1500261 (Refugee)

[2015] AATA 3408

1500261 (Refugee) [2015] AATA 3408 (1 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500261

COUNTRY OF REFERENCE:                  China

MEMBER:Tania Flood

DATE:1 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 01 September 2015 at 9:15am

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 applied for Protection visas [in] April 2014 and the delegate refused to grant the visas [in] December 2014.

3. The applicants’ are a mother and her child.  They claim they are from [Shandong] Province, China.

4. Only the first named applicant has made specific claims for protection.  The second named applicant claims protection on the basis of belonging to the same family unit as the first named applicant.

5. The first applicant (hereinafter referred to as “the applicant”) appeared before the Tribunal on 20 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A and Mr B].  The applicant advised the Tribunal that the second applicant, her daughter, was at school.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   RELEVANT LAW AND DEFINITIONS

6. 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.

   Refugee criterion

7. 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).

8. 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.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Decision

20. 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.

    Member of the same family unit

21. Subsections 36(2)(b) and (c) provide 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 mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that class as that applied for by the applicant. 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 Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children. The Tribunal is satisfied on the evidence before it that the second named applicant is the dependent child of the applicant and that the applicants are therefore members of the same family unit as defined in r.1.12.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. Issues to be considered by the Tribunal are:

    a.Is the applicant a genuine Falun Gong practitioner?

    b.Is there a real chance that she will be persecuted if she returns to China for the reason that she is a Falun Gong practitioner?

    c.Are there substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm?

23. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Nationality

24. The tribunal finds that the applicant is a national of China. She travelled to Australia as the holder of a passport issued by the authorities of China, a copy of which the applicant provided with her Protection visa application. The applicant made no claim to be a national of any other country. The tribunal accepts that her claims should be assessed against China for the purposes of the Convention in s.36(2)(a) of the Act and as the “receiving country” for the purposes of the complementary protection obligations in s.36(2)(aa) of the Act. The tribunal is satisfied that the applicant does not have a right to enter and reside in any other country and, therefore, she is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Brief summary of the applicant’s claims

25. The applicant claims in her protection visa application that she is a Falun Gong practitioner and that when in China she was persecuted by the government and discriminated against by society.  She was introduced to Falun Gong by her husband who came to Australia in 2005.  The applicant’s husband unsuccessfully sought a protection visa in Australia and according to the applicant also fears returning to China.  She claims that due to her Falun Gong background her other family, and especially her child, were subjected to constant discrimination and injustice by the government.  She claims that their [farm] was requisitioned by the local government and they were not compensated sufficiently and that her [child] was discriminated against at school, being nick named “[name]”.  She considered transferring her [child] to another school but none was willing to accept [him/her].  Being labelled as a family member of Falun Gong activists, her [child] was afraid to go to school.

26. The applicant claims that after her husband left China she kept practicing Falun Gong in secret.  She claims that a fellow practitioner was informed upon and imprisoned for two years in a labor camp.  At the end of 2012, another fellow practitioner was also arrested and sent to a mental hospital.  She claims she was also summoned by the police for enquiries and imprisoned for two days but subsequently released as they were unable to produce any direct evidence against her.

27. The applicant claims that when her husband learned of this incident he encouraged her to come to Australia to avoid possible danger.

    Knowledge of Falun Gong Practices and Principles

28. Central to the applicant’s claim for protection is that she is a Falun Gong practitioner.  The tribunal has taken into consideration the concerns raised by the delegate in the decision record. However, the tribunal has had the advantage of more evidence before it than was before the delegate, including three written witness statements, oral evidence from [Ms A and Mr B] and numerous photographs and media reports.

29. During the hearing the applicant was questioned about her claimed Falun Gong beliefs and practices, her claimed encounters with the authorities in China and her claimed continuing Falun Gong practice since arrival in Australia.  The tribunals findings are as follows:

30. In considering whether the applicant is a genuine Falun Gong practitioner the tribunal had regard to her knowledge of Falun Gong, including her knowledge of the main book on Falun Gong (Zhuan Falun), her knowledge and performance of the exercises and her claimed experience of being a Falun Gong practitioner.

