1419093 (Refugee)

[2015] AATA 3964

1419093 (Refugee) [2015] AATA 3964 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419093

COUNTRY OF REFERENCE:                  China

MEMBER:Penelope Hunter

DATE:22 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 22 December 2015 at 2:25pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are husband and wife, aged [age] and [age] respectively, who claim to be citizens of China. [The applicant wife] is the primary applicant. The applicant wife and [the applicant husband] arrived in Australia [in] December 2013. The applicants applied to the Department of Immigration and Boarder Protection (the Department) for the visas [in] March 2014 on the basis that the applicant wife was a Falun Gong practitioner, and for this reason feared persecution in China.

3. A delegate of the Department refused to grant the visas [in] October 2014.

4. On 21 November 2014, the Tribunal received an application for review.

   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. Section 36(2)(b) provides as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen (i) to whom Australia has protection obligations under the Convention and (ii) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations) for the purposes of the definition. The expression is defined in r1.12 of the Regulations to include a spouse.

   Ministerial Direction

10. 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.

11. Amongst other things, the Tribunal has taken into account the DFAT Country Report on the People’s Republic of China, dated 3 March 2015, and DFAT Report – Unregistered Religious Organisations, 3 March 2015 but has not relied on any specific information in those reports for the purposes of this decision in the present case.

    CLAIMS AND EVIDENCE

12. The Tribunal has before it the file in relation to the applicants. The Tribunal also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

13. The applicants engaged a migration agent to assist them with their application. In her application for the Protection visa the applicant wife has set out that she was born on [date] in [Hebei] District, China. She speaks, read and writes Mandarin. She had [number] years education in China and has had various [employment]. She married the applicant husband in 1987 and has a [child], born in [year]. Her [child] resides in China. The applicant wife arrived in Australia [in] December 2013, on a passport issued [in] 2012 in her name. She entered Australia [on] a visa that was valid until [date] March 2014.

14. The applicant husband was born on [date], also in [Hebei] District, China. He speaks, reads and writes Mandarin and had [number] years education.

15. The applicant wife provided a statement to the Department in support of their application for Protection visas. The following is a summary of the applicant wife’s written claims;

    • She is a Falun Gong practitioner and suffered persecution in China.
    • She worked in a factory and from 1996, many co-workers at the factory started to practice Falun Gong. She practiced with them, 2 to 3 times a week when she stayed in the factory accommodation. Her health improved a lot. 
    • In 1999, their factory manager banned the practice of Falun Gong at the factory. The factory security came to every room to ask if anyone practiced Falun Gong. The applicant wife said that she practiced. With other workers she also talked with the factory managers and directors, and told them that Falun Gong was good for their health. They also wrote letters to the factory directors. They hoped that the factory would allow them to practice Falun Gong. Many workers signed the letters and the applicant wife was one of them.
    • In the end of August 1999, people who signed the letters were asked to go to the directors’
    •  meeting room. There were more than 10 people. The police came and they were taken to the police station. On the second day she was sent to [a] Female Labour Camp. The applicant wife suffered different types of inhuman tortures. Falun Gong practitioners were kept separate, they could not talk to each other. Prison guards hinted to other prisoners to torture her. One prisoner, who was arrested because of stealing, tortured her and was given credit and early release.
    • The applicant wife was released in December 2000. She stayed at home for more than a year to recover. During that period she went to [the] police Bauru every month. The police officer in charge of her case was [name deleted]. In February 2002 after Chinese New Year she bribed [the officer] with [amount] RMB and she did not need to go to the police station anymore.
    • In March 2002 she found a job in [a workplace] near her home. She worked in [occupation]. In August 2007, the [police] station called her and asked her to go there. She was arrested and placed in a detention centre. She was forced to study anti-Falun Gong materials. She was told the police could arrest her at any time as she was a Falun Gong practitioner. Other Falun Gong practitioners told her that every police station has a target for arresting a certain number of Falun Gong practitioners. She was detained for 3 months at that time. In July 2008 she was detained for another 3 months.
    • In May 2009, the applicant wife found a job in [a] shopping mall. She was afraid of getting arrested and losing her job again. To secure her job, her husband bribed a manager in [the] police station with the help of a friend. They gave him [amount] RMB but the applicant was arrested again in 2010 for one month. It was lucky that she did not lose her job this time.
    • In May 2012, the applicant wife gave the police officer [amount] RMB to apply for a passport. She has been planning to leave China since that time.

16. The applicants were invited to attend an interview with a delegate from the Department [in] October 2014. The applicants did not attend, and the delegate was not satisfied that the applicant wife’s claims were credible and refused the application.

