1720184 (Refugee)

[2021] AATA 5132

1720184 (Refugee) [2021] AATA 5132 (24 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1720184

COUNTRY OF REFERENCE:                   China

MEMBER:Linda Holub

DATE:24 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2021 at 10:26 am

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – house church – detention – church closure – limited evidence of church involvement – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 424AA
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 August 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 21 December 2016. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

BACKGROUND

1. According to his application form the applicant is [an age]-year-old man born in Changle City, Fujian Province, China. He reads, writes and speaks Mandarin. He is a Christian of Han ethnicity. His parents, [and specified family members] live in Fujian China. He left China legally [in] October 2016 using his own passport issued [in] 2015. He completed up to [grade] education in [year] and has worked in [Industry 1] roles in China. He is currently unemployed.

10)  The applicant arrived in Australia [in] October 2016 as a visitor visa holder. He declared on his application he visited [Country 1] from 1996 to 1998 where he overstayed his visa. He was previously refused a [Country 2] visa in 2015 but has not provided the reasons for this.

CONSIDERATION OF CLAIMS AND EVIDENCE

11) The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to China for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Written Claims

12) The Tribunal has before it the Department’s file relating to the application for protection. The applicant’s written claims are contained in an accompanying undated statement received by the then Department of Immigration and Border Protection. At the time of application, the applicant did not provide any information or evidence in support of his claims. He also provided a copy of his passport and NSW Photo ID card.

13) The Tribunal has given consideration to the delegate’s decision record.

14) The applicant made several written claims in his Protection visa application, including:

·he and his family began holding house church gatherings in 2014.

·in 2010 whilst working in Chongqing he listened to sermons from [Church 1]. This was the first time he listened to the gospel sermon and he began to understand what the Holy Spirit was, and that God’s eternal heaven only saved through Jesus.

·after conversations with God, he changed from being a selfish greedy person to a humble, merciful caring person and that several months later he was baptised into one of the churches.

·his family were previously Buddhists but since returning from Chongqing he set up a house church and replaced Buddhist idols with the Christian cross. The family have given up their Buddhist rituals and superstitions.

·with the help of the Chongqing Christian church, he established communication with preachers from [Country 3] and smuggled spiritual books.

·he spread the Gospel to people around him and everyone was impressed by his notable changes for the better. People admired him and it became easier for him to convert them to Christianity.

·he converted his home into a Christian Congregational venue and even family members of village officials came to their gatherings.

·he depended on the holy spirit’s movement to cure people

·the village administration began to notice their church and sent some people to investigate it. The officials demanded they affiliate with the Patriotic Church. They demanded they stop importing their own religious material and printing their own biblical material otherwise their church would be closed down. They refused all these unreasonable demands and became the enemy of the village officials They drove away security guards sent by the government to harass them. However, they were unable to repulse an attack by the security policemen who dismantled their church and confiscated their gospel pamphlets.

·he was detained for two days after security policemen found pamphlets that were smuggled from abroad. He was demanded to confess to his offences.

·during his detention he was humiliated and forbidden to go to the toilet. He was forced to confess and pay a fine before being released.

·he had no personal liberty and had to be under supervision.

·a distant relative of his told him that in Australia there was freedom of faith and [Church 1] there too and so he decided to come and look at the religious situation there.

·he spent a sum of money and "entrusted emigration formalities' with a fellow countryman.

·he found [Church 1] in [location] and his family members were happy and encourages him to stay and serve God.

HEARINGS

15) The review applicant was first invited to appear before the Tribunal on 14 October 2021 to give evidence and present arguments. The hearing was scheduled during the lockdown in Greater Sydney from July to October 2021 resulting from the COVID-19 pandemic. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone

16) When the Tribunal officer called the applicant, he stated that he was unable to talk at that time. The Presiding Member proceeded with the hearing to ascertain the applicant’s situation. The applicant confirmed that he had received the invitation to hearing and that he had also received two SMS messages about the hearing. He stated that his English is not good, and he did not fully understand the letter or the SMS messages. The applicant confirmed that he understood the interpreter.

