1409105 (Refugee)

[2016] AATA 3647

1409105 (Refugee) [2016] AATA 3647 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409105

COUNTRY OF REFERENCE:                  China

MEMBER:Katie Malyon

DATE:1 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 01 April 2016 at 4:37pm

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 [in] April 2014 by a delegate of the Minister for Immigration to refuse to grant [the applicant] a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. [An age] year old from the Henan Province, [the applicant] arrived in Australia [in] August 2009 as the holder of a [temporary] visa.  This is [the applicant’s] second such application for protection.  He first applied for a Protection visa in September 2009 as a member of the same family unit as his mother.  That application was refused by the Department of Immigration and Border Protection (the Department) in December 2009 and his application for review to the Refugee Review Tribunal was refused in April 2010.  Subsequent appeals to the Federal Magistrates Court and the Federal Court were dismissed.  Thereafter, [the applicant] remained in Australia as an unlawful non-citizen for over 2½ years.  Lodgement of the current Protection visa application [in] September 2013 was facilitated following the 3 July 2013 full Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship (SZGIZ)[1] discussed below.

   [1] [2013] FCAFC 71

3. [The applicant] appeared before the Tribunal on 5 March 2015 to give evidence and present arguments.  The Tribunal’s hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  [The applicant] was represented in relation to the review by his registered migration agent, [name] of [company].

4. During the course of the hearing, [the applicant] complained of being unwell and, after 2 breaks, requested an adjournment.  Later that day, and before the date for an adjourned hearing was set, the Tribunal received a letter from [the applicant] (forwarded by his agent) noting that he was very nervous at the hearing, had never experienced such a formal occasion and found it hard to breathe and talk.  [The applicant] added that, after the hearing, he felt very sick and does not think he can cope with another hearing.  He concluded his letter by authorising the Tribunal to make a decision on the papers. 

5. The issues to be considered by the Tribunal in this case are as follows:

   ·Are [the applicant’s] claims credible?

   ·Are there substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that [the applicant] will suffer significant harm?

   RELEVANT LAW

6. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 of the Migration Regulations 1994 (the Regulations).  An applicant for the visa must meet one of the alternative criteria set out in s.36(2)(a), (aa), (b) or (c) of the Act. 

7. Relevantly for this review, s.48A of the Act imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has already made an application for a Protection visa which has been refused.  The full Federal Court in SZGIZ held that the operation of s.48A of the Act, as it stood at the time of this Protection visa application, is confined to the making of a further application for protection which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.

8. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the criterion in s.36(2)(a) of the Act that sets out Australia’s protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) because [the applicant’s] first Protection visa application was refused by the Department on the basis of this criterion [in] December 2009.  Instead, the Tribunal has proceeded on the basis that it can only consider [the applicant’s] claims under the complementary protection provisions in s.36(2)(aa) of the Act.  These requirements are outlined below.

   Complementary protection criterion

9. A person meets 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 (the complementary protection criterion): s.36(2)(aa) of the Act.

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act.  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.   The terms ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act and extracted in Annexure A.

11. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm.  The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2]  Relevant in this regard, the High Court has stated that a person can have a ‘well‑founded fear’ of persecution even though the possibility of the persecution occurring is well below 50%.  Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring: however, the chance of it occurring must be more than “far-fetched” or “remote” and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”.[3]  A fear of persecution “is not well-founded if it is merely assumed or if it is mere speculation”.[4]

    [2] MIAC v SZQRB (2013) 210 FCR 508

    [3] Chan v MIEA (1989) 169 CLR 379 at 429 per McHugh J

    [4] MIEA v Guo (1997) 191 CLR 559 at 572

12. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where:  it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;  the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm;  or, the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

13. 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’s PAM3 Protection visas - Complementary Protection Guidelines as well as any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.  The Tribunal is not precluded from considering other relevant information.

    Credibility

14. The United Nations Human Rights Commission has recognised the difficulties of proof faced by applicants for refugee status.[5]  In particular, there may be claims that are not susceptible of proof.  Moreover, the courts have accepted that in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for.[6] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear asserted or that it is ‘well-founded’, or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[7]  It is the applicant’s responsibility to specify all particulars of their claims and to provide the Tribunal with sufficient evidence to establish their claims.[8]

    [5] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relation to the Status of Refugees 1992 at paras [196 - 197]

    [6] Randhawa v MILGEA (1994) 52 FCR 437, Beaumont J at [21]

