1420997 (Refugee)

1420997 (Refugee) [2016] AATA 4162 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1420997
COUNTRY OF REFERENCE:                 China
MEMBER:Linda Holub
DATE:18 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 18 July 2016 at 4:09pm

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

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).
The applicants, who are mother and son, claim to be citizens of China from Guangxi Province. They applied for Protection visas [in] March 2014 and the delegate refused to grant the visas [in] December 2014.
The first named applicant arrived in Australia [in] November 2012 on a TU 580 Guardian visa and her son arrived [in] March 2012 on a [Student visa].

RELEVANT LAW

Refugee criterion

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.
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).
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.

Complementary Protection

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’).

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicants have a well-founded fear of being persecuted in China for reasons of their race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that they will suffer significant harm.

10. In making its decision, the Tribunal had before it the Department’s file relating to the applicant’s Protection visa application, the second named applicant’s file relating to his student visa application and the Tribunal’s file relation to the review application.

11. The applicant’s written claims for protection are contained in the application forms and supplementary evidence submitted to the Department of Immigration and Border Protection [in] March 2014. The applicant claimed that:^[1]

[1] DIBP file folios 40-42.

a.She was born in the countryside of Guangxi Province and picked up the faith of I-Kuan-Tao [spelt as Yi Guan Dao on the application forms] when she was very young through her family. Her family dedicated a small room in the house to hold an altar. They secretly practiced their faith and did not dare to do so publically.
b.Her husband was also a Tao practitioner and they both helped other followers with any difficulties. Between them and established three altars with more than [number] followers.
c.Since 2010 her husband was arrested twice by the local government.
d.Shortly after the Spring Festival of 2011, the village guards led the police to search her house where she was preparing the altar for a ceremony. The police caught them at the scene. She was detained, all the ceremonial items were confiscated and the altar was sealed by the police.
e.She was taken to the village office and questioned and locked in a small room with bars. She was imprisoned for a day in a dark room which contained no furniture so she had to sleep standing against the wall. She was greatly tormented mentally.
f.The following day she was released after her family paid a penalty of [amount] yuan. She was ordered to sign a statement saying she would not practice the Tao or her house would be demolished.
g.Her son was summoned by the school authority and was cautioned that he must not take part in any cult activities held in his home or he would be expelled from school. Because he was abused and alienated by his class mates and the teachers often punished him he hated going to school. She and her husband decided to send him to study in Australia and with the help of others, she applied for a guardian visa. Her son had difficulties adapting to his new environment, and because of the language barriers he faced and his ‘adolescence syndrome’ led to his acute depression. Soon after she and her son came to Australia the family met with some unexpected economic crisis and the family could no longer support his studies.
h.After the applicant came to Australia she tried in vain to find an I-Kuan-Tao altar but being a complete stranger in Australia and unable to go onto the internet and not being well educated, she had trouble finding one. In 2014 she learnt there was an altar in [Suburb 1], so she tried to go there with her son to practice her faith. This made her very happy and her husband encouraged her not to return to China because the local government is repeatedly inspecting their house altar.
i.In the Spring Festival of 2014, the village government having caught them practicing the Tao secretly sent the village guards to destroy their house altar and her husband was taken into custody for three days.
j.As neither she nor her son want to return to China they chose to stay in Australia and to apply for protection to defend their freedom of faith.

12. With her application, the applicant provided translated documents stating the first and second named applicants were introduced to and sponsored by the Tianyan Taoist Temple at the Shen Point of Time, on the [date] of February 103 based on the Taiwan Republic Calendar”.^[2] This converts to [date] February 2014.[3] ^. The file also contains photocopies of photos of the applicant, her son and another unidentified person in front of shrine (location unstated).[4]

[2]DIBP, ibid., folios 1 and 3.

[3] [3] DIBP, op.cit.,folios57-59.

13. The Tribunal has given consideration to the Delegate’s Decision Record provided by the applicant to the Tribunal.[5] It shows that the applicant was interviewed [in] October 2014. The delegate “found that the applicant is not a genuinely motivated Yiguan Dao practitioner and therefore her claims in that regard are not credible”.[6]

[5] AAT file, folios 1-16.

[6] AAT file, folio 7.

