1714073 (Refugee)

[2019] AATA 6368

1714073 (Refugee) [2019] AATA 6368 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714073

COUNTRY OF REFERENCE:                  China

MEMBER:Cathrine Burnett-Wake

DATE:20 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2019 at 11:28am

CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – unregistered house church – parents beaten by police, hospitalised and detained – non-appearance before the Tribunal – credibility concerns – minimal, vague and general evidence – church attendance in Australia – knowledge of Christian teachings and the Bible – worship in a low level manner – country information – status of Christians in China and religion in Fujian – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (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 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 9 December 2014 and the delegate refused to grant the visa on 8 June 2017.

3. The applicant was represented by Mr [A], both a lawyer and registered migration agent.

4. On 30 October 2019, the applicant was invited to attend a hearing. The hearing invitation advised the applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on the information it had alone. The hearing was scheduled to take place on 20 November 2019.

5. On 13 November 2019, the applicant’s representative returned the hearing invitation form which indicated the applicant did not wish to attend the scheduled hearing.

6. On 14 November 2019, a Tribunal officer called the representative to confirm if the applicant’s intention was to decline to attend the hearing. The representative verbally advised the Tribunal officer that the applicant did not wish to attend the hearing.

7. In light of the applicant’s preference not to attend the hearing, the Tribunal wrote to the applicant on 19 November 2019 and invited him to provide information to support his claims by 3 December 2019.

8. On 2 December 2019, the representative wrote to the Tribunal and stated:

   Instructed by our client, we formally advise he will not take this opportunity to provide the information for this matter, you can ask the member to make the decision.

   RELEVANT LAW

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

   Refugee criterion

10. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

13. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

14. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

15. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

16. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

17. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

18. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

19. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

20. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

21. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

22. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

23. 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

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

    Identity

25. 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, and he is a national of China, which is also his receiving country.

26. On the basis of the information before the Tribunal it finds that the applicant does not have a right to enter and reside in any third country.

    Claims

27. The applicant provided claims in his protection application. He claimed that he would be persecuted or suffer significant harm, mentally or physically if he went back to China because of his beliefs, and stated he feared the agents of the state and could not relocate as the persecutor was the state. He claims that the Communist Party believes that religion is an adverse factor on society and referred to many religious groups as evil cults and persecuted them. He said he feared being detained or forced to give up his belief and stop religious activities. He claimed the authorities will not protect the freedom of his religious beliefs.

28. The applicant attended an interview with the Department. The verbal statements and claims made can be summarised as follows:

    ·He is from Fujian Province, his family still reside there;

    ·He chose to come to Australia because he wanted to undertake further study and wanted religious freedom;

    ·He did not complete his studies in Australia because he needed to make money;

    ·Whilst living unlawfully in Australia, prior to lodging the protection visa application, he was working and occasionally going to church;

    ·He remained in Australia unlawfully for so long before lodging a protection visa, because he was worried about being persecuted by the Chinese government;

    ·He found out about protection visas through his friends as an option available to him and a migration agent helped him with the application;

    ·He claimed he feared serious harm from the Chinese authorities because he and his family attended local/unregistered churches in Fujian province;

    ·He claimed the church he attended in China is seen as a cult by the authorities and they are targeted and are not given religious freedom;

    ·He claimed nobody founded his church, people would just come together and talk;

    ·He claimed it was just neighbours who would gather and they would talk together in each other’s houses, talking about the Bible, Jesus and faith;

    ·He claimed when he attended church in China, he communicated with others and discussed the Bible;

    ·He claimed he could not recall what they communicated about because he was little;

    ·He claimed he did not want to go into details about what happened at church in China because he was worried he would say things that would make him sad;

    ·He claimed the police had beaten his parents when they gathered together to talk;

    ·He claimed he was not beaten because he was only seven or eight years old;

    ·He claimed he could not recall when his parents were beaten;

    ·He claimed his parents were hospitalised from being beaten by the Chinese authorities;

    ·He claimed his parents were detained for three to five days initially after going to hospital;

    ·When asked why he had not previously declared that his parents were beaten and hospitalised, he claimed he did not write about it because he was scared of the Chinese government and that they will learn about his claims and hurt his family;

    ·He claimed the Chinese government would know about his claims because the Internet was so developed;

    ·He claimed there was evidence his family had been in hospital, however it was in China;

    ·He claimed his family never went to mainstream churches because they talk about politics not Jesus, he said he knew this as he followed his parents and they told him;

    ·When asked who Jesus was according to Christian teaching and belief he responded Jesus is Jesus;

    ·The applicant claimed he attended a church in Australia that was in [Suburb 1] at [street number] but he didn’t know the street name the church was on;

    ·He said a friend would drive him to church and he would go once or twice a fortnight;

    ·He claimed over 100 people attended this church in [Suburb 1];

    ·He said he feared returning to China because the police will lock him up;

    ·He said since coming to Australia this father had been detained again.

