1415435 (Refugee)

[2016] AATA 4566

1415435 (Refugee) [2016] AATA 4566 (17 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415435

COUNTRY OF REFERENCE:                  China

MEMBER:Josephine Kelly

DATE:17 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2016 at 12:57pm

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 claims to be a citizen of China. His protection application was received by the Department [in] December 2013. The delegate refused to grant the visa [in] August 2014.

3. The applicant did not appear at the first hearing listed on 15 December 2015 and the matter was dismissed.  It was reinstated upon a request being made and an explanation for non-appearance given.  The applicant did appear before the Tribunal on 11 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  A post-hearing statement and submission were received.

4. The applicant was represented in relation to the review by his registered migration agent.

   SUMMARY OF 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. 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.

8. 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’).

9. 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 THE CLAIMS AND EVIDENCE AND FINDINGS

   The issues in this case

10. Section 48A 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 made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa 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. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

11. The issue in this case is whether the applicant satisfies the complementary protection criterion.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  

    Background

12. The following findings are not contentious.

13. The applicant was born on[date]. He is a citizen and national of China. He holds a Chinese passport that was issued on [date] and is due to expire on[date] .  His wife is[name] .  She is an Australian citizen. They married in 2012.  His [child], [name] , as born on [date] and continues to reside in China, as does her mother whom the applicant divorced.  The applicant gave all his property to his wife in the property settlement.

14. The applicant has two older married [siblings] who live in Australia. One of his [siblings] arrived in Australia holding a [temporary] visa and successfully claimed protection on the basis of being a Falun Gong practitioner. [Sibling] is an Australian citizen.  The other arrived on the basis of family reunion.  [Their spouse] had obtained protection in Australia.

15. The applicant’s father is deceased.  His mother lives in China with one of his two older married [siblings] who live there.

16. The applicant first arrived in Australia [on a temporary] visa [in] March 2008. He had a PRC passport issued in his name. He was allowed to enter and remain in Australia [in] April 2008.  He lodged his first protection application [in] March 2008. It was refused. The applicant unsuccessfully pursued merits review in the Refugee Review Tribunal but he was successful on appeal and the matter was remitted to the Refugee Review Tribunal which again affirmed the decision to refuse the application.  The applicant sought judicial review.  The Full Federal Court dismissed his case [in] February 2010.

17. He lodged a request for Ministerial intervention [in] March 2010. The Minister decided not to exercise his intervention power. From [in]  July 2010 until [in]  October 2013 the applicant was unlawfully in Australia. [In] October 2013 the applicant lodged a waiver request in relation to a [temporary] visa which was refused [in] December 2013. The applicant lodged his second protection visa application [in] December 2013.

18. The applicant attended a departmental interview [in] August 2014. He provided a copy of the delegate’s decision record to the Tribunal which includes a useful summary of the interview.  A recording of the interview was before the Tribunal.

    The applicant’s claims for protection

19. In his visa application, the applicant claimed to have lived at the one address from January 1998 until March 2008 in,[ Tianjin]. He claimed to have had [a number of years] years of education ending in July [year]  when he finished a course in the Junior College of [Faculty].

20. He claimed to have worked at an [company] from October 1982 until October 1999, earning 30,000 to 40,000 Yuan a month and then became self-employed as an [occupation] until March 2008, earning 2,000 a month.

21. In this application the applicant has relied on his claims in his first application, that is, his statement dated [in]  March 2008 and the two statements from Falun Gong practitioners he provided in support of that application dated [in]  May 2008 and [in]  May 2008.

22. The applicant claimed that he was born in Tianjin City and was an [occupation] in China for 17 years. He suffered persecution from the Chinese Communist Party authorities because practised Falun Gong.  He was dismissed from the factory he worked in October 1999.  After that the authorities did not allow him to work for a state owned company. He had been living a life watched and monitored by the local police – and street committee. After going through much suffering for many years in China, he finally fled China [in] March 2008 and arrived in Australia the following day.