14. [In] December 2014, the applicants then applied for a merits review of that decision by the Tribunal. The Tribunal wrote to the applicants on 3 February 2016 inviting them to attend a hearing on 2 March 2016. The hearing was adjourned at the end of the allocated time as the presiding member had further questions to put to the applicant and to her son. The Tribunal wrote to the applicant again on the 8 March 2016 inviting the applicants to attend the adjourned hearing on 20 April 2016. A further hearing was held 11 July 2016. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

FINDINGS AND REASONS

Nationality

15. On the basis of the applicant’s passports (numbered [number deleted] in respect of the first named applicant and [number deleted] in respect of the second named applicant) issued by the People’s Republic of China, certified copies of which was provided to the Department of Immigration and Border Protection and presented at the hearings, the Tribunal finds that the applicants are citizens of China. There is nothing in the evidence before the Tribunal to suggest that they have a right to reside in any country other than China.

16. The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicants do not have a right to enter and reside in another country for the purposes of s.36(3).

Have the applicant suffered any of the claimed harm?

17. At hearing, the applicant stated that a friend assisted her with the completion of her application. The applicant wrote her statement in Mandarin and the friend translated it for her. When asked if it was read back to her, she said her friend wrote what she said.

18. The applicant explained that she came to Australia as a guardian for her son who was studying in Australia. After one year of study he was unable to pass his English tests. As a result his classmates laughed at him. In addition, the family was no longer able to support him to continue his study. This was corroborated by the evidence provided by the second named applicant.

19. When the first named applicant was asked why the family was unable to continue to support her son’s study, the applicant said the family encountered financial problems. The Tribunal asked what sort of problems to which the applicant responded that did not have money. When pressed, the applicant responded that the company employing her husband became bankrupt. Before she and her son came to Australia the applicant claimed her husband had been in the management position. The applicant referred to the fact that although they had a home in the village she and her husband lived and worked in Guandong. Later in the hearing it emerged that she and her husband had lived in Guandong for an extended period from around 2000 until 2012. At another point she said that she had worked in Guandong since 1994. She stated that they went home once a year usually at Chinese New Year.

20. The Tribunal asked the applicant why her [son] was sent to study in Australia. The applicant said it was because they had a shrine in the house and her son was unable to study at home. When asked why this precluded him from studying at home she said because she opened the shrine to others and as this became known the teacher picked on him, his classmates did not get along with him and it was hard for him to study in that circumstance..

21. The Tribunal took evidence from the second named applicant regarding his treatment at school. He said that he was criticised in front of the whole school, was punished by the head teacher and deserted by the other students. The Tribunal invited the second named student to elaborate. He said he was made to clean the classroom and playground and he had to sit next to the rubbish bin at the back of the class. Sometimes he was asked to sit in t the teacher’s room. The Tribunal was prepared to accept that the second named applicant was harassed at school but as outlined elsewhere, the Tribunal was not satisfied that either applicant’s practiced I-Kuan-Tao in China, therefore the Tribunal was not satisfied that the reason the second named applicant was harassed was because of his religious beliefs.

22. The Tribunal asked the first named applicant why the existence of the shrine did not affect her [other] son she said it was because he did not follow the Tao. The Tribunal was not satisfied with this response as the applicant had provided evidence that she and her husband and both sets of their parents had been practising for many years. The Tribunal noted that her [other] son was only [number of] years [difference] than the[other] boy and the Tribunal found it implausible that he alone in the family did not practice I-Kuan-Tao especially given his young age.

23. The Tribunal also asked the second named applicant why his [brother] did not follow the Tao. He second named applicant responded that he had never discussed it with his [brother]. He went onto say that it was his choice not to follow and that he could not force his [brother] to do so. The Tribunal explained that it was not envisaging that he would force his [brother] but rather seeking to understand his brother’s rationale. He repeated that he had not discussed it with his [brother] and also commented that he had never considered the age gap between he and his [brother]. Again, the Tribunal was not satisfied that he and his brother had never had a discussion about their individual choices regarding their beliefs given the consequences of following a banned cult.