31. In China, the applicant says she took up practicing Falun Gong in December 1999 when she met her husband.  They were married [in] August 2001.  She said that her husband told her of the benefits of Falun Gong, himself having experienced significant health improvements as a result of his practice.  She said that her husband taught her how to do the exercises but that she practiced at home, in secret, mostly with her husband but sometimes with her aunt and neighbours.  She said that she was not involved in other Falun Gong activities but that her husband was involved in distributing information about Falun Gong.  She confirmed that they kept no Falun Gong materials at their house.  Further she said that she did not have a copy of Zhuan Falun because it was not available after the government crackdown in 1999.

32. The applicant stated that when she came to Australia she obtained a copy of Zhuan Falun and now studies it daily.  She was able to outline the philosophy of Falun Gong; she named the five exercises correctly and was able to explain the purpose of each; she was able to recite the verse for exercise 3 and demonstrated the sitting position of exercise 5.  When questioned about her tolerance of pain when sitting in the full lotus position during exercise 5 and whether that pain is accorded any significance she correctly referred to the transference of karma.[1]

    [1] Hongzhi, L. 1998, Zhuan Falun, English Version, Internet Version.

33. The applicant was able to outline the general content of Chapter 7 of Zhuan Falun.  The applicant was asked what Master Li says about eating meat and she correctly replied that Master Li says they can eat meat but that the main point is being able to reach the point when you no longer need to do so[2].  Further, she was able to explain what Xinxing means and how it is cultivated.  She was asked how she personally cultivates Xinxing and she relayed two relevant examples from her everyday life.

    [2] Hongzhi, L. 1998, Zhuan Falun, English Version, Internet Version.

34. In view of the applicant’s responses the tribunal accepts she demonstrated a reasonable level of knowledge of Falun Gong and its practices and principles during the hearing.

    Claimed Serious Harm in China

35. The applicant was asked about her claimed experiences in China due to being a Falun Gong Practitioner.

36. The applicant stated she was discriminated against by society and suffered persecution.  She said her child also suffered discrimination at school and that their land was taken from them by the government.  Further she said they were not allowed to vote and didn’t have a say in anything.

37. When asked about the confiscation of their land, the applicant said the land was made available to herself and her husband to work.  She said they grew various [crops]. She said they worked the farm in addition to the other jobs they held from time to time.  She said their land was taken away in 2007. 

38. When asked why the land was taken she said the government used it as a means to get them to stop practicing Falun Gong.  It was pointed out to the applicant that the land was taken in 2007 and that by then her husband had left China.  The applicant was asked, how, if she was practicing her Falun Gong in private, the authorities knew about her activities and therefore took her land. She said she did not know how the government knew about her Falun Gong activity.   

39. The applicant was asked whether anybody else had land confiscated at that time. She said that another person [also] had land taken in a neighbouring village.  When questioned further about this, the applicant said the government appropriated a piece of land that spanned both villages.  It was pointed out to the applicant that this could suggest there was another reason for the land being taken, other than them being Falun Gong practitioners.  She then said that they made some enquiries in the community office and were told that they would not receive any compensation for the land if they did not stop practicing Falun Gong.

40. The applicant then said that the police also came to her house in 2006 and issued a warning that her husband should not continue practicing Falun Gong overseas.  It was pointed out to the applicant that she had not mentioned this significant fact before but she was unable to provide any satisfactory explanation for that. 

41. The applicant stated that her [child] was discriminated against in school and was called “[name]” by teachers and classmates.  The applicant was asked if her [child] remained at the school and she said [he/she] did because their efforts to transfer [the child] to another school failed. She said she did not know why the other schools refused to take her [child].

42. The applicant was asked how, if she was practicing her Falun Gong in secret, the teachers and classmates would have known about her family’s involvement with Falun Gong.  She said she didn’t really know but that as she sometimes practiced with neighbours it might have become known in the village.   

43. When asked about further discrimination the applicant reiterated that they were not allowed to vote and that she was once fired from a job when her supervisor found out she had suggested Falun Gong practice to a client with health issues. 

44. The applicant then said she was reported to the authorities and questioned in 2012.  She said that another co-practitioner was arrested and sent to a mental facility and another, who was a [occupation], was sentenced to 2 years imprisonment.  When asked what happened in 2012 she said the police came to her house and raided it.  She said they didn’t find anything but that she was taken to the police station and detained and interrogated for 2 days.  She also said that [another] co-practitioner, was also being held separately at the same police station at the time and that she was also sent to a mental institution.    The applicant stated she was released after 2 days because they had no evidence against her.