    Application for Review

17. The Tribunal conducted a hearing on 12 October 2015. Both applicants attended, and gave evidence and presented arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants’ migration agent did not attend.  At the hearing the Tribunal explored with the applicant’s their claims, the applicant wife’s knowledge of Falun Gong, their experiences in China and Australia. Where relevant the Tribunal has set out their evidence below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of Nationality

18. The applicants have consistently claimed that they are citizens of China, they have provided to the Tribunal and the Department a copy of their passports. There is no contrary information concerning their identity or nationality. The Tribunal finds that China is their country reference for the purposes of assessing their claims.

    Third Party Protection

19. There is nothing in the evidence to suggest that the applicants have the right to enter and reside in any country other than China. The Tribunal therefore finds that they are excluded from Australia’s protection by s.36(3) of the Act. The Tribunal also finds that China is the applicants’ receiving country for the purposes of s.36(2)(aa).

    Claims

20. Pursuant to s.5AAA of the Act it is the responsibility of an applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist an applicant in establishing, his or her claims.

21. The Tribunal has concluded that the application should be affirmed. The Tribunal has found the applicants not to be credible in matters central to, and related to their claims. The Tribunal had a number of concerns about the applicant wife’s claim to be a Falun Gong practitioner and their evidence as to past events in China, as set out below. Due to the inconsistencies, omission and overall unsatisfactory nature of their evidence the Tribunal did not find the applicants to be credible or reliable witnesses. The Tribunal put the inconsistencies orally to the applicants pursuant to s.424AA of the Act,they did not seek an extension of time to respond. The Tribunal also put and then further matters to them in writing pursuant to S.424A of the Act on 28 October 2014, the applicants did not respond to this request.

22. The applicants have claimed that they suffer from poor memory due to their years of previous work in a [factory]. The Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. However in their written claims the applicant wife has set precise details of her experiences in China and periods of detention, she has provided dates, named police officers and details of bribes paid. In their evidence to the Tribunal, neither applicant impressed the Tribunal as having considerable knowledge of their written claims. No independent evidence has been provided as to any memory deficits for either applicant. Although questioned, they did not report any medical diagnosis or treatment for a memory condition. They were able to answer some questions as to other matters clearly and without hesitation. The Tribunal is not satisfied that the claimed mental memory deficits of either applicant affected their ability to present evidence relating the applicant wife’s claims or is a reason why there were not consistent as to key aspects of their written claims. The Tribunal therefore does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicants were not reliable witnesses.

    Applicant Wife’s claims to be a Falun Gong practitioner

23. The applicant wife claimed to have been attracted to the practice of Falun Gong as colleagues said it was good for her health. She did not recount to the Tribunal any spiritual connection with the practice, rather it meant she could strengthen her body. When asked by the Tribunal what it meant to be a Falun Gong practitioner, she claimed it meant that you had to exercise. The applicant knew that Master Li was the founder of Falun Gong, however told the Tribunal she just had a rough idea of the philosophy behind the practice. She claimed to have read Zhuan Falun and when asked about it could only recall that in it Master Li tells practitioners how to exercise. She claimed that she knew all five the exercises and had practiced consistently since 1996, initially at work, the following 1999 at home using the computer. When asked about the exercises, the applicant wife correctly identified the third exercise as ‘Penetrating the Two Cosmic Extremes’, when asked to demonstrate the exercise the applicant just raised her left hand above her head and back to her side without moving from her chair. There was no thoughtful engagement in the exercise, she did not know how many times the exercise should be repeated and when asked the meaning of the exercise she claimed it was to exercise the body.   The five sets of exercises are in turn broken down into specific physical movements, which are detailed in Master Li’s book, Falun Gong.[1] According to Master Li, these sets of exercises form the physical component of Falun Dafa’s ‘mind-body cultivation system’.[2] The importance of the exercises is underscored by Master Li, who notes that they are required to increase a persons’ gong (cultivation energy).[3] According to Master Li, the third exercise, which is a set of exercises not one movement, is designed to ‘channel the cosmos energy and mixes it with the energy inside one’s body’, with the purpose of enabling a practitioner to ‘purify’ their body in a very short time.[4]  The Law Wheel (Falun) is a particular teaching of Master Li which distinguishes Falun Gong from other schools of cultivation.[5]  The applicant did not know where the falun was carried in the body (the abdomen), or about karma or cultivating her practice to a higher level. Overall the applicant wife did not demonstrate, based on her on claims about her past activities and commitment to the practice since 1996, that she was a committed or experienced Falun Gong practitioner.