23. The applicant described how he started to practise Falun Gong.  In 1998, he felt tired during his working day. When he completed his work in the evening, he felt pain in [various parts of his body] . He suffered [medical condition] and tended to start arguments with others just over trivialities. His workplace master [Mr A] was a Falun Gong practitioner. He was a kind person and a diligent. He enjoyed peace of mind and was willing to help others. The applicant respected him. When he became aware of the applicant’s situation, he advised him to learn and to practise Falun Gong. He told the applicant to learn “Falun Dafa” and “Zhuan Falun”.

24. After that, each day the applicant left home for work one hour earlier than before. He started learning five sets of Falun Gong exercise from [Mr A] in a local park called[name] , that was on their way to their workplace. At first the applicant was a bit sceptical. After he had practised Falun Gong and studied Dafa for some time, he became interested in Falun Gong.  He experienced improvement in his physical health. He benefited from the moral verities of “Truth, Compassion and Forbearance” advocated by Falun Gong. He started enjoying peace of mind. He was not subject to his [medical condition] as much. He could get along with others. His wife commented that he looked like a different person after he started practising Falun Gong.

25. Since he followed the Falun Gong belief, he got rid of many of his bad habits and behaviours. He started pursuing the high level of morality in accordance with “Truth, Compassion and Forbearance”. He tried to be a good person, to help others and to propagate Falun Gong. People around him became friendly to him. He introduced quite a few to Falun Gong practice.  Those who started Falun Gong practice also managed to get rid of their unhealthy habits or behaviours.

26. The applicant was in total shock from the unexpected storm. On the morning [in] July 1999 he was practising Falun Gong.  A group of uniformed police and plain clothes police suddenly rounded up the practitioners. One of the policemen shouted at the crowd with his fist waving in the air; “Falun Gong is evil cult. You are not allowed to practise any more.  There is a circular from Central Party Committee to declare Falun Gong an unlawful organisation!”   Several practitioners tried to reason with the police. A dozen police charged upon the practitioners and start beating them. The police also drove away the crowd gathering around from curiosity. Some older practitioners had difficulty walking fast and fell over onto the ground. The police came to kick them with their leather shoes. The applicant refused to walk away and continued to reason with the police. The brutal police struck his [body part] with a wooden stick fitted with a metal tip. He suffered a severe wound at that time.  Many kept pleading. He fell to the ground and lost consciousness due to the extreme pain. Fellow practitioners rushed him to the hospital. There is still a visible scar on his “[body part]”.  It is evidence of the persecution against Falun Gong practitioners by CCP authority.

27. [In] July 1999, CCP started the nation-wide campaign to crack down on Falun  Gong and labelled it an “evil cult”. The applicant could not understand why such a good practice should be banned in China. At the time he did not take the risk of practising in public. He put away his Falun Gong books.  He was very depressed. His master, [Mr A], advised him to exercise his forbearance. Together they continued their practice in private. In October of the same year the applicant was dismissed from his workplace. He approached many places to find a job but his Falun Gong practice background deterred all of them from employing him. He was left with no choice but to do “some small business” to make a living.

28. Though Falun Gong practice in public was banned, he had never given up his Falun Gong belief and continued his practice in private with[Mr A].  Unfortunately, [in] May 2004 when [Mr A] and he were doing practice at home, the security personnel from the neighbourhood committee, [name], found their practice. He then made six police come to the scene and they were arrested and taken into police custody in [location].  The applicant was detained for 15 days. While in police custody, the applicant suffered regular physical and verbal abuse from the police. He was ordered to disclose the organiser of Falun Gong activities. He was ordered to sign the pledge to renounce Falun Gong. He had to admit that he was a Falun Gong practitioner and a member of an “evil cult”. He paid the fine of 5,000 Yuan before he was released on bail [in] June 2004. After his release he was requested to report to the local police station each week. Security personnel from the local street committee made regular visits to his home to question his whereabouts. He simply had no personal freedom.

29. As the applicant refused to give up his Falun Gong belief, he became very angry at the crackdown against Falun Gong by the CCP government.  His workplace master [Mr A]refused to sign the pledge to renounce Falun Gong.  As a result he was sent to [a] Re-education-through-labour-camp. His whereabouts are still unknown to others. The applicant fears being persecuted by CCP due to his Falun Gong identity. However, he is unwilling to give up his Falun Gong belief and practice. He went to great lengths to ask his friend to offer money to others so that he could apply for a passport. He was issued an Australian visa in March 2008. He first went to [city] and then left China. He cannot give up his Falun Gong practice. If he returns to China, he will suffer persecution.

