1414925 (Refugee)

[2015] AATA 3749

1414925 (Refugee) [2015] AATA 3749 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414925

COUNTRY OF REFERENCE:                  China

MEMBER:James Jolliffe

DATE:26 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2015 at 10:28am

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] September 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 19 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the Departmental and Tribunal files relating to the applicant as well as information from a variety of sources.

10. The issues in this case are the applicant claims that she fears harm if she returns to China on the basis that she claims to be a Falun Gong practitioner.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

12. The applicant previously applied to the Refugee Review Tribunal in relation to an earlier protection visa application. The Tribunal in a decision dated 15 January 2010 affirmed the decision not to grant the applicant a protection visa. The applicant in her initial protection Visa application which was made in July 2009 claimed that she feared harm on the basis of the demolition and forfeiture of her home and claimed that there had been inadequate compensation offered. She claimed that she and her husband had been detained and beaten and mistreated in relation to their protests about that issue. She had also claimed during her hearing before the Refugee Review Tribunal in relation to that application that she feared harm if she returned to China on the basis of China’s one child policy. She told the Tribunal in the current proceedings that she was not claiming harm on the basis of those grounds. She was only claiming harm on the basis of her claim that she is a Falun Gong practitioner.

13. In her protection Visa application which was lodged [in] September 2013 the applicant claimed that she was born in Fuqing city in Fujian province in China on [date]. She claimed to be of the Han ethnic group and she gave her religion as Falun Gong. She claimed that she married in June 1990. She claimed not to have any right to enter or reside temporarily or permanently in any other country apart from China. She claimed that she arrived in Australia [in] May 2007 and that she was travelling on a Chinese passport which had been issued to her [in] 2006 and that she currently has a Chinese passport which was issued to her [in] 2013.

14. She claimed that she lived in Fuqing city in Fujian province at one address between December 1990 and May 2007. She claimed that she received her education in China between [year] and [year] and completed Middle School in China. She claimed that she had owned and operated a [shop] and then a [different] shop between 1995 and April 2007 in China and had worked as a [occupation] in a [workplace] in Australia between 2008 and December 2012.

15. The applicant provided a statement in support of her protection Visa. In summary in that statement she referred to her [child] having come to Australia as a student in 2006 and that she joined [him/her] in 2007. She claimed at the end of 2012 that her [child] got very sick and that she “mentally collapsed” because of her [child]’s illness. She referred to the assistance that she received during this period. She said that during this time she met a Falun Gong person and was introduced to Falun Gong and that she discovered that it could improve “the well-being of one’s health and would be very helpful for my [child]”. She claimed that she and her [child] started practising Falun Gong and her [child]’s health improved and she now claims that Falun Gong has become “an inseparable part of our lives”. She claimed that she understood “truthfulness, compassion and tolerance”. She claimed that under her influence her [sibling] had also started practising Falun gong in China. She claimed that her [sibling] told her that she had to be careful about practising Falun Gong in China and practitioners face great danger if they were found out by the government. She claimed her [sibling] persuaded she and her [child] not to return to China and that they dare not return because of their practice of Falun gong. She and her [child] are seeking protection in Australia because of their practice of Fallon gong.

16. The applicant originally claimed protection for herself and her [child] but her [child] withdrew [his/her] claim for protection as a member of the same family unit as [the] mother. [The] written withdrawal is dated [in] April 2014.

17. The applicant was interviewed by a department delegate in relation to her protection Visa application in April 2014. The delegate declined to grant the applicant a protection Visa and was not satisfied that the applicant was entitled to protection under the Refugees convention or under the complementary protection provisions of the Migration Act. A copy of the delegate’s record of decision was provided to the Tribunal with the application for a review. As indicated the delegate made findings in relation to the applicant’s claims under both the Refugees Convention and the Complementary protection provisions. The Tribunal has considered the decision of the Federal circuit Court of Australia in SZVCH.v. Minister for Immigration and Anor (2015) FCCA 2950 and in those circumstances has considered the applicant’s claims in terms of the Refugees Convention and the Complementary protection provisions.

