the motivations for it. The Tribunal also put to the applicant that his evidence that he was stabbed by an unknown person in the street because he was a Christian was implausible, given he claimed the location of his church was a secret and he provided no credible reason as to how he was identified as a Christian. The applicant did not respond to these concerns.

2. The Tribunal noted the applicant had provided an English translation of an ‘Expert conclusion notification’ with his application form, that he claims was issued by the Public Security Bureau (PSB) in Wendeng City. The Tribunal noted that the translation was not by a certified English translator, and in any case, the content of the information suggested it was not a genuine document issued by a Chinese government authority. The applicant stated that the document was the truth and raised that he also had a medical report and a statement from the police. The Tribunal noted that his application form referred to four supporting documents, but he provided only the report from the PSB, and stated the others would be provided at a later stage. The Tribunal noted the applicant had approximately two-and-a-half years to provide these documents to the Tribunal, since making his application for review. In response to these concerns the applicant stated he had no further information. Later in the hearing he stated that the document from the PSB was not bogus and was true. He stated that it was written in handwriting and written that way because the police were from a rural area and their literacy is quite low.

3. The Tribunal put to the applicant that even if the claimed event in 2004 occurred, he remained in China until July or August 2006, when he left for [Country 1] for two years for work purposes. He returned to China around July 2008 and did not depart for Australia until July 2009. The Tribunal put that there was no evidence that he had gone into hiding in China and this behaviour did not appear consistent with someone who was afraid of persecution in China. The applicant responded that he had ‘done it so quickly’ because if he stayed at home and never went off-site it would not have been good, which is why he had to leave.

4. The Tribunal also raised with the applicant the delay in applying for protection, almost seven years after his arrival in Australia, which did not appear consistent with the behaviour of someone who fears returning to China. The applicant responded that during this period he was not aware he could apply for the Protection visa.

5. The Tribunal put to the applicant that he had left China on his own passport and renewed his Chinese passport in 2014, through the Chinese Consulate in Australia. The Tribunal put to the applicant that the independent country information indicates that the security and identity checks at China’s airports are comprehensive, and his ability to leave China through a large airport without incident, may indicate that he was of no interest to Chinese authorities. The Tribunal noted that the renewal of his Chinese passport did not appear consistent with the behaviour of someone who is fearful of Chinese authorities.

6. The applicant responded that he applied for the new passport because he wanted to apply for a bank card and needed identification. He then claimed that he was questioned when he left the airport in China. When asked what he was questioned about, he said he was just asked the purpose of his travel. The Tribunal put to the applicant that this sounded like standard questioning and did not indicate that he was of any interest to authorities. The applicant stated that there were hundreds of people, so they did not check him, and that he was waiting to board, so they could not question him. The Tribunal put to the applicant that the country information indicates that China’s major airports have a centralised system with name matching capabilities and the government maintains an immigration exist control list. The applicant responded that probably at that time he was lucky, so they let him leave.

7. The Tribunal put to the applicant that he had not provided any credible reasons as to why the authorities in China would regard him to be a person of interest. The applicant stated that it was probably because some people from the church ‘might not be good to them’. The Tribunal put to the applicant that this claim was vague and invited him to provide any further information. The applicant again provided a vague response, stating, ‘Probably might impact their achievements or harm the society.’

8. The Tribunal questioned the applicant whether there was any other reason or basis on which he believed he would be harmed if he returns to China. The applicant responded that he didn’t dare say. When asked what he meant by this, he responded, ‘Because it is hard to say and also because I can’t say.’ The Tribunal put to the applicant that its decision needed to be made on the basis of evidence, and if he had any other grounds or reasons for seeking protection, the hearing was his opportunity to do so. The applicant then told the Tribunal that his fear was ‘because of things that happened during the period.’ He stated, ‘they should have a record of that in the system,’ and that he is afraid that if he goes back he will face persecution. When questioned further about this, the applicant did not raise any new claims, but repeated his existing ones, and stated he feared persecution because he attended the church, and that was not allowed by the government.