24. The first named applicant claimed that she first became involved in I-Kuan-Tao when she was very young through her parents practice of it. When asked how they became involved she said she did not know. The Tribunal put it to the applicant that it seemed unusual that she did not discuss this with her parents given that it was the banned cult in China. Her response was that other people consider it illegal but they do not. The Tribunal was not satisfied with the applicant’s response given I-Kuan-Tao had been banned as a cult since 1951 and therefore practice of it by the family must have at some point been a contentious issue and in the light of country information[7] which indicated that:

“Information provided to the UNHCR by a ‘doctoral candidate, who specializes in Chinese popular religions, including the Yiguan Dao’ and who ‘has carried out extensive fieldwork in northern China’ indicated that Yiguandao no longer existed in north China where it had been strongest, where it had originated, and that any followers in Fujian or Guangdong provinces were likely to have been influenced by businesspersons or visitors from Taiwan who had been ‘known to proselytize in the PRC’. This information is quite dated, from April 2001:

Yiguandao was an extremely large and influential organization in China during the 1930s and 1940s. In 1951 it was outlawed and subjected to an intense campaign of propaganda, along with arrests and "reeducation" of leaders. This campaign was very successful, and what few believers remained associated with the sect were driven deep underground. The campaign was repeated in 1957 and again during the 1960s, but the sect had been so completely discredited in 1951, that later campaigns were little more than show trials.
Even with the relative opening of religious freedom in China, Yiguandao remains a universal villain in the Chinese press. The sect remains very illegal and, given the intensity of past government propaganda against it, is not likely to be accepted by the PRC government anytime soon. Until the recent (1999) campaign against Falungong, which was overtly modeled on the 1951 push against Yiguandao, many religious groups could exist quietly, with the implicit acceptance of local authorities. Even under these circumstances, Yiguandao was not likely to gain any sort of acceptance. However, with the increased scrutiny of local religion, Yiguandao would certainly not be able to exist openly. If any believers do exist in Guangdong and Fujian, they are likely to have learned the faith secretly and relatively recently from Taiwanese businessmen or tourists, who have been known to proselytize in the PRC”.
Given the intensity of pressure against the sect, I would be rather surprised to see any sort of Yiguandao remaining in Fujian or Guandong at all, except, as mentioned, in the context of relatively recent missionization from Taiwan. Even this would have to be very deep underground. The sect was traditionally strongest in North China, and it certainly does not exist there today. I have seen Chinese government reports (Fandong huidaomen jieshao, Qunzhong chubanshe, 1985) that mention fears of a revival of Yiguandao in remote inland provinces, but nothing specifically relating to Fujian or Guangdong.^[8]
[7] See, for example, China: CII 50812131903259 – Yigunadao – Tian Dao-I-Kuan Tao, Country of Origin Section, DIBP, 8 September 2015.
[8] United Nations High Commission for Refugees (UNHCR) 2001, Reports of arrests and detention of Tian Dao (also Yiguan Dao, various spellings) believers in the provinces of Fujian and Guangdong (2000) , 4 Apri1 < CX178499

25. The Tribunal asked the applicant about the claim in her written application that “usually [they] did not dare to practice their faith publicly but only practised it secretly on some important locations and had to be very cautious every time”[9]. This was inconsistent with another statement in her application which said that “[my husband] work together with me in helping the villagers in other places to establish their own altars”[10]. The Tribunal put it to the applicant that this did not imply practising secretly. The applicant said that was not public. People asked them to help them secretly. The Tribunal attempted several times to ascertain how anyone else in the village would know she practiced if she did it secretly. The applicant said that when we preached the religion, we did so very carefully. The Tribunal put it to the applicant that if other people know it does not appear to be secret and invited the applicant to explain what she meant. She said when people learn that we were preaching the officials of the committee came to the house. The Tribunal once again asked her to explain. She said it was because we preach I-Kuan-Tao. When asked to whom, she said that when we walk along the road we come across people who would like to believe in the Tao. The Tribunal asked the applicant again to explain how she meets people she thinks want to do something illegal. She said she talks to her friends and other people with whom they are familiar and introduce them to the way. If they are interested they might ask where they can attend a temple. The Tribunal then attempted to clarify that she was talking about friends and not strangers. She said she is not completely familiar with them. This lack of consistency between the applicant’s written application and the confusing evidence she gave at hearing was of concern to the Tribunal. Attempts to clarify were unsuccessful and the applicant was not forthcoming. The Tribunal was not satisfied that the applicant practiced or preached I-Kuan-Tao as claimed.