    TRIBUNAL HEARING

18. The applicant appeared before the Tribunal on 19 November 2015 to give evidence and present arguments. The applicant informed the Tribunal that she was not represented by a migration agent. She confirmed her name and personal particulars and details to the Tribunal. The Tribunal told the applicant it was only considering her claims for protection under the complementary protection provisions of the Migration Act and the reasons for that decision however as indicated the Tribunal has considered the applicant’s claims in terms of both the Refugees Convention and the Complementary protection provisions as a result of the decision in SZVCH which has been referred to elsewhere in these reasons. She confirmed that she was still married and that her husband resided in China and told the Tribunal that he works as a [occupation] in China. She told the Tribunal that she and her [child] lived together in Australia. She told the Tribunal that she was unaware that her [child] had withdrawn [his/her] application for protection on the basis of being a member of the same family unit as the applicant. She claimed that neither she or her [child] worked. She said that she speaks to her husband “sometimes” and told the Tribunal that she speaks to him about once a month. She also has siblings in China and her [sibling] calls her from China.

19. The applicant told the Tribunal that her claim for protection was based on her claim that she was a Falun Gong practitioner and that she feared harm if she returned to China on that basis. She told the Tribunal that she was not pursuing the earlier claims to fear harm that she had made in relation to her first protection Visa application. Those claims had been considered by the delegate in relation to her current protection Visa but as indicated were not pursued before the Tribunal.

20. The applicant provided the Tribunal with her Chinese passport and three coloured photos of the applicant which she told the Tribunal were photos of her practising Falun Gong in Australia. Copies were taken of the passport and the photos and placed on the Tribunal file.

21. She told the Tribunal that she feared harm if she returned to China on the basis that she would get caught by the Chinese government because she had practised Falun Gong in Australia and if she continued to practice in China she might be reported to the government. She was unable to tell the Tribunal what she thought would happen to her if she got caught by the government. The Tribunal asked the applicant on a number of occasions what she thought would happen to her in terms of harm if she was detained by the government in China. During the hearing the Tribunal asked the applicant about the claim that she had made in her statement in support of her protection Visa that her life would be in danger and her family would be affected if she returned to China. The applicant did not respond to the Tribunal’s questions about these issues and did not provide the Tribunal with any details in relation to her claim that her life would be in danger other than to claim that the government officials would catch her if she returned to China. During the hearing the applicant told the Tribunal that she was afraid that her husband would “discard” her if she returned. The Tribunal responded by saying that if that occurred that did not involve the Chinese government and the applicant again said she was afraid that she would be caught by the government but provided no details to the Tribunal as to what she thought would happen if she was detained by officials in China. Overall the Tribunal had significant difficulty on occasions in getting any responses from the applicant to some Tribunal questions about her claims. On a number of occasions the applicant did not respond to Tribunal questions. She told the Tribunal that her husband told her on the phone not to return to China but the applicant was vague about the details as to the basis of those conversations and she told the Tribunal that her husband was not happy with the government in China.

22. The Tribunal asked the applicant about her claims involving Falun Gong. She said that she started practising Falun Gong in approximately May 2013 and that this was because she had been told by pedestrians in the streets in [suburb] that Falun Gong could improve a person’s health. She said that her [child] had become ill and initially told the Tribunal that [he/she] was suffering from [illness] but the Tribunal was then told that in fact her [child] had been suffering from [medical condition]. She provided the Tribunal with a medical certificate which she said related to her [child]. That certificate was dated December 2012 and appeared to relate to her [child] being unwell for only one day. However the applicant told the Tribunal that her [child] had been in hospital for one month because of [the] illness and that had been between December and early 2013 and she thought [he/she] had been released from hospital in February 2013.

23. The applicant told the Tribunal that as a result of her [child]’s illness she and [the child] had commenced practising Falun Gong in approximately May 2013. She said she had not practised in China but that her [sibling] had practised in China and she had seen [the sibling] exercising. The Tribunal asked the applicant a number of questions about how she knew how to practice Falun Gong exercises and how she had learnt those exercises as she told the Tribunal she had commenced practising only with her [child]. The Tribunal had significant difficulty in getting details from the applicant about this issue in terms of her knowledge of the exercises. The Tribunal raised its concerns with the applicant about her inability to respond to the Tribunal’s questions about this issue.

