071537790 [2007] RRTA 281 (29 October 2007)

DECISION RECORD

RRT CASE NUMBER: 071537790

DIAC REFERENCE(S): 97/001401

COUNTRY OF REFERENCE: China (PRC)

TRIBUNAL MEMBER: Richard Derewlany

DATE DECISION SIGNED: 29 October 2007

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a Protection (Class AZ) visa.

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 Citizenship to refuse to grant the applicant a Protection (Class AZ) visa under s.65 of the Migration Act 1958 (the Act).

The applicant, who claims to be a citizen of China (PRC), arrived in Australia and applied to the Department of Immigration and Citizenship for a Protection (Class AZ) visa. The delegate decided to refuse to grant the visa and notified the applicant of the decision and his review rights, in accordance with s.66 of the Act.

The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.

The applicant applied to the Tribunal for review of the delegate’s decision.

The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under s.411(1)(c) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.412 of the Act.

RELEVANT LAW

Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant.

Section 36(2) of the Act, as in force before 1 October 2001, provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under 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).

Further criteria for the grant of a Protection (Class AZ) visa are set out in Part 866 of Schedule 2 to the Migration Regulations 1994.

Definition of ‘refugee’

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

The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379, Applicant A v MIEA [1997] HCA 4; (1997) 190 CLR 225, MIEA v Guo [1997] HCA 22; (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar [2002] HCA 14; (2002) 210 CLR 1, MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 and Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. These provisions were inserted on 1 October 2001 and apply to all protection visa applications not finalised before that date.

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

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

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

Fourth, an applicant’s fear of persecution for a Convention reason must be a “well- founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.

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

CLAIMS AND EVIDENCE

The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

Protection visa application

According to his protection visa application the applicant was born in China. He stated that he was also known by another name which is his real name. He had changed his name in order to obtain a travel document to ‘escape’ from China. The applicant stated that he was educated, and had worked for several years prior to leaving China. The applicant stated that he was having a personal statement relating to his refugee claims translated and that this would be provided later. No further statement was provided to the Department.

Review application

The applicant submitted a statement with his review application in which he provided his real name. When he was at secondary school he held a representative position in a student organisation. During the time of the Tiananmen Square student protests he called on fellow students to participate in a protest in front of the government offices. He did not follow warnings of the Chinese Communist party (CCP) and continued to organise more students to join the ‘democracy movement’ which called for a change in government through political liberalisation, and an end to corruption. As a result he was dismissed from his ‘duty’ in the school and asked to review his ‘misbehaviour’. At ‘LiuSi’ anniversary, he organised large numbers of students to commemorate and mourn the victims in LiuSi. The anniversary movement angered the CCP and the applicant was detained for a short period of time and was tortured. After he was released he was told by his school that he had been ‘discharged’. As a result he became homeless and experienced many difficulties making a living. His parents were affected and his home was badly damaged. Later a family member died ‘due to enormous persecution, pressure and fear’. The applicant decided not to give up however because of his belief in truth, freedom and the rule of law.

When he was living a ‘miserable life’ he was taken in by a priest from a Catholic church near his home. The priest told him about God and the applicant believed that his life could change for the better. He started to work as a volunteer for the church. The priest hosted his baptism. He appreciated the Church and God’s love. However the Chinese government stated that the underground Catholic Church was illegal. As Catholics in China they had no religious freedom and no right to ‘speak’. The applicant voiced his support for religious freedom and the ‘right to speak’. He came to the attention of the authorities and they monitored him and ‘restricted’ him. About a year after his baptism many policemen broke into his church and arrested a number of church followers, including himself. With the help of other Church followers he ‘escaped’ from the detention centre. He was homeless and stayed at a relative’s home. He then considered leaving China, but was unable to apply for his own passport, so a friend from the Church arranged a passport for him in an alias. He used this passport to travel to Australia. He gave his information to a migration agent, and all documents were prepared by the agent and he had no idea how the protection visa application was prepared. He was informed that his application had been rejected; he believed this was because he was the victim of an irresponsible agent. He was informed that he may be able to apply for a review of the refusal. He stated that it was impossible for him to return to China, and that he had been working in Australia, paying taxes and abiding by Australian laws. He went to Church on the weekend and was still scared because he remembered his terrible experiences in China.

The applicant submitted copies of a PRC identity card in his real name, a character reference from his employer in Australia, and 2 photographs of a building that the applicant stated showed his home had been ‘investigated and prosecuted’. Tribunal hearing

The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

At the hearing the applicant submitted a copy of an arrest warrant issued by Police Office in respect of the applicant (under his real name), stating that he was arrested on the grounds of ‘Illegal Church Activity’. He also submitted a photograph of himself in the company of 2 priests. He also submitted a Chinese passport in his alias and a Chinese travel document in his real name issued in Australia.

The applicant stated that his true identity as given in the new travel document he submitted to the Tribunal. He confirmed his date and place of birth, and gave his address in China as per his written statement submitted with the review application. He stated that a fellow churchgoer organised the passport in the alias; he did not know how it was obtained, and said it was provided at no cost. The Tribunal stated that it seemed implausible that a passport with an Australian visa would be provided at no cost. The applicant stated that this was true and the person felt sorry for him and thought he was too young to ‘wander’ around China.

The Tribunal asked the applicant why he did not submit any claims with his protection visa application. The applicant stated that he told his story to an agent but he did not know what the agent had written or submitted. A couple of months later the applicant was told that his application was rejected. For several months after this the applicant had further dealings with the agent, who said that he could appeal but this would cost money. At one point the agent just told him that the application was rejected and after this the applicant had no further information from the agent.

The applicant stated that he was involved in 1989 student democracy activities. He participated in demonstrations in front of the provincial government. Demonstrators made flags and slogans; it was an ongoing movement from April 1989 until the crackdown in June 1989. They held memorial gatherings; usually these were silent protests with groups sitting in the centre of the city and in front of provincial offices. In 1989 he just wanted to raise the issue of corrupt politics and to contribute to the democracy movement and promote the rule of law. He was removed as a student representative and was warned not to participate in anti-government demonstrations. He was involved in a small scale protest. There were no arrests, however. In following year things were more serious as people tried to demonstrate in front of the provincial government. Because more people were joining the students, the police broke up the group and confiscated banners and slogans. The applicant was detained for a number of days for participating in the demonstration. Many people were detained. Before the applicant was released he was warned that he was forbidden to participate in protests.

After the applicant was released he went back to school but lost his place there. He lost his chance of getting an education and ‘wandered around’ in the community. He did not stay at home but lived in different places as he did not have any stable job. He stayed at home for the first 1-2 months, but had to look for work and thus had to move around. The Tribunal stated that independent evidence indicated that the authorities were no longer likely to take an interest in those who had participated in the student protests at the level described by the applicant, given when the events had occurred, and that there seemed to be no real chance the applicant would suffer serious harm as a result. He stated that his parents were also affected by his participation in the protests, as they supported his actions; and his home was ‘closed by force’ and his parents had to move out. His parents also helped to make slogans and flags.

