1414269 (Refugee)

[2015] AATA 3152

1414269 (Refugee) [2015] AATA 3152 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414269

COUNTRY OF REFERENCE:                  China

MEMBER:Antoinette Younes

DATE:10 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2015 at 3:47pm

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 arrived in Australia [in] February 2014 as the holder of a visitor visa.  He applied for a protection visa [in] February 2014 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 8 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.

4. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

   THE LAW

5. 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.

6. 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).

7. 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’).

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In support of the application for a protection visa, the applicant provided a statement dated 22 February 2014 in which he made the following claims:

   a.He was born in Laishui county of Hebei province, PRC. He was persecuted by the Chinese authorities because of his Falungong practice.

   b.From December 2002, he worked as a [occupation] for a [company] in the county. In June 2008, he hurt his waist and was bedridden for a month. His fellow worker and friend recommended the practice of Falungong saying that it was good for one’s health. He had heard about the practice previously and he had a practitioner [friend] but he did not dare to be involved in the practice because it was forbidden by the Chinese authorities.

   c.His waist was very painful and he could no longer stand the pain. He tried to practise Falungong at home and after practising for a month, he experienced a lot of relief; his waist recovered completely two months later. He learnt from books that Falungong promoted “goodness, virtue, tolerance” and encourages people to do good deeds. He put his faith in Falungong and he started to communicate and practise it with his friends and other practitioners.

   d.[In] September 2012, he went to [his friend’s] home to practise and there were 11 of them. About an hour after his arrival, the door was kicked suddenly and policemen came. They confiscated all Falungong books and arrested all of them. Each of them was sentenced to a month detention. He was ill-treated and subjected to re-education whilst he was in detention. They had to sign their names on a letter to guarantee that they would never practise Falungong again.

   e.After he was released, he was required to report to the police once a month and he was also followed by the police. He realised that the police were monitoring him. He felt angry about losing his freedom and he was afraid of attending any further Falungong gatherings. So he applied for the tourist visa to Australia.

10. The applicant was interviewed by the Department [in] July 2014. During the interview, the applicant made the following claims:

    a.He does not believe in Falungong and he does not understand or agree with Falungong doctrines. He chose to do the exercises in order to improve his health and so that his friends would associate with him. He does meditation and not Falungong exercises which he does not know. He does not read or listen to any Falungong material.

    b.He stayed in detention for a month so his friends would not think he gave in too easily. The Chinese authorities believe he is a Falungong practitioner and they sometimes monitored him when he was leaving home.  He had no trouble in departing China. He paid a visa agency extra money in order to get his visa. He knew little about applying for a protection visa in China but he met a lot of Chinese people in Australia who told him about how to apply.

    c.He believes that if he were to return to China, he would be monitored by the Chinese authority and be forced to live without dignity and human rights.

11. In support of the application for review, the applicant provided a copy of the delegate’s decision record.

    FINDINGS & REASONS

    Country of nationality

12. 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.

13. 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 claims in relation to Falun Gong practice

14. The applicant confirmed that the signature on the statement provided in support of the application for a protection visa is his signature. He confirmed that the application and the statement were prepared by his migration agent who had explained the contents prior to him signing.

15. The Tribunal asked the applicant about his claim of being a Falungong practitioner. The applicant stated that he does not believe in Falungong. When asked about his Falungong practice in China, the applicant stated that he practised for a “certain period” with his [friend]. He stated that he had back pain for which he was hospitalised and that his friend advised him to practise.  As he did not want to offend his friend, he agreed to try. The Tribunal asked him how often he practised and the applicant stated that it was “once in a while”. He said he was still working and did not have time. The applicant subsequently stated that “actually not too frequently….. Only one time”. 

16. In relation to questions about his claimed arrest, the applicant stated that [in] September 2012, he and others were arrested and detained for about a month. He stated that subsequent to his release, whenever there was a “major convention, or important events”, he was required to go to the police station. The applicant subsequently said that he was required to report on a monthly basis and that he was monitored. The Tribunal asked the applicant about specific incidents relating to when he was required to report and the applicant stated that he was required to report during major events. The applicant was asked to provide further details about those events and he did not answer; he stated that he was required to report whenever there was a “major conference”.

