1417160 (Refugee)

[2016] AATA 3603

1417160 (Refugee) [2016] AATA 3603 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417160

COUNTRY OF REFERENCE:                  China

MEMBER:James Jolliffe

DATE:17 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 March 2016 at 9:09

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

3. The applicant appeared before the Tribunal on 8 March 2016 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 her registered migration agent.

   Relevant 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.

   CLAIMS AND EVIDENCE

10. the Tribunal has before it the Department and Tribunal files relating to the applicant together with information from a variety of sources.

11. The issue in this case is the applicant claims to fear harm if she returned to China on the basis of her involvement with and her practice of Falun Gong.

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

13. The applicant previously applied to the Refugee Review Tribunal in relation to an earlier protection visa application. The Tribunal in a decision dated 27 October 2005 affirmed the decision not to grant the applicant a protection visa. Section 48A of the act imposes a bar on a noncitizen making a further application for a protection visa while in the migration zone in circumstances where the noncitizen 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 protect for a protection visa, in the sense that both applications raised the same essential criterion for the grant of a protection visa. Applying the reasoning in the decision in SZGIZ the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2) (aa) of the Act.

14. The applicant in her protection Visa application which was received in March 2014 claimed that she had been born in [a] province in China on [date]. She claimed her religion was Falun Gong. She claimed that she had married in Australia in [2014]. She claimed that she did not have a right to enter or reside temporarily or permanently in any other country apart from China. She claimed that she had arrived in Australia [in] April 2005 on a [temporary] Visa. She claimed that her current Chinese passport had been issued to her in [2013]. She claimed that she had not lived in any other country apart from China before coming to Australia in 2005. She claimed that she had always lived in [her home] province in China. She claimed that she had been educated for [number] years in China and that she had studied [subject] in China and received a certificate of [this subject] in [year]. She claimed that she had worked in a hospital in China between [that year] and 2004 as [occupation]. In documentation provided in support of her protection Visa application she claimed that she had [children] in China and she had other immediate family also living in China. She provided a copy of her Chinese passport and support letters from Falun Gong practitioners and documentation in relation to a person for whom she was caring together with documentation from medical practitioners about the person for whom she was caring. She also provided documentation in relation to her husband. She had also provided to the Department delegate photos in relation to her claimed Falun Gong practices.

15. The applicant provided a statement dated 28 February 2014 in support of her protection Visa application. In summary in that statement she described herself as [occupation] from China and provided details about her family background in China. She referred to having divorced her husband in China in 2004. She claimed that she had been persecuted physically and mentally in China and had come to Australia to seek protection in 2005. She referred to having been unsuccessful in relation to her first protection Visa application and that she “overstayed here for nine years without notifying the government”. She referred to the difficulties she had faced in leaving her family in China. She referred to her involvement with Falun  Dafa. She claimed that Falun Dafa was her “faith, my soul and spirit. Because of it, I lost my husband and my young lovely [children].” She claimed that she had joined Falun Dafa in 1990 and that she had promoted it for its health values when she was [occupation]. In summary she claimed that in 1992 she had a lot of patients join and follow Falun Dafa. She claimed she came under government pressure as a result of her practice but that after the birth of her children [she] did not have much time to attend activities but between 2001 and 2004 she claimed to have followed her “faith”. However she claimed that government pressure caused her marriage to break up because of her practice of Falun Dafa  and she divorced and came to Australia. She referred to having met two senior citizens when she came to Australia and that she provided care for those people. She referred to having taught patients [about] Falun Gong. She claimed that she practised for health reasons. She referred to having not seen her [children] since she came to Australia and she referred to her second marriage in Australia and that her husband has a medical condition and that she could not wait to obtain a spouse Visa because she would have to return to China and be at risk on that basis. She described herself as “one of the pioneers of Falun Gong warriors”. In summary she claimed that she would be at risk if she returned to China and would be separated from her husband in Australia and that she seeks protection in Australia.

16. The applicant before the Tribunal hearing forwarded photo copies of some photos of her apparently engaged in Falun Gong activities in terms of a demonstration as well as forwarding a list of names of people together with telephone numbers who were said to be fellow Falun Gong practitioners and who the applicant indicated at the Tribunal hearing could be contacted about the applicant's Falun Gong practices. The Tribunal understood from the applicant's evidence at the hearing that the names on the list were or of people whom she claimed to practice with at [suburb] during the last two years. There was also a short statement from one of the people([Mr A]) whose name appeared on the list in terms of his dealings with the applicant in relation to Falun Gong activities. The applicant was interviewed by a Department delegate in relation to her protection Visa application and the delegate declined to grant the applicant a protection Visa.

    Tribunal Hearing

17. The applicant appeared before the Tribunal on 8 March 2016 to give evidence and present arguments. The applicant was not represented at the hearing but indicated that she was still represented by her registered migration agent who was unavailable for the hearing.