    [7] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

    [8] s.5AAA(1) of the Act

15. In this regard, the Tribunal is not required to accept uncritically any or all the claims made by an applicant.[9]  Nor is the Tribunal required to make the applicant's case for them.[10]  In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[11]  It is legitimate for the Tribunal to take into account any delay in the lodging of a Protection visa application by an applicant in assessing the genuineness, or at least the depth, of an applicant’s claim to fear persecution.[12]

    [9] Randhawa  v MILGEA (1994) 52 FCR 437 at 451

    [10] s.5AAA(4) of the Act.  See also Prasad v MIEA (1985) 6 FCR 155 at 169 –170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [11] Kopalapillai v MIMA (1998) 86 FCR 547

    [12] Selvadurai v MIEA & Anor (1994) 34 ALD 347, Herrey J at [11]

16. The Tribunal has also considered the Guidelines on the Assessment of Credibility[13] published by the Tribunal, including:

    9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not.  A Member should focus on what is objectively or reasonably believable in the circumstances.

    10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

    11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.  If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct.  The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.  However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [13] AAT Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

    Material before the Tribunal

17. The Tribunal has had regard to the following:

    ·     The current Protection visa application submitted to the Department [in] September 2013.

    ·     The application for review submitted to the Tribunal on 22 May 2014 including a Supplementary Statement from [the applicant] received 5 September 2014 and an unsworn Statement (in Mandarin only) from [Mr A] stating he has known the applicant for 6 years and confirming that [the applicant] has been a Falun Gong (FG) practitioner for 2 years.

    ·     Oral evidence given at the Tribunal’s hearing on 5 March 2015 before the hearing was adjourned.

    ·     The Department’s PAM3 Protection visas - Complementary Protection Guidelines.

    ·     Relevant country information including DFAT country information reports. 

18. [The applicant] provided the Tribunal with a copy of the delegate’s decision dated [in] April 2014 refusing his current application for protection (the Delegate’s Letter).

    Nationality of the applicant

19. The Tribunal finds that [the applicant] is a national of China.  He travelled to Australia as the holder of a passport issued by the authorities of China, a copy of which he provided to the Department with his Protection visa application.  He made no claim to be a national of any other country.  The Tribunal accepts that his claims should be assessed against China as the “receiving country” for the purposes of the complementary protection obligations in s.36(2)(aa) of the Act.  The Tribunal is satisfied that [the applicant] does not have a right to enter and reside in any other country and, therefore, he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    The applicant’s claims for protection

20. [The applicant’s] claims are contained in his Form 866C Application for an applicant who wishes to submit their own claims for protection and accompanying Statement.  In addition, on 5 September 2014 [the applicant] submitted a Supplementary Statement setting out new claims regarding the circumstances of his family in China.  [The applicant] also made a new claim at the hearing before it was adjourned about his being a FG practitioner.

21. In his Form 866C and accompanying Statement submitted to the Department [the applicant] claims:

    ·He is an ethnic Hui and a Muslim.  He grew up in [City 1] in Henan Province where the majority of the community are Han Chinese.

    ·He has experienced cultural clashes since primary school:  for example, Hui students were not allowed to wear their traditional clothes to school and were often picked on by classmates and teachers.  Sometimes, the Hui were forced to eat pork to show unity. 

    ·His mother was a restaurant owner and he would often help out at the restaurant after school. 

    ·In March 2009, he began to notice that 6 or 7 Hui people would regularly come to the restaurant, eating and praying in a private room.  After some time, they taught him about the Qur’an and why people should be equal.  Sometimes he would go with them to help other people, for example, by passing messages and organising meetings.

    ·Sometimes, Han Chinese would go to the restaurant to cause trouble and the Hui people would help him and his family.

    ·After some time, the police learnt about the Hui people gathering at his mother’s restaurant and she was called to the police station a few times and warned to stay away from them because they were extremist Islamists.  His mother was threatened that the restaurant would be closed if she did not obey.   He was young at this time and did not know what was going on but he was quite close to the Hui people.

    ·In July 2009 [the applicant’s] mother told him that the restaurant was closing down because the police and other authorities did not want it to open any more. 

    ·[The applicant] and his mother obtained visas and came to Australia thinking that they could start a new life.  However, somehow, their Protection visa application was refused and although they were really struggling to survive in Australia they did not want to go back.  His mother decided to return to China to try and live elsewhere. 

    ·As soon as his mother stepped off the plane she was detained by the police.  The group of Hui people in the restaurant had all been arrested and sentenced:  they had said that his mother was one of the organisers of the group and that he, too, was a member.  His mother has told him that he must not return to China.

    ·He fears that if he returns to China he will be detained, sent to prison, brainwashed, beaten, denied employment opportunities, denied the opportunity to follow his religion and sent to a labour camp for years as a result of the authorities’ suspicion that he was somehow involved with extreme Islamists.

