1414153 (Refugee)

[2015] AATA 3159

1414153 (Refugee) [2015] AATA 3159 (17 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414153

COUNTRY OF REFERENCE:                  China

MEMBER:Antoinette Younes

DATE:17 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2015 at 3:45pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 15 July 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   THE LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS

8. In support of the application for a protection visa, the applicant provided a statement claiming that:

   a.He had a good life in China and worked as a manager in [a company]. At the end of 1998, he started to know about Falun gong. At that time, he did not pay attention to the “intention” of Falun gong. As he was always doing morning exercises, he saw practitioners in the park who told him that the practice is good for one’s body particularly for long-term illnesses and pain. So he began to practise Falun gong with other people regularly.

   b.Since July 1999, the Chinese Communist officials campaigned to eradicate Falun gong and any supporters. He began to understand the three values, truth, compassion and tolerance forming the backbone of the practice’s philosophy.

   c.From July 1999, the practice was condemned as an illegal organisation and in October 1999, it was considered to be an evil religion. Hundreds of thousands of Falun gong practitioners suffered ill treatment so he stopped practising but continued to discuss it with his family at home.

   d.At the beginning of 2013, his work decided to organise senior staff members to visit Australia and study [a course]. He came to Australia to visit with his colleagues.  When he visited [Suburb 1] one day, he saw Falun gong members demonstrating and distributing material. They gave him material, including the Epoch Times newspaper which he took back to China.  He gave copies to his friends and relatives. However in July, the material had been disseminated not only in Hebei but also in Beijing and the north-east areas. He was asked to go to an office for investigation. He was scared so he denied any involvement and later when asked again, he was so worried about being discovered and that he would be severely punished.

   e.He was scared and he found out that he was under surveillance because his wife told him that she regularly found an undercover police near the house. No matter where he went, he could feel somebody following him. The police also went to his workplace to check his records. He tried to escape a few times but he did not succeed.

   f.In August 2013, his wife helped him and he fled to Australia.  One day after his arrival, he met another Falun gong practitioner called [Mr A] in [Suburb 1]. [Mr A] introduced him to the Falun gong association in Australia and told him that there might be a chance for him to apply for a protection visa. Australia’s legal system is perfect and there is no discrimination. He is looking forward to staying in Australia. If he were to return to China, the Chinese authorities would not protect him and on the contrary, they will prosecute and detain him.

   CONSIDERATION OF CLAIMS

   Country of nationality

9. On the basis of the available information, the Tribunal finds that the applicant is a national of China. He travelled to Australia as the holder of a passport issued by the Chinese authorities, copy of which the applicant provided with his protection visa application and to the Tribunal.  The applicant made no claim to be a national of any other country.

10. The Tribunal finds that his claims should be assessed against China for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

    The applicant’s Falun gong practice

11. For the reasons explained below, the Tribunal is satisfied that the applicant is not a Falun gong practitioner.

12. The Tribunal asked the applicant about his practice of Falun gong in China. The applicant gave evidence that this was a “hobby… Occasionally I practised...”. He stated that shortly after he practised, the Chinese authorities declared the practice to be an evil cult. The Tribunal asked the applicant if he considered himself to be a Falun gong a practitioner in China and the applicant replied “maybe I was”. The Tribunal asked him what he meant by that comment and the applicant stated that he likes sports and he exercised. He said he saw people practising what he thought was ‘qigong’ (form of exercise) but it turned out to be Falun gong. The Tribunal asked the applicant what he actually practised in China and the applicant did not reply; he stated that he liked sports, Kung Fu and that he had “some contacts”.  The Tribunal asked the applicant whether he considered himself to be a Falun gong a practitioner in those circumstances and now the applicant stated that he considered himself to be a practitioner. The Tribunal pointed out the applicant’s earlier evidence namely “maybe I was” and the applicant replied that he was nervous.

13. The Tribunal asked the applicant when he started to practise Falun gong and he stated that it was in 1998 when he had “some contact” and that subsequently the practice was declared to be a cult. He stated that he did not have the guts to practise except occasionally at home. The Tribunal asked the applicant when and whether he practised with others and he stated that during the second half of 1998, he practised with relatives and friends in parks, at home and quiet places. The applicant stated that he was curious about the practice and he liked exercising. The Tribunal asked the applicant if he practised after the ban of Falun gong and the applicant replied “no, occasionally…. Yes occasionally practised” at night or at home secretly. The Tribunal indicated to the applicant that in the statement that he provided in support of the application for a protection visa, he had claimed that he had stopped practising after the ban and that he only discussed the practice with his family at home. The applicant replied that discussing means practising.

14. The Tribunal is of the view that the applicant’s responses to questions about his Falun gong practice in China were vague, confused, and inconsistent raising doubts about his claims.  On his own evidence, this was hobby which does not support the applicant’s claim of being a practitioner or someone who knows much about the practice or is committed.

15. The Tribunal asked the applicant about his visit to [Suburb 1] and the applicant stated that he could not recall when that happened but he saw many Falun gong practitioners. He said he spoke to a person by the name of [Mr A] who told him that in Australia it is legal to practise Falun gong and he suggested to the applicant to apply for a protection visa. The applicant stated that when he returned to China he took Falun gong documents with him, namely a newspaper called Dayuangyuan. The Tribunal asked him why he would take such material back to China given the ban on the practice and his level of involvement/practice.  The applicant stated he did so because it was about the fights between Falun gong and the Chinese authorities. He stated that the newspaper talked about persecution. He stated that his friends read the newspaper and subsequently distributed copies to Beijing, Tianjun, Hebei and North East China. The Tribunal asked him why his friends would distribute such copies and he stated because they were Falun gong practitioners. The Tribunal indicated to the applicant that in the statement provided in support of the application for a protection visa as well is it during the course of the interview with the Department held in March 2014, he stated that the newspaper was the Epoch newspaper, inconsistent with his oral evidence that it was the Dayuangyuan and the applicant stated “I remembered incorrectly”. The Tribunal queried how he could remember incorrectly such significant details and the applicant responded by saying that it has been a long time and that he forgot.

16. One of the most significant claims made by the applicant is that he took material back to China. The applicant gave the Tribunal a different name to that he gave in the statement provided in support of the application for a protection visa as well is in the course of the interview with the Department. His explanations, that he remembered incorrectly, that he forgot or that it has been a long time are neither convincing nor persuasive given the significance of the claim. The Tribunal is of the view that the fact that the applicant gave inconsistent information about such a significant claim raises serious doubts about the claim and the applicant’s credibility.

17. In the course of the hearing, the applicant raised claims which he had not mentioned previously raising doubts about the claims and his credibility generally. For instance, the Tribunal asked the applicant if he has ever been arrested by the Chinese authorities and he stated that he has never been arrested but he was asked to go to the Public Security Bureau (PSB). The Tribunal asked him when he was required to go to the PSB and he said it was in July 2013 and that it was related to the material. He stated that the entry and exit authorities asked him to go to the PSB where he was for about an hour. The Tribunal noted that there is no mention in the statement provided in support of the application for a protection visa that in July 2013 he was asked to go to the PSB and he stated that he was not asked by immigration. The applicant’s response is not persuasive – it is his statement that he provided in support of the application for a protection visa setting out his own claims, prepared prior to any interviews or any questioning by immigration. Tribunal is not persuaded. Subsequently the applicant said that he could not remember and that he wants to stay in Australia for a while until the “heat is off”. The Tribunal asked him about any other occasions of being requested to go to the PSB and the applicant stated in July 2013 that “they” went to his company and the police stuck around his home. He stated that he had no other option and he would have been jailed.

18. The Tribunal referred to the applicant’s responses relating to his knowledge of Falun gong in the course of the interview with the Department, as noted in the decision record provided by the applicant to the Tribunal. The Tribunal indicated that when he was asked if he could explain the moral tenant of truth of Falun gong, he basically stated that it was ”to tell the truth”.  The Tribunal also referred to when he was asked to demonstrate exercise number four of Falun gong, he stated that he has not practised that particular exercise. The applicant stated that he could not recall the exercise because he has just started to learn. The Tribunal indicated it appears that the applicant had demonstrated limited knowledge of Falun gong in the course of the interview which could raise doubts about his claims of being a practitioner. The applicant reiterated that Falun gong was just his hobby and that the Chinese authorities cracked down on the practice.  The Tribunal is satisfied that the limited knowledge of Falun Gong demonstrated by the applicant in the course of the interview raises serious doubts about his claims of ever being a practitioner or involved in the practice at any level.

    Departure from China and delay in lodging protection visa

19. The Tribunal asked the applicant if he had any difficulties in departing China and the applicant stated that he did not. The Tribunal indicated to the applicant that independent credible country information about the exit procedures from China would indicate that if a person is of significant adverse interest to the authorities, they would encounter difficulties in leaving China. The Tribunal queried the applicant how he was able to depart given his claims and the applicant stated that the authorities were just suspicious and that he ran away. He stated that the authorities at that time were just investigating and they were not sure about him; he said “anyway I am here now”.

20. The applicant confirmed that he came to Australia in June 2013 on a business visitor visa (subclass 600) which he used to enter and that he applied for a protection visa [in] November 2013.  The Tribunal indicated to the applicant that the delay in lodging the application for a protection visa and the ability to have departed China could raise doubts about his claims and suggest that he is not of adverse interest to the Chinese authorities. The applicant stated that when he came to Australia, he did not know about a protection visa and subsequently heard from a friend. The applicant stated that this was his third occasion in arriving in Australia and that he had a good job in China.

21. Independent information about China indicates that 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”.[1]  DFAT confirmed that Chinese authorities check all out-going passengers against an ‘alert’ list.[2]

    [1] Department of Foreign Affairs and Trade 2008, DFAT Report No. 943 – China: RRT Information Request: CHN34077, 16 December.

    [2] DIAC Country Information Service 2006, Country Information Report No. 06/42 – China: Failed asylum seeker return decision (CISQUEST ref 8639), (sourced from DFAT advice of 7 August 2006), 25 August; DIAC Country Information Service 2006, Country Information Report No. 06/65 – China: Passport and exit arrangements China: Passport and exit arrangements, (sourced from DFAT advice of 8 November 2006), 10 November.

22. The Tribunal has considered the applicant’s explanations about the departure from China and the delay in lodging the protection visa, but the Tribunal is not persuaded.  In consideration of the evidence as a whole, the Tribunal is satisfied that the fact that the applicant departed China lawfully using his own passport indicates that he was of no adverse interest to the Chinese authorities.  This is supported by the delay in lodging the application for a protection visa.

    FINDINGS

23. On the basis is of the available information, given the above concerns and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant was ever a practitioner of Falun gong, or that he was ever involved in Falun gong exercise, or that he saw practitioners in the park in China who told him that the practice was good, or that he saw practitioners in [Suburb 1] who gave any material, or that he ever took any material to China, including but not limited to the Epoch or any other publication, or that copies of any publication that he took were distributed to any parts of China. It follows and for the same reasons, that the Tribunal does not accept that the applicant was ever investigated, or approached by any branch of the Chinese authorities, or that he or his house was ever watched or under surveillance by the Chinese authorities, or that his wife told him that of undercover police presence near his home, or that the authorities went to his house or workplace, or that he was scared that he would be discovered, or that he denied any involvement, or that he felt being followed by anyone, or that he ever unsuccessfully tried to escape. In essence and for the stated reasons the Tribunal does not accept that the applicant has ever suffered any of the claimed harm.

    Is there a real chance of the applicant suffering serious harm on his return to China?

24. The Tribunal discussed with the applicant the four photographs provided by the applicant prior to the commencement of the hearing and asked him about those photographs. The applicant stated that they show that he was involved in Falun gong propaganda in Australia. The Tribunal asked him why he would be involved in such activities and he stated because it was his hobby. The Tribunal indicated to the applicant that if the Tribunal were to conclude that he has engaged in Falun gong activities in Australia for the purpose of strengthening his application for a protection visa, the Tribunal would disregard those activities but not in relation to complementary protection. The applicant stated that he hopes that he would be given some time to remain in Australia until the “heat is off”. He stated that he misses his family in China.

25. In consideration of the evidence as whole and given the Tribunal’s above noted concerns about the applicant’s credibility, the Tribunal finds that the applicant has engaged in Falun gong activities in Australia for the sole purpose of strengthening his protection claims.  Therefore the Tribunal disregards that conduct for the purpose of s.91R(3).  In essence and for the stated reasons, the Tribunal finds that the applicant has engaged in Falun gong related conduct in bad faith and not because he is a genuine practitioner.

1. On the basis of the available information, in consideration of the evidence as a whole, the Tribunal is satisfied that if the applicant were to return to China, he would not engage in Falun gong related activities, not to avoid harm but because he is not and has never been a genuine practitioner.  For the same reasons, the Tribunal is not satisfied that the applicant would be persecuted or perceived to be a practitioner of Falun gong in case of his return to China.

2. In consideration of the evidence as a whole, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future if he were to return to China. The Tribunal has considered the applicant’s claims individually and cumulatively and finds that the applicant does not have a well-founded fear of persecution.

   Is there a real risk of significant harm occurring to the applicant in case of his return to China?

3. The photographs provided by the applicant indicate and the Tribunal accepts that the applicant has engaged in Falun gong activities in Australia as shown in the photographs namely, holding banners.  For the stated reasons, the Tribunal has found that the applicant is not a genuine Falun gong practitioner and that he would not practise Falun gong in China. For the stated reasons, the Tribunal is not satisfied that the applicant has developed a genuine interest or belief in Falun gong through his activities in Australia.  The remaining question is whether there is a real risk that the applicant would suffer significant harm as a result of his Falun gong activities in Australia.  On the basis of the available information, the Tribunal is not satisfied that if the applicant were to return to China, the Chinese authorities would know that he had engaged in Falun gong-related activities, or that he has acquired a profile as a result of those activities which would be of any interest to the Chinese authorities, or that there is a real risk of him suffering significant harm on the basis of his Falun gong-related activities in Australia. 

4. In consideration of the evidence as a whole, on the basis of the available information, the Tribunal finds that there is not a real risk of the applicant suffering significant harm in case of his return to China.  For those reasons, the Tribunal finds that the applicant’s claims do not give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to China, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa).

   CONCLUSIONS

5. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Antoinette Younes
   Senior Member