1810702 (Refugee)

[2024] AATA 1243

1810702 (Refugee) [2024] AATA 1243 (24 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810702

COUNTRY OF REFERENCE:                   China

MEMBER:Dr Greg Weeks

DATE:24 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 February 2024 at 11:17am

CATCHWORDS
REFUGEE – protection visa – China – entirely fabricated claims prepared by agent withdrawn at hearing – religion – Christianity – introduced by parents and grandparents as child, and attended and proselytised in in third country and home country – detained, interrogated and threatened, and cousin died during detention – original purpose of travel to find work and earn money – church attendance and activities in Australia – services, bible study and preparation for baptism – supporting statements and photos – country information – state-sanctioned and non-registered churches – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65

CASES
MHA v DUA16 (2020) 271 CLR 550
SZFDE v MIAC (2007) 232 CLR 189

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 dependants.

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 Home Affairs (delegate) on 28 March 2018 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is a [Age]-year-old man and is a citizen of China. He has a wife and [child] who live in Shandong Province, China.

3. The applicant obtained a visitor visa to enter Australia on 9 November 2017 and arrived in Sydney [in] November 2017. The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 22 November 2017 (PV application).

   Procedural history

4. On 2 March 2018, the Department of Home Affairs (Department) invited the applicant to attend an interview with the delegate on 28 March 2018. The applicant did not attend that interview and the delegate refused to grant the visa on the basis of the material available to the Department.

5. The applicant wrote to the Tribunal on 6 February 2024 (submissions). He stated that the claims in his PV application had been drafted by a migration agent called [A] and that those claims were entirely fabricated. The applicant later gave evidence to the Tribunal that he had drafted a statement containing his claims for protection but was told by [A] that his PV application had already been submitted with claims that had been drafted on his behalf and that his chances of obtaining a visa would be adversely affected by changing his claims.

6. The applicant gave evidence in the hearing that [A] had obtained his signature but had not explained what steps they intended to take on his behalf until after the PV application had been submitted to the Department. The contact details provided in the PV application were for [A] and did not provide a means by which the applicant could be contacted directly. Consequently, the applicant was never aware that he had been invited to attend an interview with the delegate.

7. At some time after the delegate’s decision, the applicant obtained a new agent in order to obtain help to receive a Medicare card. That agent’s contact details were submitted to the Tribunal, meaning that the Tribunal was able to contact the applicant. The applicant gave evidence at the hearing that he had engaged a lawyer more recently to find out what was in the PV application. It was only after this intervention that the applicant discovered that the claims in the PV application were false.

8. I accept that the PV application constitutes a fraud perpetrated by [A], not only on the Department but also on the applicant. I further accept that, had the applicant not obtained a new agent and provided new contact details, that that fraud would also have been perpetrated on the Tribunal if it had led to the consequence that the Tribunal was unable to contact the applicant to invite him to attend the hearing.[1]

   [1] See SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, 206 [51]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550.

9. At the hearing, the applicant withdrew the claims in his PV application. The only claims he makes are in the submissions and his evidence before the Tribunal.

   Claims for protection

10. In the submissions, the applicant claimed that he is a Christian and that his parents and grandparents introduced him to that religion as a child. He claimed that he and a cousin went abroad to work for three years in [Country 1] and one year in [Country 2] and that, during the latter period, he “received the gospel from local missionaries and attended church”.

11. Upon returning home in 2016, the applicant and his cousin sought to set up a factory to give financial support to the evangelistic endeavours of the church. The applicant stated that they were “actively involved in the evangelistic activities and introduced new people, the unbelievers, to the church”. These activities attracted adverse police attention. Their application to open the factory was not approved. The applicant was accused by the police of having “brought people into the church” after he returned from [Country 2]. The police required the applicant to report to them on a monthly basis so that his involvement with a “foreign church power” could be monitored. They suspected, correctly on the applicant’s evidence, that he planned to “develop” the church to which he had been introduced in [Country 2] and to evangelise in China.