30. After arriving in Australia, the applicant immediately contacted the NSW Falun Gong organisation in [suburb]. With the support and help of fellow practitioners, he took an active part in Falun Gong activities. He told the international community the truth about Falun Gong practitioners being persecuted in China. He joined the protest against the atrocities of suppressing Falun Gong by the CCP authority.

31. The applicant asked to be allowed the opportunity for an interview because what he stated was only a brief description of his experience and he would be able to explain his suffering in detail.

    Documents

32. The applicant provided to the Department copies of the following in support of his application:

    ·A handwritten original and translation of a statement dated [in]  May 2008 from[name] , a Falun Gong practitioner, who said that the applicant has been actively involved in Falung Gong practice and Dafa learning since his arrival in Australia and had taken part [in]May in activity to celebrate World Falun Dafa Day which has been reported extensively in the media.  It is very dangerous as the Chinese agents are hiding “at our side”.  He supports the applicant’s claim for protection. He provided a mobile telephone number.

    ·A handwritten original and translation of a statement dated [in]  May 2008 from [name] a Falun Gong practitioner who supports his fellow practitioner and Dafa learner, the applicant, who participated in the World Falun Dafa Day celebration [in] May 2008 by holding the heavy banner in that event.  The writer said that the applicant is kind to his fellow practitioners and is honest and warm-hearted.  The writer provided a mobile telephone number.

33. The applicant provided copies of the following to the Tribunal before the hearing:

    ·An original handwritten statement and translation from [name] dated [in]  December 2014, a coordinator at [suburb] practise site, stating that the applicant has been practising Falun Gong there since March 2008 and has participated in a series of Falun Gong activities, for example the protest in front of the Chinese Embassy in [City 1] [in] June 2008 and the Annual Falun Gong Conference in [city] [in] January 2009.  Recently, in August 2014, he was one of [a number of]Falun Gong practitioners invited to [an Australian government event in [City 1]which raised objections against organ harvesting in China and he participated in the 2014 Annual Falun Dafa Conference.  He has actively taken part in verbal truth clarification and handing out fliers.

    ·Black and white copies of six photographs claimed to show the applicant participating in Falun Gong activities.

34. After the hearing, the Tribunal received a statement from the applicant dated 12 February 2016, a submission made to the Tribunal in relation to the first protection application dated 28 April 2009 and post-hearing submission and attached country information.

    Consideration of the claims and evidence, and findings

35. The Tribunal did not accept that the applicant’s claims for protection were credible for the following reasons.

36. When asked if anything happened from 2004 when he had been detained until 2007, the applicant said the following.  He was under monitoring.  From 2004 to 2005, he had to report to the police station each week. When the police asked if he practised Falun Gong, he said no. He lied to them.  From 2006 to 2007, he was under constant monitoring.  He could be called in by police to the police station at any time.  They told him to be there the same time next week or in two weeks’ time.  After 2007, they thought he had given up and so were loosening their guard a bit.  Sometimes from 2004 to 2007 when he was out in public, he would be asked if he was practising Falun Gong.  He would say that he had stopped.

37. When the Tribunal asked if he had practised Falun Gong after being detained in 2004, the applicant said that he had kept practising everyday by himself and sometimes with others at home.  He dared not practise in a public place.  When the Tribunal asked if the police or security had come to his house to check whether he was practising, the applicant said that they did not come to his place.  He was asked to report to the police station.  When the Tribunal expressed surprise that there had not been random raids to see what he was doing, the applicant’s account changed.  His account was speculative, confused, inconsistent and unpersuasive.

