1828452 (Refugee)

1828452 (Refugee) [2020] AATA 2098 (18 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828452
COUNTRY OF REFERENCE:                   China
MEMBER:Nathan Goetz
DATE:18 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 May 2020 at 3:36pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Catholic – physical assault by police – detention – limited Catholic activities in Australia – return visits to China – evidence of family composition – free entry and departure from China – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 424
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of China and first arrived in Australia [in] March 2007 as the holder of a student visa which had been granted on 20 February 2007. The student visa was valid until 28 March 2007.
On 28 March 2007 the applicant was granted another student visa. This student visa was valid until 15 March 2009.
On 5 June 2009 the applicant was granted another student visa. This student visa was valid until 6 October 2010.
On 23 October 2010 the applicant was granted another student visa. This student visa was valid until 31 October 2012.
On 6 November 2014 the applicant applied for the protection visa. She was interviewed by the delegate on 9 October 2015.On 19 January 2016 the delegate refused to grant the protection visa.
On 11 February 2016 the applicant applied to the Tribunal for a review of the refusal decision. She appeared at a Tribunal hearing on 27 October 2017. On 14 November 2017 the Tribunal affirmed the refusal decision: AAT case number 1601613.
The applicant subsequently commenced proceedings for judicial review of the Tribunal [decision]. [In] September 2018 the Federal Circuit Court remitted the matter by consent requiring the Tribunal to determine the application according to law. The Court’s reason for doing so was because the applicant had provided the delegate a letter from her church in Australia ([Church 1]) and emailed the delegate on 15 October 2016 photographs purporting to depict her attendance at church in Australia and injuries by her father and brother after a police raid in January 2010,. The delegate decision had not discussed the receipt of this matter, and the previous Tribunal had not been aware of the material when it made its decision.
On 4 March 2020 the Tribunal invited the applicant to attend a Tribunal hearing on 14 April 2020 at 1pm. On 30 March 2020 the Tribunal wrote to the applicant and noted that as a result of the COVIC-19 pandemic, the Tribunal had ceased holding face to face hearings from 23 March 2020. The letter indicated that the applicant’s case was suitable for a telephone hearing. The letter asked the applicant to confirm her attendance by telephone, or to indicate why she could not attend by telephone.
On 30 March 2020 the applicant emailed the Tribunal and confirmed the Tribunal hearing on 14 April 2020 at 1pm. She provided her telephone number.
On 14 April 2020 the applicant appeared at the Tribunal hearing by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages who also appeared by telephone.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets complementary protection.
The applicant is [an age] year old female from [a named town and village in] Fujian province.
According to the written statement accompanying her protection visa application, she started to believe in Catholicism from a young age under the influence of her parents. She wrote that she could not return to China because she and her family were persecuted for her religious beliefs.
The applicant wrote that there was no religious freedom in China. Her parents attended underground church gatherings. Her parents asked the applicant and her brother to believe in God. She was baptised not long after her birth and went to gatherings when she was little. Her parents were very careful about this practice and did not want the applicant to tell others at school about the gatherings. The applicant asked her mother why the government did not want the family to attend gatherings and was told by her mother that the government believes in communism and did not want them to believe in God.
The applicant wrote that her mother was diagnosed with leukemia, but that with prayer her mother’s confidence grew and her pain was reduced. The power of prayer amazed the applicant.
In 1999, normal gatherings could no longer occur because of monitoring by the local government. The applicant’s mother became very tired and her health deteriorated, and she passed away. As a result, the applicant’s father had to take all the burdens. He was working hard at a [specified] company and making good income. The applicant noted that brothers and sister gathered at different places in secret.
[In] December 2005, eight brothers and sisters were gathering together when five police broke into the home where they were gathering. The house was searched, and the applicant’s father was arrested. He was questioned and beaten. The applicant wrote that ‘we were taken to the local police station and locked up in a small room’. As the applicant was not an adult and it was her first arrest, she was asked not to attend another gathering again. A guarantee letter was written and a fine was paid and the group was released.
