1516380 (Refugee) [2018] AATA 436 (20 February 2018)

Last Updated: 13 March 2018

1516380 (Refugee) [2018] AATA 436 (20 February 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1516380

COUNTRY OF REFERENCE: China

MEMBER: Angela Cranston

DATE: 20 February 2018

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 20 February 2018 at 2:46pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Catholic – Delay in application – Conduct not consistent with Catholic teaching – Participation not expression of genuine faith – Credibility concerns – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 65, 424A,499
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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants who claim to be citizens of China, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] November 2015.
3. In her application, the first named applicant (herein called the applicant) stated the following:

I have been a Catholic and started to attend family church since I was little. However my parents don’t believe in Catholic. Ever since my mother got pregnant with my younger brother, authorities of birth control visited our home very often because he is out of family planning. In order to give birth to my little brother, my mother hided in places and kept me at my [Relative 1]’s place.

Government authorities smashed my house since they could not find my parents. Occasionally, they arrested my father on street and detained him, forcing my mother to do abortion. In order to save my father, my mother presented to agree with it but still fled away on the night. Ever since then, they scared to go home and eventually went back after my little brother was born. The birth of my little brother caused my family suffering in financial hardship. Since my parents’ escape, government imposed heavier penalty to my family. My parents were unable to support two children and sent me to live with my [Relative 1]. I was told that my [Relative 1] sent me for a baptism at age of [age] but I don’t remember much about it.

My parents value male more than female and never give much care to me ever since the birth of my younger brother. My [Relative 1]’s whole family is Catholics. I went to church with her since I was young and lived under the influence of family church. Our family church was investigated by government frequently. They didn’t allow our church to get registered and forced us to dismiss to join patriotic church.

I have been arrested by local authority for engaging in family gathering when I was in primary school. I was little at the time and my parents took all the blame every time. When I was studying in middle school, school doesn’t allow students to believe in Christianity. Government also threatened students to do re-education through labour if participate in underground church activities. Therefore, my [Relative 1] didn’t allow me to attend gathering anymore. In spite of that few of us who grown up under the influence of family church still sought opportunities to attend gathering secretly. We participated in evangelisation activities out of town during school holidays and formed student fellowship.

I was detained by the local police for two days when I went to Jiangxi for evangelisation with my [Relative 1] during my year [number] summer holiday. After returned to hometown, we were questioned and fined by police. I was warned and suspended from school.

AUSTRALIA

I decided to study in Australia in 2008. My parents don’t want to support me financially and saved it for my younger brother. Later, they planned my marriage as a way to organise my school fees. I was underage at the time and had no choice but to obey their arrangements to satisfy our custom.

After arriving in Australia, I was educated in the western way. It changes my attitude towards life and philosophy, admiring the life of freedom. Later, I met my husband. We were schoolmates in China. Our mutual religion and aspiration lead us from dating to our marriage. However it is opposed by our parents. My boyfriend’s parents opposed to my religion and refused to accept my child and me.

In [year], under family pressure I went back to China and gave birth to my [Child 1]. However my parents were furious and neither allow me to live at home nor see my baby. Since my [Relative 1]’s family went to other place for living, I had no choice but to live at place of [Ms A] who met me at church for maternity leave and sent my child to live with her then went back to Australia to continue with my study.

My [Child 1] can’t get household registration and becomes ‘black child’. Recently, government insists to send children to sanctuary by taking excuse of penalising those churches adopting black child to break the law. I am really worried about my child. My poor [Child 1] has to live at other people’s place and the same to me when I was young. Fortunately, my child is being looked after by the church friends. Otherwise I cannot imagine what would happen to [Child 1]. Both my boyfriend and I are not financially independent since we have lost family support and have to work while studying to sustain our education. We are currently suffering from financial hardship with debt.

Currently, the situation of my hometown’s church remains same as persecution never stopped. In 2013 before Easter, our church was sealed by government and gathering is prohibited. Government struck on people who appeal and [Ms A] was arrested because of it. I can’t leave family church and stop evangelising. Our church is loyal to the Pope and refuse to recognise patriotic church. However, my engagement with underground church activity bring along with potential danger and persecution so I am afraid of returning to China.

My husband grows up in a divorced family. Despite the denial of our family, we insisted to get married in 2012 and they refuse to contact us. Currently I am pregnant again [and] my due date will be [date]. Right now, our religion is our only spiritual support. We were all baptised in Australia and insist to evangelise to China. I hope to be protected by Australian government and wish to serve the Lord at my church for rest of my life and wish to save my child as soon as possible.

