1411503 (Refugee)

[2015] AATA 3170

1411503 (Refugee) [2015] AATA 3170 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411503

COUNTRY OF REFERENCE:                  China

MEMBER:Katie Malyon

DATE:I July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2015 at 3:04pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431(2) 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. [The applicant] is a [age] year old citizen of China from Shenyang city in Liaoning Province who arrived in Australia in July 2008 as the holder of a Business Visitor visa.  This application is for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant him a Protection visa.  It is [the applicant]’s second application for protection.

2. In his current Protection visa application, [the applicant] claims that he fears returning to China because he ‘has been participating in the activities of Fa Lun Gong’. The delegate refused to grant the visa on the basis that [the applicant] is not a genuine Falun Gong (FG) practitioner and, on the basis of his overall poor credibility, his parents were not detained by the authorities and nor has his family been subject to harassment by Chinese authorities.

3. The issue in this case is whether there are 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 AND DEFINITIONS

4. The criteria for a Protection visa are set out in s.36 of the Migration Act 1958 (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.

5. 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.[1] 

   [1] SZGIZ v MIAC [2013] FCAFC 71

6. 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 because [the applicant]’s earlier Protection visa application was refused by the Department on the basis of this criterion on 20 August 2008. 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

7. A person may meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).[2]

   [2] s.36(2)(aa) of the Act

8. The phrase ‘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; the death penalty will be carried out on the person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or, the person will be subjected 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.

9. 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.[3]  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”.[4]  A fear of persecution “is not well-founded if it is merely assumed or if it is mere speculation”.[5]

   [3] MIAC v SZQRB [2013] FCAFC 33

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

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

10. 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 in circumstances 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, where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[6]

    [6] s.36(2B) of the Act

    Mandatory considerations

11. 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 in its 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. 

    Credibility

12. The Tribunal accepts the difficulties of proof faced by applicants for refugee status or, as in this case, complementary protection.  In particular, there may be claims that are not susceptible of proof.  However, the mere fact that a person claims to face a real risk of significant harm does not establish that such a risk exists or that it amounts to significant harm.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[7]  The responsibility lies with the applicant to specify all particulars of his claims and to provide the Tribunal with sufficient evidence to establish his claims.[8]

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

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

13. In this regard, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant.[9]  Nor is the Tribunal required to make the applicant's case for him.[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 lodgement 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] 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [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 169-70; 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

    Material before the Tribunal

14. In considering [the applicant]’s claim for a Protection visa I have had regard to the following: 

    ·     His Protection visa application lodged with the Department [in] October 2013.

    ·     His application for review submitted on 29 June 2014, including a copy of the delegate’s decision dated [in] June 2014 which sets out [the applicant]’s immigration history in Australia in some detail including:  the claims in his first Protection visa application lodged in July 2008; his residence in Australia as an unlawful non-citizen for nearly five years until located and detained by the Department’s Compliance team in October 2013; and, his interview with the delegate [in] June 2014 in relation to the current application for protection.

    ·     Oral evidence of [the applicant] at the hearing on 30 April 2015.

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

    ·     Country information including DFAT country information reports set out in Annexure A.

    Nationality

15. I find 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 with his Protection visa application. [The applicant] made no claim to be a national of any other country. I accept 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. I am 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.

    Summary of claims

16. [The applicant] has set out his claims for protection in a statement accompanying his Form 886C Application for an applicant who wishes to submit their own claims for protection.  In his statement, [the applicant] claims: 

    ·He has been participating in FG activities since 2004.

    ·His father suffered [a medical condition] but his health improved after he began to practise FG and his illness has been cured.  After the crackdown by the Chinese government against FG as an evil cult in July 1999 his father continued to practise FG.  His father’s behaviour attracted government attention and, as a result, he received warnings from the local police and was put under surveillance.

    ·In 2004, the house that [the applicant], his wife and his [child] shared with his parents was raided by the police.  Books and discs about FG were found and his father was taken away by force.  The police later charged his parents accusing them of ‘carrying illegal religious practice’ (sic) and ‘distributing superstitious materials’.  During his incarceration, his father was cruelly treated.  His father signed a confession and was released after being detained for two weeks on condition that a fine of 5,000 RMB was paid.

    ·After his father was released, his father continued to practice FG despite [the applicant]’s mother imploring her husband to stop.  His family continued to be harassed.  His mother and his child suffered from acute depression such that his wife had to give up work to care for them.  The family lived in fear every day.  He subsequently came to Australia. 

    ·His child is discriminated against at school and verbally abused.  The police continued to go to his house and intimidate his wife stating that he would be put into custody and sent to a labour camp if he did join FG or engage in FG-related activities in Australia.

    ·Considering the situation in China, if he returns to China he will be detained and suffer physical injury.