24. The applicant told the Tribunal that she had read some of Master Li’s publications. She called them the “grand Art of Falun” and “circulating Falun”(on the basis of the translation by the interpreter). The Tribunal asked her if she was aware of the publications by Master Li of of “Zhuan Falun” and “Falun Gong”. She produced both those publications to the Tribunal and said she bought those publications near [location].

25. The Tribunal noted that the applicant had nominated Falun Gong as her religion in her protection Visa application. The Tribunal asked the applicant about her claim in relation to religion. She said that she regarded Falun Gong as a religion because it is “everywhere around the world”. The Tribunal noted that Master Li had expressly stated in Zhuan Falun that Falun Dafa is not a religion but that he was also quoted as indicating that if somebody wanted to call it a religion that term doesn’t have any bad connotations (see Hongzhi, L. 1998 . Zhuan Falun, English version, Internet version, third translation addition updated March 2000 the universe publishing company, New York,page 62).

26. The Tribunal asked the applicant about the elements of Falun Dafa in terms of the components making up its philosophical background. The applicant did not respond to the Tribunal in relation to this question. The Tribunal asked the applicant if she knew anything about Buddhist and Taoist philosophy in terms of their relationship to Falun Dafa. The applicant said that Taoism is about being a good person and practising a healthy lifestyle and she claimed involved components of Ying and Yang. The applicant said that 13 May was Falun Dafa day and that it was also the birthday of Master Li. The applicant was asked if there was a difference between Falun Gong and Falun Dafa. The applicant had difficulty in responding at all to that question. She told the Tribunal she regarded herself as practising Falun Dafa after the Tribunal asked her about how she described her practice.

27. The applicant was asked if she could name the Falun Gong exercises. She could not respond to the Tribunal’s question however she subsequently named the exercises as pushing the palm, raise your hand, breathe deeply. She could not provide the formal names of the three exercises or of the further two exercises. The Tribunal notes the formal description and name of the exercises (see the Background Paper on Falun Dafa available to the Tribunal and dated December 2012 lists the name of the exercises) as( first set of exercises) “Buddha showing 1000 hands”, the second set of exercises as the” Falun standing stance”, the third set of exercises as “penetrating the two cosmic extremes”, the fourth set of exercises as “Falun heavenly circulation” and the fifth set of exercises as “way of strengthening divine powers”. The Tribunal asked the applicant as to whether she could demonstrate to the Tribunal exercise four. She demonstrated that exercise to the Tribunal by circulating or rotating her hands in front of her body. The Tribunal noted that example appeared to correspond with the figure contained in the Background Paper referred to in terms of demonstrating that exercise. The Tribunal asked the applicant about the primary focus of exercise number five. The applicant said that exercise brings benefits for the body and that if someone was sick it offered help. She said that exercise five was intended to strengthen the physique. She was asked by the Tribunal how a practitioner did that exercise. She said that exercise could be done by a practitioner standing up. The Tribunal notes that the Background Paper referred to in these reasons indicates that exercise is a high-level cultivation practice and is both an exercise and meditation and that practitioners are required to sit with both legs crossed. The applicant's description of exercise five did not indicate to the Tribunal that the applicant had any real knowledge of that exercise or of the philosophy behind that particular exercise.

28. The applicant was asked why she did Falun Gong exercises and she said she started practising because her [child] was sick. She was asked if practitioners in doing the exercises did anything else at the same time. She said that practitioners did not do anything else when exercising. The Tribunal asked the applicant about whether she recited verses when exercising. She said no and did not indicate to the Tribunal that she had any knowledge of the arrangement where each set of exercises has its own verse (the Tribunal notes that the Background Paper referred to indicates that each set of exercises has its own verse that must be recited once, in Chinese, before they are performed. However in 2001, Dr Penny, a research fellow at the Australian National University, advised that many practitioners do not recite the verses as they generally listen to a recorded version- Penny, B.2001, “The past, present and future of Falun Gong-a lecture at the National library of Australia, Canberra). The information referred to in the Background Paper clearly indicates that verses are either recited or  listened to while  exercises are being practised.