38. Following is a summary of his account.  The police may have come to his place on some rare occasions.  There may have been a raid.  But seldom.  When he heard knocking on the door, he just stopped and pretended to be doing nothing.  He opened the door and just said there was no particular event. Maybe the police were coming to his other residential place to check on him.  At the beginning, he was reporting once a week and did not think there was enough time for the police to raid his place.  When asked how often the police came, he said   rarely, one or two months after he was in detention.  He did not really live at that address right after being in detention.  After that he lived at his mother-in- law’s place.  Actually, they went to his place one or two months after he got out of detention and found out that he was not at home and probably after that they stopped going. Actually, he did chat with the police and told them of his new address.  As to whether they went to the new address, he has no idea. 

1. When the Tribunal commented that if had lived at that new address, he would know if the police had come, the applicant said that he moved to his mother- in-law’s place because it was close to his [child’s] school and there was a different police station, not the police station for his old address which he had to report to. He had no idea whether the police came to his old address. When the incident happened, the applicant had already moved to his mother-in-law’s place.  His hukou was in the place where he had been arrested.

2. When the Tribunal said to the applicant that he had not mentioned before that he had changed his address and had only mentioned it after being asked if there had been raids on his home, the applicant said the following.  They moved to his mother-in-law’s house for his [child’s] schooling.  His ex-wife and [child] lived there and he sometimes lived there and sometimes came back to his place.  They stayed at his mother-in-law’s place only when their [child] was in year 1 to 3.  In years 4 and 5 [child] was more independent and they moved back home. In  2001 or 2002 basically only his former wife and [child] lived at the new address and he travelled between but spent more time at his own place.

3. When the Tribunal commented that there was no history of his going back and forth, the applicant said that he took some of his things that he used daily to his mother-in-law’s but there were a lot of things left at his place, such as furniture.

4. The Tribunal asked the applicant about his [child’s] age and schooling.  The applicant said that his [child] was [age] years old when [they were] in year 1.  [Child] was born on[date].  [Child] started year in September[year] , year 2 in [year]  and year 3 in September[year] .  

5. When his [child] was in years 3 and 4, they started living back at their own home sometimes. When their [child] was in years 1 and 2 they mainly resided with his mother-in-law because they could still help her a bit.  When his [child] was in years 3 and 4 they started living in their own place sometimes and at his mother-in-law’s sometimes.  When his [child] graduated from primary school, they completely moved back to their own place. 

6. The applicant said that while he was staying at his mother-in-law’s, sometimes when he was back in his own place, he ran into the local police officers and told them they lived at her place. While they were living with his mother-in-law, sometimes over the weekend or school holiday, their [child] came back to their own place.

7. The applicant confirmed that they had moved to his mother-in-law’s house before he was detained in 2004.  He said that he practised Falun Gong there sometimes. At the particular time he was detained, he was in his own place.

8. When the Tribunal commented that his evidence about moving between residences only arose in response to a query about raids on his home and he seemed to be trying to overcome a difficulty in his case, the applicant talked about the temporary arrangement and that his hukou remained the same and that his previous legal representative had said that the temporary arrangement was not important.

9. The Tribunal drew the applicant’s attention to the statement he had made in the document setting out his claims, that the security personnel from local street committee made regular visits to his home to question his whereabouts. The applicant said that is what happened after he was in detention.  He was already living with his mother-in-law and did not run into them.  He heard about it from neighbours. 

10. When the Tribunal commented that he had not said that at the hearing, the applicant said that he had mentioned that to his legal representative but was told the information was not significant or relevant and it was not necessary to mention it.   

11. The Tribunal commented that the claim in his statement that he had no personal freedom was not consistent with being able to live with his mother-in-law in another police district.  The applicant said the following. The weekly reporting was tight monitoring.  The security committee may not find him at his home.  He could not stay there all the time.  He had to work and support his whole family.  Sometimes his neighbours told him.  Sometimes the security committee was just doing household registration checks and were not looking for him in particular. There was an occasional home visit.  He did not think to include it.  He was not being evasive.  He missed some details.  It was not important.  He was trying his best to tell the truth.  Later, he said that the police were not concerned with where he actually lived. He was monitored weekly.  When the Tribunal commented that it would have expected a condition to be imposed that he live at his hukou address, the applicant said that he did not completely move out of his hukou area and just travelled between the two addresses.