    ·State protection is not available to him as it is the authorities who are persecuting him.

22. In his Supplementary Statement submitted to the Tribunal on 5 September 2014 [the applicant] claims that the following changes in his circumstances will increase the danger if he returns to China:

    ·After his mother returned to China she was summonsed by police for several days and detained for further investigation: she was forced to write a confession to her ’problems’.  Her application for a small business licence was refused.

    ·His home has been continually harassed by local government and his family’s daily life is greatly affected.  The police have intimidated and threatened his mother.

    ·[In] June 2014 his mother made a phone call to him asking whether there would be any activities in Australia to commemorate the 4 June incident in Tiananmen Square.  In the phone conversation she mentioned a book titled “Nine Commentaries on the Communist Party” and said some of the incidents mentioned in the book happened in his hometown.  His grandfather was tormented to death by the Red Guards in the Cultural Revolution and his family’s house was searched and property confiscated.

    ·Corruption prevails within the party and you can hardly find a department without corrupt officials.  Government officials view all Muslims as terrorists and are wary of them.  The incidents that happened in his home serve as witness to this.

    ·His mother has filed an anonymous accusation letter on the Internet disclosing corruption by the officials and injustice as well as the policeman’s insolent attitude and brutal violence against her.  She appealed in her letter that everyone should quit the 3 Communist organisations, that is, the Communist Party, Youth League and Young Pioneers.

    ·[In] July 2014 he received a phone call from his father saying that his mother was arrested and their house had been searched again.  His father told him not to call back and warned him that the phone conversations might be tapped causing his mother to be arrested.

    ·His father told him that his mother wanted to quit the CCP but it was very dangerous to do so in China and he couldn’t find a proper agent to do this.  His father asked him if he could find someone to do it for them in Australia.  [The applicant] responded he’d seen someone doing this on the street and would ask for assistance from them. 

    ·[In] 2014 at [a Sydney venue] [the applicant] found some FG activists demonstrating.  They had posters urging people to quit the CCP.  [The applicant] asked a gentleman to assist him with necessary processes for him and his family to quit the CCP.  That night, he told his father what he had done in a telephone conversation.  Next morning, he received a call from his father cautioning him that he should discuss such things in a covert way and never talk about party quitting things to anyone else or the secret would leak out.

    ·Two days later when he tried to contact his father and ask him about his mother he was not able to get through.  Since then, he has lost touch with his family members.

    ·He became frantic with worry about his parents’ fate.  Recently, he got news from friends in his hometown that his parents had been summonsed by the security police and that there was no one at his home.  He tried to get some information from the police through connections.  Finally, he found out that the police had accused his parents of having ties with FG activists abroad and spreading seditious remarks about quitting the CCP. 

    ·Later, phone conversations between him and family members were monitored.  His connection told him that the security police had gained evidence that he was directly involved in CCP quitting activities.  His connection told him never to go back to China lest he should be in great danger.

    ·He never thought these incidents would affect him.  He is aggrieved by what has happened to his parents and angered by the great corruption and bad administration committed by CCP officials. 

    ·There are many people who advocated the 3 quits together with his parents.  He will do his best to help them fulfil their wishes to quit the 3 Chinese organisations, if they wish to do so.

    ·He does not want to suffer the same tragedy that has befallen his parents.

1. During the course of the Tribunal’s hearing held on 5 March 2015 and before the hearing was adjourned [the applicant] told the Tribunal that he is now a FG practitioner. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. Although the Tribunal was able to hear only a very small part of [the applicant’s] evidence because he requested an adjournment due to his feeling unwell and his representative then sent written instructions that his client did what did not want to proceed with a further hearing and requesting that the Tribunal make a decision on the papers, the Tribunal has concerns about [the applicant’s] new claim that he is a FG practitioner. This claim was supported by an unsworn handwritten Statement (in Mandarin) provided at the hearing from [Mr A]. 

3. The interpreter engaged by the Tribunal indicated to the Tribunal that [Mr A] states that [the applicant] has been practising FG for 2 years.  However, inconsistent with [Mr A’s] statement [the applicant] told the Tribunal he had been doing FG for 6 months.  He said he took it up because it improves his xinxing (that is, his mind and thoughts)[14] and added it ‘helps release pressure’ from his life in Australia which is ‘so bad’.  [The applicant] told the Tribunal that he practices FG at home with [Mr A] and also in public at [Suburb 1] every morning [at given times].  The Tribunal observed that [the applicant] claims to be a Muslim and asked how he manages to both complete the morning prayer expected of Muslims and do his morning FG exercises.  [The applicant] told the Tribunal that he ‘didn’t do FG’ on the day of the hearing because he was ‘too nervous and couldn’t sleep’ but, the day before, he had done ‘FG [at the given times]’ then followed this with his ‘morning prayer at [a later time] because the sun had not come out at that time’.  The Tribunal notes that the sun rose on the day of the hearing at [an even later time].[15]  [The applicant] then requested a short break.