1. The Tribunal asked the applicant about where and how often she practised the exercises. The Tribunal referred to the three photos that the applicant had provided to the Tribunal. She said the photos were of her and had been taken by her [child]. She said that once a month she practices in [location] and near a [business] at that location. She said other Falun Gong practitioners also practised there but did not know any of the other people. She said otherwise she practised once a week in her home with her [child]. The applicant was asked what she knew about the concept of the Law Wheel in terms of Falun Gong. The applicant struggled to respond and said that it can help people but provided no details. She was asked about the concept of the installation of the Falun in practitioners. She was unable to respond to the Tribunal in relation to that issue. The Tribunal notes that the Background Paper referred to in these reasons indicates that the Law Wheel (Falun) is a particular teaching of Master Li which distinguishes Falun Dafa from other schools of cultivation. The paper indicates that central to Falun Dafa teachings is that during cultivation a Falun is formed in the lower abdomen of practitioners. The term installation in this context is taken to mean the spiritual installation of a Falun in the abdomen which is then said to develop a physical form. Once installed the Falun rotates 24 hours a day, constantly developing cultivation energy even when practitioners are working or sleeping. The Background  Paper indicates that the Falun is described as both a source of self salvation and a mechanism to save others (see generally Hongzhi, L. 2001,”Falun Gong”, translations of chapters 1, 2 and 3(updated in April 2001), page 19).

2. The applicant was asked about the moral code in Falun Dafa. She struggled to respond to the Tribunal’s question but eventually said that it involved “truthfulness, goodness and beauty”. She said she practised the moral code in everyday life by offering assistance to people on the road in distress. The applicant did not indicate to the Tribunal that she had any detailed familiarity with the moral code of Falun Dafa in terms of truthfulness, benevolence/compassion and forbearance in terms of it being the philosophical basis underpinning  Falun Dafa (see UK Home Office 2002, "Revolution of the wheel-the Falun Gong in China and in exile"). The Tribunal notes that the applicant had referred to the core aspects of the moral code in her statement in support of her protection Visa.

3. .She was asked about her claim in her statement in support of her protection Visa application that she had encouraged her [sibling] to practice Falun Gong. She said that was not correct and that her [sibling] had been practising Falun Gong when she was in China. She was asked if she had been involved in any public demonstrations while she had been in Australia about Falun Gong in terms of anti Falun Gong activities/events in China. She said she had not participated in any demonstrations and neither had her [child]. She also said she had not joined any Falun Dafa Association in Australia. She was asked if she knew why Falun Dafa was banned in China. She said that she knew it was illegal to practice in China. She knew that it had been banned in 1999 and that there had been mass arrests of practitioners and that Master Li had “run away to America”. She was unaware of the existence and role of the 610 office in China that had been formed to eradicate Falun Gong activities (see DFAT thematic report on unregistered religious organisations and other groups in the People’s Republic of China-3 March 2015,page 9). She told the Tribunal that she believed the “supreme leader” and the president’s official residence were involved in a crackdown on practitioners but that she had never heard of the 610 office.

4. The Tribunal asked the applicant what she thought would happen to her if she returned to China. The Tribunal found it difficult to get any response from the applicant in relation to this issue. She eventually told the Tribunal that if anyone reported her she would be in trouble with the government and claimed that she could not survive if she returned to China and “people would look down on her and she would be disrespected”. She told the Tribunal that her [sibling] had not had any difficulties practising Falun Gong in China. She told the Tribunal that [he/she] had been practising for more than 10 years in China. She told the Tribunal that if she returned to China that she would continue to practice Falun Gong but secretly at home. The Tribunal asked the applicant if she had any comments on the delegate’s findings in relation to her protection Visa application. She said that she was just a practitioner of Falun Gong.