12. The [Country 2] church with which the applicant had been involved recommended that he and his cousin seek out a Christian employer in Jiangsu Province. The applicant’s cousin went ahead because the applicant and his family were dealing with illness which caused his son to be hospitalised. The applicant’s cousin was later “investigated by the police authorities for attending an underground local family church” in Jiangsu and was detained, during which time he suffered a heart attack.

13. The applicant and his nephew went to Jiangsu in order to collect the applicant’s cousin and, upon arrival, the applicant was summoned by the local police and interrogated by them about his relationship to his cousin. The interrogation lasted an entire night and the police stated that they suspected that the applicant was his “cousin’s accomplice and a preacher”.

14. The applicant and his cousin were sent back to their home town in neighbouring Shandong Province and handed over to the police there. The applicant was warned not to return to Jiangsu and not to participate in underground house churches or preach. The applicant’s cousin died not long afterwards and the applicant sought an early opportunity to leave China, which he did in November 2017.

15. The applicant added further detail to the claims set out above during the hearing.

    Pre-hearing submissions

16. In addition to the submissions, the applicant submitted other material to the Tribunal in advance of the hearing.

17. The applicant submitted a letter dated 17 February 2024 from the Chinese Pastor at the [Church], which indicates that the applicant first attended the church for a wedding in January 2023, has regularly attended Sunday services and a Friday community group since January 2024 and has signed up for classes to prepare him for baptism.

18. The applicant submitted a second letter dated 20 February 2024 from a member of the congregation at [Church]t, being the person whose wedding the applicant attended in January 2023. The letter indicates that its author met the applicant while working in April 2021, that the applicant regularly participates in services and Bible study at [Church] and that the applicant has signed up for the baptism class.

19. The applicant finally submitted 11 photographs which show him, apparently on several different occasions, taking part in services and other events at [Church], including a wedding.

20. I accept that these submissions demonstrate that the applicant is an active congregant at [Church].

    The hearing

21. The applicant appeared before the Tribunal on 21 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was not represented in relation to the review.

22. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant faces a real chance of persecution for the reason of his religion, causing him to suffer serious harm, if he is returned to China.

    Motivation to come to Australia

24. The applicant has travelled abroad from China, to both [Countries 1 and 2], before coming to Australia. Both of those periods abroad were organised by a labour hire company and had the purpose of allowing the applicant to earn a greater amount of money and would have been possible in China.

25. The applicant admitted readily, both in the submissions and during the hearing, that one of the reasons he came to Australia was to earn money. That was also the reason that he had lived and worked in [Countries 1 and 2]. He had “heard that skilled people like me with overseas work experience are very popular with the Australian employers”. The applicant gave evidence that both his wife and his son have suffered health problems and that he did not work for a year after returning from [Country 1] so that he could care for his wife when she became ill. He also returned early from [Country 2] when his [child] became ill.

26. The applicant gave evidence that he sends home most of his income after his living expenses have been paid and that he has sent home between $100,000 AUD and $150,000 AUD since his arrival in Australia. The applicant stated that he hopes that his wife and son will be able to join him in Australia but that, if his application for a protection visa is unsuccessful, that he will return to China to care for them. Because he has been subjected to adverse official attention in Shandong, the applicant stated that he would seek work in another province.

27. The applicant gave evidence that, after his attempt to open a factory had failed, he had trouble finding work because employers were concerned that he was required to report to the police each month. The applicant paid 200,000 RMB to a person recommended to him in China and that this person had helped him to apply for his Australian visa, arranged his flights to Australia and arranged for him to be collected from the airport in Sydney and taken to a house in [Suburb] where the applicant was able to live. The applicant was also referred to [A] by this person and believed that he was applying for a visa which would allow him to stay legally in Australia and work here.

28. The applicant gave evidence that he did not know about protection visas before he came to Australia. The applicant stated in the hearing that he was advised by [A] that he could apply for a protection visa and that he concluded that he met the criteria for a protection visa based on the persecution he had suffered in China for the reason of his religion. The applicant gave evidence that he took several days to write a statement supporting an application on that basis but learned that [A] had already lodged a fraudulent application using a concocted statement of facts.