17) The applicant stated that he could proceed with the hearing however, it became apparent that the applicant’s environment was very noisy. He stated that he was working at a [specified] site.

18) The Tribunal explained that it was not only disrespectful to the Tribunal but more importantly unhelpful for him in relation to his application. The applicant repeated that although he received the invitation his English is not good.

19) The Tribunal asked him if he understood what the hearing is about and explained to him that he had applied for protection and had been refused a visa by the Department and subsequently sought review of the refusal decision. The applicant responded that an agent helped him with his application. The Tribunal noted that insofar as his review application is concerned, he appears to be unrepresented. The applicant responded that he needs to ask someone.

20) The Tribunal agreed to adjourn the hearing until the following day.

21) The Tribunal hearings which were all held by telephone were conducted with the assistance of an interpreter in the Mandarin and English languages. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

Evidence provided at first hearing - 14 October 2021

22) At the commencement of the hearing, the applicant confirmed that he still stands by his written claims and has no changes or additions.

23) The applicant stated he came to Australia [in] October 2016 because he was persecuted by the state prior to that. He confirmed that he came to Australia on his own passport.

24) The applicant stated that he has no family in Australia. His parents, wife and [children] live in China. His [children] are aged [specified] years of age. The applicant stated that he is contact with his wife by text messages and they sometimes talk using WeChat. He stated they talk about the family, how they are going and how life is. He sends them some money.

25) The applicant stated that he did not attend the interview with the Department because he did not the know the address of where he should go, and he was not familiar with how to get there. The Tribunal asked him whether, when he first arrived in Australia, he asked people to help to get around and if so, why did he not ask someone how to get to the Department’s offices to attend the interview. The applicant stated that he had just arrived in Australia. The Tribunal referred to the fact that his interview was scheduled for 7 August 2017 and that he had arrived in Australia in October 2016. He responded that he thinks he may have forgotten like he did with the hearing.

26) The applicant stated that he was been working in [Industry 1] in Australia since 2018. Prior to that he worked as [an Occupation 1]. The applicant stated that he lives in [a named suburb]. He stated he shares a room in a house with one another person.

27) The applicant stated that he is a Christian. He stated that government asked him to join the Patriotic organisation, but he refused because he was involved in a home-based church.

28) When asked about the church he attends in Sydney he stated it is it [Church 1]. The Tribunal explained to the applicant that while it was speaking with him it was doing an internet search about the church. The Tribunal told the applicant that it appears that the church is now closed. He responded that he thinks it closed because of the pandemic. He stated that he stopped attending the church last year. He stated that the church offered online services, but he did not participate because he was too tired after work. The applicant stated that previously he attended a service on Sundays. When asked if he was too tired to participate in online services during the lockdown when workplaces were closed between July and October 2021 the applicant responded that initially the church did not offer online services but later it did.

29) The applicant stated that he became involved in the church in 2017. He stated that he did not provide letters of support from the pastor or other parishioners because did not know those sorts of documents are necessary. The Tribunal explained to him that such evidence is useful in support of his claims and that the Tribunal would take them into consideration.

30) The Tribunal asked the applicant if it could call [Pastor A] who is the pastor at the church to speak on his behalf. The applicant responded that it could but stated that [Pastor A] won’t know him, even though he has been attending since 2017. The Tribunal put it to him that in that case the [Pastor A] will not be able to provide written statement in support of the applicant if he does not know him. The applicant responded in the affirmative.

31) When asked if there are parishioners with whom he attended church services that could provide evidence in his support, the applicant referred to two people: [Ms B] and [Mr C]. The applicant stated that he met them in the church, and they would dine together with other church members. The applicant stated that he met [Ms B] about two or three months after he started attending the church in October 2017. He stated that she is from Fujian Province. He stated that she occasionally attended services and he occasionally had dinner with her. The applicant agreed to the Tribunal calling her to provide oral evidence in support of his claims. Three attempts were made to call her but one each occasion the call dropped out. The applicant stated that he met [Mr C] towards the end of October 2017. The applicant stated that [Mr C] is from Shandong Province. He saw him about once every two or three weeks and only met him at the church. He stated that he does not have a telephone number for [Mr C].