    Credibility

17. At the start of the hearing, [the applicant] confirmed that the claims set out in his Protection visa application were true and correct.  He also confirmed that he did not wish to add to or amend his claims in any way.  [The applicant] advised that he told his representative his story orally before he had been released from [immigration detention] and that his representative then prepared his statement in English to accompany his application for protection.  It was translated into Mandarin after his release.

18. During the course of the hearing, I raised concerns about [the applicant]’s credibility and whether he was telling the truth in relation to significant aspects of his claims including his claimed FG beliefs and practices.  However, [the applicant] admitted at the hearing he only ever practised FG on an occasional basis in China.  Further, since arriving in Australia, he has not participated in any organised FG activities or events including group exercises and he only ever practises at home when he has spare time.  This gave rise to the credibility concerns discussed below.  By way of summary, I do not find [the applicant] to be a credible witness and I am not satisfied that he has told the truth in relation to critical aspects of his claims.  Overall, I did not find [the applicant]’s evidence to be consistent, plausible, persuasive or convincing.  My concerns are discussed below.

19. First, at the outset, I questioned [the applicant] whether he had the Department’s letter refusing his second application for protection explained to him or translated for him.  He laughed and said ‘no’.  When I indicated that, in my experience people, who genuinely fear significant harm if returned to their home country arranged to have the Department’s refusal letter explained to them in great detail and came to the Tribunal’s hearing with evidence to address any of the shortcomings identified in that letter.  He laughed again and added ‘I trust my agent.  What else could I do?  Yes, I was refused, but I couldn’t do anything.  I applied for this refugee thing.  I’m the one who listens to instructions from my agent’.  The fact that [the applicant] did not even bother to discuss the Department’s refusal letter with his representative raises doubts for me about the genuineness of his claimed fear of returning to China. 

20. Second, central to [the applicant]’s claim for protection is that he is a FG practitioner.  Accordingly, one of the key questions to be explored in this case is whether or not he is, or ever was, a FG practitioner.

21. In considering whether [the applicant] is a genuine FG practitioner as claimed in his Protection visa application I have had regard to the comments of academic Dr Benjamin Penny in a presentation to the Refugee Review Tribunal.[13]  When asked how to test if an applicant is a genuine FG practitioner, Dr Penny in dicated that he would look for three factors:

    “1. the five exercises.  All practitioners would know of their existence and should be able to perform them confidently, allowing for physical disability (like not being able to get into a lotus position), age or a degree of natural clumsiness.  I would not be confident that they would be able to tell you the names of each exercise, or each part of each exercise, or the rationale for the exercises that Master Li occasionally notes, as they may well have learnt them by imitation rather than ever looking at a book or a website;

    2.  the book.  Similarly, I would expect all practitioners to know of the main scripture of Falun Gong “Zhuan Falun”.  Please note this title is not translated and that non-Chinese speaking practitioners refer to it in Chinese.  Please also note that this book is not the one called “Falun Gong”.  Apart from knowing of the book genuine practitioners should also have read it.  You could ask them how many lectures are in it (it’s an edited transcription of Master Li’s lectures); and,

    3. what I would do to test genuineness, however, is to talk to applicants about why they do Falun Gong, what their experience of it is, how it has helped them and other people they know, etc.  I realize the interview situation can be a little artificial but whenever I’ve talked to practitioners and displayed sincerity in wanting answers, they’ve never held back.  You might also ask them how they apply the moral tenets of truth, compassion and forbearance (zhen, shan, ren) in their lives.”

    [13] Perry, B. Falun Gong: An Academic's Perspective RRT Conference, 26 July 2006

22. With these guiding principles in mind, I questioned [the applicant] in relation to his performance of the exercises, his knowledge of the main book on FG as well as why he does FG, how he applied FG principles in his life and how FG has helped him. 

23. First, the exercises.  In the written statement accompanying his current application, [the applicant] says he started practising FG in 2004 because he had seen his [age] year old father’s [medical condition] ‘cured’ after he took up FG.  Consistent with s.424AA of the Act, I put information to [the applicant] contained in his first application for protection that he commenced FG in 1999.  He indicated to me that he ‘just got to know it in 2004, that’s when I was persecuted’.  Asked again when did he actually commence being a FG practitioner, [the applicant] indicated that ‘in 1999 I got to know about it but’ that he had ‘tried it even before 1999’.   In isolation, I would not give this inconsistency much weight: however, given my other concerns in relation to [the applicant]’s credibility set out below, I consider this inconsistency reflects poorly on his credibility and the reliability of his evidence.