4. The applicants appeared before the Tribunal on 31 October 2017 to give evidence and present arguments.
5. The secondary applicant stated he did not want to give evidence. When asked, the applicant also stated she did not want the secondary applicant to be in the room while she gave evidence. The Tribunal indicated to the applicant that because [Applicant 2] was also an applicant, then it would write to him with any adverse information and seek his comment.
6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
7. The applicant stated that her application form was correct and she had told her answers to the agent who wrote them in English.
8. The applicant stated she wrote her statement which was translated by a translator she found on the internet. When asked if she had read her statement in English she said yes and basically it was correct but then said she did not know if the translation was correct because her English was poor.
9. The applicant stated she married in 2012 and had [children].
10. The applicant last lived in China in [a] Town from 2004-2008 with her parents and younger brother. Before that she lived in the same street with her [Relative 1] from aged [age] up until 2003.
11. The applicant stated that she arrived in Australia [in] May 2008. She had returned to China four times since she arrived, once in April 2009 for three weeks to one month, in July/August 2010 for half a year, in November/December 2011 for two months and in December 2012 for almost 2 months.
12. The applicant stated she was Catholic and when young, had stayed with her [Relative 1] and attended church. She stated she had been detained or arrested twice because she spread the gospel, once in [high] school during the summer vacation and before that, when she was [age] when she spread the gospel in her village to everyone she met. The Tribunal put to her that in her statement she said she was arrested for engaging in a family gathering and not for spreading the gospel. She stated she attended church with her [Relative 1] and wanted to spread the gospel. When asked if she continued to attend church with her [Relative 1] after she was arrested when she was [age], she stated yes and did so up until she came to Australia. The Tribunal put to her that in her statement she said that after she was arrested her [Relative 1] did not allow her to attend gatherings anymore. She stated it was only after her arrest that her [Relative 1] did not allow her to attend.
13. The Tribunal asked about her second arrest when she was evangelising and asked why her [Relative 1] allowed her to do that. She said it was because she was Catholic. The Tribunal asked how she had evangelised at that stage and she said she gave out Bibles and materials about Catholicism and approached people and said things about the gospel and that if “you attend your sins will not be forsaken and you will gain peace and happiness”. The Tribunal put to her that when the department asked her that question she did not state that she was distributing Bibles and written information about Catholicism. She stated during the interview she was confused and the interpreter did not interpret correctly. The Tribunal put to her that she had told the department she understood the interpreter at interview. She repeated she was confused.
14. The applicant stated she came to Australia to study and for freedom and human rights. When the Tribunal asked what that meant she stated her parents paid attention to her brother and did not raise her.
15. The applicant stated she feared returning to China because she was Catholic. When asked if she had practised Catholicism in Australia she stated she started attending Mass since October 2009 every Sunday. The Tribunal put to her that when the Department had asked her that question she stated she had first attended in February 2012. She stated she had been confused but later she went to the Catholic Church and they had kept attendance records. The Tribunal asked why they did that and she stated she did not know. The Tribunal put to her that it had never heard of that.
16. The applicant stated she was baptised [in] March 2013 and the Tribunal asked why it took so long if she had been Catholic when young. The applicant stated she had heard from her [Relative 1] that she had been baptised when she was [age] but did not have that impression. She also stated in Australia she was not familiar with the environment and had tried to attend other churches but they were in English and she felt uncomfortable.
17. The Tribunal asked if it was normal for Catholics to be baptised twice and she stated she did not know she was baptised and Catholics should only be baptised once. The Tribunal put to her that if her [Relative 1] had said she was baptised then why had she been baptised a second time. She stated she only heard she had been baptised. The Tribunal put to her that surely it was normal for Catholics to hear that they had been baptised given that many Catholics were baptised when they were babies. She stated she understood Catholic babies should be baptised however she only followed her [Relative 1] to church and her impressions were she seldom saw a priest, although once or twice there was a priest. When asked how that was relevant to being baptised twice she stated she should not have been baptised when she was [age] and only heard she was baptised. The Tribunal again asked her why she needed to be baptised twice and she stated she asked her [Relative 1] when she went back to China and she told her she was not baptised and that’s why she got baptised. When asked why she didn’t say that earlier she stated because she only heard and she didn’t know that the first baptism should be counted as baptism.
18. The applicant confirmed she had not been married in the Catholic Church. She stated in 2012 she married and later got pregnant and had looked after the child. The Tribunal put to her that it was odd to be Catholic and not married in the Catholic Church. She stated she hadn’t married in the church but it was being arranged. She also stated there were more than 1000 members and the priest needed time to organise it.
19. The applicant stated she read the Bible which was divided into the New and Old Testament and that the Old Testament was before the birth of Jesus and the New Testament was when the Holy Lord was crucified and set a covenant. She stated that the 10 Commandments were in the Old Testament and were given to Moses. The Tribunal put to her that when the Department of Immigration had asked her that question she had told them that the Old Testament was the process of how God preached and the New Testament was about the New Rule which was the Ten Commandments. The applicant stated she did not know what she had said.
20. The applicant stated that the Holy Trinity was the Holy Father, the Son and the Holy Spirit. The Tribunal put to her that when the Department had asked that question she said the Holy Father, Son and God. She denied that.
21. The Tribunal put to the applicant that she had said that she could not return to China but had consistently returned to China since she arrived in Australia in 2008 including one time when she stayed for six months. She stated she first returned for a health check, the second time was because [a certain reason], and the third and fourth times were for health reasons.
22. The applicant stated it took her a long time to apply for a protection visa because it was now worse for the Church in China and when she last returned in 2012, the police had raided the church she attended and written down all their names and she was scared of one policeman in particular because he had previously detained her in [number] year of high school.
23. The applicant stated the church was raided before Easter. The Tribunal put to her that her movement records suggested that she left Australia in November 2012 and came back in January 2013 which was months before Easter and wondered why she was referring to Easter when the most obvious Catholic event that would have occurred while she was in China would have been Christmas. She stated in 2012 when she returned she encountered police inspecting them and they wrote down all their names and she was told about the incident in 2012 by [Ms A]. She stated the police wrote down all their names because she was Catholic and anytime they could be subject to an inspection. The Tribunal put to her that was not in her statement. She stated the Tribunal had asked why she feared returning to China and she had recounted that incident.
24. When the Tribunal specifically asked if there are any other reasons why she could not return to China, she did not state any other reasons. She also said that if she returned she would not have any other person to rely on. The Tribunal put to her that she would have her husband but she stated that because they were both Catholic they would be arrested.
25. The Tribunal then indicated that it had concerns, one being that she was not married in the Catholic Church. The Tribunal also put in that she had gone back to China many times since her arrival in Australia which may not be consistent with her alleged fear of returning to China because she was Catholic. The Tribunal also put to her that other concerns were that her evidence at hearing may be inconsistent with her written claims.
26. The applicant then became upset and stated she had told the Tribunal the truth.
27. Following the hearing, the Tribunal sent the following letter pursuant to section 424A to the applicants stating that they were invited to comment on or respond to the following information which, subject to their comments or response would be part of the reason for affirming the decision under review:

When [Applicant 1] first attended Mass in Australia

At departmental interview [in] February 2015 it is orally recorded that [Applicant 1] told the Department she understood the interpreter. When asked, she also stated that she first started attending churches in Australia in February 2012.

This is relevant because at hearing on 31October 2017, [Applicant 1] stated she started attending Mass since October 2009 every Sunday. This is relevant because the Tribunal may find her answers inconsistent. If the Tribunal finds her answers

inconsistent then, subject to your comments, the Tribunal would not be satisfied that she has been attending Mass for the times claimed.

[Applicant 1]’s knowledge of the Bible

At departmental interview [in] February 2015, it is orally recorded that the following

occurred:

Q. Have you read the Bible?

A. Yes

Q. Are you familiar with the Old and New Testament? Can you answer the question please?

A. If you want me to tell you every detail I won’t be able to

Q. I asked you if you are familiar with the Old and the New Testament?...

A. yes

Q. What is the difference between the Old and New Testament?

A. The Old Testament is about the process of how God preached and the New Testament is about after is about the New rule we need to obey after God

resurrected

Q. Tell me about the New rule that we must obey

A. We need to obey the Ten Commandments

This is relevant because the Tribunal may find that at interview, [Applicant 1] told the

Department that the New Testament was about the New rule that must be obeyed

after God got resurrected and the New rule was to obey the Ten Commandments but

the Ten commandments are in the Old Testament. This is relevant because the

Tribunal may find that at interview, [Applicant 1] did not display knowledge of the Bible that

is consistent with her alleged having read the Bible. If the Tribunal finds that [Applicant 1]

did not display knowledge of the Bible that is consistent with her alleged reading of the Bible, then subject to your comments, the Tribunal would affirm the decision under review.