The applicant confirmed that he was baptised in a particular year. He stated that after he was detained and refused a place at his school, when he was wandering around, a friend introduced him to a priest who let him live with him as a Church volunteer. This is what led him to convert to Catholicism. He described his baptism as the ceremony in which the priest asked him about his Catholic beliefs and put his hand on his forehead and baptised him with water. The ceremony symbolised his beliefs and that from then on he belonged to the Lord physically and spiritually. He stayed as a Church volunteer and has been a practising Catholic since then.

The Tribunal asked the applicant to explain what being a Catholic meant to him personally. The applicant stated that he behaved according to Catholic rules, that these regulated life, and that he attends Mass and follows the Catholic way through his association with other Catholics. He stated that he went to Mass usually once a week, and had attended Mass at a local Church in Australia for the past few years.

The Tribunal asked the applicant to describe what occurred during a Mass. He stated that the priest preaches the Bible and people sing hymns and worship. The Tribunal asked the applicant to describe some of the ceremonies that took pace during Mass. The applicant hesitated and stated that he could not recall the ceremonies. The Tribunal raised its concern that the applicant could not recall any ceremonies. He stated he was a volunteer and sometimes things got busy for him. He had to escape to Australia and he stopped going to Church for a while. In Australia he did not know people and he was worried about his status after his protection visa application was refused. He just prayed at home by himself; it was his belief and he could rely on it. He started to attend Church again in Australia a few years ago. He was worried that he did not have a valid visa. The Tribunal stated that his statement indicated he left China because he felt persecuted for his beliefs as a Catholic. He confirmed this and stated that he was arrested prior to leaving China. The Tribunal asked whether the applicant left because he had problems with the authorities as a Catholic. He stated that there was no freedom in China for those of the Catholic faith, and that he escaped during his detention. The Tribunal stated that it did not seem credible that the applicant did not attend Church in Australia from the time of his arrival until a few years ago. The applicant stated that it did sound incredible but there was no choice for him, as he had no protection visa and so he dared not go to public places as he feared he might be caught and returned to China. Even during the period he went to church he was very careful. The Tribunal stated it did not seem credible that he would not seek to attend Church as soon as possible after his arrival if he had fled China because he could not freely practise as a Catholic. The applicant stated that he thought he should first apply for a protection visa and then consider going to Church.

The applicant then told the Tribunal that he was nervous earlier in the hearing and could now recall one of the ceremonies that took place during Mass; there was wine and biscuit which embodied Jesus. The Tribunal asked what the ceremony was called. The applicant stated that it was held every week; he did not pay attention to the name but just followed the procedure of the Mass. The Tribunal stated that it did not seem credible that the applicant would not know the name of the ceremony that was such a central part of the Mass and the life of a Catholic. The applicant stated that he could not remember the name but he did participate in the ceremony.

The Tribunal raised its concern that the applicant’s basic knowledge of the Mass was acquired for the purposes of strengthening his claims and not because he was a practising Catholic. He stated that he had studied these beliefs before he came to Australia.

The Tribunal asked the applicant what his understanding of the Trinity was. He asked the Tribunal for more information, and the Tribunal stated it was a specific term of one word, and the Tribunal was asking what he understood by it. He stated that it was when one ‘put your hands in touch with your body’. The Tribunal asked what the ceremony with the wine and ‘biscuit’ represented. He stated that after the wine and biscuit are blessed they become the blood and body of Jesus and are literally part of the Holy body. The applicant stated that the first time he participated in this ceremony was in China. Before the ceremony one entered the ‘gate’ of the Church and dipped one’s hand in the water before Mass. The Tribunal asked what preparations the applicant undertook before his first participation in the ceremony and he stated that he could not remember as it was a long time ago.

The Tribunal asked the applicant to recite the Lords prayer. The applicant stated that he was not well educated and could not remember it; he just listened to prayers. The Tribunal stated that it did not seem credible that he would not know the prayer. He stated that in China he just wanted to have a life as a volunteer. The Tribunal asked what prayers the applicant recited in his worship. He stated ‘the Lord have pity on me’ and ‘the glory of the Lord be upon us’ and ‘Hallelujah’.

The applicant told the Tribunal that Christmas celebrated the birth of Jesus, who came in human form to suffer on the cross to save mankind. He said that believers had to do good deeds and Jesus taught them how to be saved. The Tribunal asked about the applicant’s understanding of Easter. He stated that Jesus was placed on the cross by the Romans on a Friday and came back to life after 3 days. The Lord appointed him to represent the Lord on earth. He was able to resurrect because he was the ‘real Lord’. The Tribunal asked what happened to Jesus after his resurrection; he stated that he told his disciples ‘three times’ but he did not remember what Jesus did after this, as there was a lot about the story. At the Last Supper Jesus said that one of the disciples would betray him (3 times). The Tribunal asked what Jesus did and said at the Last Supper; he said Jesus said that one of the disciples who would share the bread with him would betray him. After the Last Supper the disciples and followers were no longer able to see Jesus and ‘how he looked’. The 11 disciples were present with Jesus at the Last Supper. Jesus spoke to Judas, but the applicant could not remember what else Jesus did or said that was important.

The applicant stated that he went to confession about every fortnight or 3 weeks. He knelt in front of Our Lady and confessed. The Tribunal asked what did he confess, and he stated ‘may the Lord bless me and that everything goes well, and may the Lord bless every other Catholic follower’.

The applicant stated that the Bible recorded the life of Jesus when he was alive, and his preachings. There were 2 parts, the Old and the New Testament. The Old Testament was about when Jesus was alive and his ‘preaching life’. The New Testament was about the disciples recording Jesus’ crucifixion and resurrection.

The Tribunal asked why the applicant worshipped in an underground church when large numbers worshipped in officially registered churches in China. He stated that the underground church said that church leaders should be appointed by the Pope, but as the government did not recognise the authority of the Pope the church became ‘underground’. He stated that the Pope was Pope Benedict XVI; he managed the Church and represented the power of God and theology. He lived in the Vatican in Rome.

The Tribunal asked the applicant to describe some important stories he had learned from the Bible. He stated that Genesis was most significant for him because it showed how the Lord created the earth and everything on it, and it led believers to enlightenment. The gospels described the development and history of the church, and told about how Jesus would be born in a stable. He could not remember any other stories as there were ‘too many pages in the Bible’.

The applicant confirmed that he was arrested because he was attending an underground church and was promoting ideas and ‘recruiting new members’. He also accused the government of persecuting Catholic followers and not protecting human rights. The arrest warrant from the police did not put all the charges, just a simple form of the charge. The warrant gave his address even though the applicant had stated the home there had been previously ‘shut down’, because the police just used his ID address and did not check if a person had changed their address.

The applicant explained that the photo of him with 2 priests was taken after he learned of the possibility of appealing the Department’s refusal to the Tribunal. He thought that if he obtained a photo it would show that he attended Church. The photo showed the priest who held Mass at the church he regularly attends in Australia.