5. She told the Tribunal that she did not have any difficulties in obtaining her Chinese passport or in leaving China to come to Australia. She was asked about the conversation that she claimed had occurred with her [sibling], which she had referred to in her statement in support of her protection Visa application, and in which she claimed [he/she] had told her it was dangerous to practice Falun Gong in China. She said that [her sibling] had told her that in a telephone conversation in the last two years. She told the Tribunal that she was afraid she would be caught by the government if she returned in China and she said China was bad because of the Chinese government. She was asked about her claim in her protection Visa application statement (see paragraph 3 of her statement) that she and her [child] had entered a new realm of life through practising Falun Gong. She said that she and her [child] enjoyed better physical health and then said it was “free” to see a doctor (in Australia). She told the Tribunal that she reads the Master Li publications that she had produced to the Tribunal once a week. The Tribunal noted that both books were in very good condition but that some words (in the Mandarin language) were underlined and she said she did the underlining and that those words were something that she learned.

6. The applicant had been asked in the hearing about her claim that she was afraid her husband would “discard” her. She did not provide the Tribunal with any developed or credible evidence about her claim that she feared her husband would discard her. She was asked if that was the reason why she was afraid to return to China. As indicated elsewhere in these reasons she had said that she was afraid that the government would catch her if she returned to China and she confirmed to the Tribunal during the hearing that the basis of her fear about returning to China was her  claim that she was a Falun Gong practitioner. She had claimed in her statement in support of her protection Visa application that her life would be in danger and her family affected if she returned to China but was unable to provide any response or details to the Tribunal in relation to that claim other than to refer to her fears about her husband. She eventually told the Tribunal that her husband apart from being a [occupation] essentially rented a room in an apartment. She claimed that her husband did not earn enough money to support her and that she did not have any money to buy a business and that she would not get a job if she returned to China because of her age.

7. The applicant was asked if she had any further comments or submissions in relation to her claims. The applicant said that the Tribunal had asked her about her personal circumstances if she returned to China. The Tribunal responded by saying that it was trying to ascertain why she feared harm if she returned to China and had asked her questions in the context of her claims. The applicant said that if she returned to China that her life would not be guaranteed or would her physical health and her financial situation could not be guaranteed. Notwithstanding these comments she confirmed to the Tribunal that her fears about returning to China were on the basis of her practice of Falun Gong.

8. The Tribunal referred to information contained in the DFAT country report for China dated March 2015 and to reports that torture remained widespread in China. The country report noted that the majority of reports about torture in relation to complaints received by the United Nations between 2000 and 2005 had come from Falun Gong practitioners. The Tribunal also referred to the DFAT thematic report which has been referred to elsewhere in these reasons and that is dated March 2015. That report refers to Falun Gong in terms of its background and the difficulties facing practitioners. The report notes that credible sources have told the Department that Falun Gong practitioners are generally able to practice privately in their homes relatively free from interference by authorities. The Report also indicates that practitioners regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours. The report indicates that generally speaking the possession of banned materials in relation to Falun Gong would likely attract a fine or a short-term period of administrative detention. The report refers to the role of the 610 office in terms of state enforcement against practitioners. The report also refers in summary to the various punishments that might be imposed on practitioners and the treatment of practitioners after they were released from detention or imprisonment. The report also indicates that practitioners who had overtly engaged in behaviour considered to be politically sensitive would likely find it very difficult to obtain a passport. In summary the report refers to a number of issues in relation to practitioners and including in relation to lawyers who may defend practitioners. In summary the Tribunal notes that the report indicates that Falun Gong practitioners who overtly practice or promote their activities or engage in behaviour considered to be politically sensitive are likely to have difficulties in China and are likely to face real risks of harm in certain circumstances. The risk of harm in terms of punishment, according to the report can vary according to location, the profile of the individual and local political circumstances. The applicant had no comments in relation to the country information referred to by the Tribunal.