   [14] Falun Fafa Brief Introduction to Falun Dafa >

   After the hearing resumed, the Tribunal asked some preliminary questions about whether [the applicant] had read the Delegate’s Letter and if he had any comments to make about the letter to which he replied ‘no‘.  Asked whether he had discussed the Delegate’s Letter with his representative [the applicant] said ‘no’.  The Tribunal then asked [the applicant] if he wanted to amend or make any changes to his claims.  He replied ‘no’.  Reminded of his new claim advised to the Tribunal before the break he said, somewhat tentatively, ‘yes, I want to add my FG claim’.  The Tribunal observed that he sounded somewhat doubtful about agreeing to add the FG claim.  He replied ‘yes‘.  The Tribunal explained that it was just clarifying at the outset which claims he wanting to proceed with at which point [the applicant] said ‘I need a break’.  When the hearing was about to resume after the second beak [the applicant’s] representative told the Tribunal that his client needed an adjournment because he was ‘too nervous’.  As noted above, before the Tribunal scheduled an adjourned hearing, [the applicant] wrote and informed the Tribunal through his agent advising that he did not wish to proceed with an adjourned hearing but, rather, have the Tribunal make its decision on the papers. 

   Discussion of claims and findings

4. [The applicant’s] evidence in relation to his claims was only part heard when he requested an adjournment.  Later that day he indicated in a letter that he was ’very nervous .. (having) never experienced such a formal occasion. I felt hard to breathe and talk. After the hearing, I felt very sick and do not think I can cope with such hearing any more’.  As noted above, he authorised the Tribunal to make a decision based on the papers.

5. The Tribunal accepts that a hearing for a Protection visa can be an anxious time for an applicant.  However, the mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk of arising, or that it is for the reason claimed.  As noted above, it remains for the applicant to satisfy the Tribunal that all of the statutory elements for engaging Australia’s protection obligations are made out.

6. After receiving [the applicant’s] application for protection and reviewing his Form 866C, his accompanying Statement and his Supplementary Statement submitted on 5 September 2014 the Tribunal wrote to [the applicant] on 22 January 2015 advising that it had considered all of the material before it relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited [the applicant] to give oral evidence and present arguments at a hearing on 5 March 2015.  No documents were received by the Tribunal in support of any of [the applicant’s] claims prior to the hearing. 

7. On the basis of available information and as the Tribunal has not been able to explore [the applicant’s] claims set out in his application or his accompanying Statement and ask him further details about his claims, the Tribunal is not satisfied that:  6 - 7 Hui people would regularly come to his mother’s restaurant, eating and praying in a private room; or, they taught him about the Qur’an and why people should be equal; or, he would go with them to help other people, for example, by passing messages and organising meetings; or, Han Chinese would go to his mother’s restaurant to cause trouble and the Hui people would assist his family; or, after the police learnt about the Hui people gathering at his mother’s restaurant, his mother was called to the police station a few times and warned to stay away from them because they were extremist Islamists and she was threatened that her restaurant would be closed if she did not obey; or, in July 2009 his mother told him that the restaurant was closing down because the police and other authorities did not want it to open anymore; after his mother returned to China and as his mother stepped off the plane she was detained by the police; or, the group of Hui people in the restaurant have all been arrested and sentenced; or, the group had said that his mother was one of the organisers of the group and that [the applicant] was a group member; or, if returned to China, he will be detained, sent to prison, brainwashed, beaten, denied employment opportunities, denied the opportunity to follow his religion and sent to a labour camp for years as a result of the authorities’ suspicion that he was somehow involved with extreme Islamists.