The Tribunal raised it concerns that the applicant’s limited knowledge of important aspects of Christianity such as the Trinity, the ceremony of Communion, his limited knowledge of the Mass, the Bible and the gospels, his lack of knowledge of the Lords prayer and other prayers, might lead the Tribunal to doubt that he was a genuine practising Catholic. The Tribunal also raised again its concern that the applicant’s delay in attending Church in Australia may lead it to doubt that he was a genuine practising Catholic. The applicant stated that if he returned to China he would definitely be persecuted and put into prison. He did not know all the names of things in the Bible, for example he knew about the Trinity but did not know the name. He knew that in the Catholic context the Mass was a ‘replay’ of devoting Jesus to the Lord in order to save people.

The Tribunal also raised its concerns about the applicant’s credibility generally in view of the letter he sent to the Minister in which he stated that he was a Buddhist. The applicant stated that he did not know about the information in this letter and the agent must have made it up and this was the reason his application was rejected; the agent did not write what he had told him. The Tribunal stated that the letter to the Minister was written, well after the application was refused, and after the period that the applicant ceased to have contact with his agent, according to the applicant’s evidence to the Tribunal. The applicant stated there were several steps in the appeal process, including the letter to the Minister, and this was also done by the agent. Buddhism was protected in China, so why would he state this. The Tribunal stated that the applicant had signed the letter, and it was not credible that the applicant would not have taken steps to check what was in the letter given he was requesting the Minister to allow him to remain in Australia. He stated that the involvement with the agent was a long time ago and he had forgotten the details until he received a letter from the Department referring to the refusal of his application; this is why he referred to the period when his application was refused, previously.

The Tribunal also stated that it might find that if the applicant were subject to any penalty for acquiring and using a false passport, it would be because of a law of general application and not for any Convention reason. The applicant stated that the first thing he thought of was to flee China, and his friend or relative obtained the passport for him.

The applicant told the Tribunal that he wished to pursue his case further. He had told his agent his story. The Tribunal stated that it was difficult to believe that the applicant would not have been aware of the contents of the letter to the Minister, which he signed. He stated that he could not remember specific dates, and he could not read English so he needed the help of a Chinese speaking agent. The Tribunal also raised its concerns, in view of the independent evidence, that the arrest warrant submitted by the applicant might be a false document. The applicant asserted that it was genuine.

Letter issued under s.424A of the Act

The Tribunal wrote to the applicant inviting him to comment in writing on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The information in the letter was set out as follows: particulars of the information are:

The department’s file indicates that on [date] you wrote a letter to the then Minister for Immigration and Multicultural Affairs requesting the Minister to allow you to remain in Australia. The letter was signed by you. In the letter you stated that you feared you would be persecuted if you return to China. You stated that you actively participated in the June 1989 pro-democracy movement in China, and distributed anti- government leaflets and posters, organised donations for students and participated in anti-government demonstrations and sit ins. You stated that you were detained for [number] days because of your participation in the movement, and in those circumstances your only solution was to escape China. You stated that there was a high probability that you would be prosecuted because of your participation in the anti-Communist movement and because of the ‘more serious offence’ of escaping from China. You stated that the second reason for the persecution was political opinion and religion.

• In your protection visa application (Form C) lodged on [date], you stated that you resided at [address], from [date] to [date]. You stated that you undertook education at [school], [city], from [date] to [date], and at [school] from [date] to [date]. You also stated that you were employed as a [occupation] at [workplace, city], from [date] to [date].

In a written statement dated [date] which you provided to the Tribunal, you stated that as a result of your involvement in the student pro-democracy movement, in particular in organising ‘LiuSi’ anniversary activities in [year], you were detained in [location] for [period of time]. You stated that after you were released from [location] you were notified by your [school] that you were ‘discharged’ due to your conduct in supporting the democratic movement. You stated that you then became homeless.

At the Tribunal hearing on [date] you stated that in [year], as a result of your involvement in pro-democracy demonstrations, you were detained for [number] days. You stated that after being released from detention in [year] you lost your place at [school], and after 1-2 months at home you had to live in different places because you had no stable job and had to find work wherever you could.

…information is relevant because the Tribunal may find that there are inconsistencies between information on the department’s file (given in your protection visa application and your letter to the Minister of [date]) and information given to the Tribunal (in your written statement of [date] and at the hearing) regarding events relating to your involvement in the June 1989 pro-democracy movement, and your circumstances after being released from detention in [year]. The information in your letter of [date] that you had been detained for [number] days, is inconsistent with the information in your statement of [date] that you were detained for [period of time], and at hearing that you were detained for [number]days. The Tribunal may find that it is not plausible that you would not know how long you were detained as a result of your involvement in the pro-democracy movement. This may lead the Tribunal to doubt that you had been detained by the authorities as a result of any involvement in the June 1989 pro-democracy movement.

…inconsistencies between the information in the protection visa application regarding the years of your education, your employment and where you resided in China, and the information in your statement dated [date] and evidence given at hearing, may lead the Tribunal to doubt that you were dismissed from [school] in [year] as a result of any involvement in the pro-democracy movement and subsequent detention. It may lead the Tribunal to doubt that, as a result, you became homeless and had to live in different places because you had no stable work and had to move to wherever you could find work. This may lead the Tribunal to doubt that you came to the adverse attention of the authorities and suffered serious harm amounting to persecution as a result of any involvement in the pro-democracy movement, even if the Tribunal were to accept that you may have participated in pro-democracy demonstrations at the time and/or sympathised with and supported the movement. It may lead the Tribunal to conclude that you do not have a well-founded fear of being persecuted for reason of your involvement in the June 1989 pro-democracy movement if you were to return to China.

…inconsistencies in the evidence relating to your involvement in the pro-democracy movement and your subsequent circumstances may also lead the Tribunal to doubt your credibility more generally, that is whether you can be believed. In your letter dated [date] you stated that besides your political opinion and involvement in the 4 June 1989 movement, you also believe in Buddhism, and this belief led you to lose faith in the Chinese government. You stated that religion was still a ‘taboo’ subject in China and the ‘very existence of religion in China poses a threat to the Chinese communist ideology’. You stated the Government would not allow any religion to exist in China, and that it would persecute religious practitioners once Western pressure against controls on religious practice in China died down.

• In your written statement dated [date], you stated that you experienced difficulties in making a living and had to become homeless following your dismissal from school. You stated that you were helped by a Catholic priest and started to do volunteer work for a Catholic church near your home. You stated that you were baptised on [date], and worshipped in an underground Catholic church. You stated that on [date] many policemen broke into the church and arrested a number of churchgoers, including yourself. You stated that you ‘escaped’ from the detention centre, and had to stay at your relative’s home. You stated that you obtained a passport in another person’s name with the help of a friend from your church in order to leave China. At the Tribunal hearing you confirmed that you were baptised as a Catholic in [month, year] and that you had been a practising Catholic since then.