[Applicant 1]’s knowledge of the Trinity

At departmental interview 5 February 2015, it is orally recorded that when asked

what is the Holy Trinity? [Applicant 1] said the Holy Father, Holy Son and Holy God.

This is relevant because the Tribunal may find that at interview, [Applicant 1] did not display knowledge of the Trinity that is consistent with her alleged Catholic practice. If the Tribunal finds that [Applicant 1] did not display knowledge of the Trinity that is consistent with her alleged Catholic practice, then subject to your comments, the Tribunal would affirm the decision under review.

Inconsistencies with written and oral evidence about events in China

At departmental interview [in] February 2015 it is recorded that the following

conversation occurred with [Applicant 1]:

Q. You said that you evangelised while you are in middle school, how did you do that?

A. We are students, we organise some kind of group and we make use of the summer holidays to go to other places to evangelise.

Q. How do you do that I mean the Chinese government banned the underground

church so how do you evangelise your faith to people who are non-believers?

A. There are many ways maybe through chatting or direct friends. We may have some chat and get to know each other first and then we may talk about the opinion towards Catholic to find out whether they have their religious belief, to check whether we share the same religion.

This is relevant because when the Tribunal asked how [Applicant 1] evangelised in China at hearing, she stated she gave out the Bible and materials about Catholicism and she also gave the Gospel, however the Tribunal may find that answer inconsistent with the answer she gave at departmental interview and she did not state she gave out the Bible and materials about Catholicism. If the Tribunal finds that she did not state that at departmental interview, then the Tribunal may not accept that she did evangelise in China and subject to your comments, the Tribunal would affirm the matter under review.

[Applicant 1]’s movement records

Movement records indicate that [Applicant 1] arrived in Australia [in] May 2008 and departed [in] April 2009. She again arrived [in] May 2009 and departed [in] August 2010. She again arrived [in] February 2011 and departed [in] December 2011. She again arrived in Australia [in] February 2012 and departed [in] November 2012. She again arrived in Australia [in] January 2013 and lodged the protection visa application [in] October 2013.

This is relevant because the Tribunal may find that [Applicant 1]’s numerous returns to China and her delay in applying for a protection visa is not consistent with her alleged persecution.

Other issues

At hearing, [Applicant 1] stated that she was twice arrested for spreading the Gospel and that when she was [age] she was first arrested for spreading the Gospel in her village and she spread it to everyone she met.

This is relevant because it may be inconsistent with her written statement which said she was arrested for engaging in family gathering and not for spreading the gospel.

At hearing, when asked if she continued to attend church with her [Relative 1] after she was arrested when she was [age], [Applicant 1] stated yes and she did so up until she came to Australia,

This is relevant because it may be inconsistent with her written statement which said that after she was arrested her [Relative 1] did not allow her to attend gatherings anymore.

Claim that [Applicant 1]’s name was taken because she was Catholic was not in her statement

At hearing, [Applicant 1] stated the church was raided before Easter 2013 and the police wrote down her name because she was Catholic and anytime they could do the inspection on them.

This is relevant because the Tribunal may find that was not in her written statement.

[Applicant 1]’s alleged baptism in China and why she needed to be baptised twice

At hearing on 31 October 2017 [Applicant 1] stated that she was baptised [in] March 2013 and that she had heard from [Relative 1] that she had been baptised since she was [age] years old but she had not had that impression. She then stated she asked her [Relative 1] when she went back and she was not baptised and that’s why she got baptised.

This is relevant because the Tribunal may find her answers inconsistent.

Failure to marry in the Catholic Church

At hearing [Applicant 1] stated she had not married her husband in the Catholic Church.

This is relevant because the Tribunal may find that this behaviour is not consistent with her alleged Catholic faith.

28. The Tribunal received the following response:

First of all I think the translator and I had a communication problem during the departmental interview [in]/4/2015. I believe this is cause some misunderstanding between me and the immigration officer, although I and the translator’s language is the same, but in the answer I often do not know him very well, we do not communicate well, find it very disturbing, also creates mental stress. Plus I was very nervous for the first interview. I’m sure I’d be able to show what I said in the interview. And there are obvious parts of the interpreting error, such as on the part of Q and A about Trinity.