1. It was put to the applicant that if all the things she had mentioned had happened, that is, her land was taken away, her [child] was discriminated against at school, and the police had visited her house in 2006 in connection with her husband and that she was dismissed from her employment, she would likely be a person of interest to the authorities. The tribunal noted that it was unusual that the police would only have taken action against her in 2012 despite the claimed earlier incidents.  The tribunal also said it was not convinced that the authorities would have released her simply on the basis of lack of hard evidence. In reply the applicant reiterated that there was insufficient evidence to keep her in detention.

2. It was pointed out that country information confirms that the Chinese Government has cracked down on and regularly detained suspected Falun Gong practitioners since Falun Gong was banned as an illegal cult in 1999[3].  In this respect the tribunal notes:

   [3] Human Rights Watch 2012, World Report 2012: China, January

3. On May 2011, DFAT advised the Tribunal that Chinese authorities no longer focus primarily on Falun Gong Leaders, but are increasingly targeting common practitioners.  DFAT advised:

   “We are aware of people who only practice Falun Gong in private and do not proselytize in any way, who have been punished severely after their practice has been uncovered or if they are accused of being practitioners”.[4]

   [4] DIAC Country Information Services, Country Information Report No 11/28 CX265241 Falun Gong Update Clarifications

4. In a report dated 3 March 2015, DFAT notes that an extrajudicial security apparatus known as the 6-10 Office was established to eradicate Falun Gong activities.  The office has reportedly created specialised facilities known as “transformation through re-education centres” to force practitioners to relinquish their faith.  Falun Gong practitioners have reportedly been sent to black gaols, sentenced to other forms of administrative punishment or have been released after receiving propaganda training.  Further, DFAT assesses that Falun Gong practitioners, and the lawyers who defend them, can be at risk of official discrimination and violence. The report also notes methods reportedly used against Falun Gong practitioners include sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding, being forced to drink dirty or salty water, shackling and beatings.[5]

   [5] DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015

5. In 2010, the Congressional Executive Commission on China noted that since the 1999 crackdown on Falun Dafa, large numbers of practitioners have experienced harassment and mental and physical abuse in official custody, which in some cases has resulted in torture and death.[6]

   [6] Congressional-Executive Commission on China 2010, Annual Report 2010, 10 October

6. The applicant was asked why her husband had left China in 2005.  She said that he was forced to leave to avoid being persecuted because of his Falun Gong practice.  She said the government would not let them practice and that they were risking their lives doing so.  She was then asked why she had stayed behind with her child and she said that at the time her husband was more at risk than she was. It was put to the applicant that it seemed strange that she would remain in China with her child given her fears for her safety.   She replied that at the time they knew very little about Australia and that she had to stay behind because her child was very young at the time.  She also said they were thinking the persecution would stop after some time. 

7. The applicant was asked what her husband told her upon his arrival in Australia.  She said he told her Australia is a democratic country and that they can enjoy religious freedom here.  He said she should not worry about him and be careful of her own safety. 

8. The applicant also said that after waiting it became difficult for her to get a passport. She said that she initially tried to get a passport herself but was refused.  She said she asked around but was told that she would not be able to get a passport because she was Falun Gong.  She said she asked a friend to help her and that she sold her house for 280,000 RMB to pay 250,000 RMB to obtain a passport and safe passage out of China.  When questioned about this, the applicant was vague about when she first applied for a passport and when she made further investigations about obtaining a passport through other channels.  She confirmed that she left China using a passport in her own name.

9. It was pointed out to the applicant that country information indicates that persons of interest to the authorities, including Falun Gong practitioners, have been known to be refused passports and hence prevented from leaving the country legally. The tribunal noted that this could lead it to believe that the events she claimed happened in China did not really happen at all.  In reply the applicant restated that she had paid somebody to assist her to get a passport.