18. She produced her Chinese passport and a copy was taken of the biographical details page and placed with the Tribunal papers. She also handed up to the Tribunal a letter from a person who she described as her new Falun Gong tutor. In summary that short letter indicated that the applicant had been met by the [author] of the letter in 2015 and that the applicant had practised in [suburb] at a Falun Gong study group/ meeting place between   April 2015 and 2 February 2016 .The applicant said this person was her tutor but the document says that the author started to practice Falun Gong in 2015. The applicant also produced four coloured photographs of her practising in [suburb] in [City 1] in a park with other Falun Gong practitioners. She told the Tribunal that the photos had been taken in 2015 and that she had asked a passerby to take the photos.

19. The Tribunal told the applicant that it was only assessing her claims for protection under the Complementary protection provisions of the Act and the basis for that decision. She told the Tribunal that the first Department assessment of her claims were "not fair to her" in responding to the Tribunal decision to only assess the current claims on the basis of Complementary protection.

20. She told the Tribunal that she was seeking protection in Australia on the basis that she was a Falun Dafa/Falun Gong practitioner. The Tribunal noted during the course of the hearing that the applicant had previously sought protection on the basis of an actual or imputed political opinion of being opposed to Chinese government policy in relation to Falun Gong practitioners. The applicant said that her current claim was based on her being a Falun Gong practitioner and fearing harm on that basis if she returned to China. She told the Tribunal she had no other claims for protection. She told the Tribunal that she feared if she had to go back to China she would have to give up "her religion" (a reference to Falun Gong) or risk harm. She said she feared harm from the Chinese government and people who might report Falun Gong practitioners for a reward to authorities in China. She told the Tribunal that in her view there was no difference between using the terms Falun Gong or Falun Dafa to describe her practices. She told the Tribunal that if she returned to China she would continue to practice Falun Dafa. She said that Falun Gong was her life and she had a long belief in it. She told the Tribunal that she had been divorced from her first husband in China in 2004. She said she and her husband had been separated for five years before they were divorced. She said she had come to Australia in 2005 on a [temporary] Visa.

21. She told the Tribunal that her current protection Visa application had been completed by an colleague of her current registered migration agent. She said everything in the application was true and correct. She told the Tribunal that she had [children] in China and she stays in touch with them every few months and that she had married an Australian citizen in Australia.

22. The Tribunal asked her about her first protection Visa application and referred to the applicant's first protection Visa application claims and the decision of the Refugee Review Tribunal in relation to her application for a review of the decision by the Department delegate on that occasion. The Tribunal referred to her claims in her first protection Visa application and noted that she had claimed to have become a Falun Gong practitioner in 1998 and that she claimed to have gone to Beijing many times to speak with other practitioners and to arrange demonstrations. The Tribunal noted that she had claimed that she had been involved in promoting Falun Gong at the hospital where she worked as [occupation] and she claimed that as a result of these activities she had been detained by the police and mistreated for 10 days and was then released because there was no evidence against her. She also claimed on that occasion that a friend had signed a guarantee that the applicant would not continue to promote Falun Gong. She claimed after this experience she decided to come to Australia.

23. The Tribunal noted that the delegate had not accepted her claims on that occasion and she had then sought a review before the Refugee Review Tribunal. The Tribunal in a decision of October 2005 referred to a statutory declaration signed by the applicant [in] September 2005. In that declaration the applicant claimed in summary (see pages 5 and 6 of the RRT decision of 27 October 2005) that she had come to Australia to escape persecution by the Chinese authorities due to her political opinions and activities. She claimed in that declaration she had worked as [occupation] at a hospital in [her] province in China and that in that hospital there were a number of special patients who were Falun Gong practitioners and that they were being given [a substance] in drinking water by hospital officials to in effect cause them to be faint and dull and that over a period of time this treatment would cause them to suffer dementia and even sudden death. The applicant claimed that she and a friend discovered this practice and in summary they had decided to secretly change the water for the practitioners in the hospital. The RRT referred to the applicant's claims that she had also been involved in having the families of the patients protest about the treatment in the hospital of the practitioners and that this culminated in a demonstration involving about [number] people and that the police had become involved in suppressing the demonstration. The applicant claimed that she had been the subject of an investigation in relation to these activities by the PSB in China. The applicant claimed that she could not return to China because she was regarded as a person who had been involved in planning and organising anti-government protests and that she would be at risk of harm on that basis. The applicant told the RRT on that occasion that she was not a Falun Gong practitioner but that she had helped Falun Gong people by her activities at the hospital. She claimed to the Tribunal on that occasion that she had never been arrested (see page 15 of the RRT decision). The currently constituted Tribunal notes that the RRT on that occasion(see pages 15 and 16 of the RRT decision) had accepted that the applicant's first registered migration agent who had prepared her first protection Visa application had not correctly represented the applicant's claims.