32) The applicant stated he became a Christian in 2007. When he was in China, he met a friend from [Country 3], who introduced him to [Church 1].

33) The applicant stated he was originally a Buddhist. He stated all his family were Buddhists. The family burned incense on 1st and 15th day of the Lunar calendar but did undertake any other rituals or practices. When asked if religion was important to his family when he was growing, he responded that it was not.

34) When asked why he became interested in [Church 1], the applicant stated that he had an encounter on a work trip. He stated he had been a Buddhist and got injured and was cheated by other people and the friend tried to persuade him about [Church 1]. He stated the friend told him the Buddhist cheat you of money to buy incense.

35) The applicant stated that he participates in Christianity but does not otherwise get involved. He was asked to give specifics of his participation, he responded that he prays at home in the evening but nothing else. The Tribunal referred to his earlier evidence that he attends services. He responded that he is not preaching he just listens to the service. The Tribunal attempted to clarify whether he attends service. The applicant responded that he only prays at home and does not attend online services which only recently became available.

36) The Tribunal put it to the applicant that based on his oral evidence it appears unlikely that he will be at risk of serious or significant harm if he returns to China because he prays at home. In response the applicant stated that previously he organised activities and they said he was a leader. He stated that he would be involved in the family church if he were to return to China and would organise gatherings at home. The Tribunal put it to him that it found it doubtful that he would organise anything given he seemed too tired to attend an online service. In response he referred to the fact that the online services were not initially available.

37) The Tribunal asked the applicant what aspects of [Church 1] attracted him to it. He responded that he was cheated by other people at work but after he joined [Church 1] everything in his life began to run smoothly. The Tribunal explained to him that it was seeking to understand what attracted him to the church in the first instance. He responded that he told other people about his experience and they made him leader. He stated that the experience of not buying incense was attractive and that he was able to bless other people and bad people changed their behaviour. The Tribunal invited him to elaborate because it was having trouble understanding what he was saying about blessing people and changing people’s behaviours. The applicant stated that when he was working, people cheated him, and the person helped him change.

38) The Tribunal asked the applicant not to keep repeating the same part of the story but to provide more details, so the Tribunal was better able to understand his journey of conversion. The Tribunal invited him to perhaps explain what aspects about the theology attracted him or to outline the changes that happened. The applicant again stated that at the time he was cheated and that a person helped him and told him about the story, about his child getting sick but following their prays the child got better and he decided the religion was magical.

39) The Tribunal asked the applicant how he explained his conversion to his family. He stated they were agreeable because they no longer had to spend money on incense and people got better from illness.

40) The Tribunal asked the applicant to outline the basic tenets of [Church 1]. He responded that you should have a broad heart and be very forgiving. The Tribunal referred to the fact that he claimed to be following the faith for 14 years and asked him if that was all he could tell the Tribunal about his faith. The applicant’s response did not provide the Tribunal with any further insights.

41) The Tribunal referred to the applicant’s earlier evidence that he would invite other people to his home for a gathering and asked him if all he would tell them was to have a broad heart and to be forgiving. He responded that in the affirmative.

42) The Tribunal put it to the applicant that based on his oral evidence the Tribunal was having trouble accepting that it was plausible that he would be hosting regular house gatherings in China to tell those attending to have a broad heart and to be very forgiving. The applicant responded that there are a lot of people getting persecuted in China and a lot of Buddhists in China wasting money.

43) The Tribunal asked the applicant if there any special prayers he is required to say, to which he responded, ‘Amen’ and ‘Lord’ and ‘thank you, Lord’.

44) The Tribunal asked the applicant if there any other requirements of followers of [Church 1]. He stated to preach the Gospel as wide as possible. When the Tribunal put to him that he does not do that in Australia, he responded it is because of his language ability. The Tribunal referred to his earlier evidence that he only says prays at home and put to him that he appeared to be changing his response, he stated that he gave the answer previously because he did not know it would be relevant.