10. In this respect the tribunal notes that according to DFAT:

    “In regard to members of Falun Gong, we have been advised by sources within the Ministry of Public Security that only those considered to be Falun Gong leaders are refused passports and hence would be prevented from leaving China legally. However, there is anecdotal evidence to suggest that the Chinese Government does act to prevent identified Falun Gong followers from leaving China. In many cases, Chinese citizens who have been identified by the Government as Falun Gong followers have their Chinese identity cards confiscated and hence are unable to obtain a passport and leave the country legally. Those that have not been identified by the Government as Falun Gong followers can obtain passports and leave the country legally”.[7]

    [7] DFAT 2008 No 943 – RRT Information Request CHN34077, 16 December 2008

11. The UK Home Office’s 2005 China Country Report provides the following information from various sources on passports in China:

    “As noted by (USSD Report 2005) members of underground churches, Falun Gong members and other politically sensitive individuals sometimes were refused passports and other necessary travel documents….”[8]

    [8] UK Home Office 2005 China Country Report

12. The tribunal has considered the applicant’s claims regarding her treatment in China due to her being a Falun Gong practitioner and is not persuaded by her evidence in this regard.  The tribunal is not persuaded that the applicant would have remained in China at the time her husband departed given her stated fears for her safety. The tribunal does not accept that her reason for doing so was because her child was only young.  If anything, the tribunal expects her child’s safety would also have been of great concern to both her and her husband. 

13. The tribunal is also not satisfied, based on the country information referred to above, that the applicant would have been able to leave China legally on a passport in her own name if she was a person known to the authorities for her Falun Gong activities.  The tribunal also finds it implausible that she would have waited 9 years to reunite with her husband in Australia and that she only took concrete steps to do so following an incident which reportedly occurred 7 years after his departure, especially as the applicant’s husband reportedly informed her that Australia was a country where they could enjoy religious freedom.

14. Also, it is the tribunal’s view, that the applicant was unable to satisfactorily account for why the authorities were aware of her Falun Gong activity given her claims to largely practice in private, her lack of involvement in any public Falun Gong activities and the fact she kept no Falun Gong literature in her house.  Given the country information referred to above regarding the severity of the crackdowns on Falun Gong practitioners, the tribunal does not accept that the authorities would have waited until 2012 to detain her or that she would have been released after 2 days of questioning.

15. Further, in view of the applicant’s oral evidence, the tribunal does not accept that the applicant’s land was confiscated, that her [child] was discriminated against in school, that the authorities visited her home in 2006 to issue her with a warning, that she was dismissed from her employment or that she was detained in 2012 due to being a Falun Gong practitioner. For reasons which will be outlined below, the tribunal accepts that the applicant may have had some limited knowledge of Falun Gong and may have been practicing some of the Falun Gong exercises at home in China but based on her evidence, the tribunal does not accept that this activity was known to the authorities.  The tribunal considers it likely she has exaggerated her claims in this respect but has not concluded that this exaggeration renders the totality of her evidence to be unreliable.

    Falun Gong Practice in Australia

16. Notwithstanding the above reservations, the tribunal considers the applicant did display a level of knowledge of Falun Gong and its practices and principles during the hearing, which was consistent with her claims to have been practicing and studying Falun Gong in Australia.  Her claims of ongoing Falun Gong practice and public activity in Australia were supported by three written witness statements, the oral evidence of [Ms A] and a substantial amount of documentary evidence.

17. When asked about her Falun Gong practice in Australia the applicant stated that after her arrival she obtained a copy of the Falun Gong “bible” and now has the freedom to study in groups, to practice in public and to attend various Falun Gong events. She said she practices every day at home, although she does not do the complete set of exercises every day.  She also said she practices on weekends and goes out on weekends to express the truth about Falun Gong at different locations.  Further she stated that she is actively involved in numerous Falun Gong events including parades, ceremonies, conferences and protest actions.  On many occasions she referred to her participation in small group practice [since] April 2014.

18. The applicant spoke convincingly and in detail about numerous public events she has participated in, in [various Australian cities].  She was able to say when these events occurred, where they occurred, the purpose of the events and to describe any role she played in those events.  As mentioned, the applicant brought to hearing a substantial dossier of photographic evidence, including screen shots from websites, which showed her participating in exercise sessions in public parks, in Falun Gong celebrations and commemorative actions [and] in protest actions in [against] organ harvesting in China and against the Chinese government’s persecution of Falun Gong practitioners.  In many of these, the applicant is shown holding protest banners and playing an active role in public demonstrations against organ harvesting.  While uncertain of the exact name of the event, the applicant stated she has participated in Falun Dafa conferences including one which was held last in [city].  She also said she will participate in another conference which is planned to be held [in a certain city]. 