The applicant wrote that her father sent her to Australia in order to protect her. She arrived in Australia [in] March 2007. She went to church and was very close to God.
On [a date in] January 2010 her family was again arrested and detained for 15 days. Her father was arrested for a second time. He was tortured and persecuted inside the police station. Her brother saw that the applicant’s father was harmed so he went to protect her father, however he was beaten and his [fingers] were broken. Her father’s [eye] was beaten and blind. All other members were detained and fined. The applicant was very worried abut them and wanted to return to China, but her father and brother said it would be dangerous for her to go back.
The applicant wrote that she missed her family so much, so she secretly bought a ticket to return to China by transferring at [a named airport]. She did not go back directly but stayed in Xiamen where she met her father and brother. However, her family were worried about her safety, so she did not stay long and returned to Australia.
At first, she did not think she could apply for protection and she never communicated with people. She did not apply for a protection visa because she was on a student visa at the time. Recently, she met a church member who told her she could apply for a protection visa. She hoped that Australian government could seriously consider her application and protect her from being persecuted by the local government in China. She was living in fear.
In support of her claims, the applicant provided a letter dated [in] October 2015 from [a priest] of [Church 1]. This was on the Department file but was not referred to in the delegate decision. The applicant also provided seven separate emails to the delegate on 14 October 2015 attaching photographs of her participation in Church activities, photographs of her father, and photographs of her brother. Regrettably, those emails and photographs were not on the Department file and not referred to by the delegate. The applicant forwarded those emails to the current Tribunal as requested. That was the first time that the photographs were presented to the Tribunal. It is regrettable that the Department did not have that material on their file, and regrettable that the delegate did not refer to the letter or the emails attaching photographs in the decision record. This would have avoided the previous Tribunal hearing proceeding without all the relevant evidence. The applicant’s documents were clearly given to the delegate three months before the delegate made the decision refusing the protection visa, so it is regrettable that the delegate did not mention them in the decision record to demonstrate that they had been considered.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal ultimately concluded that the applicant is not a credible witness. The combination of the Tribunal’s concerns, as outlined in this decision, means that the Tribunal is satisfied that the applicant has fabricated her claims for protection as a means of remaining in Australia. The Tribunal’s concerns are as follows.
First, the Tribunal asked the applicant about her present circumstances in Australia. She told the Tribunal hearing that she lives alone and was speaking to the Tribunal from her home in [a named suburb]. She had previously been working as [an occupation] and in a [business]. The Tribunal asked the applicant about whether she had any family in Australia. The applicant told the Tribunal that she did not.
Utilising s.424AA of the Act, the Tribunal put to the applicant information it had in its possession which suggested that the applicant was not telling the Tribunal the truth about her family in Australia. The information was that the applicant had given birth to a [daughter] on [date]. In response to this information, the applicant told the Tribunal that she had given birth to [her daughter], but that her daughter lived with her daughter’s father and that she and her daughter did not have a relationship. It was for this reason that she told the Tribunal that she had no family in Australia. The Tribunal has considered that response but is not persuaded that this is the reason that the applicant said she had no family in Australia. To the Tribunal’s way of thinking, whether a person has family is a basic question of fact. The applicant did not tell the Tribunal that she had a daughter with whom she had no relationship. The Tribunal is satisfied that if this were the case, the applicant would have given that evidence in response to the Tribunal’s question about whether she had family in Australia, and not answer that she did not have any family in Australia. The applicant only explained that she had no relationship when she was confronted with the Tribunal’s concerns that she was not being truthful in her evidence.
It was curious to the Tribunal that the applicant would not tell the Tribunal about her daughter. It was not a contentious issue. In the Tribunal’s view, the reason that the applicant did not tell the Tribunal about her daughter was because the applicant thought that by not disclosing that she had a daughter, it would assist either the applicant or the applicant’s daughter to achieve a favourable migration outcome. This demonstrated to the Tribunal that the applicant had a flexible approach to the truth and may be a witness who would tell, or not tell, the Tribunal whatever evidence she thought would assist her to be granted a protection visa. The Tribunal’s concern about whether the applicant was a witness of truth was compounded by other concerns as noted in this decision.