9. When asked whether there were any other relevant matters, the applicant raised the medical report, police statement and a police compensation agreement, which he claimed he possessed when he made his Protection visa application. The Tribunal noted that it only had a copy of the PSB report headed ‘Expert conclusion notification’. The applicant indicated he had these documents and he wished to provide them. The Tribunal raised concern about the amount of time the applicant had to provide these reports since making his application, to which the applicant indicated he did not know how to provide them. The Tribunal advised they could be provided in the same manner he had provided responses to the hearing invitations. The Tribunal granted the applicant a further 14 days from the conclusion of the hearing, to provide any further documents in support of his claims. The Tribunal noted that for the documents to be given any weight, certified English translations would need to be provided, together with the original documents.

   Country information

10. The Tribunal discussed the following country information with the applicant:[1]

    [1] DFAT Country Information Report, People’s Republic of China, 3 October 2019.

    RELIGION

    3.30.     It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million …

    Government framework regarding religion
    3.37.     Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).

    3.38. Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.
    …
    3.44.     Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.

11. The Tribunal summarised and discussed further information with the applicant about Christianity in China:

    Christians
    3.76.     China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).

    3.77.     In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.
    …
    3.79.     Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice …

12. The Tribunal indicated that the DFAT report contains the following information about Christianity in Shandong:

    3.47.     Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’ DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities.

    …

    3.85.     The TSPM [Three-Self Patriotic Movement] operates seminaries in Liaoning, Zhejiang, Heilongjiang, Guangdong, Fujian, Jiangsu, Shandong and Nanjing, as well as many bible schools across the country. Unlike other religions, sources report the government provides financial support to TSPM seminaries, and TSPM seminaries are required to play an informal role in implementing government policy and regulations on religion (see RRA, Government Framework regarding religion), and monitoring provincial churches.

13. The Tribunal explained that this information might lead the Tribunal to find that, contrary to his claims, two Christian religions (Catholicism and Protestantism) are recognised as official religions in China, and that registered state-recognised examples operate for both, including a Protestant seminary in Shandong. The Tribunal also explained it might infer that if the applicant were to return to China, he could worship as a member of a family church, with only a remote chance of coming to the attention of, or being harmed by, authorities.

14. The applicant indicated that he did not have any comments on the country information.

    Assessment of claims

15. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

16. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

17. On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

18. The applicant claimed that he feared persecution in China because he is a Christian and attended an unregistered family church, as a result of which he was assaulted with a knife in 2004, and if he returns to China he may receive persecution from authorities because they have a record of what happened in 2004.

19. The Tribunal has carefully considered the claims made by the applicant and finds the applicant to be an unreliable witness who lacks credibility. The Tribunal finds the applicant’s claims regarding his belief in Christianity to be entirely vague, unpersuasive and unsubstantiated. The applicant was given a number of opportunities at the hearing to provide information about his Christian faith, but was unable to provide any convincing information. He was unable to indicate whether his family church in China belonged to a denomination, other than stating that it was ‘the Christian Church’. Despite stating that he has read the Bible, he could not provide any convincing information about a part of the Bible which is of importance to him, other than a vague statement about the need to be ‘kind-hearted’ and not ‘do bad things’. He could not remember who had said this or which part of the Bible it was from. He demonstrated a limited understanding of the meaning of Easter, which the Tribunal does not find consistent with the knowledge to be expected of someone who claims to be a genuine Christian. He demonstrated no understanding of what a parable is. He gave an unconvincing example of a Christian prayer, which the Tribunal considers was improvised. He gave an unconvincing description of a Christian service, stating that it involved teaching of classes and reading the Bible, and had no awareness of how a Christian service might be structured. He gave an unconvincing explanation of Christian belief, stating that you just need to believe in God and there will be no difficulties for you. He confirmed that he has not been baptised.

20. In addition, the applicant conceded that he has not attended a church since 2004 and he has never attended a church in Australia. He stated that so long as you ‘have it in your heart’, you don’t need to attend a church. The applicant demonstrated little awareness of conditions faced by Christians in China. He demonstrated no awareness of the state-recognised Three-Self Patriotic Movement and claimed that it is not permitted to be Christian in China.

21. I do not accept that the applicant is a genuine Christian. Despite the Tribunal’s use of open questions to elicit evidence about his religious practice, the applicant demonstrated little understanding of Christianity, and instead relied on general statements about being ‘kind-hearted’, which the Tribunal finds could apply to a number of religions. He demonstrated no awareness of the unique beliefs of Christians.