19. The applicant’s oral evidence regarding her ongoing Falun Gong practice and participation in public events is supported by three written statements provided by co-practitioners.  The applicant gave a plausible account of how she met each witness, how often they meet and for what purpose.  The information provided in these statements corroborates the applicant’s participation in practice/study groups and various Falun Gong events and activities.

20. Further, at hearing [Ms A] gave detailed oral evidence about her ongoing tutoring of the applicant. Her evidence was consistent with the applicant’s evidence in relation to when and how they met, their ongoing contact, and the study program the witness provided to the applicant.   Regarding the latter, [Ms A] stated that the applicant approached her for assistance, thinking that her study was not improving.  At her request, [Ms A] arranged for the applicant to attend two classes of nine days duration each.  [Ms A] concluded that through her observation of the applicant, her practice is very good, she is never absent from any event, always actively participants in events and is very hard working.  The tribunal found the oral evidence of [Ms A] very persuasive and detailed and that it was given without embellishment or exaggeration.

21. The tribunal had some concerns about the applicant’s motivation for participating in the abovementioned public events and at the hearing the provision at s.91R(3) of the Act was explained to the applicant.  The tribunal asked the applicant whether she had participated in those activities/events just to strengthen her claims for protection in Australia.  She replied that her participation is based on her wish to express the truth about Falun Dafa and the persecution of Falun Gong since 1999.

22. Despite the applicant’s claims the tribunal nevertheless considers it is likely a migration outcome is one factor, on the evidence before it, for the applicant’s participation in public events.  However, the tribunal has given weight to the applicant’s knowledge of Falun Gong practices and principles, her regular practice of Falun Gong and her commitment to continuing study of Falun Gong which is corroborated by [Ms A].  The tribunal has not concluded that the applicant’s actions in attending public events was undertaken for the sole purpose of strengthening her claims for protection.

23. At the hearing the tribunal invited the applicant’s comment, pursuant to s.424(AA) of the Act, on information which the tribunal considered would be, subject to her comments on, or response to, be the reason or part of a reason for affirming the decision under review.  The information was that two anonymous letters were received by the Department [in] September 2014 which suggest that she and her husband made false claims to be Falun Gong practitioners in order to obtain visas to remain in Australia.  This was said to be relevant because it contradicts her claims that she is a genuine Falun Gong practitioner.  It was explained that if the tribunal were to rely on the information, it may find that she is not credible and reject her claims to be a genuine Falun Gong practitioner, which may lead the tribunal to affirm the decision under review. 

24. In response to the above, the applicant stated that she did not require further time before responding.  She stated that she did not know the exact content of the information or the source of the information.  She said that since coming to Australia she has made a lot of effort to improve her practice of Falun Gong and to contribute to Falun Dong.  She stated that what she has said is true and referred again to her evidence.  She reiterated that the only reason she has done this is to try to become a good person.

25. Having considered this information, the fact that it is anonymous and unable to be verified, and the applicant’s oral evidence, the tribunal has not given much weight to the letters received by the Department [in] September 2014.

26. The applicant arrived in Australia in January 2014 and since April 2014 has been a regular participant in practice groups, study groups and public Falun Gong events.  She claims that she maintained her practice at home on arrival and the tribunal considers the gap between her arrival in the country and commencement of more organised activities in April to be understandable given she had arrived in a new country and had a young child to settle. On the available evidence, and for the reasons provided above, the tribunal accepts her claims in this regard.   Further, the applicant has demonstrated a knowledge of Falun Gong practice and principles, and has satisfied the tribunal that she has a commitment to ongoing practice and development. Accordingly, the tribunal accepts that the applicant is a genuine Falun Gong practitioner and that she has participated in many public events and protests in Australia as part of her commitment to Falun Gong. 

    Refugee Claims

27. The applicant fears persecution in China due to being a Falun Gong practitioner.

28. The tribunal accepts that the applicant is a genuine Falun Gong practitioner and that she has an ongoing commitment to Falun Gong, which includes exposing the truth about Falun Gong and the Chinese government’s persecution of its practitioners.  The Tribunal is satisfied that the applicant would continue to practice and advocate the benefits of Falun Gong if she were to return to China in the foreseeable future. 

