1505332 (Refugee)

[2016] AATA 3015

1505332 (Refugee) [2016] AATA 3015 (7 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505332

COUNTRY OF REFERENCE:                  China

MEMBER:Geraldine Hoeben

DATE:7January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 January 2016 at 12:53pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of China, arrived in Australia [in] May 2014. She applied for a protection visa [in] June 2014 (PVA) and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on two occasions being, 24 November 2015 and 7 December 2015 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

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

10. The issue in this case is that she is a Falon Gong (FG) practitioner since 2013. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. Claims

    The applicant is a [age] year old university graduate who claims that she became interested in FG in 2013.

    She claims that she was married to a [Country 1] man and that she wanted to became pregnant but could not. She called on her belief in FG to help her become pregnant.

    In December 2013 the authorities entered her residence and seized her FG materials and she was detained for [number] days. She was released on bail pending a punishment decision being made.

    The Tribunal noted that a copy of the delegate’s decision was attached to her PVA.

12. Circumstances Surrounding the PVA

    At the first Tribunal hearing the applicant illustrated a limited knowledge of FG and only a superficial grasp of the five universal exercises when asked to explain them. She gave similar answers to the objectives of each of the five universal FG exercises explained in a different manner and using different use of words. The Tribunal had the impression, through her similar repetitive answers, that she had tutored herself in FG information. This was put to her but no answer was given.

    In answer to an observation that she was widely travelled having been to [Country 2] twice [country], [country] and [country], she replied she went as a tourist. She stated that she first started FG in [country] at the first hearing but later changed this at the second hearing to stating she was introduced to the practice in her second visit to [Country 2] in 2013. She was asked if she would like to explain this discrepancy but she only replied that it was on her second visit to [Country 2].

    She was referred to the delegate’s decision and asked why she was refused entry into [country] and she replied that she had not completed the form.

    In answer to a question as to why she had not sought asylum in [Country 1] at the second hearing she replied that [Country 1] had a different FG than that in China. She continued that she had lived apart from her husband and that his mother was a Buddhist who did not like FG. There was tension between her and the mother-in-law. In answer to a question as to why this was relevant to her claim she replied that it made her realise that her relationship with her husband was not what it should be and so she got divorced. The Tribunal again asked about relevancy but there was no further information.

    The Tribunal then asked if she had any evidence to support her [Country 1] marriage or divorce and she said she could get it. It also asked why this was the first time she mentioned this complex story regarding the mother-in-law at the first hearing or before the delegate at the interview and she replied she had not been asked.

    The hearing was adjourned to give her time to get a certified copy of her [Country 1] marriage or divorce certificate.

13. The Applicant’s supporting information

    The applicant stated that she married a citizen of [Country 1] and was married in [Country 1] in 2012. She claimed that her husband wanted her to practise FG as he thought that this may assist in a pregnancy. 

    In response to the request by the Tribunal that the applicant obtain a Justice of the Peace (JP) statutory declaration proving either the marriage or divorce, the applicant produced a document titled Notarised Declaration for Divorce Fact which stated that there were also attached two documents, namely, a divorce order and a household registration record. This document was translated but was not verified by a JP. There were no other documents attached, that is, there was no attached divorce order or household registration documents.  The main document which purported to be [of Country 1] was a photocopy of a piece of paper that looked as if it had been paste and stuck onto another sheet of paper – at several points. The Tribunal has not found this document to be helpful one way or another as to the authenticity of the existence of a [Country 1] husband. Secondly, it is clear that the photocopy was largely a very crude and childish attempt to give an impression of officialdom and authenticity. The Tribunal finds this document to be not genuine and has given it no weight. The tribunal finds there that there was no [Country 1] marriage at all.

    The applicant produced a number of photographs of very pretty landscape vistas that she stated she downloaded from the internet but the Tribunal indicated to her that it could not see how these photographs were relevant to her claim and asked her to explain them. She replied that she attended FG activities in [Australia] and that the Communists in China harvested FG practitioners’ organs. The Tribunal asked how this related specifically to her personal claim for protection and she stated that she had been imprisoned for [number] days in December 2013 when the police broke into her home and also confiscated her FG items.

    The Tribunal asked for supporting information regarding this period of detention several times but no supporting information was given. The Tribunal prompted the applicant several more times to provide any supporting details at all such as bail conditions, dates and detention location but she gave no further information as to the claim itself or the role that the husband played during this time.

    The Tribunal then asked why it took her six months to come to Australia after her detention but, despite repeating the question, there were no further details.

    The Tribunal put to the applicant it was likely that, given her recent detainment, she would have faced some name checking or scrutiny at the exit point from China and even a possibility her passport might have been confiscated, yet her PVA indicated that she left China legally and had no problems with her travel arrangements. She said she was only one of the FG beginners.

    Similarly, the Tribunal put to the applicant that it noted that she had the same residential address for many years and in particular during her time of claimed detainment - and that there was no noting of her imprisonment (viz the question regarding her residential address) in her PVA.  She replied it was in her personal statement. The Tribunal then reminded her of the Tribunal preamble to the second and first hearings which indicated that if she wanted the Tribunal to consider something in relation to her claim she would need to bring this to the specific attention of the Tribunal and not take for granted that the formation already submitted would automatically be considered. She replied that she had mentioned it.

14. Findings

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

    Her lack of any credible supporting detail as to her claim is not consistent with a genuine fear of harm on return to China.

    Her conflicting evidence as to how she became interested in FG and the newly created story regarding the mother-in-law smacks of fabrication. The crude effort to create an official document to prove that she was once married (or viz divorced) to a [Country 1] man to support her story of persecution is unconvincing.

    The downloading of photos from the internet showing picturesque vistas and the assertion as to organ harvesting of FG practitioners as illustrative of her own personal situation did not help her claim in any positive or particular way.

    The applicant’s limited knowledge of FG and lack of any supporting information to support any FG activities in Australia does not assist her assertion that she is an committed FG practitioner or devoted advocate at the level that would attract the adverse attention of the Chinese authorities resulting in [number] days of detention. The Tribunal finds that the applicant does not practice FG.

    Her delay of six months from the time of departing China after her detention and not attracting the adverse attention of the authorities either at point of exit or as to travel arrangements or any other sort of scrutiny is not believable.

    The Tribunal does not believe that the applicant is either a FG practitioner or that she was ever detained for any FG beliefs.

    Her inability to provide any relevant accompanying details, including, inter alia, detention particulars, bail conditions, dates or genuine documents of any sort to support her claim of detention opinions a fabricated PVA.                  

    CONCLUDING PARAGRAPHS

15. For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

16. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

17. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).]

    DECISION

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

    Geraldine Hoeben
    Member