24. The currently constituted Tribunal referred to the applicant's current claims that she had become a Falun Gong  practitioner in 1990 and that her application did not provide any details about the incidents and claims that she referred to in her first protection Visa application and the claims that she had also made to the RRT. The Tribunal raised the inconsistencies in relation to the applicant's claims that have been referred to. The applicant said that in 1990 she had started to practice Falun Gong in China in essence to improve her health but in 1998 the practice had become very popular and she claimed she was then more confident. The applicant was very vague in attempting to explain to the Tribunal the variations about her claims as to when she first started practising Falun Gong and about her claims in relation to her involvement more generally with the practice. The Tribunal raised its significant concerns about the variations and inconsistencies in relation to the applicant's first protection Visa application and to the claims made in front of the RRT and her current claims for protection. The applicant told the Tribunal that all her claims that she had made throughout the protection Visa process were correct. She told the currently constituted Tribunal that she could not remember telling the RRT that she was not a Falun Gong practitioner. She sought to explain the inconsistencies over the totality of her claims. She told the Tribunal that she had been arrested by the police and detained for 10 days and mistreated. She claimed that had occurred in 2004 when she had been working at the hospital. She said words to the effect in explaining why she had been arrested that she "did a lot of things and government not satisfied".

25. She claimed that the local police and local party leaders had told her to stop her activities at the hospital and she claimed that she had been taken by the police (without any evidence or without a warrant) to the police station where she had been questioned. The Tribunal found it very difficult to get details from the applicant about this claimed incident. The Tribunal asked her for details as to what happened to her at the police station. She claimed that the police had said that she could practice Falun Gong at the police station " to become sober". She claimed the police engaged in psychological torture of her when she was being questioned. The Tribunal asked about any harm that had occurred to her on that occasion. She said that she did not want to answer questions about the incident because she was "a woman and just leave it". The Tribunal asked if she'd been beaten or hurt. She eventually told the Tribunal that she had been pushed both lightly and heavily by the police. She said she denied being a Falun Gong practitioner to the police. She said she was embarrassed to discuss what happened to her on that occasion but eventually said that the police did beat her and had swore at her. She said she was told to put her hands on the wall and she was kicked if she took her hands down. She claimed she was touched inappropriately by male police officers on that occasion. As indicated the Tribunal had very significant difficulty in getting details from the applicant about her claims and it was the Tribunal who asked direct questions of the applicant as to whether she had been punched or kicked or had her hair pulled or struck with implements on that occasion in an effort to try to obtain some details from the applicant in relation to her claims. The applicant appeared very reluctant to provide any information to the Tribunal about this claimed incident. She claimed she was held for 10 days but had not been charged and she implied that her then husband had to provide some financial payment in order to secure her release. She said she was not taken before a court in China in relation to any of her activities.

1. She claimed she had gone to Beijing to organise demonstrations and that she had been working at [a] Hospital as [occupation]. She also claimed that she became involved in organising a demonstration at the hospital in [2005] and several hundred people had protested and that she and a [friend] had organised the demonstration. However when the Tribunal sought more details about her involvement in relation to the demonstration the applicant was vague in responding to Tribunal questions and in providing any details about these claimed activities and events. She then told the Tribunal that there were many occasions when she had been taken away and "brainwashed" while she was working at the hospital. She claimed that these incidents were instigated by leaders at her  workplace(at the hospital) and the Tribunal found it very difficult to get any details from the applicant about this claim. She said in very general terms that the officials had told her "not to  be Falun Gong" and she referred to the "610 office" in raising the brainwashing claim but did not explain to the Tribunal's satisfaction any connection between the 610 office and what she claimed had happened to her in terms of these brainwashing activities. The reference to the "610 office" appeared to be a general reference to Chinese government activities against Falun Gong practitioners. The Tribunal noted that she had not provided any detail about these claims in her current statement in support of her current protection Visa application. She claimed that these brainwashing events happened a lot and then referred to her former husband being a communist party official. She eventually told the Tribunal that she had not placed any [substance] in the drinking water of the patients in the hospital. The Tribunal found it difficult to get information from the applicant as to whether she had been involved in placing [a substance] in the drinking water. The Tribunal told the applicant on a number of occasions during the hearing that it found her to be evasive in dealing with Tribunal questions. The Tribunal told the applicant on a number of occasions that it was forming an adverse view of the applicant's credibility because of her evasiveness on occasions and her vague responses to a number of Tribunal questions.

