1505470 (Refugee)

[2016] AATA 4877

1505470 (Refugee) [2016] AATA 4877 (20 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505470

COUNTRY OF REFERENCE:                  China

MEMBER:Mara Moustafine

DATE:20 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2016 at 12:45am

CATCHWORDS
Refugee – Protection visa – China – Religion – Falun Gong – Social group – Falun Gong Practitioner

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

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. The applicant, who claims to be a citizen of China, applied for a protection visa [in] July 2014. The delegate of the Minister for Immigration refused to grant the visa [in] March 2015 under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for a review of that decision. He provided a copy of the delegate’s decision to the Tribunal for the purposes of the review and is taken to be on notice of its findings and reasons.

3. The applicant appeared before the Tribunal on 15 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or complementary protection criterion.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. According to his application form, the applicant was born in [Jiangsu], China [in date]; had [a number of] years education; worked in a factory, then as [another job] until 2003; had no family in China and was divorced in Australia. He identified his religion as Falun Gong. He left China legally on a passport issued [in] 2009.

7. According to the Department’s decision, the applicant first entered Australia [in] September 2003 on a [business] visa and made an application for a protection visa [in] October 2003, which was refused by the Department [in] December 2003, a decision affirmed by the Refugee Review Tribunal (RRT) on 25 March 2004 and the then Federal Magistrate’s Court [in] September 2005. The applicant departed Australia [in] April 2009 and returned [in] September 2009 on a subclass 309 Prospective partner visa. His application for a substantive partner visa was refused by the Department [in] March 2012 and affirmed by The Migration Review Tribunal (MRT) on 20 February 2014. He then lodged a fresh protection visa application [in] July 2014. 

   Assessment of Claims

8. On the basis of his Chinese passport presented at hearing and, in the absence of evidence to the contrary, the Tribunal accepts that he is a citizen of China and that China is the receiving country for the purposes of s.36(2)(aa).

9. The applicant’s claims, as set out in the Personal Statement submitted with his protection visa application, are that he is seeking protection due to his involvement with Falun Gong. He claims that he joined Falun Gong in 1999. When he was last in China before coming to Australia in February 2011, he practiced Falun Gong because he was suffering [medical conditions] and believes there is nothing wrong with this practice as it improves his health. Unfortunately, due to his ‘active gathering with Falun Gong members’, their activity was eventually noticed by police, who came to his home to investigate him and were planning to take him to the police station. He bribed them to give him one more chance. The police accepted his bribe, warned him not to leave home and asked him to report to police on a regular basis. His family suggested he go abroad as soon as possible and he arrived in Australia in 2011. The applicant claims to fear persecution in China as the police are still looking for him, come to his house there regularly and have asked his neighbor to tell him to report to them as soon as he returns to China. He believes his safety cannot be guaranteed and wishes to remain in Australia so he can practice Falun Gong and keep his religious belief in peace and harmony.

10. At hearing the applicant’s evidence regarding the events that led his encounter with the police in China in 2011, were inconsistent with his written claims in some significant respects. The applicant made no mention of participating in any ‘gathering’ with Falun Gong members or their or activity eventually being noticed by police, but simply that he was practicing some movements outside his property. Further, he later clarified that he only ever practiced one exercise. While in his written claims, he stated that he was able to avoid being taken to the police station by bribery, at hearing he told the Tribunal that he was taken to the police station, detained there for several hours and told he could not practice Falun Gong and that this procedure was repeated on the following two days. Moreover, he claimed that he argued with the police about Falun Gong, telling them that all his friends in Australia practiced Falun Gong; that the police thought he was a Falun Gong leader and ‘brainwashed’ him, though when asked to explain this, said they told him he could not practice Falun Gong in China. In the Tribunal’s view, the applicant has not been truthful about his experiences in China, but embellished his claims in an attempt to strengthen his claims.

11. The applicant’s evidence about his Falun Gong practice further undermines the genuineness of his claims. While claiming that he became involved with Falun Gong in 1999, the applicant demonstrated no awareness of the essential elements of Falun Gong practice. He told the Tribunal that there were five Falun Gong exercises but was unable to name or describe them. He first claimed that this was because he could not practice since he injured his lower back a year earlier; then said that he had only ever done one exercise, which was specifically related to protecting [that part of the body]. Nor was he able to name the key Falun Gong text, Zhuan Falun, and said he had never read it. He said he treated Falun Gong as a way to strengthen his body and get rid of sickness. However, he was no longer practicing because of his sore back.  In light of this, the Tribunal is not satisfied that the applicant is now, or ever was, a Falun Gong practitioner; or that the Chinese authorities targeted him for this reason.

12. The Tribunal’s concerns about the truthfulness and general credibility of the applicant’s evidence are further exacerbated by his claim not to know the basis on which he sought protection in his previous application in 2003 and his failure to mention his fear of persecution as a Falun Gong practitioner in his evidence to the MRT. 

13. While the applicant told the Tribunal that he arrived in Australia on a 3-month business visa with the intention of returning to China, and that ‘other people’ or his migration agent applied for a refugee visa for him after his friend suggested that he get a bridging visa and stay. However, according to his statement [in] October 2003, submitted with his first protection visa application, he previously also sought protection on the grounds of his Falun Gong practice in China; and the wording in several paragraphs in this statement were identical to that in his current statement and bore the same signature, which also matched the signature he provided to the Tribunal at the hearing. This information was drawn to the applicant’s attention, in accordance with s.424AA of the Act. As discussed, with the applicant, the Tribunal does not find persuasive his response that he had no idea about the first application and ‘only paid money’.

14. In a similar context and pursuant to s.424AA of the Act, the Tribunal also drew the applicant’s attention that, according to the MRT’s decision record relating to his partner visa refusal of [February] 2014, he told the MRT that he did not know what he would do if his visa was refused: ‘He feels he cannot return to China after he has been here for so many years’. At the time, he made no mention of any problems relating to Falun Gong. Yet several months later, he applied for a protection visa on these grounds, using similar language as in his previous application. The Tribunal’s concerns are not assuaged by the applicant’s response that in 2003, he just wanted to extend his stay in Australia; but this time his application was based on his own experience. As discussed with the applicant, given his evidence that he submitted false claims in the context of his protection visa application in 2003, it is the Tribunal’s view that he again fabricated his claims in order to achieve a migration outcome.

15. Further, as discussed with the applicant, the Tribunal does not find plausible his claim that the police came to ask, variously, his father (at hearing) or his neighbour (in his written claims) whether he had returned to China and to let them know when he did. Given China’s highly coordinated public security system and immigration data bases, the police in his area would know when he left the country and when he returned.

16. In light of the multiple concerns discussed above, the Tribunal is not satisfied that the applicant has been truthful in his evidence or that his claims of persecution in China are genuine. The Tribunal does not accept that the applicant was ever a Falun Gong practitioner, who was persecuted or detained by the Chinese authorities or that he left to avoid this. Nor is the Tribunal satisfied that if the applicant returns to China, he will be targeted by the government as a Falun Gong practitioner, or face serious or significant harm from the authorities for this or for any other reason. 

17. The Tribunal is not satisfied that there is a real chance that if the applicant were to return to China, he would face persecution for one or more of the reasons contemplated by s.5J(1)(a) of the Act or that the applicant has a well-founded fear of persecution.

18. For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

19. CONCLUSIONS

20. For the reasons given above, the Tribunal is 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).

21. 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).

22. 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

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

    Mara Moustafine
    Member

    
    

    ATTACHMENT: RELEVANT LAW

24. 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.

25. 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).

26. 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.

27. 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’).

28. 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.