The Tribunal may find that it is highly implausible, if you had become a Catholic in [month, year], and had been detained in [year] as a result of worshipping in an underground Catholic church, and you decided to leave China as a result (as claimed in your statement dated [date] and at the Tribunal hearing), that you would not have stated this in your letter to the Minister dated [date] as a ground for requesting the Minister to allow you to remain in Australia. The Tribunal may find that your statement in the letter of [month, year] that you were a Buddhist casts significant doubt on your claims to the Tribunal that you became a Catholic in China in [year] were detained in [month, year] for worshipping in an underground Catholic church, and that you escaped from detention. The Tribunal may also doubt, if it concludes that you were not dismissed from [school], became homeless and did not have a stable job as a result of claimed involvement in the pro-democracy movement, that you were taken in and assisted by a Catholic priest who let you live at his home and become a church volunteer. The information may lead the Tribunal to doubt that you became and had been a practising Catholic at any time in China. It may also lead the Tribunal to conclude that although you have acquired some knowledge of Christianity and the Catholic faith in Australia, and may have participated in church activities, you have not been a genuine practising Catholic in Australia. The Tribunal may conclude that the purpose of acquiring knowledge of Christianity and the Catholic faith, and any activities you undertook in the Catholic Church in Australia, has been to strengthen your claims to be a refugee.

…information is also relevant because it may lead the Tribunal to doubt your credibility generally, that is whether you can be believed. determining whether actions taken in Australia are relevant in considering the well foundedness of an applicant’s claims to fear persecution, regard must be had to the provisions of s.91R(3) of the Migration Act 1958 (the Act). Section 91R(3) provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. It states as follows:

91R(3) For the purposes of the application of this Act and the regulations to a particular person: in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. means that where conduct in Australia is an issue, the applicant has the responsibility of satisfying the Minister (or Tribunal) that it was otherwise than for the purpose of strengthening his or her claims to be a refugee. the Tribunal were to conclude that you had not been a practising Catholic in China, and that your knowledge of Christianity and Catholicism and participation in church activities in Australia was for the purpose of strengthening your claims to be a refugee, the Tribunal would not be satisfied that you were owed protection by Australia owing to a well founded fear of being persecuted for reason of your religion.

The applicant was advised that he should provide comments to the Tribunal. The Tribunal received from the applicant a request for an extension of time to comment on the information. The Tribunal considered the request but decided not to approve an extension of time. The Tribunal advised the applicant by telephone and in writing that the extension was not granted. It also advised the applicant that it would consider any further information provided up to the handing down of the decision.

Later, the Tribunal received further information and documents from the applicant. In a statement the applicant stated:

• The documents and claims he made in his protection visa application were prepared by his migration agent and he had only just realised that the claims were not what he really meant to claim; this was why the information was contradictory. Even the name of the school was made up. He was not a Buddhist, but the agent claimed he was. Buddhism had nothing to do with his participation in the protests of 4 June 1989. He felt he was the victim of an unethical agent. • He was a Catholic. He did not mention religion in his submission for Ministerial intervention because this letter was also written by his agent and he was not aware of the details of the letter or the time it was lodged to the Minister. • The claim that he was imprisoned for a short period in 1989 was also compiled by the agent. In his submission he stated that he was imprisoned for a longer period, and this was ‘in line’ with his statement at the hearing. • The agent he engaged for his application had ceased operations a long time ago, perhaps because of his unethical behaviour. The applicant urged the Tribunal to investigate. • The applicant had been away for China for many years and the priest who christened him had died, so he had lost an important witness. • He disagreed with the Tribunal’s view that he may have participated as a Catholic in order to strengthen his protection visa claims.

The applicant also submitted a letter from a priest. The letter stated that the applicant was known to the writer as a genuine and practising Catholic. It also stated that since arriving in Australia the applicant has been regularly attending Mass at a local church. The writer supported the applicant’s claim for protection in Australia.

Independent evidence

The US Department of State has reported on the situation of Catholics and the Catholic Church in China as follows:

…are 5.3 million persons registered with the official Catholic Patriotic Association (CPA), and it is estimated that there are an equal or greater number who worship in unregistered Catholic churches affiliated with the Vatican. According to official sources, the government-sanctioned Catholic Patriotic Association has more than 70 bishops, almost 3,000 priests and nuns, 6,000 churches and meeting places, and 12 seminaries. There are thought to be approximately 40 bishops operating "underground," some of whom are in prison or under house arrest. A Vatican representative estimated that there are 8 to 18 million Catholics in the country. ...

Government does not have diplomatic relations with the Holy See and generally does not allow the CPA and its clergy to recognize the authority of the pope to make clerical appointments. This remained a significant reason for the persistence of a large unregistered Catholic church that remains unaffiliated with the Government and CPA. Pressure by the CPA on unregistered Catholic bishops to join the official Church continued, and some unregistered priests and bishops were detained. Despite some efforts toward rapprochement between the Government and the Vatican, the Vatican's diplomatic recognition of Taiwan and differences over selection of bishops remained the primary obstacles to improved relations. In January 2007 the Vatican issued an invitation to the Government to enter a dialogue on restoring diplomatic relations and announced that it would set up a permanent commission to handle relations with China. In June 2007 Pope Benedict issued an open letter to Chinese Catholics inviting them to resolve differences and calling on China to engage in "respectful and constructive dialogue" with the Vatican to normalize relations. An MFA spokesperson said that China advocates improvement in Sino-Vatican relations. A leader of the CPA said he hoped the Pope's letter would be of help in establishing China-Vatican ties. …official Catholic churches, clerics lead prayers for the pope and pictures of the pope are displayed. An estimated 90 percent of official Catholic bishops have reconciled with the Vatican.

January 2007 the Vatican approved the ordination of a mainland-selected Catholic priest to become bishop of Guangzhou Diocese, the first such backing given by the Holy See after bilateral ties were strained with the appointments in April and May 2006 of Bishops Ma Yingling of Kunming, Yunnan Province, and Liu Xinhong of Wuhu, Anhui Province, without Vatican approval. The Vatican criticized these ordinations as illicit. The CPA and SARA responded that the bishops had been democratically elected by priests of their dioceses, the Vatican was interfering in the country's internal affairs, and the appointments were required to fill vacancies. The disagreement over the appointments of Bishops Ma and Liu disrupted a period during which several bishops were appointed with both Government and Vatican approval. Many priests and bishops publicly acknowledged that the Vatican had approved their appointment. They suffered no punishment for this public stance, although the Government denied that the Vatican played any role in approving the country's clergy. fact, the large majority of bishops recognized by the Patriotic Association have been recognized by the Vatican either before or after their appointment by the Government. In a few cases, the bishop named by the state-sanctioned church conflicted directly with a bishop recognized by the Vatican, a situation that contributed significantly to tension between the Patriotic Association and the unregistered Catholic Church and to tension between the Vatican and the Government. The CPA said that 40 of China's nearly 100 dioceses have no bishop in place. (US Department of State, 2007, International Religious Freedom Report 2007: China , 14 September)