Second, the Tribunal noted to the applicant that in her protection visa application form, which was dated November 2014, the only family she disclosed in China was her father and brother. The Tribunal understands the protection visa application form used by the applicant did not require the applicant to detail both her living and deceased relatives, but was curious to find out more about the applicant’s mother. The applicant told the Tribunal that she did not detail her mother because her mother had died in 2019. The Tribunal was concerned by this, because the protection visa application form had been completed in 1999, which would have been before her mother’s death. The Tribunal asked again why the applicant had not put her mother’s name down on the form, and the applicant then told the Tribunal that her mother passed away [in] July 1999. The Tribunal put to the applicant that this was inconsistent with the evidence she had just given that her mother passed away in 2019. The applicant disputed that she had given that evidence previously.
The Tribunal checked the recording and the interpreter clearly said 2019. The Tribunal has considered whether this inconsistency could have been attributed to an error in translation. However, the Tribunal has concluded that this is not the case in light of the other concerns that the Tribunal has about the credibility of the applicant. The Tribunal is satisfied that when the applicant told the Tribunal that her mother died in 2019, she then realised that this would not provide a reasonable explanation as to why she did not include her mother in the 2014 protection visa application form. The applicant’s statement refers to her mother’s death, and the Tribunal is satisfied that the applicant’s memory was refreshed about what she had written in her statement when the impossibility of her mother dying in 2019 but not being included in the 2014 form became apparent to her. It was for this reason that she then changed her oral evidence to claim that her mother died in 2014. Again, the Tribunal’s concern about this matter was compounded by other concerns as noted in this decision.
Third, the applicant provided inconsistent evidence about her return travel to China. In her written statement, she referred to returning to China once. However, that is not the case. She had in fact returned to China twice. Once was in 2008 and the other time was in 2011. The Tribunal acknowledges that the applicant told the Tribunal hearing and the previous Tribunal hearing that she had returned to China twice, and also acknowledges that the delegate interview was conducted on the basis that the applicant had returned to China twice. However, it was the delegate who told the applicant ‘Since you first arrived in Australia, you have departed on two occasions. The delegate was obviously aware that the applicant had returned to China twice from inquiries he made independent of the applicant. The applicant did not volunteer that she had returned to China twice. She agreed with the delegate that she did when he advised her of the department’s knowledge of her movements. The Tribunal is satisfied that had the delegate not advised the applicant of this fact, she would not have declared that she had returned to China twice, and would have provided evidence that was consistent with her written claim, namely that she returned to China once.
The Tribunal asked the applicant a number of times why she had not declared her previous two lots of travel to China in her written statement, and instead wrote that she travelled to China on one occasion. To the Tribunal’s way of thinking, this demonstrated that the applicant was prepared to withhold evidence if she believed doing so would result in her obtaining a favourable migration outcome. It is not unreasonable to infer that if the applicant has voluntarily returned to a country where she claims to fear harm, she does not actually fear harm there. The Tribunal suspected that the applicant would have deduced that the person deciding her protection visa application may have come to that conclusion, and it was for that reason she did not declare in her written application that she had returned to China twice. The applicant’s response to her failure to declare that she had returned to China twice in her written statement was far from satisfactory. She said variously to the Tribunal that it was ‘impossible’ that she did not declare that she had returned twice to China, because the Department had checked this, it was ‘obvious’ that she has returned there because ‘during the delegate interview she was asked twice about this’. The Tribunal noted that the protection visa application form at Question 65 asks specifically whether the applicant had returned to China since arriving in Australia and she responded that she had not. This was of course inconsistent with her written statement. The applicant responded that she had ‘put that I went back twice’ and that she had ‘told the delegate the truth’.