22. In addition, the applicant provided conflicting information about when he first became a Christian. In his written statement, he stated that he has been a Christian since he was a teenager, but provided no convincing details as to how a teenager who had not been raised a Christian could gain access to a family church where worship was held in a ‘private area’. At the hearing he gave evidence that he became Christian when he was 28 or 29. When this inconsistency was put to the applicant, he stated that there must have been a mistake in his written statement, but he then proceeded to contradict his oral evidence by stating that he became a Christian at the age of 19.

23. The Tribunal also finds the applicant’s evidence about his conversion to Christianity through a friend whose name he cannot remember, to be unconvincing. The applicant claims that he joined the church because the people who attended it were helping others and they did not have any troubles. The Tribunal finds this claim difficult to reconcile with his claim that it is not permissible to be a Christian in China.

24. On his own evidence, the applicant had not attended a church since 2004 and he has not sought to attend a church in Australia, despite claiming protection on the grounds of being a Christian in 2016. The applicant claimed that it is sufficient to ‘have it in your heart’, and that he does not need to attend a church.

25. On the basis of the applicant’s evidence, the Tribunal does not accept that the applicant is, or ever was, a Christian. The Tribunal does not accept that the applicant has an understanding of what it means to be a Christian or have an understanding of basic Christian belief. The Tribunal finds the applicant’s evidence about attending a family church in China to be vague, general and lacking any convincing detail, and the Tribunal does not accept that he attended a family church in China.

100.   It follows from these findings that the Tribunal does not accept the applicant’s claims regarding the persecution he experienced in 2004 as a result of being a Christian or attending a Christian church. However, independent of these findings, the Tribunal has further and separate concerns regarding the applicant’s evidence of the events of 2004.

101.   The Tribunal notes the applicant has provided inconsistent accounts of where the claimed stabbing incident occurred, why and who was responsible for the harm. In his written statement that accompanied his application, he states that in 2004 a ‘big action’ involving the police and officers from local authorities took place in his city, as part of which authorities were dispatched to most of the family churches to look for Christians. The applicant claims that he was stabbed and hit all over his body, following which he was in hospital for 15 days. He claims that the incident was reported to his workplace and he lost his job. He claims that after he was hospitalised for 15 days, he sought justice from the local government and went to the police for compensation. He claims that he had his injuries identified, but received no satisfactory result. He claims that he was nearly locked up by the police, and that when he returned home, his wife and son did not talk to him anymore.

102.   The applicant’s account at the hearing differed markedly. Rather than a planned raid on a number of family churches, the applicant claims that he was alone when he was attacked with a knife. He claimed that he was on a pedestrian street, where the church was located. As to who was responsible for the attack, the applicant gave a vague response, stating that it was probably someone who he had offended or that it may have ‘affected the official’s achievements.’ When asked why he believed this happened to him because of his Christian beliefs, he stated that it was quite easy to know that he was Christian. He provided an unconvincing response as to how anyone would know he had just left a family church if, on his evidence, services were held at people’s homes and the locations changed.

103.   The applicant stated that he was hospitalised for two weeks, which the Tribunal accepts as consistent with the account in his written statement. The Tribunal asked an open question about whether the applicant had gone anywhere or taken any action after he left hospital, to which he responded that he stayed home and didn’t dare go outside. When specifically asked if he had sought help from the authorities, he stated that they regarded it as his problem and only cared about who had harmed him. The applicant stated that his family’s reaction was that they tried to help him.

104.   The applicant chose not to respond to these inconsistencies when they were put to him. The Tribunal finds the applicant has provided inconsistent accounts of where he claims he was stabbed, by whom and whether the attack was on him alone or part of a coordinated raid against a number of family churches. The Tribunal finds the applicant also gave vague and unconvincing accounts of where he was at the time of the incident, who his attacker was, and what action he sought from the police following the claimed incident. The Tribunal notes that in his written statement he claims, he sought justice and compensation for the attacks by the local authorities and the police, and that he was nearly locked up in jail. His evidence at the hearing contained no mention of being threatened with detention by the police. He instead claimed the police were more interested in who the attackers were, which the Tribunal finds to be inconsistent with his written claim that the attack was a coordinated one involving the police and local authorities.

105.   The Tribunal put to the applicant that his written statement refers to his wife and son not talking to him anymore after the 2004 incident, whereas at the hearing and in the application itself he stated he was not married until 2007 and 2008, and stated his son was born in [Year 1]. The applicant sought to explain this inconsistency by saying that the written statement referred to his first wife. The applicant however then confirmed that he had only one son, who was born in [Year 1], which is inconsistent with his written claims.