The Department of Foreign Affairs and Trade (DFAT) has reported on the attitude of the authorities to persons associated with the 1989 student movement and associated pro-democracy demonstrations. On 1 June 1993 DFAT provided the following advice on the treatment of pro-democracy returnees to China: is clear from the foregoing that the Chinese authorities are not so much concerned about the issue of political activities overseas, but rather the question whether returnees have an intention to oppose the government in an effective and organised way after their return to China. Students and others who did not have a high dissident profile and significant influence in China at the time of the Tiananmen incident, even if they are now office bearers of overseas pro-democracy organisations, would have only a remote chance of facing administrative or criminal sanctions by the Chinese authorities unless, after their return, they initiated organised activities opposing the government in an effective was (Department of Foreign Affairs 1993, Cable BJ 1879 – PRC application for refugee status – office-bearers of pro-democracy organisations, 1 June)

A June 1994 Country profile by DFAT provides background information on the pro- democracy demonstrations of 1989:

More than 1 million people were involved in pro-democracy activities in Beijing, hundreds of thousands in Shanghai and thousands more in other cities and towns in China. Most applicants from Beijing claim to have participated in organised marches in the Square. These participants were mostly drawn from the applicant’s workplace, college or University. They claim to have organised fellow students or workers, shouted slogans, carried banners, given speeches or, place pro-democracy posters on walls or building. Others claim to have responded more spontaneously to the marches and gathering of people in the Square, providing food and money in support of the student movement. Applicants from other cities and provinces have lodged similar claims (Department of Foreign Affairs and Trade 1994, Country Profile – China, June)

On 12 March 2002 DFAT provided the following advice on the treatment of Tiananmen-era returnees: far as we are aware, the likely treatment of Tiananmen-era returnees would depend to a large degree on their behaviour on return, as well as on the nature and extent of their involvement in protest activities abroad. Individuals who took a leading role in protests overseas would likely be monitored by local public security authorities on return (provided, of course, that they were aware of the individual’s return). Official interest would be ongoing if those authorities assessed that an individual was likely to continue political agitation while in China. (DIAC Country Information Service 2002, Country Information Report No. 61/02 – China: Treatment on return of demonstrator (sourced from DFAT advice dated 12 March 2002), 13 March)

In September 2005 the Canadian Immigration and Refugee Board provided information on fraudulent documents in China. According to sources cited by the Board, false documents are easy to obtain in China, including birth certificates, university diplomas and hospital documents. Procurement of fraudulent documents is facilitated by corrupt local officials (Immigration and Refugee Board of Canada 2005, CHN100510.E – China: The manufacture, procurement, distribution and use of fraudulent documents, including passports, hukou, resident identity cards and summonses; the situation in Guangdong and Fujian particularly (2001-2005), 8 September)

DFAT also advised in October 2004 that: a general comment on the value of Chinese official documents, this embassy’s experience is that many official documents (especially identity documents) are forged and that irregular or improper issue of documents is widespread...(Department of Foreign Affairs and Trade 2004, DFAT Report No. 327 – RRT Information Request: CHN17017, 7 October)

DFAT has reported on passport and exit procedures in China, and refers to the Chinese law relating to the exit and entry of citizens of the People’s Republic of China, as well as foreigners, which provides for penalties for those who exit or enter the country on forged, invalid or fraudulently obtained documents ( Passport and exit procedures: PRC , DFAT Country Information Report No. 12/03, 15 January 2003, CX72393).

A September 2005 research response by the Research Directorate, Immigration and Refugee Board of Canada, reports on the wide spread availability of fraudulent travel and other documents in China, and on penalties in Chinese law for those found to have procured fraudulent travel documents: …involvement of government officials in procuring fraudulent travel documents is reportedly common but seldom discussed in the Chinese media (ibid.). A 2002 report published by the Australian Institute of Criminology on organized crime and migrant smuggling in Australia and the Asia-Pacific region notes that “[t]he increasing decentralisation of China’s administration makes it easy for migrant smugglers to obtain passports and travel documents by corrupting local government employees” (Schloenhardt 2002, 48). According to the report, corrupt officials provide “both genuine and fraudulent documents in exchange for money, or...for the migrant smuggler’s promise to smuggle a member of the corrupt official’s family abroad” (ibid.).

…paid in exchange for fraudulent documents appeared to vary: for example, in 2001, The Times reported that the price of a fraudulent Hong Kong passport had risen from $US 50,000 to $US 70,000 following the granting of visa-free entry into the European Union for Hong Kong residents (27 Mar. 2001). Four men who were found to be carrying fraudulent travel documents at Fuzhou airport in Fujian Province told authorities they had paid $US 46,000 in total for four fraudulent passports and four fraudulent Brazilian residence permits (Beijing Review 29 Apr. 2004). One Shanghai- based organization reportedly charged about 15 yuan or $US 2 for a fraudulent identity card, and up to 60 yuan or $US 7 for property certificates (Shanghai Star 27 May 2004). Another Shanghai-based organization charged 350 yuan ($US 42) for a fraudulent driver’s license, though the price was negotiable and one police officer noted he had seen “better” fake driver’s licenses than the one obtained from the organization (ibid. 29 Aug. 2003). In Shenzhen, an organization was found to be selling university diplomas from top Chinese universities for 250 yuan ($US 32) apiece (Charleston Gazette 4 Aug. 2002). ...

…to the Beijing Review, Article 3 of the Supplementary Provisions of the Standing Committee of the National People’s Congress on Meting Out Severe Punishment to Crimes of Organizing or Transporting Other Persons to Illegally Cross the National Border, penalties for procuring fraudulent documents in China are as follows: provides another person with a counterfeit or altered passport, visa or other exit and entry certificates, or speculates passports, visa or other exit and entry certificates shall be sentenced to a fixed-term imprisonment of no more than five years and shall also be fined. If the circumstances are serious, convicts shall be sentenced to a fixed-term imprisonment of no less than five years and shall also be fined (Beijing Review 29 Apr. 2004).

…a 2004 campaign, police in China closed down more than 500 organizations involved in producing fraudulent documents for the purpose of travel abroad (Xinhua 23 Aug. 2004). The leader of one such organization in Shanghai was sentenced to a 16-year jail term (Shanghai Star 27 May 2004). In Hong Kong, the Immigration Department announced in 2005 that people convicted of entering the territory on fraudulent passports could be immediately imprisoned and sentenced through the District Court, which can impose a maximum jail sentence of seven years (The Standard 22 July 2005). Hong Kong authorities noted that while there appeared to be fewer fraudulent Hong Kong passports as a result of improved passport technology, it was becoming more difficult to intercept them (ibid.). (Immigration and Refugee Board of Canada, 2005, CHN100510.E 08 September 2005: China: The manufacture, procurement, distribution and use of fraudulent documents, including passports, hukou, resident identity cards and summonses; the situation in Guangdong and Fujian particularly (2001-2005) )

FINDINGS AND REASONS

The applicant has stated to the Tribunal his real name, and that he obtained a passport in an alias in order to be able to leave China. He entered Australia using the passport issued in the alias. In his protection visa application he also stated he was known by his real name, and that he ‘changed’ his name in order to obtain a travel document to ‘escape’ China. He provided the Tribunal with a copy of a Chinese identity document issued in his real name, and a Chinese travel document issued in this name by the Chinese Consulate general in Australia.