45) The applicant stated that he preaches in his neighbourhood. He stated that he tells other people to join the church and tells they will have broad love and a better life. He confirmed that in the five years since he arrived in Australia, he preached to his one roommate two or three times. 

46) When asked whether the [Church 1] religion have led him to make any other improvements in his life, he responded it had not. Since he became an adherent in [Church 1], he feels more relaxed, and work is going quite smoothly for him because he has gained more skills and does a better job. Asked how his beliefs have been responsible for this, he responded that people introduce him to other jobs.

47) The Tribunal indicated that it would require a further hearing and encouraged him to provide any written evidence that he can in support of his claims.

Evidence provided at second hearing – 3 November 2021

48) The applicant confirmed that that he is from Changle City, Fuzhou City. He stated that Changle City is a small city. He stated that he was born and grew up there. He worked in [Industry 1]. He stated he did not reside in any other country. He stated he travelled to [Country 1] and that while he was there, he worked in [Industry 1]. The Tribunal put it to him that if he was working in [Country 1], it suggests he was living there. When asked why he did not say that he had lived in [Country 1] when previously asked if he lived in any other country, he responded it was a long time ago.

49) When asked if had been refused a visa to any country, the applicant responded in the negative. He confirmed his response when he was asked if he was sure of it. He was asked if he applied for a visa to [Country 2] in 2015. The applicant responded that he could not remember. The Tribunal explained to him that it appears he has. The applicant then confirmed that he was refused a visa to visit [Country 2]. When asked why he did not answer openly, he responded that he only submitted an application, and it was returned, and it was a long time ago. The Tribunal explained to the applicant that it may take the view that he is not totally open with the Tribunal and if it takes that view it might question whether he is open in relation to his claims. He was asked if he wished to comment. He responded that the matter is not related to today’s hearing. The Tribunal explained to him that answering questions openly and fully relates to his openness and integrity and that it is important that the Tribunal has confidence in his responses. The Tribunal went on to explain that if it finds that he is not fully open it may question his credibility and as a consequence may question his claims.

50) The applicant confirmed that aside from [Country 1] he always lived in Changle City .He then provided evidence of the period of time when he lived in Chongquing City during which he claims to have been introduced to [Church 1].

51) The applicant restated his previous evidence that when he worked in Chongqing in 2010, he met a person and listened to sermons from [Church 1]. The Tribunal put it to him that he had just confirmed that he had always lived in Changle city, and now was saying he worked in Chongquing city. The Tribunal asked him to explain his contradictory evidence. He responded that he only worked in Chongquing city. The Tribunal asked him if he travelled there each day. He responded with a question: if he lived in a relative’s house for a few days, does that mean he lived somewhere else. The Tribunal put it to him that he had already stated that he worked in Chongquing city for two months which is more than a few days. The Tribunal again explained if he continues to provide contradictory evidence, it raises doubts about his claims that he fears harm.

52) The applicant gave evidence that although his family accepted [Church 1], they have not continued to practice. He stated that this was because the last time he and the family attended in August 2015 they were banned by the government. He stated that because they stopped attending, they have not had any problems with the police since that time.

53) The applicant stated that he had previously been a Buddhist but after he found this church, he felt love in his life. He stated his relative was Buddhist and he spent a lot of money to see a doctor, but he was not healed. After he went to [Church 1], he lived longer than the doctors previously predicted.

54) The Tribunal asked him about the timing of his written claim that after he found [Church 1]. He stated that it happened in 2012. The Tribunal sought clarification if he had remained in Chongquing City for two years because he had previously provided evidence in his written claims that he had been introduced to the Church in 2010 while he was working in Chongquing City. The applicant responded that he had worked there for 3-4 months. The Tribunal referred to his previous evidence that he worked there for two months and told him he seemed to be changing is evidence. He responded that it happened a long time ago.