106.   The inconsistencies referred to above go to where the applicant was assaulted, whether he was the only victim or the attack was part of a coordinated raid on family churches, who was responsible for the attack and whether the applicant sought protection from local authorities.

107.   The Tribunal also notes a propensity of the applicant to shift his evidence in response to the concerns that were put to him, which raises further concerns about his credibility and the reliability of his evidence. Examples include the applicant’s shifting claims at the hearing regarding the year he was married and when he first became a Christian, as well as him raising a new claim about having been questioned at the airport on his departure from China, in response to the Tribunal putting country information to him.

108.   The Tribunal notes that the only supporting document which the applicant has provided in support of these claims is a brief two paragraph document which is headed ‘Wendeng City Bureau of public security: Expert conclusion notification’, and was provided as an attachment to his Protection visa application. A non-certified English translation has been provided of this notice. The notice is dated [in] September 2004 and states:

Our bureau has assigned relevant people to assess the injury condition to … [the applicant] and get the expert conclusion, the expert conclusion is the victim … has been chopped several times, this is the minor injuries.

According to (Criminal Procedure Law Of (sic) the People’s Republic of China) No. 121, if you have any objection to this expert conclusion, the request of reassessment or supplementary can be submitted.

109.   The Tribunal raised concerns with the applicant regarding the content of the information contained in the notice and whether it was a genuine document, to which he responded that it was handwritten and worded like this because the police officers were not very literate.

110.   The Tribunal notes that under Section 7 of the Criminal Procedure Law of the People’s Republic of China (1996), experts can be assigned or invited to give expert evaluations in relation to the circumstances of a criminal case.[2] Article 120 of the Criminal Procedure Law (1996) states that after evaluating a matter, ‘the experts shall write a conclusion of expert evaluation’ and affix their signatures to it. It further states that:

[2] Criminal Procedure Law of the People’s Republic of China (1996). English translations of this law as it applied in 2004 are available on Refworld and the website for the Organisation for Economic Co-operation and Development: accessed 28/1/2021; accessed 28/1/2021.

… disputes over medical verification of personal injuries … shall be conducted by a hospital designated by a people’s government at the provincial level. After verification, the expert shall make a conclusion in writing, to which his signature and the hospital’s seal shall be affixed.

111.   Article 121 of the Criminal Procedure Law (1996) made provision for ‘the investigating organ’ to notify a crime suspect and victim of the expert conclusions, to be used in evidence. It also specified that the crime suspect or victim could make application for additional expert evaluation.

112.   The Tribunal finds that the wording of the document provided by the applicant, even where allowance is made for any errors of translation made by a non-certified translator, is not consistent with the language and detail which would be consistent with notification of the conclusions from an expert evaluation. In particular, the conclusion that the applicant ‘has been chopped several times’, is not consistent with the language or level or detail to be expected from an expert report. For example, there is no reference to where the applicant sustained cuts or ‘chopping’, such as to his arms or torso, and no other detail consistent with an expert evaluation. The Tribunal does not accept the applicant’s claim that this is the case because the police officers involved were not very literate, and instead finds the document is not genuine. Accordingly, the Tribunal gives it no weight in supporting the applicant’s claims.

113.   The Tribunal notes that at question 97 of the applicant’s Protection visa application,  he stated that he had copies of a medical record, a compensation agreement and a diagnosis certificate, copies of which would be translated and provided later. Copies of these further documents have not been provided to the Department or Tribunal, despite over four-and-a-half years having elapsed since making the visa application was made on 31 May 2016. Following a request from the applicant, the Tribunal granted the applicant a further 14 days from the conclusion of the hearing to provide certified English translations of these documents. No documents were provided within 14 days, and as at the date of this decision, no additional documents (neither the Mandarin originals, nor English translations) have been provided. The Tribunal considers the applicant has had sufficient time to provide information in support of his claims.