    Assessment of claims

29. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims a 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.)

30. 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.

31. On the other hand, as stated previously, 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).

32. Credibility issues regarding the applicant were raised by the delegate in the Departmental decision record. During the protection interview, as outlined by the delegate in their decision, the answers to the questions asked of the applicant were at times met with long periods of silence before a response was received; at times no final answer given and at times the applicant declined to answer. The delegate also noted that responses often lacked detail.

33. The applicant has not actively participated in the review process. The applicant declined to attend a hearing of the Tribunal with no reason given, even though the hearing invitation stated the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The applicant was then given an opportunity to provide further information to support his claims; however he declined to do so. The Tribunal had intended to discuss the credibility issues raised by the delegate with the applicant during the hearing, however as he declined to attend a hearing the Tribunal has not been able to do so. The Tribunal as such has been precluded from testing the applicant’s claims in a meaningful way.

34. The Tribunal has carefully considered the claims made by the applicant. On some matters during the protection interview he was able to give evidence with confidence and clarity, but when it came to questions about his claimed faith and the claimed beatings, hospitalisation and detention of his parents; he was less able to provide clear and straightforward answers and required prompting by the delegate. The Tribunal acknowledges that the applicant was [age] years of age when he first arrived in Australia, and that he claimed to have attended church in China up until the point he arrived. The Tribunal also acknowledges his claims that he had been a child of 7 or 8 years of age when the claimed beating and detention of his parents occurred so his memory may not be as clear, however, the Tribunal is of the view that although his memories of his earlier childhood may not be as clear, the memories of his late teens and his church attendance before he arrived would have been more pronounced. It should be noted that the applicant also on occasions declined and/or did not answer questions put to him and no reason for the non-responses was provided other than on one occasion where he told the delegate he did not want to discuss about what happened at church because it would make him sad.

1. The Tribunal is of the view that the applicant is an unreliable witness and is not a witness of truth for the following reasons. He was able to provide only minimal, vague and general information about his claimed religious practice and the claims of harm against his parents to the delegate. As he declined to attend the hearing before the Tribunal, and because he declined to provide further information to the Tribunal about his claims and his claimed religious practice they could not be explored further.

2. Despite having a considerable period to immerse himself in his faith in Australia, since 2007, and as he claims to have attended church once or twice a fortnight, he has not demonstrated more than a very generalised and generic sense of his faith, the reasons for his becoming a Christian, or what his religious practice was or its significance to him. The Tribunal has grave doubts that the applicant considers himself a Christian or part of a Christian group.

3. However, giving the applicant the benefit of the doubt, the Tribunal accepts that the applicant was attending a gathering of people on a more or less a fortnightly basis at the time he attended the interview with the Department and that he may on occasion as a child have attended religious gatherings with his parents in China. The Tribunal also accepts that he has been attending church in Australia since his arrival in 2007 at the age of [age]. The Tribunal accepts that these gatherings identify themselves as Christian groups. The Tribunal accepts that the applicant draws some benefit from attending such groups.

4. The Tribunal accepts that the applicant has some knowledge of Christian teachings and the Bible, although as above, the Tribunal has found this knowledge to be general and generic for someone who at the time of the protection interview was in their mid-[age range] and had claimed to have attended church on a regular basis since childhood. The Tribunal considers that during the protection interview held by the Department he displayed very little detail for someone who claimed to have been attending Church on at least a fortnightly basis.

5. Giving the applicant the benefit of the doubt, the Tribunal is willing however, to accept that the applicant engaged in some practice and has some attachment to Christianity.

6. The Tribunal finds that what it has accepted of the applicant’s religious practice and his description of the gatherings he has attended, as detailed in his protection visa interview, fit descriptions of unregistered Christian churches in China.