    [1] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1,2 and 3 (Updated in April 2001), pp. 52-86 < > Accessed 15 June 2005

    [2] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1,2 and 3 (Updated in April 2001), p. 47 < > Accessed 15 June 2005

    [3] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1,2 and 3 (Updated in April 2001), p. 47 < Accessed 15 June 2005

    [4] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1,2 and 3 (Updated in April 2001), p. 61 < > Accessed 15 June 2005

    [5] Falun Dafa Organisation (undated), The Falun,< Accessed 14 November 2011 

24. Additionally, the applicant husband claimed that the wife rarely practiced Falun Gong in Australia as she was working. Sometimes the applicant wife would just go in to the city but he did not have any idea where she went. The applicant wife claimed that she would go to a small park near [location] every Sunday. She did not know the name of the park. She did not know the names of any of her co-practitioner. It was just several old women and old men. When she sees them she called them grandmother and grandfather. In addition to only demonstrating a superficial knowledge of the practice she did not impress the Tribunal as a genuine Falun Gong practitioner. Furthermore due to the conflicting evidence of the applicants, the applicant wife’s vague and evasive information about her current practice and the lack of any corroborating evidence, the Tribunal is not satisfied that the applicant wife has engaged in the practice of Falun Gong in Australia.

    Applicant Wife’s claims about treatment in China.

25. Consistent with her written claims the applicant wife and applicant husband gave separate evidence that the applicant wife started the practice of Falun Gong when introduced to it by co-workers at the [factory]. Thereafter their evidence varied and differed greatly from the applicant wife’s written claims. The applicant wife claimed that in 1999, together with 10 other work colleagues she was arrested by the PSB, and then spent 3 months in [a] Women’s Jail. When the applicant wife asked about her treatment in jail and she claimed that they would not let her sleep. The applicant husband could not remember how long the applicant wife was in jail. However he claimed to have paid money to have her released. The applicant wife was unable to satisfactorily explain why she had stated in her written claims that she had been imprisoned for a 1 year and 4 months. When asked to explain the alleged torture from other prisoners as set out in her written claims the applicant wife claimed that what she had meant was that the person who had committed the theft had tried to stop her from sleeping.

26. After she was released from jail in 1999, the applicant told the Tribunal that she returned to work at the [factory]. But she did not stay for long, as the business was not doing well. In 2000, she told the Tribunal that she went to work for [workplace]. When asked why she had stated in her written claims that she was unable to work for a year as she needed to recover, she responded that although she went back to the [factory] she just had a look. But did not really go back to work.

27. In her written claims the applicant wife stated that following her release from detention she was to report to [the] police Bauru every month, until February 2002 when she bribed [the officer] with 5000 RMB and she then did not need to go to the police station anymore. In her evidence to the Tribunal the applicant wife did not advise of any obligation to report. When this omission was put to her, she failed to satisfactorily explain why she had not recounted this experience initially and claimed that sometimes the police just came and asked her about her situation.

1. In her written statement the applicant wife had claimed she was detained on 3 further occasions. In August 2007 for 3 months, in July 2008 for 3 months and then again in 2010 for a month. At the hearing the applicant wife was asked about any further trouble she had with the authorities after 1999. She claimed that once when she was working at [workplace] the police came to her asked whether she was still practicing Falun Gong. She said no, but they still came back so she paid them [amount] RMB and the [amount] RMB. They did not stop so around 2005 so told the Tribunal that she quit this job. When she started a new job [in] 2007 the police would again come and ask whether she still practiced. This time she also paid them money, possibly [amount] RMB. In contrast, the applicant husband told the Tribunal that rather than police officers visiting the applicant wife at work, the local police station would often call her in and she could not refuse. The applicant husband claimed that at times she would be sent away for study but he could not recall where, when or the exact number of times that this happened to the applicant wife. He later claimed that in China the PSB got his wife in often in to trouble and every 3 to 5 days they came to take her away.

2. When asked to explain why she did not initially mention being detained on any occasion other than in 1999, the applicant wife claimed that sometimes she could not remember. Having been reminded by the Tribunal, the applicant wife was again asked when she had been detained. She claimed that maybe it happened in the year 2000 for about 3 or 4 months.

3. Overall, the applicants did not give consistent evidence with their written claims or with each other as to the experiences of the applicant wife in China. Due to these inconsistencies the Tribunal was of the opinion that the applicants had manufactured much of their claims.