[9] DIBP file, folio 42.

[10] DIBP file, folio 42.

26. The Tribunal asked the applicant about the arrests of her husband. She said he was arrested twice in 2010 and once in 2014. The applicant described the first occasion [in] January (in the lunar calendar) in January 2010. The shrine was closed. Both she and her husband were at home but they were in different rooms when the police came so could not describe what happened. She said he husband was worshipping with [number] other members. After some prompting, she said that when her husband and other members were worshipping, police rushed in and took him away but because she was in another room in the house a family member told her what occurred. The applicant claimed her husband was confined for one day during which he was insulted, scolded and warned not to continue with the Tao or they would smash the shrine, after which he was released. The applicant’s description of the circumstances of her husband’s detention required some prompting.

27. On the day of the second incident during the moon festival which was [in] August of 2010 (lunar calendar).her husband was searching the Tao with some other people when the police came. The applicant was home but again was not present as she was in the kitchen. The applicant stated that the police “mainly arrested her husband”. When asked to clarify she meant by her husband was “mainly” arrested, she said only her husband was arrested because he was the leader and stayed in the house whereas the other people left. The Tribunal attempted to understand what the applicant was describing. She confirmed that the shrine was in a very small room. She did not provide a plausible explanation of how it was that some people involved e.g. her husband was arrested and others were not. She stated the other people left but when asked by the Tribunal why the officials did not subsequently detain these people she said the officials did not recognise these other worshippers. Again the Tribunal put it to the applicant that this appeared implausible given she herself said it was a very small room and the house was in a village. She then said she was not clear why only her husband and not the other worshippers were arrested. Her husband was held for one day on this second occasion. Again he was insulted and warned not to preach anymore and that if he continued with the illegal activity they would not be generous to him.

28. The manner of the applicant’s responses and the lack of detail provided did not satisfy the Tribunal that the police came to the house or that her husband was detained on either occasion.

29. The applicant claimed she was detained by police [in] January 2011 (in the lunar calendar) after having bought an incense container to re-arrange the shrine with her [son]. Officials from the village came and took away all the items on the shrine, after which she was arrested and confined for one day. She was held in the village hall. The room was very dark and both the walls and floor were very wet. She was required to stand in this room. The following day she was released. The Tribunal asked the applicant what she meant by her written claim that she was greatly tormented mentally. At hearing she referred to the fact that the room was dark and that the floor was wet and that she felt psychologically abused because of the verbal abuse. After paying a fine of RMB [amount] she was released the next day. She was also required to sign a guarantee that she would not preach again. She said without signing she would not have been released.

30. The applicant claimed that after she was released she went home. The Tribunal asked the applicant what she and her husband discussed she was released, given he had been arrested twice in 2010 and she was arrested on this occasion (coincidentally exactly a year after his claimed first arrest), in particular having claimed to have been mentally tormented and having been required to sign a guarantee. The applicant said she was very tired and went directly to sleep. The applicant repeated that because she was forced to stand all night she was very tired and went directly to sleep. Her son was with her when she was arrested but he was not arrested. The Tribunal asked whether she spoke with her son to reassure him that she was alright after being detained. She repeated that she was very tired. The Tribunal considered that the applicant’s arrest subsequent to her husband’s previous arrests would have been regarded seriously by the applicant and her husband. However, despite several attempts to ascertain from the applicant the impact of the arrest and detention and what their future intentions were, the applicant was not forthcoming. Nothing in her demeanour nor in the manner she related the incident suggested that anything untoward had occurred. The applicant did not satisfy the applicant that she was detained for any period. Further attempts to clarify her evidence resulted in the applicant saying “it’s been a long time, I can’t remember”. Eventually she said they decided they would continue their belief because they had practiced since childhood and they cannot do without their belief.

31. The Tribunal took evidence from the second named applicant regarding his recollection of the incident. He said that he and his mother were home together and they were arranging incense on the shine when police came in and took away his mother. When the police came he was frightened and squatted in the corner. After the police and his mother left, he went out to the other side of the house to look for his grandparents and father and told them what had happened.

32. Although the second named applicant corroborated his mother’s evidence, the Tribunal was not was not satisfied that the applicant was detained and held overnight. The evidence presented was unconvincing even though it was consistent in broad terms.