24. [The applicant] also gave inconsistent information in relation to where he performed the exercises in China and the frequency of his exercise regime there.  Initially, he indicated that he performed the exercises ‘in a park’ but that ‘after the government declared FG an evil cult’ he did the exercises ‘in a dark corner, somewhere where there was no one ’.  When asked to explain, he added ‘by dark corner’ he meant ‘somewhere where no one was, or, at home’.  As outlined in the delegate’s letter, a copy of which was provided to the Tribunal, in his interview [the applicant] indicated that he practised the exercises ‘only at home’.  When the inconsistency in his evidence was drawn to [the applicant]’s attention, he responded that ‘my claims are truth’.  I noted that the truth does not change and so he performed the exercises after mid-1999 either in dark places and at home or, in the alternative, just at home.  At this point, [the applicant] responded: ‘About my practice, I didn’t practise very often.  My main issue was that I passed on information for my Dad.  That’s why there’s a record at the police station.  The main issue for me is passing on information’.  I then put to [the applicant] that he had just advised me that he ‘did not practise very often’ and yet he had advised the delegate in his interview (as set out in the delegates’ letter) that he ‘practised every morning’.  Asked to explain the inconsistency [the applicant] replied ‘it is normal, you tell one situation here or tell one situation there’.   He added that he was ‘not lying’ because ‘when busy I did not practise’ and that ‘it was only for me to keep fit because I had a family to support’.  When I clarified that the Tribunal seeks the truth and what had been presented was inconsistent information compared with what he had told the delegate under oath [the applicant] asked whether making a statement ‘under oath meant it had to be the truth’.  I responded absolutely.  [The applicant] then said that it ‘was true, all true’.  When reminded by me that there was an inconsistency as to whether he practised every day as advised to the delegate or not very often as advised to at the hearing [the applicant] replied: ‘It’s normal, if you think I’m telling a lie I can’t do anything about it’.  He added that: ‘This thing, you can’t do it every day.  You have to have time.  It’s not really inconsistent’.  I consider the inconsistency in relation to where [the applicant] practised his FG exercises and how often he practised them to reflect poorly on his credibility, as does his inability to even accept the evident inconsistency in his claims.  I return to [the applicant]’s claim of having a record at the local police station because he passed on FG materials for his father later in this decision.

1. Having regard to [the applicant]’s claim in his Protection visa application and at his interview with the delegate that he will be persecuted in China because he is a FG practitioner I asked [the applicant] about his practice of FG in Australia.  He says he ‘doesn’t practise in a group to show off’ but he ‘practised at home’ until he broke his ‘[arm]’.  He has stopped since then:  he ‘stopped because I can’t lift up my arm and because I am sometimes depressed and Master Li has said if practitioners are depressed they should not practise’.  I noted that, to that point in the hearing, [the applicant] had been observed by me moving both arms freely, crossing his arms, scratching his head with his [hand] multiple times and raising both arms to at least shoulder height when asked about work.  He clarified that it was the ‘[deleted] that was broken in 2011 or 2012’.  In response to my question regarding evidence of his claimed [injury, the applicant] indicated that he had ‘x-rays at home taken at a hospital in Australia’ and that he would provide a copy to the Tribunal.  No x-rays were provided post the hearing.  When asked for evidence that he suffers from depression, [the applicant] replied that ‘I can’t sleep at night, don’t earn money and don’t work’ because the Department had told him when he left the [detention centre] that he did not have work rights.  I noted that insomnia is a different medical condition to depression and provided [the applicant] with details of how he could contact the NSW Refugee Health Services including START all TS for free medical advice in relation to medical conditions including depression and insomnia.  I also noted that his representative could have provided evidence of his claimed depression or [injury] if these were the reasons he had not been practising FG in Australia since 2011 or 2012.  He indicated that he is not taking any medication for his claimed depression.  No evidence of [the applicant] suffering from depression was lodged with the Tribunal post the hearing.  For completion, I also note that Master Li’s book Zhuan Falun makes no mention whatsoever of people with depression not performing FG exercises: indeed, the Tribunal confirmed this with a representative of the Falun Dafa organization. 

2. For completion and having regard to the first of Dr Penny’s indicia of a genuine FG practitioner I then asked [the applicant] to say the verse accompanying the fourth exercise.  He declined.  I then asked if, mindful of his claimed limited mobility on [one] side and consistent with Master Li’s statement that ‘those who are weak or chronically ill may practice according to the conditions  … whatever the situation, you should continue to practice’,[14] he could perform the fourth exercise using his [other] side only.  He laughed.  I noted that I was formerly an experienced physical education teacher, a dancer, a choreographer and, as part of my human movement studies at the University of Queensland, had studied anatomy and physiology.  I also noted that I continue to be a registered physical education teacher and observed that I had chosen the fourth exercise using the [uninjured] side in light of his claim to have had [an injury] 3 - 4 years ago.  I observed that if he refused to do the fourth exercise using his [uninjured] side only then it may lead me to find that he was not a genuine FG practitioner.  He then indicated that he did not want to demonstrate this to the Tribunal as he was ‘not feeling well’ and that ‘even if the Tribunal refuses me a visa I will just keep appealing’.  I noted this was the first time [the applicant] had indicate that he was not feeling well and that anyone listening to the tape of the hearing might form a different view in light of the number of times he can be audible heard laughing.  I recognise that attending a Tribunal hearing can be a stressful situation for some applicants.  However, given the whole basis of [the applicant]’s claim for protection as set out in his Protection visa is premised on his being a FG practitioner and that the obligation rests with him to satisfy the me to his claims, his reluctance to demonstrate the fourth exercise raises doubts for me as to whether he ever was a FG practitioner.  If he was not feeling well enough to attend at the Tribunal’s hearing he could have always obtained a medical certificate and either he, or his representative, could have requested an adjourned hearing.   His representative did not attend the hearing although he had spoken with him earlier in the day.