29. In view of the above, the Tribunal accepts that there is a real chance the applicant could come to the attention of the Chinese authorities for her Falun Gong practices if she were to return to China. Further, the tribunal has had regard to country information which indicates that there is monitoring of Chinese persons residing in Australia on temporary visas. Some of that evidence indicates that the Chinese official surveillance of Chinese Australians has at times been “widespread”. The evidence indicates that the “five poisonous groups” which the Chinese authorities monitor in Australia includes the Falun Gong movement.[9]  DFAT has also consistently noted that it is likely that persons such as Falun Gong activists who participate in Falun Gong activities in Australia will be monitored and questioned upon their return to China.[10] In view of this information, the tribunal also accepts there is a real chance the applicant could come to the attention of the Chinese authorities for her involvement in Falun Gong activities in Australia. 

    [9] See See DIAC Country Information Service 2006, Country Information Report No.06/053: China: Return of failed asylum seekers, (sourced from DFAT advice of 14 September 2006), 15 September. See also Amnesty International Canada 2005, Amnesty International concerns on Uighur asylum seekers and refugees, June, which also refers to Falun Gong dissident groups and their monitoring by the Chinese authorities in different countries.

Referring to the country information outlined earlier in this decision about the treatment of Falun Gong practitioners in China, the tribunal accepts that Falun Gong practitioners who come to the attention of the authorities in China are at risk of detention, imprisonment and severe punishment including physical and mental abuse in attempts to get them to renounce their beliefs. The tribunal accepts that such treatment would amount to serious harm and that the applicant’s fears in this respect are genuine and well-founded.  The tribunal also considers that the serious harm which the applicant faces involves systematic and discriminatory conduct as required by s.91R(1)(c) of the Act, in that it is deliberate or intentional and involves selective harassment.

In order to be found a refugee the harm which is directed at the applicant must be for a convention reason.  There is some debate as to whether Falun Gong is a religion.  An RRT Background Paper on China – Falun Dafa, dated December 2012 provides the following:

“There are differing interpretations as to whether Falun Dafa is a religious movement.  During the Tenth European Country of Origin Information Seminar in 2005, it was stated Falun Dafa is a spiritual group, not a religion”.[11]

“By contrast, in 2002 Ter Harr reported that although Falun Dafa claims to be founded in scientific truth, not religion, the movement shares many of the same characteristics as religious movements”.[12]

[11] European Counry of Origin Information Network 2005, 10^th European Country of Origin Information Seminar China, 1-2 December

[12] Ter Harr, B.J. 2002, ‘Falun Gong: Assessing its Origins and Present Situation’, UNHCR Emergency & Security Service: WriteNet, July

1. The Macquarie Dictionary defines Religion as "The quest for the values of the ideal life, involving three phases: the ideal, the practices for attaining the values of the ideal, and the theology or world view relating the quest to the environing universe."

2. The Oxford Dictionary defines Religion as “The belief in and worship of a superhuman controlling power, especially a personal God or gods”.

3. The tribunal is satisfied that the belief system and the practice of Falun Gong falls within these definitions and thus Falun Gong is a religion for the purpose of the Convention. Further, the tribunal finds that the applicant's religion is the essential and significant reason for the persecution.

4. The tribunal does not consider on the evidence before it that the applicant would escape problems from authorities by moving to other parts of China. The crackdown on Falun Gong practitioners is not restricted to any one location and the tribunal finds that the applicant would face the same difficulties wherever she was living.

5. The harm feared in this case is a product of the policy of the State and therefore the tribunal finds that the applicant is unable to avail herself of the protection of the Chinese government.

6. In view of the above, the tribunal finds that the applicant has a well-founded fear of persecution in China due to her religious beliefs and practices.

7. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a) of the Act.

8. The tribunal is also satisfied that the applicant’s [child] is a member of the same family unit as the applicant for the purposes of s.36(2)(b)(i) of the Act. As such, the fate of [the child’s] application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.

   DECISION

9. The Tribunal remits the matter for reconsideration with the following directions:

   (i)That the first named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Tania Flood
   Member