55) The applicant stated that he started hosting family gatherings in 2014. He again repeated that previously he had been a Buddhist and that when he ran a business he was cheated by other people and he was assaulted and then recalled the man in Chongquing City in [Church 1] and started attending the church. He stated that officially he started attending the church in 2014. He stated that he was baptised in 2014 but when asked what the baptism involved, he stated he does not know what it involved. When the Tribunal questioned how he did not know what his baptism involved, he responded that somebody whispered next to him. Asked if the baptism involved anything else, he said no.

56) When asked about his written claims regarding the gatherings he hosted, he stated that he gave out books to those attending and reasoned with them by telling them the Lord can bless them with big love and work power. When asked if there was anything else, he responded he stated that was all he did.

57) The applicant stated he hosted the gathering once a week for two years. The Tribunal put it to the applicant that it was finding it difficult to comprehend that people would keep attending to hear him tell them that the Lord can bless them with big love and work power. He responded that he told them of what he experienced and that he didn’t know how else to tell them.

58) The applicant stated that a local pastor came to the gathering and was the main attraction. The applicant stated that his role was only to provide the location.

59) The applicant stated that more than 100 people attended the gatherings. When the Tribunal indicated that it was surprised that his house could fit more than 100 people in it, he stated they used the foyer of the old house.

60) The Tribunal asked the applicant about his written claim that he depended on the holy spirit’s movement to cure people and asked him how many people he cured. The applicant responded he cured many people. In relation to what he cured, the applicant stated that some people were bankrupt, and some people gambled. He stated that he persuaded someone not to gamble telling him that if he gambles, he will ruin his family and that he should believe in the Lord and be a good person. Asked if he cured anyone else, the applicant acknowledged he had not done so.

61) In relation to his claims that the gatherings were stopped, the applicant stated that he was not allowed to host gathering and security people told him to throw away all the books from the church and then arrested him and confined him for a few days in a detention centre in [a named] Town. When asked the name of the detention centre, he said it was just called a detention centre.

62) The applicant stated that he was held for three days and was asked to attend the Patriotic Church, but he did not want to do so. When asked if anything else happened to him, the applicant stated that his freedom was restricted to his home following his release and he was not allowed to contact any other people for a month.

63) The Tribunal put conflicting evidence the applicant had provided regarding the length of time he been detained. The Tribunal put the information to him in the terms of s.424AA. The Tribunal drew his attention to his written claims in which he wrote that he had been detained for two days whereas at hearing he gave evidence that he had been detained for three days. The applicant stated that he will respond in writing. The Tribunal provided until 5pm on Wednesday 10 November 2021 for him to provide his written response.

64) Referring to the applicant’s written evidence that during his detention he was humiliated and forbidden to go to the toilet, the Tribunal invited him to outline what else happened during his detention. The applicant stated that he was beaten and penalised with a fine. He was asked if he was humiliated in any other way, to which he replied that he told the officials that the Patriotic Church is cheating people and that he does not believe in it. He told them that his church is full of love. When asked if he was prevented from going to the toilet, he responded he was. When asked why did not refer to this earlier, he replied that he had referred to being beaten. The Tribunal explained to the applicant that not being permitted to go to the toilet is not the same as being beaten. He responded that he thought they are the same.

65) The applicant stated that he was detained on [a day in] May 2016 at around 7pm and that he was home at the time. He stated he was the only one arrested because he was the organiser.

66) The Tribunal put conflicting oral evidence to the applicant in the terms of s.424AA. The Tribunal referred to his earlier evidence that the last time he had attended a church a gathering in August 2015 but now he had given evidence that he had continued hosting gatherings and was detained on [a day in] May 2016. The applicant said that he would respond in writing.

67) The applicant stated that he had no personal liberty and was under supervision for a month after his release. He stated that he had no other problems with the police.

68) The applicant stated that a friend told him [Church 1] in Australia and that he was told to come to Australia by his friend. The applicant told the Tribunal that he used his own passport. He gave his passport to an agent and the agent arranged his departure.