7. As a person who has been attending a Christian gathering reasonably regularly, although with little knowledge of scripture or the teachings of Christ, the Tribunal is willing to accept that the applicant is a Christian who has worshipped at a low level (meaning that although he attends gatherings, prays and spends time with people there he has not developed more than a superficial understanding of Christianity nor does he engage in any other activities as a Christian). The Tribunal accepts that he may wish to continue worshipping in the same low level manner in the future.

   Country information

8. The current Department of Foreign Affairs and Trade Country Information Report on the People’s Republic of China, issued 3 October 2019, relevantly provides the following regarding Christians in China and religion in Fujian:

   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.

   3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings

   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 (see Political Opinion (actual or Imputed) and Protesters/petitioners)...

   3.80 Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.

   3.81 In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.

   3.82 Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

   3.83 DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

   Religion in Fujian

   3.33 While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.

   3.34 Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.

   3.35 Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.

   3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion). [1]

   [1] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019

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

9. As above, the Tribunal has accepted that the applicant has worshipped in a low level manner in Australia and that his description of his religious practice corresponds to descriptions of unregistered Christian house churches in China.

10. The Tribunal finds that if the applicant returned to China he may wish to practice as it has found he has done in Australia – that is, attending a gathering at least once a fortnight, at which he discusses the Bible.

11. On the country information above, the Tribunal finds that he could do this at an unregistered house church in China as he claimed to have done before coming to Australia.

12. The applicant lived in Fujian before coming to Australia, and his family remain there. The country information indicates that there are many house churches in Fujian, and that people in Fujian are largely free to worship at these churches with little or no official interference by the state. The country information, the Tribunal finds, indicates that low level worshippers, such as it finds the applicant to be, would not face more than a remote chance of being harassed, detained or otherwise harmed by the authorities whilst worshipping.

13. On the basis of these findings, the Tribunal finds that the applicant can return to China, can worship in the way he has been worshipping in Australia, and will not come to any harm. The Tribunal does not accept, nor did he claim, that he would alter his religious practice on return to China in a way which would increase his risk of harm. On the weight of the country information and the Tribunal’s findings it does not accept that the applicant would have to alter or hide his religious practice or expression of his faith in any manner if he returned to Fujian, China, but could continue to worship and practice his faith in the manner he has done for the past several years in Australia with only a remote chance of being harmed by the authorities or anyone else.

14. The applicant claimed that he faced a risk of harm and persecution in that he would be detained by the authorities if he returned. The applicant claimed that his parents had both been beaten because they attended a religious gathering. The applicant claimed that his parents were hospitalised after the beatings and then detained. The applicant also claimed that his father was detained on another occasion. The Tribunal does not accept these claims as credible or plausible based on the Tribunal’s finding the applicant is an unreliable witness. These claims are not substantiated, and the applicant elected not to attend the hearing to discuss these claims in a meaningful way and his assertion of them as fact. Even if the Tribunal accepted these claims as true, the Tribunal is of the view that the country information does not support more than a remote chance of individuals being subjected to harm by the authorities who are worshipping in a low level manner.

15. Therefore, the Tribunal finds that there is no real chance that the applicant will be harassed, detained or otherwise harmed by the authorities or anyone else for reasons of his Christian religion, now or in the reasonably foreseeable future. The applicant did not claim, and there is no evidence to support him fearing harm on any other basis on return.

16. 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).

    Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?

17. In MIAC v SZQRB[2] 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.

    [2] 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]

18. As detailed above, the Tribunal has accepted that the applicant is a Christian worshipper who practices his faith in a low level manner in Australia and would continue to do so on return to Fujian, China. On the basis of the country information and reasoning above, the Tribunal finds that there is no real risk that the applicant will be harassed, detained or significantly harmed in any way by the authorities or anyone else, now or in the reasonably foreseeable future.

19. On the information before the Tribunal it finds that there is not any other basis for a risk of harm to the applicant on return to Fujian, China.

20. Therefore, the Tribunal finds that there is no real risk that the applicant will be significantly harmed by the authorities or anyone else, if he is returned from Australia to China, now or in the reasonably foreseeable future.

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

22. 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 criteria in s.36(2).

    DECISION

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

    Cathrine Burnett-Wake
    Member