When did I start to attend Mass in Australia? I began to attend Sunday mass in Australia in October 2009, which is true. As for the [date]/4/2015 interview record in the immigration department, it was said that was in February 2012 started, it may because of on the interview I was so nervous and that I was mistaken. I hope you understand.

About my Biblical knowledge I was asked whether I had read the Bible and questions about the Old Testament and the New Testament. I read the Bible. But I can’t carry it. I share it with the congregation, one of the church activities. But the Bible is profound, my knowledge of the Bible seems to be growing in the rice, but also little but progressive growth. So I said I unable to have all the biblical content and information.

Knowledge of the Trinity

The Catholic teachings believe that God has only one, is Trinity. The Holy Father, Holy son and the Holy Spirit.

The departmental officer asks me what is the Trinity? I said the Holy Father, Holy son and Holy Spirit. But the interpreter translated Holy Spirit into Holy God.

Based on my understanding of the Old Testament and the New Testament, when I answer the question, what I like to say was that the Old Testament is the process and story of the Covenant that conveys the word of God and of our humanity before the resurrection of the Lord Jesus. And the New Testament is the story of after the resurrection of the Lord, the new covenant that we need to comply with.

What happened in China is not the same as oral testimony

[Applicant 1]’s journey record

These part of the problem is complex and difficult to parse (sic)

Other issues

About my name has recorded because of underground church activity, is not mentioned in my statement. In China the person whom arrested and detained, accordingly will recorded their name and would kept by the authorities.

As said I was in China baptised and why needs baptised twice

This is a misunderstanding. I only baptised once. I’m right about your answer. When I was in China I did not baptise. I only baptised in Australia. I decided to baptise when I was sure I hadn’t baptised.

No marriage in the church

I regret I have and violated the sacrament of marriage. This is my life’s big fault, I feel helpless very guilty. I must do penance, in preparation for our marriage sacrament.

The honourable member, I have tried my best to prepare this respond letter by using the electronic translation because I drafted by Mandarin. I hope you found the information in my respond is useful. As well I hope you give my weight, affirm my appeal.

29. The Tribunal also received the following:

With regards to the Ten Commandments, the Immigration officer asked tell me about the new rules that we have to comply with and I say we must obey the Ten Commandments.

Ten Commandments is written in the Old Testament but in my memory, there are words in some parts in the Gospel of the New Testament which is refer to the Ten Commandments, in the meantime I thought it was the immigration officer wants to ask me.

For example in the greatest commandment: he said to him, you shall love the Lord, your God, with all your heart with all your soul and with your entire mind. This is the greatest and the first Commandment. The second is like it: you shall love your neighbour, like yourself. The whole law and the prophets depend on these two commandments (Matthew 22:37-40).

Secondly I would like to attach a letter from [Priest 1] on which previously attached to my departmental application form. This information is related to the time I started attend Mass in Australia.