   [14] Li, Hongzhi Falun Gong 1992, English Version, 6^th Translation Edition (Updated 2014) p.6

3. Second, the book.  I also questioned [the applicant] about the principal book written on FG by Master Li.  He stated that he had read the book but ‘forgotten what is in it’.  [The applicant] added that ‘what I know is simple - just several sentences and 5 exercises’.  He indicated that FG is based on ‘genuineness, kindness, beauty’.  I consider this simplistic response and his failure to include reference to the fundamental tenet of forbearance (even allowing for translation issue is in relation to [the applicant]’s choice of word ‘genuineness’ for the more commonly accepted expression of FG tenet of ‘truthfulness’) to reflect poorly on [the applicant]’s credibility as a FG practitioner claiming to face a real risk of significant harm in China for this reason. 

4. Third, the application of FG philosophy.  I asked [the applicant] about his application of FG philosophies in his life.  He said that he has ‘not been practising’ since breaking his arm.  He added:  ‘I can’t sleep.  I suspect I have depression so I do not practise’.  I clarified that I was seeking an application of the philosophies in his life to which he replied that ‘there is not much to discuss because I can’t remember’. 

5. Specific questions were asked in relation to just a few key FG philosophies.  When asked to describe the meaning of the word ‘falun’ (that is, wheel) initially [the applicant] replied ‘the law of Falun Gong’ and, when pressed again to describe the meaning of the word ‘falun’ he said ‘I don’t know’.  Asked to describe the FG philosophy of loss and gain (that is, gain is to gain conformity to the characteristics of the universe of truthfulness, compassion and forbearance; loss is to give up all ill thoughts and conduct, that is, greed, personal gain, lust, desire, killing, battery, deceit, jealousy)[15] he replied ‘treat people kindly’.   When I challenged him that treating people kindly is not what the FG philosophy of loss and gain is about he responded ‘that’s what you say’.

   [15] Li, Hongzhi Zhuan Falun - Turning the Wheel Law 1992, English Version, Translation Edition (Updated Feb 2003) pp.72 – 73; Li, Hongzhi Falun Gong 1992, English Version, 6^th Translation Edition (Updated 2014)

6. In summary, [the applicant] admitted he has not practised the FG exercises ever in public in Australia and, since 2011 or 2012, has not done so at home.  He has an extremely superficial knowledge of key FG philosophies, could not correctly state the three principle tenets of truthfulness, compassion and forbearance and refused to perform the fourth exercise for me,  modified to accommodate his injury on [one] side.  This leads me to question not only whether he ever was exposed to his father’s practise of FG at home and distributed FG promotional material with his father but also whether he was a FG practitioner in China.

7. Third, I asked [the applicant] about the inconsistencies between his first application for protection made to the Department and his current application for protection.  As set out in the Department’s letter, a copy of which was provided to the Tribunal, [the applicant] stated in his first application for protection that he started practising FG in 1999, printed and handed out leaflets about the government’s treatment of FG practitioners as well as organised regular collective practice sessions and discussion groups.  He claims that in August 2006, he was taken by four police when practising FG.  Materials were found at his house and, as a result, he was taken to a detention centre, warned, forced to write a guarantee not to do FG again and paid 10,000 RM before he was released.  Further, when a friend was arrested in 2008, he decided to come to Australia on a Business Visitor visa and, when he contacted the FG Association in Australia on arrival, they told him to apply for a Protection visa.  In relation to his first application for protection the delegate found that, as he was able to leave China on his Chinese passport, he did not have a profile that would attract adverse interest from Chinese authorities. 

8. At the hearing, [the applicant] advised that after he arrived in Australia he contacted the FG Association and they told him to apply for a Protection visa.  He continued: ‘Last time, I just told the registered migration agent my story and I didn’t know what the agent wrote’.  [The applicant] admitted that, during the course of his interview with the Department in relation to his first application for protection ‘I was told to say what I said in that interview’.  Asked about any differences between the statements made in support of his first visa application and the current application [the applicant] justified such inconsistencies on the basis that ‘it has been many years and it is possible to have inconsistencies.  It is possible you can forget, possible you can’t think of things’.   When I indicated that the truth does not change and any inconsistencies could impact on my assessment of his credibility he replied ‘I can’t do anything about that.  It’s been a long time’.  [The applicant] admitted that he presented false information to the Department as part of his first Protection visa application and, further, he repeated such false information in his interview with the delegate because he was ‘told to say what was in’ his application.  I noted that this is inconsistent with the FG tenet of truthfulness and his interview with the delegate would have been an opportunity for him to correct the record and put right any errors in his story is told by his agent.