8. In addition, because the Tribunal has not been able to explore [the applicant’s] claims set out in his Supplementary Statement and ask him further details about his claims, the Tribunal is not satisfied that:  after his mother returned to China she was summonsed by police for several days, detained for further investigation and forced to write a confession about her ’problems’; or, her application for a small business licence was refused; his family and home have been continually harassed by the local government;  or, the police have intimidated and threatened his mother;  or, [in] June 2014 his mother made a phone call asking whether there would be any activities in Australia to commemorate the 4 June Tiananmen Square incident and in the phone conversation she mentioned the book titled “Nine Commentaries on the Communist Party” and said some of the incidents mentioned in the book happened in his hometown; or, his grandfather was tormented to death by the Red Guards in the Cultural Revolution: or, his family’s house was searched and property confiscated; or, Government officials view all Muslims as terrorists and are wary of them and that incidents that happened in his home serve as witness to this; or, his mother filed an anonymous accusation letter on the Internet disclosing corruption by officials and injustice as well as the insolent attitude and brutal violence against her by police; or, that in her letter she appealed that everyone should quit the 3 Communist organisations (the Communist Party, Youth League and Young Pioneers); or, [in] July 2014 he received a phone call from his father saying that his mother was arrested and their house had been searched or that his father told him not to call back and warned that their phone conversations might be tapped causing his mother to be arrested; or, his father told him that his mother wanted to quit the CCP but it was very dangerous to do so in China and because he couldn’t find a proper agent to do this for him in China his father asked him if he could find someone to do it for them in Australia; or, [in] July 2014, he found some FG activists demonstrating at [a Sydney venue] and asked a gentleman to assist him with necessary processes for him and his family to quit the CCP; or, that night, he told his father what he had done in a phone conversation and the next morning he received a call from his father cautioning him that he should discuss such things in a covert way and never talk about CCP quitting things to anyone else or the secret would leak out; or, 2 days later when he tried to contact his father and ask him about his mother he was not able to get through and, since then, he has lost touch with his family members; or, recently, he got news from friends in his hometown that his parents had been summonsed by the security police and that there was no one at his home; or, having tried to get some information from the police through connections he finally found out that the police had accused his parents of having ties with FG activists abroad and spreading seditious remarks about quitting the CCP; or, his phone conversations with family members were monitored; or, a connection told him that the security police had gained evidence that he was directly involved in CCP quitting activities and his connection told him never to go back to China or else he would be in great danger; or, that the tragedy outlined above has befallen his parents; or, if he returns to China he will be detained, sent to prison, brainwashed, beaten, denied employment opportunities, denied the opportunity to follow his religion and sent to a labour camp for years as a result of the authorities’ suspicion that he was somehow involved with extreme Islamists.

9. At the hearing, [the applicant] advanced a new claim of being a FG practitioner and provided the Tribunal with a statement in support of this claim from [Mr A].  The Tribunal had an opportunity to take some evidence only from [the applicant] in relation to his claimed FG practice before the hearing was adjourned.  Instructions were received later that day for the Tribunal to make a decision on the papers.  In the circumstances, because Tribunal has not been able to explore the claims made in [Mr A’s] letter and raised by [the applicant] at the hearing that he is a FG practitioner and ask him further details about these claims the Tribunal is not satisfied [the applicant] is a genuine and committed FG practitioner. 

10. Country information regarding China prepared by, amongst others DFAT, confirms that known FG practitioners are mistreated and abused by Chinese authorities.[16]  Further, country information confirms that corruption is a pervasive problem in China touching virtually all corners of society from the economic, political and judicial fields to the social, cultural and educational ones.[17]  Country information also notes that while Chinese authorities have recently intensified curbs on Islam among the Uighur population of Xinjiang they have taken a more tolerant stance on religious expression among ethnic Hui Muslims throughout China and, further, there are no reports of the Public Security Bureau adversely treating Hui Muslims.[18]  However, and for the reasons stated above, the evidence provided by [the applicant] is not sufficient to enable the Tribunal to be satisfied that there would be a real risk of significant harm to him if he returns to China.  It follows that, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act.

    [16] DFAT Thematic Report Unregistered religious organisations and other groups in the People's Republic of China 3 March 2015, pp. 9 -10; CHN43431 Falun Gong - Monitoring of Chinese Falun Gong practitioners in Australia 29 September 2014

    [17] Migration Review Tribunal - Refugee Review Tribunal Background Paper China: Official Corruption 11 September 2013;  CHN38273 Corruption in Public Service –Monitoring of overseas democracy – Returning dissidents– Boxun.com 24 February 2011 ; DFAT Country Report People’s Republic of China 3 March 2015

    [18] China: CI150115142722082  Hui Muslims – Chinese Communist Party (CCP), 27 February 2015; Freedom House Freedom in the World 2015 – China

    CONCLUSION

11. As indicated above, the Tribunal does not have the power to this application under the Refugee Convention criterion in s.36(2)(a) of the Act.

12. For the reasons given above and on the basis of information provided, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

13. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Protection visa of the Act.

    Katie Malyon

    
    Member