29. It does not follow from the applicant’s concession that his original purpose in coming to Australia was to seek employment that his claims to have suffered religious persecution in China are not true. That concession does not mean that the applicant cannot establish that he is entitled to a protection visa.

    Persecution for the reason of the applicant’s religion

30. I accept that the applicant was a Christian before he travelled to [Country 2] in 2015. I further accept that he was exposed to and became a member of a Christian church in [Country 2]. I accept that the [Country 2] church actively practised evangelism and that the applicant “introduced new people, the unbelievers, to the church” after he returned to China. I accept that these activities attracted adverse police attention in Shandong and that the applicant was required to report to the police there on a monthly basis. The aspects of the applicant’s account which I have accepted demonstrate that he has previously been persecuted on the basis of his religion in China.

31. Country information advises that China has regulations in force which prohibit proselytising (described as “preaching” or “evangelism” by the applicant) and that these are generally enforced across the country.[2] A key element of the definition of “proselytise” is the act of converting a person or people to a religious faith.[3] I have accepted the applicant’s evidence that he proselytised to strangers in China after he returned from [Country 2].

    [2] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.26].

    [3] L Brown (ed), The New Shorter Oxford English Dictionary (1993), p 2384.

32. The applicant gave evidence that he was not able to find a church whose beliefs matched his own immediately upon arriving in Australia but that he visited a number of churches looking for one which did. The applicant is now a member of [Church] and attends services and Bible studies there. He gave evidence that he also continues to evangelise to strangers in Australia and that he considers it his Christian duty to do so.

33. Country information indicates that Protestantism is an officially recognised religion in China but that there is an official policy that Chinese Christians practice a ‘correct’ version of Christianity, which emphasises principles like patriotism, party leadership and loyalty to the Chinese Communist Party (CCP). Religious groups must be registered with the relevant state-sanctioned religious body, which for Protestants is the Three-Self Patriotic Movement (TSPM), one of whose principles is to remove Western influences from the practice of Protestantism in China.[4] The applicant gave evidence that he would continue to evangelise if he is returned to China and that he cannot be a member of a TSPM church that would prevent that practice. I accept that the applicant would continue to evangelise if he were returned to China. I accept that he would worship as part of a church that is not registered with the TSPM.

    [4] Elena Vishnevskaya, “The People’s Republic of China and Christianity: A Brief Introduction” (2022) 27(3) Education About Asia 28, 28.

34. The applicant gave evidence that, after he was detained by the police in Jiangsu, he was deprived of sleep and threatened with a Taser. He was told that other “methods” might be used on him. The applicant gave evidence that the interrogation had lasting psychological effects, including hallucinations. I accept the applicant’s evidence on these issues.

35. The applicant’s cousin had been detained by the same police in Jiangsu. The applicant stated that his cousin had completed physical examinations before travelling overseas with the applicant to work in [Countries 1 and 2] and that he was in good health. Nonetheless, he suffered a heart attack during his interrogation and died of a subsequent heart attack not long after returning to Shandong.

36. I accept that the applicant’s cousin was detained and interrogated in Jiangsu Province as a result of his involvement with the [Country 2] church. I accept that the applicant was interrogated by the local police in Jiangsu about his relationship to his cousin and their suspicion that the applicant was his “cousin’s accomplice and a preacher”.

37. The applicant gave evidence that the police who interrogated him in Jiangsu told him that his treatment on that occasion was a “warning” and that if he evangelised again that his treatment would not “just be educational”. I accept that the police threatened the applicant with further physical and psychological harm if he evangelised again in Jiangsu. I accept that the applicant was handed over to the police in Shandong and warned not to return to Jiangsu, to participate in underground house churches or to preach.

38. Given that I have accepted that the applicant would evangelise if returned to China, I am satisfied that there is a real chance that he will suffer persecution for the reason of his religion as a result of doing so.

    DECISION

39. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Dr Greg Weeks
    Member