114.   Given the issues identified above regarding the applicant’s claims that he was assaulted in 2004, and the lack of any compelling supporting evidence, the Tribunal does not accept the applicant’s claims regarding the events of 2004. The Tribunal finds that the applicant was not ‘chopped’ with a knife or assaulted in any other way in 2004 by police, local authorities or any other person. It follows that the Tribunal does not find that the applicant was hospitalised for two weeks following such an assault. It also follows that the Tribunal does not find that the applicant sought justice or compensation from police in relation to such an assault. It also follows that the Tribunal does not find the applicant was threatened with imprisonment or any form of detention by police.

115.   Having considered all the applicant’s claims and all the evidence, the Tribunal finds aspects of the applicant’s evidence to be inconsistent, contradictory, unpersuasive and unconvincing. The Tribunal finds that the applicant is not a witness of truth. Given these concerns, I find that I do not accept the claims of the applicant and find that he is not credible in his claims.

116.   In addition, the Tribunal notes the information which was put to the applicant using the procedure contained in s.424AA of the Act, regarding false information and a bogus document provided with his [temporary] visa application. Given the above findings the Tribunal does not need to rely on this information. The Tribunal notes however that the applicant indicated he had no comments in relation to the information which was put to him. He confirmed however that he had never worked as the vice-general manager of an [Industry 1] company. This confirms that false employment details were provided to the Department with his [temporary] visa application. The Tribunal considers this adds further concerns to the credibility of the applicant’s account, but notes that such additional information has not been necessary for the above credibility findings.

Does the applicant have a well-founded fear of persecution if he returns to China?

117.   The Tribunal accepts that the applicant was born and lived in Shandong, China. As noted above, the Tribunal finds that the applicant is not a genuine Christian and did not attend a family church in China, nor did he practice Christianity in China. The Tribunal accepts the applicant’s evidence that he has never attended a church in Australia and that he has not attended a church since 2004.

118.   Given the finding that he is not a genuine Christian, the Tribunal is satisfied that the applicant will not practice Christianity on return to China and will not attract adverse attention from local authorities for this reason. This is particularly the case given the applicant’s evidence that he was not raised with any religious beliefs, has not been baptised, has not attended a church sice 2004 or attended a church in Australia, where he could have done so freely. On the applicant’s own evidence, it is unnecessary for him to attend a church.

119.   On the basis of these findings, the Tribunal does not accept that the applicant will come to the attention of authorities in China or come to any harm on the basis of his religious beliefs.

120.   The Tribunal finds that even if the applicant were to attend a church in China out of interest, given the manner of his engagement with religion to date, including no church attendance in Australia, the Tribunal is not satisfied that his attendance, whether at a registered or unregistered church, would attract adverse attention from authorities. The applicant demonstrated very limited understanding at the hearing of what it means to be a Christian and no understanding of different Christian denominations or churches, and there is nothing to indicate that the applicant would have any objections in attending a registered church in China because of any political or religious values. The Tribunal considers that based on the independent country information, the applicant could attend a registered or small unregistered church in Shandong as an ordinary worshipper, with only a remote risk of being harmed by the authorities or anyone else.

121.   I am therefore satisfied that there is no real chance that the applicant will be questioned, harassed, detained or otherwise harmed by the authorities or anyone else for reasons of religion, now or in the reasonably foreseeable future.

122.   The Tribunal has also considered the applicant’s claim that he fears returning to China on the basis of events which occurred in 2004, and the police having a record of these events. As noted above, the Tribunal does not accept that the applicant was assaulted in 2004. The Tribunal also finds that even if it were to accept his claim that he was criminally assaulted in 2004, the applicant’s claims regarding why this would make him of interest to authorities or be a source of persecution were vague and unconvincing. The applicant provided no credible reasons or details as to why being a victim of such an assault would be a reason for persecution by authorities. The Tribunal notes the claims in his written statement that he was assaulted during a joint operation by the police and local authorities against a number of family churches in his city, but notes that at the hearing he contradicted a number of the claims in this written statement. When asked why this event would make him a source of interest to the authorities, the applicant stated it was because he attended a church and it was not allowed by the government. He made vague claims about impacting the achievements of authorities or being considered a harm to society. As noted above, the Tribunal does not accept that the applicant was assaulted by a police officer or by any other official in 2004, for being a Christian or for any other reason, nor does the Tribunal find his claim that authorities in China have a record of such an event to be credible.

