1416677 (Refugee)

[2015] AATA 3963

1416677 (Refugee) [2015] AATA 3963 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416677

COUNTRY OF REFERENCE:                  China

MEMBER:Geraldine Hoeben

DATE:22 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2015 at 11:30am

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 is a citizen of China, arrived in Australia [in] December 2013. The applicant applied for a protection visa (PVA) [in] March 2014 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 29 October 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

10. The Tribunal informed the applicant, inter alia, at the commencement of the hearing that, while it had familiarised itself with all the documents and items associated with his case so far, the hearing would be dealt with on a de novo basis, that is, afresh from the beginning. The applicant was put on notice that he should not take for granted anything given or stated earlier in support of his application as being automatically considered by the Tribunal. The Tribunal informed the applicant that he would need to present all the evidence at the hearing that he wished for it to consider in support of his protection visa application (PVA): AG v DPP [2015] NSWCA 218; Fox v Percy 214 CLR 118.

11. The issue in this case is that the applicant claims to be a Falun Gong (FG) practitioner and has been since 1996. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. Claims

    The applicant claims:

    a)That he was imprisoned in 1999 in [a] Detention Centre because of his FG beliefs for sixteen months. The applicant claims that he was released sometime in December 2000;

    b)Between September and November 2002 he was imprisoned for a further two months because of his FG practice: and

    c)He bribed a [policeman] who was a good customer of his business and with whom he had an amicable relationship, with [amount] CYN (approximately [amount] AUS to obtain a passport).

13. Circumstances Surrounding the PVA

    a)Delay in lodging the PVA

    At the start of the hearing the applicant answered questions as to why there was no passport entry stamp into Australia and he replied that he obtained an electronic visa which does not require a stamp. The Tribunal then raised with the applicant why there was a three month delay between entering Australia ([in] December 2013) and lodging his PVA ([in] March 2014) and he replied that he did not know he could. In raising this new practice of entry into Australia with the applicant the Tribunal remarked that as he had sufficient knowledge of Australian visa immigration e-practices, it was difficult to accept his claim of ignorance of Australian immigration practices - especially when considered in terms of how it may affect the genuineness of his PVA. He was asked to comment but there was no reply.

    The Tribunal continued that even if this ignorance might have explained a week or two delay it did explain a three month delay. The applicant was asked to comment. There was no reply.

    b)Non- attendance at the departmental interview [in] September 2014

    The Tribunal raised with the applicant his non-attendance at the departmental interview and he blamed his migration agent (MA) (and authorised recipient) for not letting him know of the interview . The Tribunal reminded the applicant of the form he signed, namely, Advice by a migration agent/exempt person of providing immigration assistance dated [in] September 2014 and which indicated that once he had done that, all Tribunal correspondence would be assumed to be received by him when sent to his MA. He replied that he was busy and too late to attend.

    The Tribunal raised with him its concern regarding this uninterested answer. The Tribunal continued that it raised considerable doubt of a genuine fear of harm in returning to China. The Tribunal further indicated that attending such an interview and completing such a significant step closer to achieving Australia’s protection would have been a compelling and significant priority in his life. He replied again that his MA did not contact him. The Tribunal stated that this was a question aimed at him directly and asked him again to explain why did he not regularly contact his MA to find out the progress of his matter. There was no answer.

    c)Issuing of the applicant’s passport

    At the commencement of the hearing a discussion ensued involving, inter alia, the issuing of the applicant’s passport which was a replacement for his earlier one. In answer to a question regarding the date of re-issue, being [in] 2013, he concurred, and was then asked if he had any difficulties with it being issued to him and he replied that he did not.

    Notwithstanding this statement, towards the end of the hearing, the applicant claimed that he had bribed [a] policeman with [amount] CYN, to obtain his passport. This and his initial statement at hearing and referred to earlier, that he had no difficulties in being re-issued a replacement passport produced a contradiction. It was put to the applicant to explain this inconsistency, but there was no answer despite prompting.

    d)Knowledge of FG

    The applicant was able to name partially the first four of the universal FG exercises. He said the exercises involved the spinning of the wheel and used this phrase on many occasions but did not explain what it meant despite prompting.  He could not identify the last (fifth) exercise (being the meditation exercise). The applicant did not know the purpose of any of the exercises but said FG was based on Buddhism. However, the Tribunal indicated that this was wrong and replied that it was based on a number of existing a number of old Chinese philosophical and physical practices none of which involved Buddhism. In response the applicant proceeded to demonstrate the fifth exercise, which he could not earlier name. He sat in the lotus position stretched his arms outward and inward several times. He was told that stretching his arms outward was not part of this particular exercise, that it was a meditation pose, and he replied that this is what he remembered.

    The applicant claimed that he could not remember details of FG as there were no FG books in 1996. However, the Tribunal put to him that the first book was published in 1992 by Li Honzhi, the founder of FG, and that since that time there were many FG books. It also reminded the applicant that part of the requirements of being a FG practitioner was the reading of FG books to improve one’s mind. It continued that he had been a FG practitioner for almost twenty years and he would have had many opportunities to read many of them. He was asked to name any of the books - however, he could not name any. The Tribunal asked the applicant to continue with his knowledge of FG but he said there was no further information.

    e)Applicant’s FG activities in Australia

    The applicant concurred with the Tribunal that he did not practised FG in Australia. In response as to why, he replied that his various detentions had made him forget his knowledge of it.  The Tribunal indicated its concern as to this answer as he had claimed that he had been an FG practitioner since 1996 and it was difficult to believe that he had forgotten as much as he had claimed. He was asked to further explain but no further details were forthcoming.

    The applicant claimed that the Chinese government sent people out from China to observe those people who practised FG publicly in Australia and it stopped him from practising. The Tribunal countered that it was still possible to practise it privately as this was very much an accepted practice within FG circles. Despite prompting there was no reply.

    f)Claims within China

    The applicant claimed that he had, in 1999, been detained for sixteen months in [a] Detention Centre because of his FG practice. Despite much prompting no supporting details were offered. He could not accurately give the general address of the centre except to say that it was small. He could not remember what he did there, any detention centre specifics or entry/ release dates or months. The Tribunal expressed its concern that it was difficult to accept such lack of detail given that he had spent so much time in the centre. There was no response. There were no documents or notes submitted to support his assertion that he had ever been detained, sentenced or indeed no other documents or details to support this claim at all.

    The Tribunal put it to the applicant that such a lengthy sentence was only reserved for those deeply involved in FG activities and then only suffered by high profile activists. It continued that as his knowledge and low-level practice of FG was by any standards superficial,  it was highly unlikely a person such as himself would have attracted any adverse attention at all. He replied it was not in his imagination.

    The applicant’s second claim was that he was arrested for two months between September and November 2002.  Despite prompting no supporting details, such as indicated above, were provided.

    The Tribunal in response requested that the applicant provide a statutory declaration as to the truth of his two claims to be delivered to the Tribunal on or before 3 November 2015. This declaration was delivered to the Tribunal on 3 November 2015. However, it consisted of no more than the applicant’s personal submission, word for word, and already attached to his PVA. This added nothing to the Tribunal’s deliberations and as such was not helpful.

    The third claim, that relating to the bribe of [amount] CYN to the policeman to obtain a passport, was similarly devoid of any supporting detail – despite prompting from the Tribunal. Additionally, there is also the applicant’s earlier evidence, at the commencement of the hearing, details of which indicate a different version of events which state that he clearly had no difficulties in obtaining his replacement passport. As already stated earlier in this decision, the applicant was asked to explain this inconsistency but there was no response. 

    It was put to the applicant that he had written in his PVA that he had left China legally. The Tribunal continued that if he was of such adverse interest to the PSB , even after so many years, that is, the first claim in 1999 and the second in 2002, there would have been a name-matching check at his point of departure in China. It was put to him that under such circumstances it was unlikely he would have been able to depart the country. In response the applicant claimed that all his detentions had been undertaken by the local police and not the PSB. The Tribunal responded that the local police was still a component of the PSB, albeit at local level, and did he wish to comment but there was no reply.

    g)Findings

    The Tribunal did not find the applicant to be a witness of credit. His answers were general in delivery and amounted to no more than a series of bland contentions.

    His indifferent non-attendance at the departmental interview is not consistent with a genuine fear of harm on return to China.

    His delay in lodging his PVA does not assist the veracity of his claim. Three months delay without a realistic explanation points to a lack of genuine fear of persecution if he was returned to China.

    His conflicting evidence as to how he obtained his passport points to fabrication. On the one hand, the unsubstantiated story of the bribe to obtain a passport weighed negatively against his opening statements that he had no difficulties in obtaining his passport.

    The applicant’s lack of knowledge of FG and non-involvement with any FG practice or activities in Australia does not support his claim that he is an ardent FG practitioner or devoted advocate at the level that would attract the adverse attention of the Chinese authorities. In such circumstances, it is also at odds with his first claim, in particular, that he was imprisoned for such a lengthy period of time.

    The lack of supporting detail of his second claim has relegated it to the level of assertion and nothing more.

    His inability to provide any relevant accompanying details, including, inter alia, detention centre particulars, dates, times, general addresses or sentence/release dates/documents of any sort to support his various claims of detention opinions a lack of authenticity of his PVA.                  

    CONCLUDING PARAGRAPHS

14. For the reasons given above, the Tribunal 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).

15. 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).

16. 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

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

    Geraldine Hoeben
    Member