30. The Tribunal held a further hearing on 19 January 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Provided at hearing was a photocopy of the third named applicant’s baptism.
31. The Tribunal spoke to [Priest 1]. He stated he had known the applicant, her husband and child for a long time and she was a genuine Catholic, frequently attending the Chinese Catholic mass every Sunday at [a certain] Church. The Tribunal put to him that it had read his letter which said that the applicant had been attending the church since October 2009 but also stated that he had relied upon her for that information.
32. [Priest 1] stated if the applicant was not genuine, she had gone to a lot of trouble to camouflage her real purpose. The Tribunal put to him that the applicant had married not in the Catholic Church. He stated he did not have a problem with that, he had been a priest for 52 years and had met many couples who were Catholic who for whatever reason were living together and had not married by the church and that genuine Catholics had later married in the church. He also stated the church was not a society of holy people, that was the ideal, but God welcomed all people into the church as they were.
33. The Tribunal put to him that the applicant was married in 2012 but was still not married in the Catholic Church. He stated he still did not have a problem with that because the church welcomed people as they were and the church did not control, push or bully people.
34. The Tribunal then spoke to [Mr B]. He stated he knew the applicant from their church community in [suburb] from about approximately 2009. He used to be a [officeholder] in [another church] Community. He stated he thought the applicant was genuine because he could see she was willing to come to church and be involved in Bible study and be involved with the youth. He stated she was not very good in her Bible knowledge but did ask when she did not understand and he could see she was willing to learn.
35. The Tribunal then spoke to the applicant who stated she understood the interpreter.
36. The Tribunal put to her that it was going to think about whether it thought she was genuine or had engaged in activities for the purposes of her protection visa application. The Tribunal put to her that her husband had relied upon her claims but if the Tribunal was not satisfied that she or he had conducted themselves in a way that is consistent with Catholic teaching then it may not be satisfied he was Catholic either. She stated he was Catholic, attended Catholic Church and was baptised.
37. The applicant stated that her [Child 1] went to school and had a hukou.
38. The applicant stated that she had previously returned to China because she wanted to see her [Child 1] and was sick and had to see a doctor. She stated she avoided having contact with the village committee people and did not stay in her village and only occasionally returned to visit her parents. She stated unless something happened she would not normally bump into a policeman but if something happened that drew attention to her then she would be targeted. She stated the last time she returned to Australia she heard that [Ms A] had appealed and was arrested and the applicant could not return any more. The Tribunal asked for confirmation about what [Ms A] appealed and she said she meant the police appealed the church activity and [Ms A] was arrested and taken away. The interpreter confirmed that the applicant was saying appealed and the applicant then suggested that she was misusing the word appealed.
39. The applicant also stated at the Departmental interview she mentioned the communication between she and the interpreter was not good and that because of that there were misunderstandings. She stated she was unable to understand some of the things expressed to her which she believed could be ascertained from the recording. She stated the interpreter misinterpreted ‘Trinity’ that is the applicant said she had said ‘father, son and holy god’. The applicant then stated to the interpreter in English she said ‘holy spirit’. The interpreter stated that when the applicant said ‘holy god’ in Chinese it meant ‘God’ and the applicant had corrected her in English and said ‘holy spirit’ but the word ‘spirit’ in Chinese was different. The Tribunal put to the applicant that the interpreter was NAATI accredited professional level and it would take into account what she had just said.
40. The applicant also stated that maybe the interpreter at interview misinterpreted other parts.

Country Information

41. According to the http://hobart.catholic.org.au/faith/page/what-marriage-catholic-church:

While the state recognises and performs marriage (civil marriage), a marriage in the Catholic Church is also a sacrament. It is both a symbol and a participation in God’s free, total, faithful and life-giving love for humanity and his ‘bride’, the Church. This means that husbands and wives can call on the grace of the Sacrament of Marriage to help them love each other as God loves them. Marriage in the Catholic tradition is also a covenant – a sacred vow which, like God’s promise of love to us, can never be broken.

CONSIDERATION OF CLAIMS AND EVIDENCE

42. 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.
43. 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).
44. 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.

45. 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’).
46. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.
47. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.
48. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
49. In her application, the applicant stated that she was Catholic since she was little and would be harmed as a result if she returned to china. She also stated that her [Child 1] could not get household registration.
50. Although the applicant stated in her application that her [Child 1] in China could not get household registration and therefore was a ‘black child’, she rescinded that claim at the second hearing and stated [Child 1] now went to school and had a hukou.