Although a question arises regarding the applicant’s true identity, on the basis of the most recent travel document issued by the Chinese authorities, the Tribunal finds that it is more likely than not that the applicant’s true name is as he claims. The Tribunal accepts on the basis of the evidence of the travel document that the applicant is a national of China (PRC).

Christian religion

The Tribunal has significant concerns about the credibility of the applicant’s evidence regarding his Christian beliefs and practice as a Catholic.

The applicant claimed that he was baptized before he arrived in Australia and that he had been a practising Catholic since then. The Tribunal finds that the applicant demonstrated only a limited knowledge of significant aspects of Christianity and his practice as a Catholic. The Tribunal accepts that the applicant demonstrated an understanding of the concept of baptism at a very simple level. The Tribunal finds that although the applicant stated that his practice as a Catholic involved attending Mass and living according to ‘Catholic rules’ he demonstrated a very limited understanding of crucial aspects of the Mass. When first asked by the Tribunal about the ceremonies that take place during Mass, the applicant hesitated and stated that he could not recall any. He stated later that one of the ceremonies involved wine and biscuit, which embodied Jesus, and he explained that when these were blessed they became part of the Holy Body. He could not remember the name of this ceremony, and he could not remember what preparations he undertook before first participating in this ceremony in China. The Tribunal accepts that the applicant had a very basic knowledge of the concept of bread or biscuit, and wine representing the body and blood of Christ. The Tribunal finds it is implausible, given the applicant’s claims to have been a practising Catholic before his arrival in Australia, that he did not know that the ceremony involving the bread and wine was the Communion or Eucharist, given that it is the central purpose of Mass. The Tribunal has taken into account the applicant’s comments that although he did not know the name, he participated in the ceremony, but the Tribunal finds that his limited knowledge is not consistent with his claims of being a practising Catholic before arriving in Australia.

The Tribunal also finds it is implausible that the applicant would not remember what preparations he undertook before first participating in Communion in China, if he had been a practising Catholic since the time he claims. The Tribunal does not accept the applicant’s explanation that he could not recall it because it occurred so long ago. The Tribunal also finds that the applicant’s reference to entering the ‘gate’ of the church and dipping one’s hand in water, in describing what occurs before the ceremony of Communion, appears at best to be a reference to the ritual of making a sign of the cross with holy water on entering a church, and the Tribunal finds this does not demonstrate a knowledge of Communion that is consistent with that which would be expected of a genuine practising Catholic.

The Tribunal finds that it is highly implausible that the applicant would not know the Lords prayer if he had been a practising Catholic before his arrival in Australia . The Tribunal finds that this lack of knowledge is highly adverse to the applicant’s claims of being a Christian and a practising Catholic before his arrival in Australia. The Tribunal finds that the applicant, when asked what prayers he recited in his worship, gave as examples only ‘the Lord have pity on me’, ‘the glory of the Lord be upon us’ and ‘Hallelujah’. The Tribunal accepts that these may correspond to phrases or responses encountered in church services, but the Tribunal does not accept that they demonstrate a knowledge or familiarity with prayers that would reasonably be expected of someone claiming to have been a practising Catholic for some years, particularly given the applicant’s evidence that even during the period when he did not attend church in Australia, he prayed at home.

The Tribunal accepts that the applicant knew what Christmas represented, and that he demonstrated a very basic knowledge of the meaning of Easter. However the Tribunal finds that the applicant demonstrated a limited knowledge of what took place at the Last Supper; he knew that Jesus predicted he would be betrayed 3 times, and that Judas was involved, but could not remember what else happened. Although he stated that Christ was resurrected 3 days after he died on the cross, the applicant could not recall anything about what Jesus did or what happened after Jesus’ resurrection. The Tribunal finds that the applicant’s lack of knowledge of what Jesus did after his resurrection is not consistent with his claims to be a practising Catholic for some years.

The applicant told the Tribunal that he went to confession about every 2-3 weeks. When the Tribunal asked the applicant what he confessed, he said he stated ‘may the Lord bless me and that everything goes well, and may the Lord bless every other Catholic follower’. The Tribunal finds that the applicant was not able to demonstrate a knowledge of confession that is consistent with a person who has been a practising Catholic for some years and who had gone to confession as claimed.

The Tribunal finds that the applicant did not demonstrate any knowledge of the concept of the Trinity; when asked about his understanding of the Trinity he stated it was when one ‘put hands in touch with the body’. The Tribunal has taken into account the applicant’s comments that he knew about the Trinity although he could not remember the name. The Tribunal does not accept that this adequately explains his lack of knowledge. The Tribunal finds that the applicant’s lack of knowledge regarding such a significant aspect of Christianity is not consistent with his claims to be a practising Catholic for some years.

The Tribunal also finds that the applicant, in describing the Old Testament as being about when Jesus was alive and about his ‘preaching life’, demonstrated a significant lack of knowledge about the difference between the Old and New Testaments, which is inconsistent with his claims to be a practising Catholic for some years.

The Tribunal accepts that the applicant demonstrated a basic knowledge about the Pope and his role as head of the Catholic Church. The Tribunal accepts that the applicant was able to refer at a simple level to how the story of Genesis had inspired him. The Tribunal does not accept however, that the applicant’s limited knowledge or lack of knowledge about other aspects of Christianity outlined above is consistent with his claims that he was a practising Catholic for some years.

The Tribunal accepts and has taken into account that practising Catholics will exhibit different levels of knowledge of their Christian beliefs and their Catholic faith, and that there may be some differences in practices within the official and underground churches in China, and between churches in China and Australia. However the Tribunal does not accept that this explains the applicant’s limited knowledge of a number of significant aspects of Christianity and Catholicism, given his claims that he was a practising Catholic for some years. The Tribunal finds that the applicant’s limited knowledge, considered as a whole, is not consistent with his claims that he was a practising Catholic for some years.

The Tribunal also finds that it is highly adverse to the applicant’s claims that he had been a practising Catholic for some years that he only started to attend Church services in Australia a few years ago. Given the applicant’s claims that he had been detained in China on account of being a member of an underground Catholic church, and that he left China because of this and because he felt that he had no freedom as a Catholic in China, the Tribunal finds it is not credible that the applicant first attended church services in Australia some years after his arrival in Australia. The Tribunal would expect that if the applicant were a genuine practising Catholic, and if he had been detained in China on account of being a member of an underground Catholic church, that he would have taken steps to locate and attend church services as soon as possible after his arrival in Australia. The Tribunal does not accept that the applicant’s evidence that he did not venture out to public places because he had no protection visa and feared being caught and returned to China, and that he thought he should first try to get a protection visa and then consider going to church, reasonably explains the significant delay of some years before the applicant started to attend church services after his arrival in Australia.