69) The Tribunal explained to the applicant that it had considered information contained in the Department of Foreign Affairs Country Report People’s Republic of China of 3 March 2015 (which is the relevant report covering the period of the applicant’s departure from China).

“5.16     Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive”

70) The applicant stated that he lied that he would not attend the church. The Tribunal explained that the information appears to indicate that the police were not interested in him after he was released. The applicant responded that he agrees.

Concerns put to the applicant

71) The Tribunal explained that it has serious doubts about his claims that he will return to China and host gatherings of [Church 1] on the basis of his oral evidence. Specifically the Tribunal explained that it has concerns about the level of his knowledge of his faith, the fact that the Pastor at his local church would not be able to speak on his behalf because he does not know him despite the fact that he claimed to be attending the church since he came to Australia in the second half of 2016, and that he could not identify any witnesses in support of his attendance at the church, as well as the fact that he was unable to provide any evidence of attending a church here and  that he was unable to provide any evidence of his commitment to the church. The applicant was provided with an opportunity to comment on these concerns. He stated he had no comment.

Post hearing submissions

72) The applicant did not provide any post hearing submissions and did not provide a response or any comments to the s.424AA concerns put to him at hearing.

Findings

73) In assessing the applicant’s case the Tribunal found the claims for protection in Australia suffered due to inconsistencies and a lack of detail in his evidence. The applicant’s claims in his application for protection submitted to the Department were vague and as a result, the Tribunal attempted to elicit more information during the hearings. The applicant’s evidence did not provide significant insights into his conversion to the Christian faith nor his claims of harm in China. Rather, his evidence raised numerous concerns.

74) When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.

1. The applicant initially gave oral evidence that he had not lived in any other county and that he had not been refused a visa to any country. When questioned further, the applicant stated that he had travelled to [Country 1] but did not acknowledge he was working there. When this was put to him, he stated that it was a long time ago. The Tribunal does not accept his explanation as to why he was not open about the fact he had spent a short period living and working in [Country 1] as the Tribunal did not put a time frame when it asked him if he had lived overseas.

76)  In relation to having been refused a visa to another country, the Tribunal does not accept the applicant’s response that he had forgotten about it. The Tribunal has had regard to the fact that it specifically asked him if he was certain of his response, to which he responded in the affirmative, after which he acknowledged he had applied for and been refused a visa to [Country 2]. It is unclear to the Tribunal why the passage of time had affected his recollection of whether he had lived outside of China or been refused a visa to enter another country but not of his claimed conversion to [Church 1] but not.

77) Furthermore, the applicant repeated that he always lived in Changle city (aside from when he lived in [Country 1]) but then went on to describe how he was introduced to [Church 1] while he worked in Chongquing City.

78) The Tribunal is also concerned that the applicant provided conflicting evidence as to when he was first introduced to [Church 1]. In his written claims he stated he had written that it was in 2010, while in oral evidence he stated at one time that it was in 2007 and at another time it was in 2012. The Tribunal does not accept his explanation that it was a long time ago and therefore he did not remember. The Tribunal is of the view that given his claims are based on his religious conversion, it would not be unreasonable for him to remember what year he had been introduced to this church.

79) The Tribunal did not find the applicant’s evidence regarding his conversion to Christianity convincing, The Tribunal emphatically appreciates that people’s conversion journeys are varied and there is no specific pathway to accepting a new faith. However, the Tribunal found that the applicant’s narrative was particularly simplistic and generalised. While the Tribunal accepts that there may be multiple reasons why an individual may take up a new religion even if they were not previously religious as was the case with the applicant, there was nothing about the applicant’s narrative that satisfied the Tribunal that he had become a Christian through [Church 1]. Despite the Tribunal’s prompts and guidance on aspects of his faith that he may wish to elaborate upon, his responses lacked depth, detail and coherence.

80) Similarly, the applicant’s responses as to his knowledge of the faith were unconvincing. The Tribunal was not seeking any particular level of knowledge but is concerned that despite claiming to be an adherent of the faith for approximately 14 years he said little more than people should have a broad heart and be very forgiving. The same concerns apply to the applicant’s ability to provide insights into any special prayers that are said in the church.