33. The Tribunal asked the applicant why the police were interested in them in 2010-2011 when they and her parents had been ‘seeking the Tao’ for many years. She said they kept looking for us but whenever we heard they are coming we went away. She did not explain where. She said that when the officials came in and if they did not see people worshipping they did not arrest them. The applicant gave evidence that every time we do worship we do it quietly and quickly. As the applicant did not satisfactorily answer the question, the Tribunal again asked why officials started interfering with their worship in 2010. She stated that she was not clear but during that year the officials gave them a lot of trouble. In trying to clarify the confusing responses the Tribunal put it to the applicant that she had claimed they worshipped in secret but some days the officials came and others they did not and when they came they only arrested them and not other worshippers even though it is the banned cult. The applicant responded because the shrine belongs to her and her husband, those people walk out and the officials cannot recognise them but they recognise my husband. The applicant did not satisfy the Tribunal based on the evidence at hearing that the police were in attendance at any point.

34. The applicant confirmed that she had lived in Guandong from 2000-12 where she worked in a [certain] factory and that her husband had not lived in the village since about 1996 or 1997. At another point in the hearing the applicant said she had worked in Guandong since 1994. In Guandong Province she lived in a dormitory where she only had a bed and did not have an altar. The applicant gave evidence that she would normally go home to the village at Chinese New Year and that it was difficult to go home at other times of the year because the factory where she worked was very busy and she could not get a leave permit. In January 2011 when she claimed she had been detained by police, she stated she was home because it was Chinese New Year. The Tribunal asked the applicant to clarify why she was home because the Tribunal’s understanding was that Chinese New Year was later. The applicant responded saying “that’s the new calendar, but normally I only check my lunar calendar”. The Tribunal confirmed that in 2011 Chinese New Year occurred on 3 February 2011[11]. This discrepancy in the evidence provided by the applicant further undermined the Tribunal’s confidence as to the veracity of her claims.

[11] In relation to the applicant’s husband third incident with police which occurred after she had left China, the applicant claimed it occurred [in] January 2014 (lunar calendar). Her husband was worshiping at the small shrine and the officials from the village committee came and arrested him for 3 days. Again, she claimed he was warned and scolded and the shrine was smashed.

36. The applicant claimed that her husband worked in Guandong because of the problems they had resulted from preaching I-Kuan-Tao at home. The applicant had earlier said that he worked in Guandong in a management role. The Tribunal asked the applicant if her husband is working in Guandong now. Her response was that she does not know because she has not spoken with him for a few days. When the Tribunal asked about the circumstances of her [other] son,the applicant stated that he was living at school and travelling home on weekends and that his father pays for this arrangement. In this context, she said her husband lives in Guandong and works in whatever capacity he can and worked in a factory.

37. The Tribunal asked the applicant if her husband is preaching in Guandong. The applicant responded that she did not know as she has not asked him. The Tribunal expressed surprise at her response given the claimed commitment to the Tao. As the discussion continued it became apparent that the applicant was claiming that when she and her husband were home in the village they practised the Tao but when they are living in Guandong they were in a dormitory and therefore unable to practise. The Tribunal was not satisfied the applicant or her family practised I-Kuan-Tao based on the confusing and conflicting evidence provided. Further, the Tribunal considered it noteworthy that the applicant did not in any point indicate that it was a problem for her or her husband to live in Guandong and be unable to practice their beliefs.

38. The Tribunal found the applicant not forthcoming in her evidence, lacked detail, was not entirely consistent and overall did not present in a manner that satisfied the Tribunal as to the veracity of her claims. The Tribunal attempted to ask its questions in different ways, to clarify the applicant’s responses to understand her meaning. Despite this the applicant remained unconvincing and the evidence provided was unpersuasive. The Tribunal was therefore not satisfied the applicant and her family were practitioners of I-Kuan-Tao in China, or that they were detained by the police at any point.

Religious activities in Australia

39. In relation to the applicant’s activities in Australia she claimed that she did not work. She stayed at home and read newspapers books and prepared meals. She claimed she had no friends.