4. The Tribunal has given the applicants the benefit of the doubt and accepts that the applicant wife may have practiced Falun Gong with work colleagues in 1999. It is also accepted that she may have agitated with co-workers to be allowed to continue the practice at work and  been detained briefly, for perhaps a few days,  by the police at this time. However the Tribunal does not accept that she was ever imprisoned or detained for 3 months or 16 months. The evidence before the Tribunal was not consistent to when, where or how long the applicant wife was detained. She could recount to the Tribunal little of the actual experience, leading the Tribunal to conclude that she had not ever been imprisoned. Due to the conflicting nature of the applicant wife’s evidence it is not accepted that she ever experienced torture when detained in 1999 or that she had any long term consequences that prevented her from returning to her employment. As set out above the Tribunal does not accept that the applicant wife is a committed Falun Gong practitioner and finds that she abandoned the practice soon after 1999. The Tribunal has considered whether the applicant wife  modified her conduct to avoid persecution in China and is not satisfied that this was the case. She did not demonstrate to the Tribunal even basic knowledge of the teaching of Master Li, neither did she describe any spiritual or philosophical connection to the practice. The Tribunal finds that the applicant wife lost interest when she could no longer exercise with colleagues and the Tribunal is not satisfied that the applicant wife continued to practice Falun Gong in China after her initial detention. 

5. As the applicant wife could not initially recall any incident, and the applicant husband was also unable to provide any details to the Tribunal, it is not accepted that the applicant wife was ever detained at any other time in China due to her being suspected of being a Falun Gong practitioner. Due to the unsatisfactory nature of the evidence of the applicant wife and applicant husband it is not accepted that the wife had to report to the police monthly until February 2002 or that any bribes were ever paid to the authorities. The Tribunal does accept that the applicant wife was occasionally questioned by police as to whether she was a Falun Gong practitioner. However, due to the conflicting evidence from the applicants and in the applicant wife’s written statement, the Tribunal does not accept that bribes were paid at any time to the police so the applicant wife could avoid harm. The Tribunal is also not satisfied that the applicant wife was regularly or persistently questioned by the police. The Tribunal is not satisfied that the applicant wife was ever questioned after she changed her employment in 2005. While occasional questioning by police can amount to harm, the Tribunal is not satisfied on the evidence before it, that the applicant was ever subject to serious or significant harm. The Tribunal finds that she was able to obtain employment and earn money to pay for her daily necessities and fund later overseas travel. The Tribunal is not satisfied that the applicant wife was discriminated in her employment or that she was denied the capacity to subsist.

   Claims about departure from China

6. When questioned by the Tribunal, the applicant wife claimed that she had no difficulty obtaining a passport or leaving from or returning to China on several overseas trips with the applicant husband prior to arriving in Australia. The applicant husband claimed that there was difficulty with the issue of the applicant wife’s passport so they paid some money to the leader of [a] branch PSB, [amount] RMB possibly [amount] RMB. He could not recall. He also supplied gifts, although when pressed, the applicant husband could not identify for the Tribunal any gifts other he would invite the officer to eat and drink and have fun.  

7. The applicants had indicated in their Protection visa application form that they had not ever travelled outside their home country before their current journey to Australia. However the applicants’ passports, provided to the Tribunal, recorded that they had engaged in the following travel prior to arriving in Australia;

   [date] July – [date] July 2012 [country]

   [date] July  - [date] July 2012 [country]

   [date] July – [date] July 2012 [country]

   [date] October – [date] October 2012 [country]

   [date] July – [date] July 2013 [country]

   Both applicants claimed that they could not remember many details of their former travel. Their evidence was evasive and they had difficulty recalling the dates of their travel, or any sites visited. The applicant wife suggested that she may have done some looking around at Falun Gong sites. As the applicant wife did not mention that she engaged in Falun Gong during this travel, and due to the overall concerns about the applicants’ credibility the Tribunal does not accept that their travel had any connection to the applicant wife’s practice of Falun Gong.

8. When asked by the Tribunal of the purpose of their travel, the applicants gave conflicting evidence. The applicant wife told the Tribunal that she just travelled because she had retired in China and she wanted to be happy. She did not make a claim for protection in any of the countries that she visited because she did not plan to settle in those countries and she thought that Australia was better. The applicant husband claimed that the purpose of the travel was so the applicants could establish themselves as travellers as he had heard it was not easy to get a [temporary] visa from China to Australia. He could not identify who gave him this advice and when it came to applying for a visa to Australia he did not report any difficulty.  The applicant husband also claimed to have paid money on one occasion when the departed China. The purpose of this payment was that so they would not have any difficulty leaving. He did not recall how much he paid, other than it was not a small amount. Neither could he recall the time it was paid. He claimed that they did not make a claim for protection in any other country because they wanted to come to Australia.

9. The applicants also gave evidence to the Tribunal that they sold their home in China prior to travelling to Australia and the applicant husband’s [sibling] has resided in Australia for several years. He now lives in [suburb] a twenty minute walk from where they reside.