17. The Tribunal noted that the claim that he was required to report whenever there was a major convention or an important event was not made in the application for a protection visa or the statement provided in support. The Tribunal indicated that this could raise doubts about the veracity of his claims and the applicant stated that he should have mentioned those claims.

18. The Tribunal asked the applicant if he considers himself to be a Falungong practitioner and the applicant stated that he does not consider himself to be a practitioner and that he does not believe in the practice. The Tribunal asked him if he practices Falungong and the applicant stated that he does not. He said when he was sick, he meditated which helped him with his pain. The applicant confirmed that he does not read or listen to any Falungong material. He confirmed that he does not know the exercises.

19. The Tribunal asked the applicant if he had any difficulties in departing China and the applicant did not answer the question; he replied by saying that the district commission has had a psychological impact on him and that he cannot live a normal life. The Tribunal asked him again if he had any difficulties in leaving China and he stated that he left China through connection. The Tribunal asked him to clarify and he stated that he had spent money on an agent. The Tribunal indicated to the applicant that independent country information relating to exit procedures from China indicates that if a person is of significant adverse interest to the Chinese authorities, they could encounter difficulties in departing China and that if he did not have any difficulties, this could raise doubts about the veracity of his claims. The applicant replied that the local police controlled him. He said if he went to Beijing or left his residence, he had to report.

20. The Tribunal noted that the applicant’s written claims appear to be significantly different from his oral evidence, such as being persecuted because of his Falungong practice, learning from books that Falungong promoted “goodness, virtue, tolerance”, communicating and practising with friends and other practitioners, which could raise doubts about his claims. The applicant stated that he does not believe in Falungong and that the local police had his name and accused him of believing in Falungong.

21. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant’s oral evidence is significantly different from his written claims; his written claims are essentially based on him practising Falungong. In the application for a protection visa, the applicant frequently refers to his Falungong practice. He describes his practice in a manner that suggests that he practised and believed in Falungong. However, in the course of the hearing and in contrast with his written claims, the applicant told the Tribunal that he was involved in meditation and not Falungong practice. He made new claims in the course of the hearing such as being required to report whenever there was a major convention or during important events and his explanation that he should have mentioned those claims, is not convincing. The Tribunal asked the applicant about the details of those requests to report and the applicant’s responses were vague and general. On his own evidence he does not consider himself to be a Falungong a practitioner.

22. On the basis is of the available information, given those concerns and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant was ever introduced to the practice of Falungong by any one, or that he ever practised Falungong, or that he was ever involved in Falungong exercise, or that he had ever learnt from any Falungong book promoting “goodness, virtue, tolerance”, or that he has ever put his faith in Falungong, or that he communicated with, or practised with any Falungong practitioners. It follows that and for the same reasons, the Tribunal does not accept that the applicant was ever detained or arrested with anyone by the Chinese authorities, or that he was ever ill-treated by the Chinese authorities, or that he was ever subjected to re-education, or that he has ever had to sign his name to guarantee that he would never practise Falungong again, or that after his release he was required to report to the police at any stage, or that he was ever followed by the police, or that he was ever monitored by the police, or that he was angry about losing his freedom as claimed, or that he was ever afraid of attending any further Falungong gatherings, or that he had to pay any money as claimed or bribery in order to be able to depart China, or that if he were to return to China, he would be monitored by the Chinese authorities, or that he would be forced to live without dignity or human rights. 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?

23. 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 Falungong related activities, not to avoid harm but because he is not and has never been a genuine practitioner. 

24. For the same reasons, the Tribunal is not satisfied that the applicant would be perceived to be a practitioner of Falungong in case of his return to China.

25. 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.

26. 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?

27. In consideration of the evidence as a whole and on the basis of the available information, the Tribunal is satisfied 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

28. 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).

29. 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).

30. 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

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

    Antoinette Younes
    Senior Member