40. The Tribunal asked the applicant about her attendance at the temple. The applicant claimed she attended a temple at [Suburb 1] and has been doing so since about March 2014 when she found it. She described it as a [private home]. She claimed that one day she went for a walk to the local train station and saw some other Chinese people and heard them talking and discovered they were talking about a I-Kuan-Tao temple. Prior to that she practiced the Tao by reading.

41. The applicant claimed she attends every week with her son. She said she attends on [day] when there are temple is open the whole day. There is a master there who teaches them. When asked what happens while she’s there she said the master and the head of the Temple tells them how to behave as human beings and provides knowledge of I-Kuan-Tao.

42. The Tribunal asked her to describe what she had learnt given she attends every week. She said she learnt about the three treasures and how to live her life as human being. The Tribunal suggested that if she attends every week she could provide more detail. She again said that they listened to descriptions of how to behave and be a good person. The Tribunal then asked her what is meant by living as a good person. She said you should help people if they have difficulties, you should not rob you should not steal. The Tribunal again tried to draw out whether the master says the same things every week or whether the teachings vary. The Tribunal again suggested to the applicant that if she has been attending every week since 2014 and there is always a discussion about the way to live she would be able to be more descriptive and she would have a higher level of knowledge. To this, the applicant responded that the master talks about not eating meat, just eating vegetables and says do not kill anything.

43. The Tribunal asked the about the rationale of vegetarianism in I-Kuan-Tao. She responded because we believe in it; just do not eat meat. The Tribunal put it to the applicant that even in general reading there’s a reason given. She said do not kill anything or anyone, do not eat meat, just vegetables. The Tribunal indicated to the applicant that it was not getting a sense that she went on a regular basis to listen to anyone talk about the teachings. The Tribunal put it to the applicant that given her background, it would have expected a higher level of understanding and knowledge and referred to the rationale relating to both health outcome and compassion for the animals. The applicant then said that animals have their lives and if you eat a lot it can make your heart became bad and if you eat vegetables your heart can become pure and so there wouldn’t be any fights/arguments.

44. The Tribunal notes information about I-Kuan-Tao indicates that:

“Actually, for most followers of I-Kuan Tao, vegetarianism is a recommendation, not a requirement. It is recommended not only for its health benefits, but also because it is a meaningful gesture of compassion toward animals. It is not required because the Tao has no interest in forcing anyone to do anything.
However, vegetarianism is a requirement if you wish to set up a I-Kuan Tao shrine in your home. This is because the owner of such a shrine serves as an example to others by making a commitment that many people may not be willing to make. Those who are not ready for such duties can always set up their own altars or sacred spaces without going through the temple”[12]
[12] accessed 18 May 2016

45. Given the applicant claimed that she and her husband had set-up a shrine in their home in China which other people attended, the applicant would be able to express even in very basic terms why being a vegetarian is an important precept of I-Kuan-Tao.

46. The Tribunal asked the applicant to explain the Three Treasures of I-Kuan-Tao[13]. The applicant said she was unable to describe the essential three treasures because the lamp was not lit. She said according to the enlightened master, we cannot preach if the light of the Buddha is not lit. You can only murmur in your heart. The second treasure are the five true words but she could not say them because the lamp was not lit. Thirdly, there are the heavenly gestures.

[13] CXBD6A0DE3074: "The Three Treasures of I-Kuan Tao", Taoism.net, 01 January 2015, (Opens in a new window)

47. Information accessed by the Tribunal indicates that:

“The first treasure of I-Kuan-Tao is the Mystical Portal. It is the spiritual nexus of your being. If the eyes are the windows to the soul, then the portal is the doorway…
The Mystical Portal is a direct link to our true selves, allowing us to tap into the greater consciousness we all possess. If the spiritual self is a light, then the Mystical Portal is away to concentrate that light into a coherent beam, with laser like brilliance and effectiveness. This is the first treasure of I-Kuan-Tao.
The second treasure of the I-Kuan-Tao the True Sutra. It consists of sounds without words, so it is also known as the wordless sutra. It is a mantra that resonates at a level beyond the sound waves and writings of the material world. The True Sutra should not be set allowance all written down for a very specific reason.
The third treasure of I-Kuan-Tao is to Hand Seal. The central meaning of this treasure is nurturing love. It is that it is a gesture where one hand holds the other in a symbolic representation of the tender loving care that you feel when you hold an infant in your arms.[14]
[14] CXBD6A0DE3074: "The Three Treasures of I-Kuan Tao", Taoism.net, 01 January 2015, (Opens in a new window)