9. The Tribunal referred to concerns that it had about the applicant's claims and the credibility of her claims and her evidence. The Tribunal raised its concern that the applicant’s knowledge of Falun Gong did not suggest to the Tribunal that she was a Falun Gong practitioner. The Tribunal had raised that issue with the applicant during the hearing. The applicant had become upset at that issue being raised by the Tribunal during the hearing. The Tribunal gave the applicant a short adjournment and after that adjournment the applicant indicated that she was able to continue with the hearing. The Tribunal also told the applicant that it had found her vague and unresponsive to a number of Tribunal questions about her claims. The Tribunal noted that the applicant claimed that she essentially practised Falun Gong by herself with her [child] and that she had not participated in any public demonstrations about Falun Gong in Australia. The Tribunal noted that she had told the Tribunal that if she returned to China and continued to practice Falun Gong that she would do so  in secret in her home. The Tribunal told the applicant that she did not appear to have a profile in terms of Falun Gong  that would indicate that she would be at a risk of harm if she returned to China on the basis of the country information contained in the DFAT thematic report that had been referred to by the Tribunal. The applicant responded by saying to the Tribunal that if it did not believe her that it “could go ahead and investigate” her. The Tribunal responded by saying that it was dealing with her claim and was not an investigation agency. She told the Tribunal that it would be best if the Tribunal could keep her in Australia.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. On the basis of the materials and information provided to the Department and to the Tribunal the Tribunal accepts that the applicant is a Chinese citizen and that her identity is as she claims it to be. The Tribunal accepts on the basis of the information and materials provided that the applicant does not have a right to enter or reside temporarily or permanently in any other country apart from China. The Tribunal accepts that China is the applicant’s country of nationality for Convention purposes. The Tribunal accepts that China is the applicant’s receiving country for Complementary protection purposes.

11. The Tribunal is not satisfied as to the applicant’s claims that she has a well-founded fear of persecution if she returned to China based on her claims and her evidence to the Tribunal. The Tribunal is also not satisfied as to the applicant’s credibility in relation to some aspects of her evidence and to some aspects of her claims.

12. The applicant claimed to fear harm if she returned to China on the basis of her claim to practice  Falun Gong. She had not practised Falun Gong in China when she had lived there and before she came to Australia. She told the Tribunal that she had commenced practice in Australia in approximately May 2013 and that she had done so because her [child] was ill at the time. The applicant claimed to the Tribunal that she practised exercises with her [child] at home once a week. She told the Tribunal that she read two publications of Master Li once a week. She told the Tribunal that she practised exercises once a month at a gathering spot in [location] but even though other practitioners were present she did not know them and that she practised exercises individually on those occasions. She provided the Tribunal with three coloured photographs in relation to that practice at that location. The applicant did not claim that she had any contact with other practitioners in Sydney. She did not claim to belong to any association in relation to that movement. She told the Tribunal that she had not participated in any public demonstrations or any demonstrations in relation to that movement.

13. As indicated elsewhere in these reasons the applicant gave evidence about her knowledge and practice of Falun Gong/ Falun Dafa. The Tribunal has considered the applicant’s claims and her evidence and its assessment of the applicant's credibility. The Tribunal as indicated elsewhere in these reasons has  concerns about the applicant’s claims and about her evidence. The Tribunal’s overall assessment of the applicant’s evidence is that she has acquired some very limited knowledge of Falun Gong since she has been in Australia. Her knowledge of Falun Gong exercises and of background and philosophical issues about Falun Gong, which has been discussed elsewhere in these reasons, appears to the Tribunal to be very underdeveloped and  very basic and she displayed very little knowledge of wider Falun Gong issues during the Tribunal hearing. The Tribunal has considered whether the extent of the applicant’s knowledge of these issues appears consistent with someone who claims to have had contact with Falun Gong since around May 2013. Her evidence to the Tribunal about Falun Gong, which has been referred to elsewhere in these reasons, is not consistent with her claim that Falun Gong has become an inseparable part of her life. As indicated elsewhere in these reasons the Tribunal found that the applicant did not display an understanding of a number of Falun Gong principles or philosophies or of details surrounding practical and theoretical aspects of the five sets of Falun Gong exercises. She claims to practice once a week with her [child] in her home. The applicant was unable to respond at all to a number of Tribunal questions about her claims in terms of her claims about practising or following Falun Gong. The Tribunal has considered the overall evidence of the applicant and her claims. The Tribunal does not accept that the applicant is a credible witness in relation to her claims. The Tribunal believes that the applicant has exaggerated her claims to be involved with Falun Gong in order to strengthen her protection Visa application.