81) The fact that the applicant stated he does not know what his baptism involved also cast doubts on his claims that he became a convert to [Church 1].

82) The Tribunal was also concerned the applicant made misleading claims about curing people through the holy spirit. Initially the applicant responded he cured many people, but he then acknowledged that he persuaded one person not to gamble. The Tribunal therefore accept that the applicant cured many people.

83) The Tribunal has had regard to the fact that the applicant did not provide a response or comment on two aspects of his evidence that was put information to the applicant under s.424AA of the Migration Act. The applicant gave conflicting evidence regarding the last time he attended a church gathering in China. At one point he referred to August 2015 but later gave evidence that he had continued hosting gatherings until [the day in] May 2016 when he was detained.

84) The applicant also provided conflicting evidence regarding the length of time he been detained. The Tribunal drew his attention to his written claims in which he wrote that he had been detained for two days whereas at hearing he gave evidence that he had been detained for three days. While the Tribunal may not have necessarily put any weight on whether he was detained for two or three days the Tribunal has considered this discrepancy in the light of its overall concerns regarding the applicant’s evidence. 

85) The applicant did not respond in writing and no explanation was provided for these inconsistencies.

86) The Tribunal held concerns regarding the fact the applicant’s written and oral evidence regarding his detention were also inconsistent.

87) The Tribunal was also concerned about the applicant’s responses in regard to practice of his faith in Australia. At one point he stated that he only prays at home. He also gave evidence that he attends services (although he did not attend all online services because he became engrossed in watching series on TV). Elsewhere he claimed he did not always participate in online services because he was too tired after work despite the fact that workplaces were closed during the Covid-19 lockdown of Greater Sydney between July and October 2021.

88) The Tribunal specifically outlined its concerns to the applicant regarding his claims that he will return to China and host gatherings of [Church 1] on the basis of his oral evidence. The Tribunal explained to him that it has doubts that he will do so given the level of his knowledge of his faith, the fact that the Pastor at his local church in Sydney would not be able to speak on behalf because he does not know him despite the fact that he claimed to be attending the church since 2017, and that he could not provide any witnesses supporting his attendance at the church. Additionally, the Tribunal explained that it was concerned that applicant was unable to provide any evidence of his commitment to his faith aside from broad, generalised, statements. The applicant responded that he had no comment to make. Based on the Tribunal’s overall credibility concerns, the Tribunal does not accept the applicant practices the [Church 1] religion in Australia.

89) The Tribunal has other concerns regarding the genuineness of the applicant’s claims. The applicant did not attend his scheduled interview with the Department. His explanation for this is he did not know how to get there because he had not long been in Australia. In fact, he had arrived in Australia in mid-October 2016 and his interview was to be held on 7 August 2017. When his explanation was tested with the Tribunal outlining the date of his arrival and the date of his scheduled interview, he responded that he may have forgotten about the interview. The Tribunal is of the view that if an applicant genuinely fears harm, they will make attempts to fully engage with the process whereby they are seeking to obtain protection. The applicant did not do so at the primary level and as outlined in relation to his first scheduled hearing did respond to the hearing invitation and paid scant regard to it and the follow-up reminders of the scheduled hearing and appeared to consider that he could take part in a hearing while working at a [specified] site.

90) For all the reasons outlined, the Tribunal does not accept that the applicant became a member of [Church 1] in China, that he held gatherings at his home, that he was detained and humiliated or harmed in any way. For the reasons outlined, the Tribunal does not accept that the applicant is a genuine adherent of [Church 1] in Australia and if he were to return to China he would attend and/or host gatherings in China, nor does the Tribunal accept that he will preach the gospel if he were to return to China. The Tribunal finds that the applicant’s claims are not credible.

91) On the available evidence the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to China. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China. Therefore, he does not satisfy the criterion at s.36(2)(a) of the Act.

92) The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports 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 would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa) of the Act.

93) 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

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

Linda Holub
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…