The Tribunal finds that the applicant is not a credible witness in terms of his evidence regarding his Christian beliefs and practice as a Catholic.

The Tribunal finds in addition that the applicant’s evidence to the Tribunal that he has been a practising Catholic before his arrival in Australia contradicts evidence contained in his letter to the Minister requesting the Minister to allow him to stay in Australia. In that letter the applicant stated that he was a Buddhist, and referred generally to the fact that religion was taboo in China and it posed a threat to Chinese communist ideology. He also stated that China would persecute religious practitioners once Western pressure against religious control died down. The Tribunal finds it is highly implausible, if the applicant had been a practising Catholic before his arrival in Australia and had been detained for being a member of an underground Catholic church, and had left China because of the problems he experienced as an underground Catholic, that he would not have provided details of these circumstances in his letter to the Minister. The Tribunal has considered the applicant’s evidence that he was not aware of the details in his Ministerial submission because it was prepared by his agent, and that he was not a Buddhist and Buddhism had nothing to do with his claims, stating that Buddhist activities were legal in China.

The Tribunal does not accept that the applicant would not have known what was contained in his letter to the Minister, which he signed, given he was asking the Minister to allow him to remain in Australia. The Tribunal is not entirely convinced that the applicant’s agent, whom he claims acted in an unethical manner in respect of his protection visa application, was actually assisting the applicant at the time the letter to the Minister was submitted. The reasons for this are that the applicant’s evidence to the Tribunal regarding the extent of the agent’s assistance after his protection visa application was lodged was vague and inconsistent. His initial evidence indicates that the agent did not continue to provide assistance to the applicant when the protection visa application was refused. The applicant told the Tribunal that a couple of months after his application was submitted the agent told the applicant that the application was rejected. He stated he had further dealings with the agent for several months, and was told by the agent that he could appeal the decision but that this would cost money. He did not have any further information from the agent after that. The applicant later told the Tribunal that he had not remembered all the details of his dealings with the agent and indicated the agent was involved in various steps in his ‘appeals process’, including the letter to the Minister. The Tribunal has taken into account the applicant’s further comments on this issue, but on the evidence before it the Tribunal does not accept that the applicant had no knowledge of what claims were made in his letter to the Minister. The Tribunal also does not accept that the applicant’s comments that he made no claims about religion in his Ministerial submission, and that Buddhist activities were legal in China, establish that he was not or could not have been aware of the claims in his letter. The Tribunal finds that the applicant’s statement in this letter that he was a Buddhist casts further doubt on his claims to have been a practising Catholic for some years.

The Tribunal has also considered other evidence given by the applicant, including that he had been away from China for some years and that the priest who baptized him, an important witness, had died. The Tribunal does not accept that this overcomes the adverse findings above relating to his claims to have been a practising Catholic for some years.

The Tribunal does not accept, for the reasons above, that the applicant was a practising Christian of the Catholic denomination in China. The Tribunal does not accept that the applicant was baptized by a Catholic priest and was a member of an underground Catholic church in China. The Tribunal does not accept that the applicant had been monitored or ‘restricted’ by the authorities because of his membership of an underground catholic church. The Tribunal does not accept that the applicant was arrested by the police on account of worshipping in an underground Catholic church, and the Tribunal does not accept that the applicant escaped from detention. The Tribunal does not accept that the applicant had ever come to the adverse attention of the Chinese authorities in China on account of his religion. The Tribunal therefore does not accept that the applicant arranged to obtain a passport in an alias because he had encountered problems with the authorities because of his religion, or because he had escaped from detention. The Tribunal has considered the evidence submitted by the applicant of an arrest warrant for the applicant for reason of ‘illegal church activity’. The independent evidence indicates that fraudulent documentation is widespread in China and easy to procure. Given the Tribunal’s findings above regarding the applicant’s practice as a Christian the Tribunal does not accept that the arrest warrant is reliable evidence that the applicant was arrested by the police because of his activities in an underground church, and the Tribunal does not place any weight on it.

The Tribunal has considered the evidence of the applicant’s practice of Christianity in Australia. The applicant stated that he attended Mass usually once a week at a local church for a few years. The Tribunal accepts that the applicant has attended some church services in Australia including at the local church, and the Tribunal accepts that the applicant has gained some basic knowledge of aspects of Christianity and Catholicism in Australia. Given the Tribunal’s findings above regarding the limited extent of the applicant’s knowledge of Christianity and the Catholic faith, and the significant delay from his arrival in Australia until he commenced attending church services in Australia, the Tribunal does not accept that the applicant has attended church services in Australia and gained knowledge about Christianity because he is a genuine practising Catholic.

The applicant submitted a photograph showing him in the company of 2 priests. He told the Tribunal that the photo was taken, after he learned of the possibility of applying again to the Tribunal for a review of the department’s decision to refuse his protection visa. He stated that he obtained the photo to show that he attended church. The Tribunal has also considered the letter from a priest stating that the applicant was a genuine and practising Catholic who had attended Mass regularly since his arrival in Australia.

The Tribunal does not accept, in view of its findings above, that the photo of the applicant in the company of priests establishes that he is a genuine practising Catholic. The Tribunal finds that the letter from the priest contradicts in a very significant aspect the applicant’s own evidence about when he started to attend church services. The applicant’s own evidence to the Tribunal is that he only started to attend church services in Australia a few years ago, and had been attending the local church for a shorter period. The Tribunal therefore finds that it cannot rely on the letter from the priest as evidence of how long the applicant has attended Mass at the local church. In view of the significant discrepancy between the applicant’s evidence and that of the priest, the Tribunal also finds that it cannot rely on the priests letter as evidence that the applicant is a genuine practising Catholic.

In considering conduct in Australia in relation to an applicant’s claims to fear persecution, regard must be had to the provisions of s.91R(3) of the Act. Section 91R(3) provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. As indicated above, the Tribunal does not accept that the applicant has attended church services in Australia or acquired some knowledge of Christianity because he is a genuine Christian and practising Catholic. Given the Tribunal’s findings in respect of the applicant’s Christian beliefs and practice as a Catholic, the Tribunal is not satisfied for the purposes of s.91R(3) of the Act that the applicant engaged in this conduct in Australia otherwise than for the purpose of strengthening his claims to be a refugee. Accordingly, the Tribunal disregards the applicant’s conduct in Australia in acquiring knowledge about Christianity and his attendance at Catholic church services, in assessing whether he has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol.

As the Tribunal does not accept that the applicant has ever been a genuine practising Christian of the Catholic denomination in China or Australia, the Tribunal does not accept that he will practice as a Christian in China upon his return. The Tribunal therefore does not accept that there is a real chance that he will be persecuted for reasons of his religion if he returns to China now or in the reasonably foreseeable future.

As a result, the Tribunal is not satisfied by the available evidence that the applicant holds any genuine or well-founded fear of any harm for reason of his religion should he return to China.