14. The Tribunal after considering the applicant's evidence and its assessment of her credibility does not accept the applicant’s claims that she occasionally practices in a public space near [location]. The Tribunal has considered the photos provided by the applicant in relation to her claims that she practised in a public space. The Tribunal after having considered those photos does not accept that they overcome or satisfy the Tribunal’s wider concerns about the applicant’s overall evidence and its concerns about her credibility. The Tribunal, after considering the applicant's evidence and its assessment of her credibility, is not prepared to accept the applicant’s claims she became involved in the practice because of family illness issues in relation to her [child]. In that regard the Tribunal notes the medical certificate that she provided in relation to her [child] but that certificate only referred to one day but she claimed that her [child] had been in hospital for one month. The Tribunal is prepared to accept that the applicant's [child] was ill in late December 2012 and in early February 2013 as claimed by the applicant. The Tribunal does not accept after considering the evidence and its assessment of the applicant’s credibility that the applicant and her [child] practice Falun Gong at home once a week and does not accept the applicant's claims that she reads two of Master Li's publications once a week. The Tribunal does not accept the applicant is a Falun Gong practitioner. The Tribunal does not accept that the evidence supports the applicant’s claims that she is a Falun Gong practitioner.

15. The Tribunal notes that the applicant has not worked since 2012. In those circumstances the Tribunal notes that the applicant would have had time to develop a more detailed and in-depth understanding of Falun Gong than she displayed to the Tribunal during the hearing if she had wished to in terms of demonstrating her interest in, and practice of, Falun Gong. The Tribunal believes that it would be reasonable for the Tribunal to expect that even if the applicant had only been practising Falun Gong since May 2013, as she claimed, that in all the circumstances and having regard to the fact that she does not work that she would have been able to provide more credible evidence to the Tribunal about her claims. The evidence about those issues has been referred to elsewhere in these reasons.

16. She told the Tribunal that if she returned to China that she would intend to practice Falun Gong in secret in her home. She told the Tribunal that her [sibling] had practised Falun Gong in China for at least 10 years. She told the Tribunal that she had not practised in China but had observed her [sibling] when [he/she] practised.

17. The Tribunal has considered the applicant’s evidence and her claims. The Tribunal has indicated its concerns about the credibility of the applicant and its concerns about the applicant’s inability to respond to some Tribunal questions about core  Falun Gong philosophies and practices. As indicated the Tribunal believes that the evidence indicates that the applicant has exaggerated her claim to have a deeply developed interest in Falun Gong in order to strengthen her protection Visa claims. The applicant in her statement in support of her protection Visa application said “ Falun Gong has become an inseparable part of our lives”. However her evidence to the Tribunal did not indicate or suggest to the Tribunal that her practice of, and knowledge of, Falun Gong was consistent with somebody who claimed that it was “an inseparable part” of her life. She was not able to explain to the Tribunal the basis for her claim that her practice of Falun Gong had become an inseparable part of her life.

1. As indicated elsewhere in these reasons the applicant was unable to respond to a number of Tribunal questions in relation to her claims. She was unable to tell the Tribunal why she feared harm if she returned to China on the basis of her claims other than to claim that she would be caught by the Chinese government. In many respects the applicant’s evidence to the Tribunal indicated that she was more concerned about economic and financial difficulties that she may face if she returned to China rather than about any claim based around a fear of harm on the basis of her practice of Falun Gong. She told the Tribunal she was concerned that her husband might discard her if she returned to China. As indicated elsewhere in these reasons the applicant was vague in relation to responding to a number of Tribunal questions.

2. The Tribunal has considered the totality of the applicant’s evidence and has considered her claims individually and cumulatively. The Tribunal, as indicated, does not accept that the applicant is a credible witness. The Tribunal, as indicated, finds that the applicant has exaggerated her claims to fear harm on the basis of practising Falun Gong if she returned to China in order to strengthen her protection Visa application. She was not able to tell the Tribunal about the basis for her claim in her statement that her life would be in danger and her family would be affected if she returned to China because of her practice of Falun Gong.