[Applicant 1]’s alleged Catholic practice in China

51. The applicant has stated in her written claims that she was a Catholic in China and attended underground gatherings, that she was arrested for engaging in family gatherings when she was in primary school and was again detained for 2 days when she went to Jiangxi for evangelisation with her [Relative 1] during the year [number] summer holidays. However, the Tribunal finds her written statement inconsistent with her evidence at hearing which was that she was detained or arrested twice because she spread the Gospel. In addition, the Tribunal finds that when asked how she evangelized when she was arrested the second time, she stated that she handed out Bibles and materials about Catholicism and also gave the gospel but when asked the same question at Departmental interview, she did not state she was handing out Bibles and written information about Catholicism. When this was put to the applicant at hearing, she stated that she was confused and the interpreter did not interpret correctly but the Tribunal does not accept that because she did not raise those issues at Departmental interview and when asked at that interview whether she understood the interpreter she said yes. The Tribunal finds the applicant has provided inconsistent evidence in relation to why she was detained and whether she handed out Bibles and other material when she tried to evangelise to others. These discrepancies are, in the Tribunal’s view, symptomatic of a person describing an event that has not occurred. In addition, the applicant’s evidence in relation to whether she was baptised in China continued to change, that is she stated in her written statement and initially at hearing that she heard from her [Relative 1] that she had been baptised when she was young; but then said she herself did not have that impression and then said she did not know she was baptised and then said her [Relative 1] told her she had not been baptised (and that is why she was baptised a second time). While the Tribunal has considered her explanation, the alleged conversation with her [Relative 1] that she was not baptised is not in her written statement. The Tribunal’s impression of the applicant’s evidence was that she was not recounting a conversation that had in fact occurred with her [Relative 1] but was making up and changing her explanation as to whether it was normal for Catholics to be baptised twice and why she needed to be baptised in Australia as she went along.
52. The applicant also stated at hearing that when she returned to China in 2012, police took down her name because she was Catholic and at any time she could be subject to an inspection but that was not in her written statement even though it was the last thing to have allegedly happened to her and presumably would be of the utmost importance to her protection claim.
53. The Tribunal’s overall impression is that the applicant’s evidence in relation to her alleged Catholic activities in China is inconsistent because she has not been talking about events that have occurred. The Tribunal does not accept that the applicant is credible. In reaching this conclusion, the Tribunal also finds that if the applicant was a practising Catholic and had been twice arrested in China, then she would have applied for a protection visa earlier than she did.
54. The Tribunal does not accept that the applicant was a practicing Catholic in China or that she went to the Church since she was young or that she or anyone she knew was involved in church gatherings or evangelised or that she or anyone she knew was arrested or detained. [Applicant 1]’s alleged Catholic practice in Australia
55. The Tribunal has also considered whether the applicant has practiced Catholicism in Australia as well as whether she has conducted herself in a way that is consistent with her alleged Catholicism.

Attending Mass

56. The Tribunal accepts that the applicant is currently attending mass however it is not satisfied that she has been attending mass for the period of time that she has claimed.
57. The applicant stated at hearing that she started attending mass in Australia since October 2009 but when asked that question by the Department she stated she had first attended in February 2012. Following the hearing, the applicant stated that she started attending in October 2009 and that she was mistaken at interview and nervous however the applicant’s answers are inconsistent by nearly two and a half years and given that her answer at interview would suggest she did not attend church for some four years after she first entered in Australia in 2008, the Tribunal does not accept that she would not have identified her mistake at interview if in fact it was a mistake. Given the mounting concerns with the applicant’s testimony, the Tribunal is not prepared to give the applicant the benefit of the doubt and accept that she has been attending church for the periods claimed. In reaching this conclusion the Tribunal has considered the photos on the Tribunal file and the evidence from [Mr B] who stated that the applicant had been attending since approximately 2009 and a letter from [Priest 1] and his evidence at hearing that the applicant and [Applicant 2] have been coming to [church] since October 2009. However given that [Priest 1]’s letter also states that he has relied on the applicants for that information and given [Mr B]’s approximation only and that the applicant’s inconsistent evidence about her own attendance and that the Tribunal does not find the applicant credible, it does not place sufficient weight on [Priest 1]’s evidence or that of [Mr B] to find that the applicant has been attending Church since 2009.

The applicant’s marriage

58. Although the applicant married the second named applicant in 2012, they have never married in the Catholic Church. When asked by the Department of Immigration why not, the Tribunal finds the applicant stated that she thought marriage was a ‘procedure or formality.’ When asked at hearing why she had not married in the Catholic Church, the applicant stated it was under arrangement and that because there were more than 1000 members, the priest needed time to organise it. When the Tribunal put its concerns in writing, the applicant stated that she regretted violating the sacrament of marriage and must do penance in preparation for their marriage but the Tribunal finds such comments disingenuous given that the applicant was married five years ago and remains unmarried in the Catholic Church. The Tribunal also finds the applicant’s remarks at interview and her still not being married to the second named applicant in the Catholic Church is not consistent with Catholic teaching or practice and is not consistent with someone who is genuinely Catholic. In reaching this decision, the Tribunal has considered [Priest 1]’s evidence that couples live together but that genuine Catholics have at some time later married in the church and that he did not have a problem with the applicant still being unmarried in the Catholic Church because the church welcomed people as they were and the church did not control, push or bully people into doing what was required. While the Tribunal accepts that [Priest 1] welcomes unmarried people into the Church, the Tribunal needs to assess the applicant’s genuineness and in light of her comments at Departmental interview and her never marrying in the Catholic Church, the Tribunal does not accept that the applicant is genuine.