Involvement in 1989 student pro-democracy movement

The applicant has claimed that he participated in the June 1989 pro democracy movement in China , and that as a student represntative he organized protests. These were held until the crackdown of June 1989, but he also organized memorial protests. While the first protest went without major incident the second one was broken up by the police, and as a consequence the applicant was detained for a period of time. He subsequently lost his position at the school and ended up having to leave home because of the need to look for work. His parents were affected because they supported his actions. He had also submitted 2 photos to the Tribunal of a building which he claimed showed his home had been ‘investigated and prosecuted (sic)’ at the time.

Given the Tribunal’s adverse credibility findings above in respect of the applicant’s claims to have been a practising Catholic for some years, the Tribunal also has significant concerns regarding the applicant’s credibility generally. The Tribunal consequently doubts the credibility of the applicant’s evidence regarding the nature of his involvement in the 1989 pro democracy movement, and its consequences.

The Tribunal also doubts the credibility of the applicant’s evidence regarding his involvement in the pro democracy student protests because in his letter to the Minister he stated that he was detained for a short period as a result of his participation in that movement. His evidence to the Tribunal in a written statement was that he was detained for a longer period, and at the hearing he stated he was detained for a longer period. The Tribunal finds it is highly implausible that the applicant would not have known how long he had been detained for as a result of his involvement in the student protests. The Tribunal has considered the applicant’s evidence that he was not aware of the contents of the letter to the Minister, and that his statements to the Tribunal are not contradictory. The Tribunal accepts that his written statement to the Tribunal indicating he was detained for more than a week does not exclude the later evidence of a longer period, though the Tribunal has some concerns that the details in his written statement are so imprecise. The Tribunal does not accept however, for the same reasons given above regarding the information contained in the Ministerial letter about his religion, that the applicant would not have known what was contained in his letter to the Minister about the period of his detention. The Tribunal finds it is adverse to the applicant’s claims of having been detained as a result of involvement in student protests that he claimed later he was detained for a short period, and at the Tribunal hearing he claimed he was detained for a longer period. On this basis the Tribunal has doubts that the applicant was in fact involved in the student protests at the level claimed, and doubts that he was detained as a result.

In addition the Tribunal finds that the applicant’s protection visa application form indicates that he resided at the same address for many years up until he departed China, that he was a student and then worked for several years prior to his departure of China. The Tribunal has considered the applicant’s comments that his agent completed the form and he had not knowledge of its contents, and he felt he had been the victim of an unethical agent. Given the Tribunal’s concerns about the applicant’s credibility the Tribunal is not satisfied that the applicant had no knowledge of the information provided in the visa application form. The Tribunal finds that the information regarding his ongoing residence, the dates of his schooling and his employment, are not consistent with his evidence to the Tribunal that he lost his position at school because of his involvement in student protests, and that he had to leave home after this and had no permanent address because he needed to move from place to place looking for work. The Tribunal finds that these inconsistencies raise further doubts that the applicant was involved in student protests at the level he claimed, that he was dismissed from school as a result, and that he was forced to live in different places because he had to look for work.

The independent evidence confirms that large numbers of people were involved in the 1989 pro-democracy student movement directly or indirectly. The Tribunal accepts, given that the applicant was a student at the time, that he may have been sympathetic to the pro democracy movement, and that he may even have participated in demonstrations or gatherings in support of the movement. The Tribunal does not accept, however, that the applicant’s involvement was at such a level that he came to the adverse attention of the authorities. The Tribunal does not accept that the applicant lost his position in the school union, or that he was detained for any period, as a result of his participation or involvement in the pro democracy movement or demonstrations. The Tribunal does not accept that the applicant’s support or involvement in the pro democracy movement was at a level that led to his dismissal from school. The Tribunal does not accept that the applicant consequently had to leave home and had no stable work, and had to move from place to place in search of work. The Tribunal also does not accept that the applicant’s home was seized by the authorities because of his activities or because of his parents’ support of his activities. It follows that the Tribunal does not accept that the 2 photos provided by the applicant with his submissions establish that his home was seized by the authorities on account of his activities in the pro democracy student movement or his parents’ support of those activities. The Tribunal does not accept therefore that the applicant lost any opportunities relating to education or employment as a result of his claimed involvement in the pro democracy student movement. The Tribunal does not accept that the applicant suffered any serious harm from the authorities in China on account of his political opinion resulting from any involvement in the pro democracy student movement.

The Tribunal does not accept that the applicant had any high profile in or was involved in the pro-democracy student movement at such a level that he came to the adverse attention of the Chinese authorities as a result. The Tribunal does not accept that the applicant’s general support of the student movement or any participation at the general level that he may have had in demonstrations in China would give rise to any adverse interest on the part of the authorities if the applicant returned to China.

Some 18 years have passed since the June 1989 crackdown on the pro democracy student movement. The independent evidence indicates that the authorities are only likely to be interested in those returnees who had a high dissident profile in China or took a leading role in protests overseas, or were likely to initiate organized opposition to the authorities on their return. The applicant has not claimed, and there is nothing in the evidence to indicate that the applicant has been involved in any protest activities overseas relating to the movement. The Tribunal does not accept that the evidence establishes the applicant would be involved in organizing political activities opposing the authorities on his return to China such that he would come to the adverse attention of the authorities.

The Tribunal does not accept that there is any real chance that the applicant will suffer serious harm amounting to persecution on account of his actual or imputed political opinion (support for the 1989 pro-democracy student movement), if he returns to China.

Given the Tribunal’s findings above, the Tribunal does not accept that the applicant obtained a passport in an alias in order to leave China without being detected by the authorities, because he had come to the adverse attention of the authorities or because of his fear of being persecuted by the authorities.

The independent evidence indicates that fraudulent travel documents can be obtained widely and relatively easily in China (Immigration and Refugee Board of Canada, 2005). The Tribunal finds that the applicant obtained a passport in an alias because it enabled him to obtain an Australian visa that he might otherwise not have been able to obtain. The Tribunal finds that the applicant obtained the passport in an alias for the purposes of entering Australia. The Tribunal is not satisfied that the applicant obtained the passport in an alias because it was the only way he could leave China without being detected by the authorities.

The independent evidence confirms that there are penalties in China for using forged, altered, invalid or other persons’ documents for entry and exit purposes (CX72393). The Tribunal finds that if the applicant were to face penalties under the provisions of Chinese law if he returned, for using a passport in someone else’s identity to leave China, then any such penalties would be as a result of a law of general application. The Tribunal does not accept that any penalties to which the applicant would be subject if he returned to China for using a false passport would constitute persecution for a Convention reason.

The Tribunal does not accept, given the findings above, that the applicant’s circumstances taken as a whole give rise to a real chance that he will suffer serious harm amounting to persecution for a Convention reason if he returns to China.

CONCLUSIONS

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.

DECISION

The Tribunal affirms the decision not to grant the applicant a Protection (Class AZ) visa.