10. The applicant husband claimed the three month delay in claiming protection when they first arrived in Australia was because he did not know the process and he did not understand English. He claimed he was reliant on his agent. In contrast, the applicant wife told the Tribunal that in the beginning she had wanted to travel a little in Australia and look around before they lodged the application.

11. Due to the conflicting evidence the Tribunal is not satisfied that the applicant wife had any difficulty obtaining a passport or leaving China at any time. The Tribunal is firmly of the view that the applicants have fabricated most of the claims of the applicant wife in order to achieve a positive migration outcome. The Tribunal is not satisfied that any events relating to the applicant wife’s practice of Falun Gong was a motivating factor that led them to leave China. On their evidence, there was no imminent threat at the time of the applicant wife’s departure from China, and their planning takes on the flavour of a retirement strategy. The Tribunal accepts the evidence of the applicant wife, that the delay for three months in their claiming protection, was because they wanted to travel around the country. The Tribunal draws and adverse conclusion from this delay and finds that it is suggestive of the fact that the applicant wife had no fear of harm in China, and finds that the Chinese authorities had no ongoing interest in the minimal and historical Falun Gong activity of the applicant wife.

12. Furthermore, the applicant wife’s history of previous travel to and from China without incident indicates that she does not have an adverse profile. There is no evidence that the applicant wife that she did not come to the attention of the authorities in China at any time in 2012 or 2013 upon departure or return to China. The fact that the applicants left and returned to China on three occasions prior to travelling to Australia also indicates that they did not have a fear of any harm from the authorities in China, and leads the Tribunal to conclude that the applicant wife does not have a subjective fear of persecution if she was to return to China.

13. Therefore on the evidence the Tribunal is not satisfied that the events and circumstances raised by the applicants are factual. While the Tribunal has accepted that the applicant wife may have in the past practiced Falun Gong, it has found that she has not engaged in the practice since 1999 in China, nor has she engaged in the practice in Australia when she has been free to do so. The Tribunal finds that she will not practice Falun Gong if returned to China. While the Tribunal accepts that the applicant wife may have been questioned in the past by the authorities as her former practice of Falun Gong it is not accepted that the applicant wife was ever required to report to the police, pay bribes, undergo arrest or detention at any time.  As the applicant wife was able to engage in travel and depart and return to China on several other occasions it is not satisfied that she would experience any harm were she to return to China now or in the immediately foreseeable future.

14. Other than her experiences as a Falun Gong practitioner the applicant wife has not raised any claims on any other convention ground. The Tribunal finds that the applicant wife does not have a well-founded fear of any harm should she return to China in the reasonably foreseeable future for reasons of her being a Falun Gong practitioner or suspected Falun Gong practitioner or any other convention related reason.

15. The Tribunal then went on to consider whether the applicant wife met the complementary protection requirements of s 36(2)(aa) of the Act.

16. The Tribunal has not accepted that the applicant wife is a Falun Gong practitioner or has any fear of harm in China due to being suspected of being a Falun Gong practitioner. Other than one incident of detention in 1999. The Tribunal is not satisfied that the applicant has suffered any harm in the past, and the Tribunal is also not satisfied that the applicant wife cannot or will not return to China because she has a fear of significant harm.

17. The Tribunal is not satisfied that there is any other evidence before it to suggest that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife being removed from Australia to China, there is a real risk that the applicant wife will suffer significant harm for any other reason.

    Applicant husband

18. The applicant husband gave evidence that he did not experience any harm in China, it was mainly the applicant wife. He was never questioned or detained by the authorities on account of the applicant wife’s alleged Falun Gong practice.  When asked if he feared any harm if he was forced to return to China, he thought that he may be implicated and face problems as he had departed the country with the applicant wife. However, the applicant husband also confirmed that he had not experienced any difficulties when he returned from overseas travel with the applicant wife in the past.

19. Regarding, what the Tribunal has found to be a brief involvement in Falun Gong by the applicant wife, the Tribunal is not satisfied that it gives rise to any risk of harm for the applicant wife if she was to return to China. The Tribunal also finds that as it did not give rise to any harm to the applicant husband in the past it would not give rise to a reason for fear on the part of the applicant husband on return to China. The applicant husband has not raised any other reason to fear harm.

20. For the reasons given above the Tribunal is not satisfied the applicant husband has a well-founded fear of persecution for a Convention reason in China.

21. For the reasons given above the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to China, there is a real risk he will suffer significant harm.

    CONCLUDING PARAGRAPH

22. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Penelope Hunter

    
    

    Member