123.   In addition, the Tribunal notes the applicant was able to depart China in 2009 from a major airport without incident. According to the most recent DFAT Report (3 October 2019), security monitoring capabilities at China’s major airports are comprehensive, and departing passengers pass through several identity checks, including passport and ticket/boarding pass inspection, run by different agencies between arriving at the airport and boarding a flight. According to this report, the Chinese government maintains an immigration exit control list.

124.   A similar state of affairs is recorded in the earlier DFAT country information reports, issued on 21 December 2017 and 3 March 2015. According to the 2015 report, China’s major airports have a centralised system with name matching alert capabilities, and security monitoring capabilities at major airports are comprehensive. The Tribunal considers that the applicant’s ability to depart China without attracting any adverse interest, indicates that he is of no concern to authorities. The Tribunal has considered the applicant’s claim that he was questioned when he left China, but the only evidence he then provided was that he was asked about the purpose of his travel. The Tribunal does not consider this to indicate the applicant was of any interest to Chinese authorities. The Tribunal has considered the applicant’s other claims, including his claim that he was not questioned because there were too many people waiting to board the plane, but finds they are unsupported by the country information, which indicates that entry and exit controls at China’s major airports are comprehensive and involve checks at several stages.

125.   The Tribunal also notes the applicant’s delay in departing China. The applicant did not leave China until July 2006, when he went to [Country 1] for two years. This was close to two years after the event which he claims occurred in 2004. When asked why he went to [Country 1], the applicant stated it was to work, and he confirmed that he returned to China in July 2008 because his visa ran out. The applicant gave evidence that in China he has always lived at the same address in Wendeng District. The Tribunal considers this evidence is not consistent with the behaviour of someone who fears persecution in China. The applicant remained in China and remained at his home address for close to two years after the claimed event of 2004. There is no evidence that he went into hiding or moved addresses to avoid persecution. The Tribunal notes that [Country 1] does not accept asylum seekers, however the applicant demonstrated no indication that he had explored his options to avoid returning to China, including no awareness of whether asylum could be sought in [Country 1]. The applicant then returned to China for a further year and resided at his hukou in Wendeng District, with no evidence of any harm coming to him or of him being of interest to authorites. The Tribunal considers this as further evidence that the applicant does not genuinely fear returning to China for the reasons claimed.

126.   The applicant's delay of almost seven years in lodging his application for a Protection visa casts further doubt on the genuineness of his fear and the credibility of his evidence. The applicant has not provided a meaningful explanation for why he delayed lodging his protection visa application. In the Tribunal’s view, the delay is suggestive of the applicant not having a genuine fear of harm if he were to return to China

127.   The Tribunal has also considered whether the applicant may have other grounds for claiming protection. The Tribunal notes that when questioned if there was any other reason or basis on which he believed he would be harmed if he returns to China, the applicant responded that he ‘didn’t dare say’, and then stated that he ‘couldn’t say.’ The Tribunal then gave the applicant a further opportunity to raise any additional claims or information. Rather than raising any new claims, the applicant again referred to his claims regarding the event in 2004, for which the police would ‘have a record’ in their system. When again asked whether he had any credible information to support such a claim, the applicant referred to attending a church which was not allowed by the government. The Tribunal has already addressed these claims above.

128.   Having questioned the applicant about any further reasons or grounds for claiming protection, the Tribunal is satisfied that the applicant was given several opportunities during the hearing to raise any further or additional claims, but did not provide any credible evidence of any additional claims. Having considered the applicant’s evidence as a whole, including the inconsistencies in his claims and his propensity to shift his evidence on a number of occasions, the Tribunal does not accept the applicant’s claim that he dared not say why he believed he would be harmed if he returns to China, and considers that this was raised by the applicant towards the end of the hearing, after the Tribunal put to him a number of potential concerns with his evidence, as an attempt to manufacture evidence to strengthen his claims for protection. The Tribunal made it clear during its introductory comments that nothing which he said would be made public in any way which might identify him, and the applicant provided no credible reasons why he was unable to provide further details. The Tribunal notes its comments above, that it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out, and for the applicant to supply the relevant facts of the individual case in as much detail as is necessary to enable the examiner to establish the relevant facts.

129.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.

130.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). 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).

Does Australia have protection obligations to the applicant under the complementary       protection criterion?

131.   As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.

132.   Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[3] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.

[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]

133.   ‘Significant harm’ is defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

134.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.

135.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.

136.   Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

Conclusion

137.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

138.    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).

139.   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

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

Frank Russo
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…