The applicant’s knowledge of the Bible as displayed at departmental interview

The Tribunal has also considered whether the applicant displayed knowledge of the Bible that is consistent with her alleged reading of it, that is at Departmental interview the Tribunal finds she was unable to articulate the difference between the Old and New Testament and did not know that the Ten Commandments were in the Old Testament. When this was put to her at hearing on 31 October 2017, she stated that she did not know what she had said. When this was put to her in writing, she stated that she read the Bible but could not carry it and shared it with the congregation. She also stated that her knowledge of the Bible seemed to be ‘growing in the rice’, that she also had little, but progressive growth and was unable to know all the Biblical content and information. She also stated that based on her understanding of the Old Testament and the New Testament, when she answered the question, what she wanted to say was that the Old Testament was the process and story of the Covenant that conveys the word of God and of our humanity before the resurrection of the Lord Jesus and the New Testament is the story of after the resurrection of the Lord, the new covenant that we need to comply with. She also stated that in her memory, there were words in some parts of the Gospels of the New Testament which referred to the Ten Commandments. In the Tribunal’s view, knowledge about the difference in the Old and New Testament as well as where the Ten Commandments would be found is basic knowledge which the applicant should have been able to articulate at interview if she had been exposed to the Bible for the periods claimed. While the applicant stated at hearing on 19 January 2018 that the communication between she and the interpreter was not good and that she thought there were misunderstandings because the interpreter had misinterpreted her answer in relation to the Trinity (the interpreter had stated that the applicant said father, son and holy god) and she also thought the interpreter had misinterpreted other parts as well, she had not previously made this claim and provided no evidence in support. In addition, a NAATI accredited professional interpreter (previously known as NAATI level 3) was engaged at hearing and indicated that the applicant had again said ‘holy god’ in Chinese and not ‘holy spirit’. Given the lateness of the applicant’s claim that there was an interpreter issue at interview as well as the fact that when the applicant claimed that her words for ‘Holy spirit’ at interview had been misinterpreted, the interpreter at hearing did not agree and interpreted her words exactly the same as was interpreted at interview, the Tribunal does not accept that there was an interpretation problem at interview.

59. The Tribunal finds that the applicant’s knowledge of the Bible as displayed at Departmental interview is not consistent with someone who has been exposed to Catholicism or the Bible as claimed.
60. The Tribunal is not satisfied, on the totality of the evidence before it, that the applicant has participated in the Catholic Church and/or informed herself of its beliefs and practices as an expression of genuine faith, and is not satisfied that she truly holds that faith or intends to express that faith in the reasonably foreseeable future.
61. While the Tribunal accepts the applicant has attended Catholic services in Australia and has been baptized, she has not married in the Catholic Church, and was not able to demonstrate basic knowledge about the Bible at Departmental interview. In the Tribunal’s view, while the applicant has attended Catholic Church and been baptised, the Tribunal is not satisfied that she is or will be perceived in China to be a genuine Roman Catholic who that she has any genuine desire or intention to practice her faith in the reasonably foreseeable future in China. Accordingly, based on all the evidence before it, including cumulatively, the Tribunal is not satisfied that the applicant will be persecuted for a Convention reason or that there is a real risk that she will suffer significant harm because of her attendance.

Additional Claim by [Applicant 2]

62. [Applicant 2] and the third named applicant have relied on the applicant’s protection visa claims and those claims have been rejected. However the applicant has stated that [Applicant 2] is also Catholic and baptised and in his application he also said he was Catholic. Given the Tribunal’s findings about the applicant, including the fact that she and [Applicant 2] have never married in the Catholic Church and the Tribunal is not satisfied that they have conducted themselves in a way that is consistent with Catholic teaching or practice and is not consistent with someone who is genuinely Catholic, the Tribunal does not accept that [Applicant 2] was or is a genuine Catholic or will be perceived in China to be a genuine Roman Catholic who has any genuine desire or intention to practice his faith in the reasonably foreseeable future in China. Accordingly, based on all the evidence before it, including cumulatively, the Tribunal is not satisfied that [Applicant 2] will be persecuted for a Convention reason or that there is a real risk that he will suffer significant harm because of his attendance.
63. Neither is the Tribunal satisfied that any of the applicants will be persecuted for a Convention reason or that there is a real risk that they will suffer significant harm because of the attendance at the Catholic Church by them or by any of the other applicants.
64. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

65. The Tribunal affirms the decision not to grant the applicants Protection visas.

Angela Cranston
Member