The Tribunal is satisfied that the applicant was deliberately evasive in answering the Tribunal’s questions about why she had not declared her previous travel in Question 65, and why she did not include the fact that she had returned to China twice in her written statement. The applicant’s response was to talk about her discussion with the delegate. As noted above, the Tribunal accepts that there was such a discussion, but the evidence about the two previous trips to China came from the delegate, not the applicant. The applicant did not tell the Tribunal why she had not declared her two previous trips in her written statement or explain why she declared in the form that she had not returned to China since her arrival in Australia. The Tribunal is satisfied that the applicant did not declare in her protection visa application form that she had travelled back to China twice was because this may demonstrate that she had no fear returning there. The Tribunal is satisfied that if the delegate had not approached his question by asserting the fact that the applicant had twice travelled to China, the applicant would have maintained that she travelled to China only once. This again demonstrates to the Tribunal that the applicant has a flexible approach to the truth and is prepared to withhold evidence that she suspects may undermine her claims.

Fourth, the applicant had provided inconsistent evidence about the injuries her brother sustained. In her written statement, she wrote that he had his fingers broken, but in her evidence to the previous Tribunal, she said that his [fingers] were cut off. There is a dramatic difference between having your fingers broken and your fingers cut off. The Tribunal put its concerns about this inconsistent evidence to the applicant and asked her to explain why there was a difference between her written statement and her oral evidence. The Tribunal was concerned that the difference between this evidence could be put down to the fact that the applicant was not a witness of truth. In response, the applicant said that her brother’s fingers have now been amputated. When the Tribunal asked when her brother’s fingers were amputated, she said this was on [a date in] January 2010, but then said she could not tell the Tribunal the exact date of the amputation. Noting that the protection visa application was lodged in November 2014, which would four and a half years since that arrest in January 2010, the applicant was asked why she was put down that her brother’s fingers were broken if they had been amputated. She responded that at the time she did not know how to describe the injury. The Tribunal is not satisfied that a subsequent amputation or an inability to properly describe the nature of her brother’s injuries is the reason to explain this inconsistency. In light of the other concerns that the Tribunal has about the applicant’s credibility, it is satisfied that the inconsistency can be attributed to the fact that the applicant is not a witness of truth.
Fifth, the Tribunal asked the applicant whether she was able to leave China in 2011 without any problems. The applicant told the Tribunal that when she entered China, she was stopped and asked some questions, such as if she was a Catholic and her degree of belief. The Tribunal found this incredulous for a couple of reasons. First, this event had not been detailed in the applicant’s written statement. Such an event would demonstrate that the applicant had some form of adverse profile to the Chinese Government and would appear to corroborate her claims. It would be strange for such an important detail to be omitted from her written statement if that event had occurred. Second, it would be curious that the applicant would be identified on her arrival to China as a Catholic, and then be allowed to go about her business in China if she was of some concern to the authorities. The Tribunal confirmed with the applicant that she was talking about when she entered China in 2011. They applicant then said she was talking about when she was leaving China in 2011. The Tribunal was concerned by this change in her oral evidence, and put to her that she had previously told the Tribunal the questioning happened when she entered China. She disputed that she said this to the Tribunal and said it occurred when she departed China in 2011. The applicant told the Tribunal that she was very fearful when she was stopped at the airport and wondered if the authorities had found out about her purpose in travelling back to China and feared being arrested and not being able to come back to Australia. She told the Tribunal that the reason she left out the questioning at the airport from her written statement was because the statement was written through the help of a friend and her friend did not have sufficient time to detail this. Later in the hearing, the applicant said that because she was not harmed or arrested, she did not think it was important to detail that event in her statement.
The Tribunal is not persuaded by the applicant that the reason the event was not detailed in her statement was because she was not harmed or arrested. Her oral evidence to the Tribunal was that she was fearful of arrest and worried she would not be able to return to Australia. The questioning at the airport would appear to corroborate her claims that she was a person of interest. The Tribunal does not accept that this event was omitted from her written statement because the friend who helped her with the written statement had insufficient time to detail the event, or because the applicant thought that it was not important to detail. The Tribunal acknowledges that the applicant told both the delegate and the previous Tribunal that she had been questioned during her return trip to China, but that does not address why she failed to include it in her written statement. The Tribunal is satisfied that the event was not detailed because it did not occur.