9. In his first Protection visa application and in his interview with the delegate in relation to that application [the applicant] states that he was arrested in August 2006 and taken into detention, released only when he signed a guarantee that he would not practice FG and paid a fine of 10,000 RMB.  However, at the hearing in relation to his current application for protection [the applicant] advised me that he had never been taken into detention:  rather, it was his father who had been detained.  He admitted that he had lied under oath in his interview with the delegate considering his first application for protection.  During the course of the hearing he explained what caused him to be fearful of his return to China was his distribution of FG material for his father.   I consider the inconsistent claims in his two protection visa applications and his admission that he lied under oath to the delegate considering his first application for protection reflects poorly on his credibility and the reliability of his evidence in relation to his current application.

10. Fourth, I questioned [the applicant] about his father’s practice of FG and claimed encounter with the authorities.  [The applicant] claims that his parents lived with him and his wife and then young [child].  His father was taken away by police and his house was searched.  The police found FG materials.  I put to [the applicant] country information that indicates people who help FG practitioners (such as allowing use of their premises for exercises and storage of FG materials) are themselves subject to detention.[16]  In the circumstances, it would be reasonable to expect that, as the occupier of the property where his father was found to have been performing FG activities and material stored, he too would have been taken in for questioning.  The fact that he was not taken in for questioning raises doubts about the claims of his father’s FG practice and detention.

    [16] CHN104580.E Canada: Immigration and Refugee Board of Canada, 2013  China: The treatment of family members of Falun Gong practitioners by authorities; situation of persons who assist Falun Gong practitioners; the treatment of such persons if they deny knowledge of having assisted Falun Gong practitioners, agree to cease such assistance or denounce Falun Gong (2010 – September 2013), 18 October 2013.

11. Fifth, I asked [the applicant] about why, as set out in the delegate’s decision a copy of which he had provided to the Tribunal, he indicated in his current Protection visa application and in his interview with the delegate that he had never applied to travel to a country other than Australia.  The Department had obtained from [Country 1] officials evidence that [the applicant] had unsuccessfully applied to travel to [Country 1].  When asked by the delegate as to why he applied for a visa for [Country 1, the applicant] indicated it was because he feared persecution owing to his being a FG practitioner.  I asked [the applicant] a similar question.  He said he ‘failed to appreciate the significance of the question’ and when advised by me that it was entirely relevant if, as claimed, the travel plan was linked to his claimed fear persecution in China then he should have told the delegate of this.  He replied he ‘thought they were two different matters’. 

12. The fact that, inconsistent with the FG tenet of truthfulness, [the applicant] has provided false information in his Protection visa application about other overseas travel plans and did not indicate when questioned by the delegate that he tried to obtain a visa for [Country 1] raises serious doubts for me about the credibility of [the applicant]’s claims.  Whilst the former might have been a mere oversight or error in completing his visa application form the latter cannot be excused.  [The applicant]’s explanation for lying at his interview appears to me to be unconvincing and indicative of his poor credibility overall.

13. Sixth, [the applicant] was asked about his statement when interviewed at [the detention centre] in 2013 regarding his ability to go home.  As indicated in the delegate’s letter, when asked about returning to China, [the applicant] replied that ‘if I can’t stay, then I’m willing to go home’.  I put to him that this statement was inconsistent with someone who fears harm in their home country.  [The applicant] stated that he ‘did not mean it’ and added that ‘I was locked up in an iron cage and felt I had no choice because I was scared’.  When I put to him that if he genuinely feared harm he would not have said he was willing to go home.  If, as claimed, [the applicant] was a genuine FG practitioner, had passed on FG materials together with his father and, further,  his name was on a police list in my view he would have not have responded as he that he was willing to go home.   His response to this question, notwithstanding he was asked when in [the detention centre], further leads me to doubt his credibility.

14. Seventh, I asked [the applicant] about his ability to obtain in [2007] the passport which allowed him to take his June 2008 trip to Australia despite the fact that he claims FG material was found in his home in 2004.  At the hearing, he claimed that the police had a record on file of him passing on FG information for his father.  He had been reported by neighbours but was not charged with an offence because the police had only become aware of his involvement in distribution of FG material after he left China.  I suggested to him that this was inconsistent with country information in relation to persons who help FG practitioners as outlined above.  

15. According to available country information, being able to obtain a passport and travel overseas indicates that a person is not of adverse interest to Chinese authorities.[17]  Country information confirms that known FG practitioners are routinely refused passports and hence prevented from leaving China lawfully.  Further, there is evidence to suggest that the Chinese government acts to prevent identified FG followers and people who assist them from leaving China.[18]  In many cases, Chinese citizens who have been identified by the government as FG followers or persons who assist them have their Chinese identity cards confiscated and, hence, are unable to obtain a passport and leave the country legally.  Those who have not been identified by the government as FG followers can obtain passports and leave the country lawfully.

    [17] DFAT 2015, DFAT Thematic Report - Unregistered religious organisations and other groups in the People's Republic of China, 3 March 2015; DFAT 2008 DFAT No. 943 - China: RRT Information Request CHN34077, 16 December 2008

    [18] CHN104580.E Canada: Immigration and Refugee Board of Canada, 2013  China: The treatment of family members of Falun Gong practitioners by authorities; situation of persons who assist Falun Gong practitioners; the treatment of such persons if they deny knowledge of having assisted Falun Gong practitioners, agree to cease such assistance or denounce Falun Gong (2010 – September 2013), 18 October 2013.

16. The fact that [the applicant] was able to obtain his current passport in [2007], three years after he claims his father was detained and FG materials were found by police at his home, leads me to conclude that he was not of adverse interest to Chinese authorities and that his claims in relation to his father’s detention for being an FG practitioner and the police discovering FG material in his home are false.

    Consideration of the applicant’s claims – discussion and findings

17. In assessing [the applicant]’s claims, I have carefully considered all of his evidence as well as a range of independent material relating to the situation of FG practitioners in China, and those who assist them. 

18. As indicated above, I have serious concerns about the applicant’s credibility and the truthfulness of his claims.  Inconsistent with the claim made in his first Protection visa application and in the statement accompanying his current Protection visa application [the applicant] denied at the hearing that he is, in fact, a FG practitioner.  He says he only ever practised the exercises occasionally in China, when permitted to do so by his work commitments.  When he came to Australia he practised at home, but not in public, until 2011 or 2012 he stopped altogether due to his having a broken arm, which he later clarified to be [another injury].  He admits that he has read the principal text about FB but has forgotten it.  He could not describe how he applied the FG principles to his daily life.  Moreover, [the applicant] was adamant that he would not demonstrate for the fourth FG exercise using the [uninjured] side of his body only.  I do not accept that [the applicant] is, or ever was, a genuine FG practitioner.

19. While available country information confirms that the Chinese Government has banned FG as an illegal cult since 1999 and practitioners as well as those who assist them are regularly detained I do not accept [the applicant]’s father is, or ever was, detained for being a FG practitioner based on the evidence before me.  Furthermore, based on the evidence before me I do not accept that the police found FG material in [the applicant]’s house or that he has in any way been associated with distribution on FG material on behalf of his father, either before or after he left China.  He acknowledged during the course of the hearing that his family has not been harmed since 2004. 

20. [The applicant]’s passport was issued to him in [2007], three years after his father’s claimed detention and the claimed discovery by police of FG material at his home.  The fact that he was able to obtain his current passport and leave China leads me to conclude that he was not of adverse interest to Chinese authorities and that his claim of being an FG practitioner and having FG materials found on his in his house are fabricated. 

1. Having carefully considered all of the evidence before me and, in the light of the credibility concerns outlined above, I do not accept [the applicant]’s claims in their entirety.  Specifically, I do not accept that: 

   ·     [The applicant] ever was a FG practitioner, started practising FG in 2004 or practised occasionally in China;

   ·     The police raided his home in 2004 and located FG materials;

   ·     [The applicant]’s father was detained in 2004 for two weeks for being a FG practitioner;

   ·     [The applicant]’s family continues to be harassed because his father is a FG practitioner; and,

   ·     Police continued to go to [the applicant]’s house and intimidate his wife, and told her that he would be put into custody and sent to a labour camp if he joined or engaged in FG activities in Australia.

   ·     Police did not discover his involvement in the distribution of FG material until after his departure from China.

2. Considered together, the reasons discussed above lead me to find that the applicant has not been truthful about his claims and the reasons he fears returning to China.  I find [the applicant]’s claims to be entirely fabricated in order to achieve a desired migration outcome.  I do not accept that if he was to return to China, he will practice FG or be detained by Chinese authorities for this reason or because he distributed FG materials on behalf of his father.   I find that there are no 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 he would suffer significant harm.

   CONCLUSIONS

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

4. For the reasons given above and on the basis of information before me, 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.

5. 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

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

   Katie Malyon
   Member

   ANNEXURE A

   .

   
   Treatment of Falun Gong practitioners in China
   
   

7. DFAT’s most recent report on the treatment of FG practitioners has been prepared as recently as 3 March 2015.[19]  The report notes FG members regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours.  Punishments can vary according to location, the profile of the individual and local political circumstances.  Although re-education through labour camps was abolished in late 2013, FG practitioners have reportedly been sent to black jails, sentenced to other forms of administrative punishment or have been released after receiving propaganda training.  Methods reportedly used against FG practitioners include sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings.  Reports of psychological treatment used against practitioners have also been documented in international human rights reports.  However, reports of psychiatric experimentation and organ harvesting being imposed on FG practitioners in detention could not be independently verified.

   [19] DFAT 2015, DFAT Thematic Report - Unregistered religious organisations and other groups in the People's Republic of China, 3 March 2015.

8. FG practitioners who are sentenced to criminal punishment most commonly receive verdicts of three years imprisonment or less.  FG practitioners who sign confessional statements early can possibly face better treatment in detention and others, who are persistent in defending their beliefs and who refuse to sign a statement, can face worse treatment in detention.  However, the lack of transparency into China’s prison and detention centers makes it difficult to verify these claims.  On release from detention, FG members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs such as cleaning toilets or subways.  DFAT assesses that FG practitioners can be at risk of official discrimination and violence.  The report concludes that the Chinese government’s widespread propaganda campaign and security surveillance system have effectively discredited FG’s beliefs within mainstream society leading to potential societal discrimination in instances where FG’s secretive activities have been exposed. 

9. By way of background, the Chinese Government has maintained its ban on Falun Dafa since July 1999 and its campaign to ‘transform’ practitioners.  In January 2012, Human Rights Watch reported that the Chinese Government continues to consider Falun Dafa to be a ‘cult’.[20]  Advice from DFAT received in April 2011 states that the ‘ban on Falun Gong [Dafa] remains in force today, and authorities regularly intensify crackdowns around events the Government deems important’.[21] 

   [20] Human Rights Watch 2012, World Report 2012: China, January

   [21] DIAC Country Information Service Country Information Report No.11/15 - CHN11513 Falun Gong Update, 8 April 2011.

10. In relation to practitioner’s ability to obtain a passport and leave China DFAT 2008 DFAT Report No.943- China: RRT Information Request CHN34077, 16 December 2008 states in part:

    “In regard to members of Falun Gong, we have been advised by sources within the Ministry of Public Security that only those considered to be Falun Gong leaders are refused passports and hence would be prevented from leaving China legally.  However, there is anecdotal evidence to suggest that the Chinese Government does act to prevent identified Falun Gong followers from leaving China.  In many cases, Chinese citizens who have been identified by the Government as Falun Gong followers have their Chinese identity cards confiscated and hence are unable to obtain a passport and leave the country legally.  Those that have not been identified by the Government as Falun Gong followers can obtain passports and leave the country legally”.

11. In March 2011, the Congressional Executive Commission on China stated that China was “currently in the second stage of a three-stage, three-year campaign to increase efforts to ‘transform’ Falun Gong practitioners – a term the government and (Communist) Party use to refer to the process of pressuring FG practitioners to renounce their belief in and practice of FG…  Some of the documents call on local governments… to make use of businesses or family members of FG practitioners to increase efforts to “transform” FG practitioners … (and) list quantitative “transformation” targets”.[22]

    [22] Congressional Executive Commission on China Communist Party Calls for Increased Efforts to “Transform” Falun Gong Practitioners as Part of Three-Year Campaign, 22 March 2011 >

    The US Department of State International Religious Freedom Report for 2011 for China states that:

    “It remained difficult to confirm some aspects of reported abuses of Falun Gong adherents.  International Falun Gong-affiliated NGOs and international media reported that detentions of Falun Gong practitioners continued to increase around sensitive dates.  Some neighborhood communities reportedly were instructed to report on Falun Gong members to officials; monetary rewards were offered to citizens who informed on Falun Gong practitioners.  Falun Gong-affiliated NGOs alleged that detained practitioners were subjected to various methods of physical and psychological coercion in attempts to force them to deny their belief in Falun Gong.  Falun Gong sources estimated that since 1999 at least 6,000 Falun Gong practitioners had been sentenced to prison.  Falun Gong adherents also have been subjected to administrative sentences of up to three years in RTL camps.  Unconfirmed reports from overseas Falun Gong-affiliated advocacy groups estimated that thousands of adherents in the country had been sentenced to RTL.”[23]

    [23] US Department of State International Religious Freedom Report for 2011: China (Includes Tibet, Hong Kong, and Macau)  >

    On 20 May 2011, DFAT advised that Chinese authorities no longer focus primarily on Falun Dafa leaders, but are increasingly targeting common practitioners.  The advice states:

    “(A)long with like-minded missions and human rights contacts, we consider that Chinese authorities no longer focus primarily on Falun Gong leaders who promote the movement but also on private practitioners… (w)hile precise information on cases is difficult to obtain, we assess that the authorities now place greater emphasis on how readily Falun Gong practitioners confess their crime and denounce their practice rather than their role in Falun Gong”.[24]

    [24] DIAC Country Information Service, Country Information Report No. 11/28 – CX265241 Falun Gong Update Clarifications (sourced from DFAT 20 May 2011)

12. More recently, the US Commission on International Religious Freedom (USCIRF) also reported long-term and arbitrary arrests, forced renunciations of faith and torture in detention in its Annual Report of April 2013 covering 31 January 2012 to 31 January 2013:

    “The Chinese government continued its fourteen-year campaign to eradicate Falun Gong activity and pressure practitioners to renounce their beliefs. Falun Gong adherents report, and official Chinese government statements confirm, long-term and arbitrary arrests, forced renunciations of faith, and torture in detention.  Reportedly, over 3,500 Falun Gong practitioners have died as a result of government-approved persecution.  China maintains an extrajudicial security apparatus, the 6-10 office, to stamp out Falun Gong activities and uses specialized facilities known as ‘transformation through re-education centres to force practitioners to renounce their beliefs through the use of torture and medical experimentation. Falun Gong practitioners have documented dozens of deaths in these transformation centres.”[25]

    [25] US Commission on International Religious Freedom

13. Freedom House noted in its Freedom in the World 2014 – China report covering events in 2013, that a three year initiative to pressure FG adherents to renounce their beliefs began in 2013:

    In 2013, the party launched a new three-year initiative to coerce its adherents to renounce their beliefs. While some Falun Gong practitioners were released from detention as part of the closure of labor camps, authorities seized hundreds of others in home raids, sending them to extralegal detention centers for forced conversion or sentencing them to long prison terms. In October 2013, Wang Hongxia, a former English teacher from Sichuan Province, was sentenced to 12 years in prison for helping fellow Falun Gong adherents to hire defence lawyers.[26]

    [26] Freedom House 2014, Freedom in the World 2014 – China, 23 January, Section D, < (CISNET China CX321620)

14. The Annual Report by the Congressional-Executive Commission on China (CECC) published in October 2013 referred to the physical and mental abuses and tortures inflicted on FG practitioners in China (covering northern autumn 2012 to autumn 2013):

    The Commission continued to observe reports of arbitrary treatment of Falun Gong practitioners by Chinese security and judicial authorities, in some cases involving physical and mental abuse. Courts continued to sentence Falun Gong practitioners to long terms in prison.  Authorities detained and harassed persons who attempted to assist Falun Gong practitioners, including lawyers Wang Quanzhang and Cheng Hai.  The Chinese Communist Party and government continued to pressure Falun Gong practitioners to renounce their belief and practice.  The Party and government refer to this process as ‘transformation through re-education,’ or simply ‘transformation.’  From 2010 to 2012, the government implemented a three-year, national campaign to increase efforts to ‘transform’ Falun Gong practitioners.[27]

    [27] Congressional-Executive Commission on China 2013, Congressional-Executive Commission on China: Annual Report 2013, 10 October, pp.89-90 < (CISNET China CIS26345)  

    Practicing Falun Gong at home

15. DFAT’s most recent report notes credible sources have told DFAT that FG practitioners are generally able to practice privately in their homes relatively free from interference by authorities.[28]  However, FG members regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours.  Reports from both the Falun Dafa Information Centre and Human Rights Watch indicate that people who practice FG in the privacy of their homes are at risk of arrest and detention.  Reportedly, many of these practitioners have been arrested after door-to-door searches by security agents revealed FG materials in their homes.[29]

    [28] DFAT 2015, DFAT Thematic Report - Unregistered religious organisations and other groups in the People's Republic of China, 3 March 2015

    [29] RRT Research & Information Country Advice China – CHN38157 Falun Gong Update Clarifications,21 February 2011

16. FG members who practice in private become known to authorities in a number of ways.  Many are likely to be known to police already as a result of being detained on previous occasions: in reports of arrests on FG websites, those arrested are often reported as having been detained before.[30]

    [30] See for example, ‘Gynaecologist-obstetrician Arrested and Tortured for Refusing to Give Up Falun Gong ’ Clearharmony.net, 8 December 2009 ‘68-Year-Old Ms Shi Jinhua from Qidong County, Hunan Province Arrested 13 Times’ 19 October 2009 >

    It is also possible to come to the attention of authorities through informers.  A FG spokesperson contacted by the Canadian Immigration and Refugee Board commented that “concealing one’s beliefs and daily practice from relatives or neighbours is difficult”.[31]  In addition, other reports indicate there may be incentives for reporting FG members.  The 2009 Annual Report of the United States Commission on International Religious Freedom stated that “(p)rovincial officials reportedly offer sizable rewards to anyone who provides information leading to the arrest of a Falun Gong practitioner”.[32]  Similar claims were made by FG websites: for example, a Clearwisdom.net entry reported that public notices had been posted offering 5,000-10,000 Yuan (approximately then AUD1,130 - 2,260) for each practitioner exposed.[33]

    [31] Immigration and Refugee Board of Canada, China: Situation of Falun Gong practitioners and treatment by state authorities (2001-2005), 31 October 2005 United States Commission on International Religious Freedom 2009 Annual Report, May 2009, p. 79

    [33] For historical exchange rates see and Latest News from China 3/16/2002 Clearwisdom.net

    oOOo

    
    

pp.29 –30