12. In his statement provided to the Tribunal after the hearing, the applicant quoted from a submission made in relation to his first protection visa application by his previous representative dated [in]  April 2009.  It said that the street committee came to his home a number of times and they were still trying to locate him.  Because his wife had moved to another neighbourhood, the street committee would not persist in finding his wife as she had moved outside their area.  ‘Once they are not living in their area, they are no longer the “problem” of that street committee.  Once his wife had relocated they would then fall under the jurisdiction of another street committee.’ 

13. In the post-hearing submission, the representative stated that the issue of the applicant having two addresses from 2000 to 2006 was dealt with by the previous member at point 8 on page 35 of the decision record (RRT case no. [number]) under the heading of “[name] wife’s relocation”.  It says that the police would be able to locate his wife and continue to harass her once she moved out of their home to a rented room.

14. Neither the applicant’s post-hearing statement nor the representative’s post-hearing submission assist the applicant.  The section of the previous Tribunal decision cited refers to the following matters. The applicant reported to the local street committee and not the police from 2006 to 2007 and the police were not monitoring him during that period.  That was not his evidence before this Tribunal.   A letter from his wife stated that the police had attended at home to check their household registration and ask about his whereabouts. That letter was not before this Tribunal.  The applicant did not claim that such an incident had occurred before this Tribunal and such an event is not consistent with his evidence that his wife was residing with her mother during that time.  A letter from the applicant’s then wife stated that because of his Falun Gong history she would only receive cash compensation when the apartment she rented was demolished for redevelopment and not alternative accommodation which would have been preferable.  No such letter was in evidence before this Tribunal and he gave no such evidence. 

15. The submission dated [in]  April 2009 provided after the hearing does not assist.  It also raises further inconsistencies, such as that he told the departmental interviewer in May 2004 that he had been arrested at the house of another practitioner.

16. As stated at the outset, the above accounts were speculative, confused, inconsistent and unpersuasive.

17. The applicant told the Tribunal that he had first thought about coming to Australia in 2000 but he had too many things to do, parents to support and a child to raise.  He could not leave all that for the one thing he pursued.  He had told the Tribunal that after 2007 they thought he had given up practising and loosened the guard a bit.  He also said that everything seemed normal after his detention in 2004.   He said that he left China in 2008 because they were hosting the Olympic Games in Beijing and he thought that they would loosen border management.  No country information before the Tribunal supports that claim. 

18. The Tribunal does not accept that the applicant’s not seeking to leave China until 2008 is consistent with there being a real risk that he would suffer significant harm from 2000 until he left China in 2008 because of his practice of Falun Gong.  The Tribunal has taken into account the representative’s explanation for the delay set out in the 2009 submission but does not accept it.

19. The Tribunal has taken into account the photographs the applicant provided of his practice and the supporting letters from Falun Gong practitioners but gives them no weight. The evidence only reinforces the Tribunal in finding that he is not a genuine practitioner.  The letter from the coordinator of the Campsie practice site stated that the applicant “has been practising” at that site, but only referred to the applicant’s specific activities on 25 June 2008, 4 January 2009 and August 2014, which is consistent with the applicant attending some activities to get photographs to support his pending visa applications at those times.  He provided no explanation to the Tribunal why there were only photographs around those times and none in between.  The Tribunal has taken into account his explanation at the departmental interview that he had lost photographs on his mobile telephone but does not accept that is a satisfactory explanation.

20. For the above reasons, the Tribunal does not accept that the applicant’s evidence about his protection claims is credible.  It finds that his claims have been fabricated.  It does not accept that the applicant has ever been a Falun Gong practitioner in China or in Australia or will be if he returns to China. It does not accept that any of the consequences of his claimed Falun Gong practice in China occurred.  His limited activities in Australia have been few and far between and solely for the purpose of supporting his applications for a protection visa.  The Tribunal does not accept that Chinese authorities would be aware of those activities because he attended very few and they were years apart.  He does not have a profile within the Falun Gong practising community that would bring him to the attention of Chinese authorities in Australia.       

21. The Tribunal has considered the criterion in s.36(2)(aa). For the reasons given above, the Tribunal is not satisfied that there are 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 will suffer significant harm.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. 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

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

    Josephine Kelly
    Senior Member