Sixth, the applicant gave inconsistent evidence her family’s past experience of harm in China. The applicant confirmed to the Tribunal that she returned to China in 2008. She told the Tribunal that when she returned to China in 2008 because she had a student visa, her family was not persecuted, and she was not so scared. The Tribunal asked whether her family was persecuted after 2008 and she indicated they were. The Tribunal asked the applicant whether there were no problems before 2008. She responded that there were not. She told the Tribunal that in 2007 when she came to Australia, she thought about returning to China. The Tribunal asked the applicant whether she had experienced any problems with the authorities personally. She told the Tribunal that she did and started to talk about 2011 when she returned to China and considered applying for information and getting justice for her father and brother, but her family did not agree.
The Tribunal was troubled with this evidence, given that the applicant detailed in her written statement that she was arrested in 2005 in connection with Christian activity. The applicant clearly sensed the Tribunal’s concern, because when the Tribunal sought to clarify that she herself did not experience any problems in China, the applicant then said she was arrested in 2005. The applicant told the Tribunal that her arrest in 2005 made her feel fearful and scared. She told the Tribunal that brothers and sisters were arrested together. The applicant was asked whether anything happened to her father in connection with the 2005 arrest. She said no. She and her father were not together. The Tribunal again confirmed with the applicant that nothing happened to her father. She said at that time nothing happened to him and he had no problems at that time. The Tribunal became further concerned by this evidence, because the applicant’s statement makes it clear that her father was among those detained with her in 2005, where he was questioned and beaten.
The Tribunal put to the applicant its concerns about her inconsistent evidence about whether her father had any problems before 2008, because this suggested to the Tribunal that the applicant was not a credible witness. When the Tribunal raised its concern with the applicant, she apologised and said she now recalled this. She put this inconsistency down to the fact that it had been a long time. The Tribunal does not accept the applicant’s explanation about this inconsistency regarding whether her father experienced harm prior to 2008. In the Tribunal’s view, the applicant provided inconsistent evidence about this fact because she was not a witness of truth and had forgot that she had made this claim in her written statement.
Seventh, the applicant did not lodge a protection claim until November 2014, which may suggest that she was not genuine in her claims. It was curious to the Tribunal that the applicant would be in Australia from 2007 to 2008, return to China, then be in Australia from 2008 to 2011, then return to China, and then be in Australia from 2011 and delay lodging the visa application until 2014. The applicant told the Tribunal that she was an introvert and became isolated, depressed and did not get any information about protection visas. It was only when members of her church were chatting and she told them what happened to her family that she became aware of protection visas, with fellow church members asking her why she did not apply for a protection visa. She told the Tribunal that she became aware of protection visas between August and September 2014 and then became very happy. However, the applicant also told the Tribunal that she became aware of protection visas in 2011 by searching on the internet. She did not lodge a protection visa at that time because she was not sure whether people who were on a student visa could apply for a protection visa. She told the Tribunal that she went to a migration agent and was told that she could not apply for protection. When asked for the name of the agent who told her this, she said it was an agent in China town. She could not provide the Tribunal with a name and told the Tribunal that she spoke to two or three agents and casually asked them this question.
The Tribunal had great difficulty with the applicant’s reasoning because her student visa finished in 2012. The Tribunal struggled to understand why the applicant would not lodge a protection visa at that time. She put that down to the fact that she thought she was prohibited from doing so because she came to Australia on a student visa. Utilising s.424AA of the Act, the Tribunal put to her that what she told the Tribunal about the delay in lodging her protection visa application was different to what she told the delegate. To the delegate, she said that the reason that she did not seek protection in Australia when she returned here in 2011 was because she was hoping that the Chinese Government would change. The delegate expressed disbelief that the applicant had been in contact with the Department three times regarding student visa and yet claimed she had not been aware of protection visas. The applicant said that she thought that because her father and brother were injured, protection would not be available to her. She claimed that she now lodged a protection visa because she was aware that she could claim protection. At no time did she claim that the delay was attributable to thinking that a student visa prevented her from lodging a protection visa application, as she claimed to the Tribunal. In response, the applicant said that she told the delegate that she was not familiar with protection visas.
The Tribunal has great difficulty reconciling the applicant’s differing accounts of when she came to know about protection visas, and the reasons for her delay in lodging a protection visa application. The Tribunal is satisfied that the applicant is not a credible witness about why she delayed her protection visa application. The Tribunal struggles to accept that migration agents would tell the applicant that she could not lodge a protection visa, and the fact that the applicant could not name these agents, and did not cite them to the delegate as a reason for the delay in the protection visa application, leads the Tribunal to conclude that the applicant is not being truthful about when she became aware of protection visas and her reason for the delay in application. The Tribunal comes to the conclusion that the delay in application is evidence that the applicant has fabricated her claims for protection. She lodged the protection visa application because she wanted to achieve a migration outcome to remain permanently in Australia, not because she had a genuine fear of harm in China.
Eighth, the applicant gave inconsistent evidence about what she did when she last returned to China in 2011. The applicant told the Tribunal that she returned to China thinking that she could get justice for her father and brother, but she was persuaded not to proceed. She told the Tribunal that she collected information. She wanted to protest about the treatment of her brother and father, but her father did not agree. She did not do anything about that treatment. This contrasted to the applicant’s oral evidence to the previous Tribunal. At that hearing, the applicant told the Tribunal hearing that she submitted her name to a local court in China because of what happened to her father and brother. She lodged the action in the local court because she planned to sue the authorities to pay for the treatment of her father’s injuries. She was able to do so because she had she relations and friends in China who could support and advise her. The previous Tribunal noted to the applicant that there was nothing in her written statement about the fact that she had lodged a suit in a Chinese local court to get the authorities to pay for her father’s treatment of his injuries. The applicant said that the reason for the omission of that information was due to the fact that the person writing the statement in English had little time to record all her experiences. The Tribunal raised this inconsistency with the applicant as it indicated that the applicant was not a truthful witness. The applicant said that she was thinking about legal action but her father persuaded her not to pursue it, and she withdrew her name from the court action.
The Tribunal is not persuaded by the applicant’s response to its concerns. She told the Tribunal that she did not do anything about her father’s treatment. If it were true that she did, as she claimed to the previous Tribunal, she would have said that she did lodge proceedings, but subsequently withdrew them under pressure from her father. The Tribunal is satisfied that the applicant did not tell the Tribunal hearing that she lodged proceedings in a local court because she did not do so, and had forgotten that she told the previous Tribunal that she had.
Ninth, the Tribunal has concerns about the applicant’s claimed Catholicism. The Tribunal acknowledges the photographs that the applicant has submitted in support of her claimed Catholicism. The Tribunal acknowledges that the applicant claims that she continues to attend [Church 1] on Sunday, but due to the COVID-19 pandemic, does so online. She told the Tribunal hearing that she had been in Australia about half a year before she started attending [Church 1], but the letter she provided claimed that she had been attending since May 2007, which would have been two months after her arrival. The applicant put this down to the fact that she could not clearly remember when she went to the church, and she was only giving the Tribunal an approximate timeframe. If this was the only concern that the Tribunal had, it would not place any weight on a difference of 4 months, but given the other concerns as outlined in this decision, the Tribunal is satisfied that this inconsistency can be put down to the fact that the applicant has attended [Church 1] not out of a genuine interest or commitment to Catholicism, but as a means to achieving a migration outcome.
This conclusion is also based on the fact that the applicant was not able to tell the previous Tribunal hearing about the 7 sacraments of the Catholic Church. To that Tribunal, she said there were 7 sacraments, but could only name baptism, communion and confession. The Tribunal really struggles to accept that a person who has been raised as a Catholic since birth, and then attended Catholic Church services in Australia since 2007 would not be able to name the 7 sacraments of that religious group. The Tribunal acknowledges that at the recent Tribunal hearing, the applicant was able to correctly name the sacraments, but this does not alleviate the Tribunal’s concerns about why she could not do so previously. The Tribunal is satisfied that the applicant subsequently learned the sacraments as she suspected that the Tribunal would again ask her that question again. The fact that she could not name them at the previous Tribunal hearing is indicative that the applicant is not a genuine Catholic and had only learnt information in an attempt to appear as a credible witness about her beliefs. The Tribunal does not accept the applicant’s explanation that she did not know or understand the question the previous Tribunal asked her, because he was clearly able to detail baptism, communion and confession.
The Tribunal accepts that the applicant has attended services at [Church 1], and accepts that the photos she has submitted, together with the letter, indicate that she has engaged in various activities with the Catholic Church in Australia. However, this attendance does not mean that the applicant is a genuine Catholic. It means that she has attended Church services and activities. Because of the concerns that the Tribunal has about her credibility, the Tribunal does not accept that the applicant attended church services in Australia for any purpose other than claiming protection. As noted in the letter from [Church 1], the time of the applicant’s first attendance at the church was given to the author by the applicant herself, and the photographs are not accompanied by any independent information about when those photographs were taken. The Tribunal is not satisfied that the applicant has been attending services at [Church 1] since 2007 as she claimed, and is satisfied that she started attending services when she decided to lodge a protection visa application in order to strengthen her claims.
Tenth, while the Tribunal acknowledges the photographs of her father and brother, they too are unpersuasive. The photograph of the applicant’s father shows that he has problems with his eyes, but this is only corroborative of the fact that has such problems, not that the problems have occurred as a result of his claimed assaults. Further, the photos of the applicant’s brother show a hand in a bloodied bandage, her brother laying in a hospital bed and another injury. These photos are only corroborative of the fact that her brother received some injury and has been in hospital, not that those injuries and hospitalisation occurred as a result of the claimed assaults. Given the other concerns that the Tribunal has about the applicant’s credibility, the Tribunal is satisfied that the applicant’s father’s eye condition and her brother’s injuries and hospitalisation, as evidenced in the photographs, have not occurred as a result of their alleged assaults by the Chinese authorities as claimed.
CONCLUSION
The Tribunal is satisfied that the applicant is not a credible witness for the reasons discussed above. The Tribunal is not satisfied that the applicant or her family were or are Catholics. The Tribunal is not satisfied that the applicant or her family experienced any harm in China as she has claimed. The Tribunal is not satisfied that the applicant travelled to Australia, and remained her, because she had a genuine fear of the Chinese authorities on account of her and her family’s claimed profile as Catholics. The Tribunal is satisfied that the applicant manufactured the entire backstory of both her and her family’s experiences in China.
The Tribunal is satisfied that when the applicant came to Australia, she came as a student and hoped to remain in Australia if she was a successful student and able to secure employment here. The Tribunal is satisfied that when that was no longer an option for her, given that her student visa was cancelled, the applicant remained in Australia because she wanted to live in Australia and achieve her purpose in migrating here, not because she had a fear of return. The Tribunal is satisfied that the applicant found out about protection visas and decided to join [Church 1] and participate in services and activities solely to strengthen her protection claims. The Tribunal is satisfied that if the applicant is not successful in being granted a protection visa, she will cease her involvement in [Church 1] church, and Catholicism, because she is not a genuine Catholic. She has engaged in her activity in Australia to achieve a migration outcome, namely permanent migration to Australia, not because she is a genuine Catholic. There is no evidence to suggest that as a result of the applicant’s attendance at [Church 1] in Australia, or her involvement in Catholicism in Australia, she would be of any interest to the Chinese authorities upon her return to China.
CONCLUSION
Refugee

For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in China on account of her race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
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). For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal to China from Australia, there is a real risk that the applicant would suffer significant harm.
Therefore, the applicant does not satisfy the criterion as set out in s.36(2)(aa).
Member of the same family unit
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

[2020] AATA 2098

18 May 2020

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