2. She told the Tribunal that she had been a Falun Gong practitioner in China. The Tribunal asked her about how she practised in China. She said that in the beginning she had not practised on a large scale and she described the beginning as being between 1990 and 1992. She said that she practised the five exercises of Falun Gong in a park during that time and she had done so with other people. She said she was not reading any Falun Gong texts at that time. She said she started practising for health reasons. She said she started reading texts in 1996. At the Tribunal hearing she showed the Tribunal a copy of the text Zhuan Falun(said to be the principal text of Falun Gong according to a background paper dated December 2012 available to the Tribunal on Falun Dafa in China ) that she had brought with her to the Tribunal hearing. She said after 1999 and the commencement of the crackdown on Falun Gong that she had practised at home. She said that in [year] she had her [children] and stopped practising for between 1 and 2 years. She said that when she started practising again she had practised sometimes at home and sometimes in a park in terms of doing exercises and had read the book (a reference to Zhuan Falun).She described Falun Gong as her religion. She said that her husband was not a practitioner but claimed that her [other specified family members] were practitioners. She claimed her [relative] had been arrested and detained for about one year because he was a practitioner. She claimed he was released after [another relative] paid [amount] RMB  for his release in 2006. She said that her family all lived in [the same] province.

3. The Tribunal asked her about her practice of Falun Gong in Australia. The Tribunal found it hard initially to get details from the applicant about her practices between 2005 and 2014. She said that she had been involved in demonstrations and referred to having attended at [a venue] in [City 1] in 2013. She said she had attended at different locations in relation to activities and referred to photos that she had provided to the Department in relation to her activities. The Tribunal referred the applicant to photos on the Department file and some of which appeared to be the same as the photos that she had provided to the Tribunal which showed her practising at a park in [suburb] in 2015. The applicant said the other photos were of  Falun Gong activities she had participated in between 2013 and 2015. The applicant was vague in relation to particular dates in relation to particular photos and the Tribunal believed that apart from the [suburb] photos the other photos appeared to relate to just one event but the applicant claimed that they covered a range of activities between 2013 and 2015. The Tribunal placed the photos back on the Department file.

4. The Tribunal asked her about her Falun Gong activities since 2005. She told the Tribunal that she had attended  Falun Gong conferences and told the Tribunal that she attended the conference in [a city] in 2014 and claimed to have attended a conference in [City 1] in 2015. She said that when she came to Australia in 2005 she had practised the exercises at home and then with a group in a park in 2006 at [another suburb] for two or three months. She said after that she had moved to [another suburb] in [City 1] and practised by herself for about eight months. She then said that she had gone to [suburb] and practiced for about three or four months with a group. She said after that she had practised by herself at home [for] one year. She then claimed that she practised by herself for one year at [suburb] in [City 1]. She then claimed that she became involved with the [suburb] group and had practised with that group for over two years. She said that the first demonstration she had attended was in 2013 and that was in relation to protesting against organ harvesting and that demonstration had been in [City 1]. She said that the first Falun Gong conference she attended was in 2014(in [a city]).

5. The Tribunal asked the applicant a significant number of questions about Falun Gong practices and beliefs. The Tribunal asked her about the foundation of Falun Gong and about the location of Master Li. The Tribunal asked her about the symbol of Falun Dafa /Falun Gong and the applicant drew the symbol for the Tribunal. She was asked about the core principles of the practice and she spoke about truthfulness, compassion and tolerance and also referred to the "miniature of the universe". She referred to the significance of Taoism and Buddhism to Falun Gong. She named the five exercises and was able to demonstrate exercise 5 to the Tribunal. She spoke about the spiritual health concept (Xinxing) in terms of Falun Gong as well as the concept of the Law Wheel and the Moral code of Falun Gong. She said that the practice was banned in China because practitioners had demonstrated too much power and the movement had too many followers and had "shaken" Chinese government policy. The applicant did not refer to the significance of reciting or listening to versus while doing the exercises until the Tribunal raised the issue but then recited the verse for exercise 3 to the Tribunal. She was also vague about the importance of meditation in relation to exercise five and was also vague in discussing the significance of the law wheel to the movement and described it as the "miniature of universe". In discussing the installation of the Falun in practitioners the applicant was initially vague and then told the Tribunal that it was installed in the abdomen and said that it rotated clockwise to absorb energy and anticlockwise to get rid of waste. She said it rotated four times clockwise and four times anticlockwise. The Tribunal said that on the basis of information contained in a background paper available to the Tribunal it rotated nine times each way. The applicant as indicated was vague in relation to certain aspects about the installation of the Falun in practitioners.