48. The Tribunal asked the applicant which five religions are mentioned in I-Kuan-Tao. She referred to Confucianism, Buddhism, Islam, and said they are not directly related to us. Those religions are lower than I-Kuan-Tao. The Tribunal considered her response in the context of information provided in a I-Kuan-Tao Q&A. It states:

“What are the five religions often mentioned in I-Kuan-Tao?
To beginning Tao cultivators they are Buddhism, Taoism, Confucianism, Christianity and Islam”.[15]
Yiguandao claims to unite “‘the world’s five great religions’: Buddhism, Taoism, Confucianism, Islam, and Christianity”.[16] Scriptures of these religions are believed by Yiguandao adherents to be sacred texts, but their followers misguided[17].
[15] I-Kuan-Tao Q&A, by Derek Lim, accessed 16 May, 2016
[16] Bosco, J 1994, Yiguan Dao: "Heterodoxy" and popular religion in Taiwan, In M.A. Rubenstein (ed.), The Other Taiwan: 1945 to the Present, p. 424, third paragraph, East Gate, 1 January, CIS21618
[17] China: CI150812131903259 – Yiguandao – Tian Dao – I-Kuan Tao, 8 September 2015

49. The applicant was asked if I-Kuan-Tao is a religion or a way of life. The Tribunal explained that sometimes I-Kuan-Tao is described not as a religion but as guidance for the way you should live your life. The applicant did not follow. The Tribunal took account of information available regarding I-Kuan-Tao:

Why do some Tao cultivators insist that I-Kuan Tao is not a religion?
One can certainly practice I-Kuan Tao as a religion if one wishes, and many people do, but this is by no means an absolute requirement. The advanced cultivation of I-Kuan Tao is a way of life that transcends the religious practice. The authentic teaching is "dao fei jiao" - meaning the Tao is not a religion. The Tao is the source of all things, including all religions, so it is far more than any religious institution.
In that perspective, I-Kuan Tao is simply a path that one can travel to approach the source of divine spirituality. It does not claim to be the only path or a "superior" path to the source - but if you feel an affinity for the Tao, then it may be the right path for you.
The followers of I-Kuan Tao worships various gods. Would that not be a religious practice?
Those who practice I-Kuan Tao as a religion worship deities in similar ways as followers of other faiths.
Those who practice I-Kuan Tao as a way of life have a slightly different perspective. They go back to the original meaning of the Chinese character bai, which is often mistranslated as "to worship," but actually means "to venerate" or "to revere." To them, the various deities are powerful symbols of human virtues, and they pay respects to the ones representing virtues they would like to cultivate in themselves. This is essentially an associative conditioning process to transform the spiritual state”. [18].
[18] I-Kuan-Tao Q&A, by Derek Lim, accessed 16 May, 2016

50. In relation to the origins of I-Kuan-Tao she said was Xian Tian Tao. The Tribunal asked her who wrote the principal canon, to which the applicant responded Liu Kyng Xiu. The Tribunal queried this suggesting that it was written by Lao Tzu. She responded that that it originated from Xian Tian Tao and developed later as I-Kuan-Tao.

51. The Tribunal accepts that the applicant does not necessarily need to be familiar with theological doctrines of her belief system to be a practitioner. However, given the applicant claimed that her family were long-term practitioners and she herself grew up as one and that she claimed that she and her husband hosted a shrine and assisted others host a shrine, that at least some of her answers could have been more detailed, specific and convincing. Taken cumulatively, the Tribunal was not satisfied the applicant was a practitioner of I-Kuan-Tao although she demonstrated some basic understanding of it.

52. The Tribunal asked the applicant when I-Kuan-Tao was first outlawed in China. She responded that it was when new China was founded. When asked what year, she said it was in the 1940’s. She said they say it is a cult and they killed many people and many people also quit. The Tribunal indicated that DFAT information and other external sources indicated that it was outlawed in China in 1951. In response to this, the applicant stated that because China was founded in 1949, so it just after that and repeated that they killed many people. Given she claimed to practice what was considered an outlawed cult, the Tribunal expected the applicant would be more precise about when it was outlawed.