3. The Tribunal has considered the applicant's evidence that she fears harm if she returned to China on the basis that she may be abandoned by her husband and that she may have difficulties in terms of financial, employment and accommodation issues. The Tribunal notes that the applicant claims to have remained married to her husband and that they still continue to have contact in terms of communications since she has been in Australia. She told the Tribunal that she speaks to her husband sometimes but eventually told the Tribunal that she spoke to her husband about once a month. Her evidence was that her husband is employed as a [occupation] and that he rents a room in an apartment in China. The applicant claimed that he was not financially able to support her if she returned to China. She told the Tribunal that her husband was not happy with the Chinese government and had told the applicant not to return to China. The Tribunal after considering the applicant's claims about this issue and her claims about her husband and its assessment of the applicant's credibility is not prepared to accept that the applicant faces a real chance of serious harm on the basis that she fears her  husband will discard her. The evidence indicates that the applicant is still married to her husband and remains in touch with her husband. She claims he has told her not to return to China and she claims he is not happy with the Chinese government. The applicant did not provide any developed or credible evidence in relation to her claim that she fears her  husband may discard her. The applicant’s husband remains employed and he has accommodation.  The evidence before the Tribunal does not indicate any credible reason why the applicant would not live with her husband if she returned to China. The Tribunal notes that the applicant conducted a business when she was in China and had employment in Australia. The Tribunal is not aware of any reason why the applicant would not be able to obtain employment in China even though she claimed that she would have difficulties because of her age. The Tribunal does not accept that any difficulties the applicant may face in obtaining employment or in relation to accommodation would be for any Convention reason and involve systematic and discriminatory conduct.   The Tribunal does not accept that the applicant has a well-founded fear of harm on the basis of these claims.

4. The Tribunal does not accept that the applicant is a  Falun Gong practitioner .The Tribunal in those circumstances does not accept that the applicant if she returned to China would practice Falun Gong secretly in her home as she claimed.

5. As indicated the Tribunal has considered the applicant’s claims, both individually and cumulatively and had regard to the evidence and materials provided to the Tribunal as well as to relevant country information in relation to the applicant’s claims. The Tribunal does not accept having regard to the evidence and relevant country information and including its assessment of the applicant’s credibility that the applicant has a well-founded fear of persecution on the basis of her claims should she return to China either now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant faces a real chance of serious harm if she returned to China either now or in the reasonably forseeable future on the basis of her claims that have been discussed and considered in these reasons.

6. The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that she faces a real risk of significant harm. The Tribunal has considered the applicant's claims and the evidence and its assessment of her credibility and has also considered available and relevant country information in relation to the applicant's claims. The Tribunal has considered the applicant’s claims that she faces harm on the basis of her practice of Falun Gong if she returned to China as well as her claims about her fears about her husband discarding her and her fears about financial, employment and accommodation issues. Those claims and the evidence have been discussed elsewhere in these reasons. The Tribunal does not accept that the evidence indicates or supports that the applicant is a  Falun Gong and faces a real risk of significant harm on that basis. The Tribunal having considered the evidence does not accept the applicant would practice Falun Gong if she returned to China. As indicated elsewhere in these reasons the Tribunal does not accept for the reasons that have been discussed and considered that the applicant’s husband will discard her if she returns to China. She did not provide any credible evidence in relation to that claim.  The Tribunal does not accept that the evidence indicates her husband would discard her or that she would not be able to live with her husband if she returned to China. The applicant’s husband is employed. The Tribunal has considered and discussed the evidence and  applicant’s claims to fear harm in relation to accommodation and employment and financial issues. As indicated the applicant has worked previously in China and Australia. The evidence does not indicate that the applicant would not be able to work but she claimed she may have difficulties in finding employment because of her age. The Tribunal considers that any risks the applicant may face in relation to those issues would be risks faced by the  Chinese population generally and not faced  by the applicant personally.The Tribunal does not accept, and the evidence does not support, the applicant's claims that she faces a real risk of significant harm if she returned to China on the basis of her claims.

7. As indicated the Tribunal has considered the applicant's claims both individually and cumulatively. The Tribunal has considered the applicant's claims in terms of S.36(2)(aa) of the Act. The Tribunal has considered the evidence which has been discussed and the relevant country information which has been discussed together with the Tribunal's assessment of the applicant's credibility. The Tribunal does not accept after having considered those issues that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that the applicant would suffer significant harm on the basis of her claims

   Overall Summary       

8. 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).

9. 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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

    James Jolliffe
    Member