6. She was asked about obtaining her passport in China and the Tribunal noted that in information contained in the first protection Visa application the applicant claimed that she had obtained a Chinese passport in 2003. The Tribunal noted that she had renewed the passport in Australia in [2005] and [in] 2013. She said she had not had any difficulties in obtaining the passport in China but had to pay fees in [City 1]. The applicant told the Tribunal she had not had any difficulties in leaving China to come to Australia and said she had come to Australia because she had heard Western countries have religious freedom and the "Security money" that she had to pay in China was cheaper if she was coming to Australia. This appeared to be a reference to something akin to a bond for being able to travel overseas. The Tribunal noted the applicant's claims about the fees she paid in [City 1] to renew her passport and the Tribunal enquired as to whether she was referring to an administrative fee. She claimed she had paid a high price to renew her passport in Australia. She claimed to the Tribunal that she had in essence paid a bribe to get her Chinese passport renewed in Australia. The Tribunal asked her for details in relation to this allegation/claim and the Tribunal had difficulty in obtaining any details. She eventually told the Tribunal that she would not provide any details in relation to the claim but she implied that she had paid someone in an office who was in some way connected to the Chinese consulate but would not provide any details in relation to the claim. The Tribunal said that it was not prepared to accept the claim unless the applicant provided details.

7. She told the Tribunal that she would not return to China but the Tribunal asked her if she did return to China would she practice Falun Gong. She said she would practice but was not sure how she would practice and said that she no longer had a home in China. The Tribunal asked if the applicant would practice in her home or in private if she returned to China but she did not engage with the Tribunal question and simply said that she did not know how she would practice if she returned to China .

8. She confirmed to the Tribunal that the statements and documentation and other information she had provided in support of her current claims in terms of support from other persons related to people she had dealt with in the last two years.

9. The applicant was asked if she had any comments in relation to the delegate's findings in relation to her current protection Visa application. The Tribunal referred the applicant to page 13 of the delegate's record of decision and the delegate's findings about the applicant's claims. The applicant said that the department/delegate had asked for pictures and information about her claims and that she had now provided that information but still believed that she was not being believed. She referred to photos on her mobile phone showing her involvement in a demonstration in [City 1] in 2015. The Tribunal referred to the RRT decision and the summary of the RRT on page 18 of that decision in relation to the applicant's claims. The applicant said that she had sacrificed her marriage and her family in upholding her beliefs (in Falun Gong). The Tribunal noted that the applicant had claimed to fear harm on the basis of political opinion before the RRT but had confirmed to the Tribunal that she was seeking protection on the basis of her practice of Falun Gong.

10. She asked the Tribunal to believe her and said that she would not go back to China because she has her husband here and that she would not give up in relation to her claims.

11. The Tribunal referred to country information contained in the DFAT country report for China dated March 2015 and to the DFAT thematic report dated March 2015 in relation to unregistered religious organisations and other groups in China . The Tribunal noted that the reports indicated the difficulties for Falun Gong practitioners in China. The Country Report referred to torture complaints made to the UN Rapporteur in 2005 from China and noting the majority of complaints were made by Falun Gong practitioners between 2000 and 2005.  The Tribunal referred to the Thematic Report. The report referred to the background of Falun Gong in terms of its blending of Taoism and Buddhism and other influences. The Tribunal noted that the Department had been informed that Falun Gong practitioners are generally able to practice privately in their own homes relatively free from interference by authorities but that practitioners could face official and societal discrimination if they became known to authorities and others. The Tribunal referred to likely punishment for practitioners found in possession of banned Falun Gong materials and noted that the report also referred to likely punishments for practitioners more generally and including criminal punishment and the type of treatment and harm that might come to practitioners who were imprisoned. The Tribunal noted that the report indicated that practitioners who were already known to authorities or who had overtly engaged in behaviour of a particular type would likely find it very difficult to obtain a passport to leave China. The Department assessment is that practitioners and lawyers who defend them can be at risk of official discrimination and violence. The Tribunal noted that the Chinese government had launched a new three-year crackdown against practitioners in 2013.

12. The applicant said she was fearful if she returned to China and that there was no freedom for her in China.

13. The Tribunal referred to information that it had pursuant to s.424AA of the Act. That information was contained in the delegate's record of decision in relation to the applicant's current protection Visa application as well as information contained in the applicant's first protection Visa application. The Tribunal also referred to information contained in the RRT decision dated October 2005. The Tribunal told the applicant that the information would be a reason or part of the reason for affirming the decision under review. The Tribunal said that the information in those documents was relevant in relation to inconsistencies in the applicant's claims as well as in relation to the Tribunal forming an assessment about the applicant's credibility. The Tribunal during the course of the hearing had referred to significant inconsistencies in relation to the applicant's current claims as opposed to the claims that she had made in her first protection Visa application and before the RRT. The Tribunal has referred to those issues elsewhere in these reasons. The Tribunal said that the relevance of the inconsistencies was that the Tribunal may form the view in assessing the inconsistencies that the applicant is not to be believed in relation to her current claims. The applicant was asked if she would like to comment or respond to the information or if she would like additional time to comment or respond to the information. She told the Tribunal that the inconsistencies had happened a long time ago and what is important is what she is claiming now. The Tribunal referred to the significant inconsistencies and noted that the applicant had claimed to the Tribunal that all her claims that she had made were true. The applicant asked for additional time to comment or respond and the Tribunal allowed until 15 March 2016 for that purpose. The Tribunal received documentation on 14 March 2016 from the applicant's registered migration agent. That documentation was material that had already been provided by the applicant at the Tribunal hearing or was available to the Tribunal in terms of having been previously provided. Apart from the formal response to the hearing that was provided that material is referred to elsewhere in these reasons. The documentation was the list of other Falun Gong practitioners and their telephone numbers as well is copied photos of the applicant engaging in Fallon Gong activities and a statement from [Mr A] regarding the applicant's Falun Gong activities. Nothing further was received by the Tribunal.

14. The Tribunal referred to concerns that it had about the applicant's claims and about her evidence. The Tribunal said it was concerned that the applicant had engaged in certain Falun Gong activities in recent years in order to strengthen her protection Visa claims. The Tribunal said it was concerned about the applicant's claims that she was a Falun Gong practitioner. The Tribunal said it was very concerned about the applicant's very vague evidence in relation to some issues and and was very concerned about the significant inconsistencies in relation to the applicant's evidence about her claims. The Tribunal referred to the inconsistencies in the applicant's claims between her first protection Visa application and her current protection Visa claims and the claims that she had made to the RRT. The Tribunal had referred to those issues during the course of the hearing. The Tribunal said that it was concerned about the applicant's overall credibility given the vague evidence and inconsistent claims. The Tribunal noted that the applicant's statement in support of her current application was very general and provided no real details about particular incidents. The Tribunal said that it was concerned about the applicant's evasiveness on occasions and this together with the inconsistencies caused the Tribunal to have doubts about the applicant's claims. The Tribunal also noted the applicant's claims that she had paid a bribe to renew her passport but would not provide the Tribunal with any details. The applicant said that the department had refused to application and she had appealed and she claimed that she had been nervous and may have given some wrong answers. She said that the Falun Gong tutor would not have provided a letter in support nor would other practitioners support her unless she was a serious  Falun Gong practitioner. The Tribunal noted that the references that had been provided were from people with whom the applicant had dealt in the last two years and that those more recent activities suggested that the applicant had engaged in those activities to strengthen her protection Visa application. The applicant said(in essence) that  was not what she was doing in engaging in those activities.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 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 receiving country for Complementary protection purposes.

16. The Tribunal has considered the credibility of the applicant's claims and her evidence in support of those claims. The Tribunal has referred elsewhere in these reasons to the significant inconsistencies between the applicant's claims in terms of her first protection Visa application and the claims that she made to the RRT in 2005 and her current claims for protection. The Tribunal has referred to the RRT accepting that the claims made in the applicant's first protection Visa application had essentially been made by her then registered migration agent. The applicant in appearing before the RRT had essentially changed the basis for her claims in seeking protection. Relevantly in her first protection Visa application she had claimed that she was a Falun Gong practitioner who had commenced practising in 1998. In the claims to the RRT she said that she was not a Falun Gong practitioner but was sympathetic to that movement and was principally concerned about what she claimed was the mistreatment of Falun Gong patients in a hospital where she was working. She had claimed in her first protection Visa application that she been arrested and detained and mistreated by Chinese police and that she had been held for 10 days by the police because she had been involved in promoting Falun Gong in her workplace. Before the RRT she claimed that she had never been arrested in China. The currently constituted Tribunal has referred elsewhere in these reasons to those issues. In her current protection Visa application she provided a very general statement in support that provided very little if any detail about any incidents in which she was involved in China. She claimed that she had been practising Falun Gong since 1990. The Tribunal as indicated elsewhere in these reasons raised the significant inconsistencies with the applicant during the course of the hearing.

1. The applicant told the Tribunal that all her claims throughout her protection Visa application process (in terms of her first application and her second application and before the RRT) were all true. In essence she implied that there were no inconsistencies in relation to any of her claims. She did tell the Tribunal after the Tribunal raised its concerns that any inconsistencies happened a long time ago and what was important was what she was  claiming now. The Tribunal has referred to the difficulties it had in obtaining evidence from the applicant about aspects of her claims. The Tribunal found the applicant to be both vague and evasive on occasions in relation to Tribunal questions and on other occasions the Tribunal did not believe that the applicant engaged with Tribunal questions. There were numerous occasions where the Tribunal had to ask the same question on a number of occasions in order to attempt to obtain an answer or information. The Tribunal has considered the applicant's evidence about her claims to have practised Falun Gong in China and about her claims that she was arrested and mistreated by the police and her claims that she was involved in organising demonstrations in relation to the claimed mistreatment of patients in a hospital in which she worked as [occupation]. The Tribunal notes the materials that the applicant has provided in support of her claims but also notes that much of that material essentially relates to the last two years. That information indicates that the applicant has engaged in a variety of Falun Gong activities mainly in the last two years in Australia. The Tribunal notes that the applicant provided short statements from several people to the Department in support of her application and that that one of those statements came from a [person] who knew the applicant when she was [occupation] in China. That person claimed that the applicant had practiced Falun Gong in China and another statement from a [person] claimed/inferred  that she had also practiced Falun Gong with the applicant in China and that she had been arrested by the police and detained for 15 days. That letter/statement also suggests that a bribe was paid in order to allow the applicant to leave China to come to Australia. The applicant did not make that claim to the Tribunal. Another [person] claimed that she had met the applicant and practiced Falun Gong with her in ”[venue]” in July 2010 and that she and the applicant had also participated in some other Falun Gong activities.

2. The Tribunal after considering the totality of the evidence and the applicant's claims and having regard to the significant inconsistencies in the applicant's claims that have been referred to elsewhere in these reasons does not accept that the applicant is a credible or truthful witness. The Tribunal does not accept that its assessment of the applicant's credibility is because she was nervous or made mistakes . The Tribunal assessment is based on the totality of the evidence and the Tribunal does not accept that the information and documentation that has been referred to and provided to the Tribunal, in relation to the applicant's Falun Gong activities overcomes  the Tribunal's concerns about the applicant's credibility.

3. In those circumstances the Tribunal does not accept that the applicant had difficulties in China with authorities because of any  Falun Gong related activities. The Tribunal does not accept because of the applicant's overall vague and inconsistent evidence and including her varying claims as to when she became involved in Falun Gong and her description of her  Falun Gong practices that she was engaged in any Falun Gong activities in China. The Tribunal notes that the applicant was able to obtain a passport and travel to Australia in 2005 and she was able to travel and obtain a passport without difficulty. She was able to have that passport renewed in Australia. She made some vague claim that suggested that she had paid a bribe in order to have her passport renewed on the last occasion in Australia. However she provided no details to the Tribunal in relation to this claim and in those circumstances the Tribunal does not accept this claim. The Tribunal notes the country information that has been referred to indicates that someone who would have been involved in the claimed Falun Gong or protest  activities of the applicant would have had difficulty in obtaining a passport or be unlikely to have been given a passport.. The Tribunal does not accept because of its assessment of the applicant's credibility and the evidence that the applicant was arrested or detained by the police and mistreated by the police as she claimed. The Tribunal does not accept because of its assessment of the applicant's credibility and the evidence that the applicant was involved in organising demonstrations in relation to the claimed mistreatment of Falun Gong patients in the hospital in which she worked. The Tribunal because of its assessment of the applicant's credibility does not accept the applicant's claims in relation to the treatment of patients at the hospital. The Tribunal does not accept that the applicant lost her job because of her claimed activities in relation to the patients. The Tribunal does not accept that the applicant was or is of any interest to Chinese authorities because of her claimed activities or that she was under investigation by the public security bureau in China. The Tribunal does not accept for the same reasons the applicant's claims that her marriage to her husband ended because of her claimed Falun Gong activities or that she came to Australia to avoid persecution in China because of her claimed Falun Gong activities. The Tribunal has referred to documentation and materials provided by the applicant to the Department and available to the Tribunal. The Tribunal has considered that documentation which has been referred to elsewhere in these reasons. The Tribunal does not accept that documentation and materials and including the statements that have been referred to overcome the Tribunal’s concerns in relation to the applicant's claims that she was engaged in Falun Gong activities in China and as a result had difficulties with Chinese authorities.

4. The Tribunal is prepared to accept that the applicant has engaged in a variety of Falun Gong activities in Australia in the last 2 to 3 years. Her evidence about her practices between 2005 to 2013/2014 indicate that she claimed to have practised by herself for much of that time. The Tribunal notes that the information and materials that she has provided in support of the current application essentially relate to activities over the last two years. The Tribunal notes that one of the statements provided to the Department and which has been referred to elsewhere in these reasons indicated that the applicant had practised with the author of that short statement from July 2010 after meeting the applicant in a small park in “[venue]”. The Tribunal assumes that maybe a reference to “[suburb]”. The applicant told the Tribunal during the hearing that she had practised in [suburb] for the last two years and not from 2010.

5. The Tribunal asked the applicant about whether she belonged to any Falun Dafa organisation in Australia and she referred to having had her passport scanned and gave some vague evidence and said she thought she was a member and had been involved in handing out brochures about a month ago in [suburb] in [City 1]. She said she attended the 2014 conference because she needed to uphold the beliefs. She relied on the letter from the tutor and the photographs that were provided to the Tribunal to indicate that she was involved in Falun Gong activities. She invited the Tribunal to contact people on the list who had given their telephone numbers to support her claims that she was involved in Falun Gong activities. As indicated most of  the information and materials relate to the applicant's activities in the last two years. The Tribunal notes that her current protection Visa application was lodged in March 2014. The Tribunal after considering its assessment of the applicant's credibility and the totality of her claims and the totality of the evidence does not accept the applicant was engaged in any Falun Gong activities between 2005 and 2013 in Australia as she claimed. The Tribunal believes that the evidence indicates that the applicant has engaged in a variety of Falun Gong activities since around 2013 in an effort to strengthen her protection Visa application. The Tribunal accepts that the applicant displayed a good knowledge at the hearing of Falun Gong practices but as indicated believes that the applicant has engaged in the practices for the purpose of strengthening her protection Visa application. The Tribunal has considered the documentation and materials provided by the applicant in relation to her claimed longer term Falun Gong activities but the Tribunal after considering that material and the totality of the evidence does not accept that information and materials and documentation overcomes the Tribunal’s concerns about the applicant’s claims in relation to her longer term involvement with Falun Gong.

6. The Tribunal has considered whether the applicant would engage in Falun Gong activities if she returned to China. The Tribunal has referred to the applicant informing the Tribunal that she would continue to practice if she returned to China but was unsure how she would do so. The Tribunal notes that the applicant in the past has claimed to have practised by herself for significant periods of time. The country information indicates that the Department has been told by credible sources that Falun Gong practitioners are generally able to practice privately in their own homes relatively free from interference by authorities. However practitioners regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours.

7. The Tribunal notes the significant inconsistencies in terms of the applicant's claims before the RRT in 2005 and her current claims. The inconsistencies which have been referred to are such that the Tribunal does not accept that the applicant has any commitment to the practice of Falun Gong that would suggest that she would practice in China in future in any way that would place her at risk in terms of the authorities. As indicated the Tribunal believes she has engaged in activities in Australia with a view to strengthening her protection Visa application. The Tribunal does not accept that the applicant would need to modify her behaviour to avoid harm if she returned to China.

8. The Tribunal has considered whether any of the practices that the applicant has engaged in Australia in relation to Falun Gong would place her at risk if she returned to China. She claims to have attended a conference in 2014 and participated in a protest in [City 1] in 2015. The Tribunal is prepared to accept that she did engage in those activities and that she also has engaged in practising in a park in [suburb]. The evidence before the Tribunal does not indicate or suggest that the applicant has had any high profile or prominent role in relation to Falun Gong activities in Australia or that she has engaged over a long period in demonstrations in Australia in relation to Falun Gong  that would place her at a real risk of significant harm if she were to return to China in terms of her having come to the attention of Chinese authorities because of any Falun Gong activities that she has engaged in, in Australia. In this context the Tribunal notes that Chinese authorities monitor the activities of practitioners overseas and that includes common practitioners and not just prominent leaders (information contained in background paper China-Falun Dafa available to the Tribunal and dated December 2012). The information in the background paper indicates that DFAT advised in September 2006 that the treatment, upon return to China of practitioners was influenced by their profile and their willingness to renounce their beliefs. The information indicates that practitioners who had played an active role in Falun Gong organisations overseas  were more likely to have Chinese authorities take an interest in their case and the information indicates or suggests that if the authorities believed a returnee to be a  Falun Gong member the authorities might interview them and keep them under surveillance or detain them for a short period but if the person was a high profile activist or known for publicly criticising the Chinese leadership it is likely that the authorities would treat them more severely than if a person was a low profile member. The evidence about the applicant’s  Falun Gong activities in Australia does not indicate or suggest to the Tribunal that she would be at a real risk of significant harm on that basis if she returned to China.

9. The applicant was unclear as to whether she belonged to the Falun Dafa Association in Australia. The evidence about her  Falun Gong activities in Australia does not indicate or suggest to the Tribunal that she would be at a real risk of significant harm if she were to return to China.

10. 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 the applicant's credibility and has also considered available and relevant country information in relation to the applicant's claims. The Tribunal accepts that the information contained in the DFAT reports that have been referred to in these reasons provide comparatively recent and credible information relevant to the applicant's claims.

11. The Tribunal has considered the totality of the evidence and has considered the applicant's claims both individually and cumulatively. The Tribunal has considered the definition of significant harm contained in the Act as well as the relevant definitions contained in s.5(1) of the Act. The Tribunal as indicated has also referred to available country information relevant to the applicant's claims .The Tribunal after having considered those issues is not satisfied 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 she will face significant harm because of her claimed practice of Falun Gong.

    Overall Summary

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

13. 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

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

    James Jolliffe
    Member