53. The Tribunal also asked the second named applicant about his attendance at the Temple. To this he said he goes on the first and 15^th of the lunar calendar month. The Tribunal asked him if he goes on [day]. He said he goes if he has time and does not have other arrangements. The Tribunal noted that his response was inconsistent with the evidence provided the first named applicant. The Tribunal had previously ascertained that the second named applicant works irregularly in [various occupations].

54. The Tribunal’s search on the internet for the Temple named by the applicant only identified one in California. The Tribunal also attempted to confirm the location of the [city] Temple through the I-Kuan-Tao Australian headquarters located in Brunswick, Victoria. The Tribunal was informed that there is no -Kuan-Tao Temple in [Suburb 1] nor has there ever being one. There is a Temple in [Suburb 2].[19]. A check of Google maps shows that [Suburb 2] and [Suburb 1] are not adjoining suburbs[20]

[19] AAT file, folio 38.

[20] AAT file, folio 56 & 57.

55. The Tribunal also attempted to locate reference to a Tianyan Taoist Temple, which is how the temple is referred to in the sponsoring documents referred to at paragraph 12. No reference to such a temple could be found either.

56. The Tribunal considered the photocopies of photos the applicant provided to the Department[21]. The applicant claimed that they variously showed her and her son some with and some without the Master at the [Suburb 1] temple on either the first and second floor. The Tribunal also discussed the documents stating when the applicants were introduced to the Tianyan Taoist Temple. The first named applicant explained they were provided by the Master who is Taiwanese.

[21] DIBP file, folios 57-59

57. The Tribunal had regard to the fact that I-Kuan-Tao has strong Taiwanese linkages. However, while the applicants could be seen in the photos in something resembling a shrine the Tribunal could not be satisfied based on the inconsistences and lack of detail in the evidence of the applicants that they are I-Kuan-Tao practitioners although they may have attended a temple and been photographed there.

58. Based on the information and evidence presented to the Tribunal overall the Tribunal did not accept that applicants was an adherent of I-Kuan-Tao [spelt as Yi Guan Dao on the application forms] when she was very young or that her family dedicated a small room in the house to for an altar or that they secretly practiced their faith or that her husband was also a Tao practitioner or that they both helped other followers established altars or that her husband was arrested twice by the local government or that she was detained and questioned and tormented or that the items related to the shrine were confiscated and the altar sealed by the police or that the second named applicant was an adherent of I-Kuan-Tao or that he had suffered any discrimination or humiliation at school or that he was sent to Australia for that reason or that they were practitioner of I-Kuan-Tao in Australia.

59. For these reasons, the Tribunal was not satisfied that the applicants suffered any of the claimed harm. The Tribunal was satisfied that the applicant has fabricated the claims pertaining to both herself and her son for the purpose of applying for Protection.

60. The Tribunal has also put significant weight on the considerable delay in the lodgement of the applicant’s Protection visa application. The first named applicant arrived in Australia [in] November 2012 but did not apply until March 2014. The Tribunal considers this length of time is very significant. The applicant claimed that she became aware of the possibility of applying for Protection after she started attending the temple. The Tribunal was not persuaded by the applicant’s explanation that she was not aware of the option of applying for protection. Based on the cumulative evidence presented, the Tribunal was of the view that the applicants began attending the temple in order to bolster their claims for Protection.

Is there a real chance or a real risk of serious or significant harm occurring to the applicants?

61. As the Tribunal has not accepted the applicants’ claims regarding their faith, the Tribunal considers that there is no real chance or a real risk of the applicant suffering serious or significant harm if they were to return to China. The Tribunal does not consider that either applicant will continue to follow I-Kuan-Tao in China as they are not genuine adherents.

62. In relation to the possibility of the applicants being imputed as cult followers, the Tribunal is not aware that the Chinese authorities monitor I-Kuan-Tao. Furthermore, the temple the applicants claim to attend is not a known the I-Kuan-Tao temple, therefore the Tribunal is satisfied that the applicants do not face a real chance or a real risk of the applicant suffering serious or significant harm if they were to return to China as a result of being imputed adherents of I-Kuan-Tao.

CONCLUSION

63. 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

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

Linda Holub
Member

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Natural Justice
Jurisdiction

[2016] AATA 4162

18 July 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction