1505997 (Refugee)

[2016] AATA 3074

1505997 (Refugee) [2016] AATA 3074 (13 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505997

COUNTRY OF REFERENCE:                  China

MEMBER:Geraldine Hoeben

DATE:13 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 13 January 2016 at 12:58pm

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. He applied for a protection visa (PVA) [in] August 2014. The delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 7 January 2016 to give evidence and present arguments. The applicant was represented by a migration agent who did not attend the hearing. The Tribunal hearing was 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 rehearing basis, that is, de novo, to be heard afresh from the beginning. The applicant was put on notice that he should not take for granted anything given or stated earlier in support of his application as being automatically considered by the Tribunal. The Tribunal informed the applicant that he would need to present all the evidence at the hearing that he 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 he is a Falon Gong practitioner. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. Claims

    The applicant claims he is a Falon Gong practitioner.

    The applicant became a Falon Gong (FG) practitioner in 2010. He claims that:

    ·    [In] May 2012 he had been reported practising FG in his home. The police came and arrested him. They beat him with batons and told him not to practice any more. He was detained for a day;

    ·    [In] May 2013 he was practising FG at a friend’s home named [name] when the police came and arrested him and his fellow practitioners. He was beaten and tortured, lost consciousness and detained for one month.

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

12. Circumstances surrounding the application

    The applicant confirmed his date of arrival in Australia as being [in] May 2014. He confirmed that he arrived on a [temporary] visa and that he lied on the form stating that his original purpose was to lodge a PVA.  The Tribunal raised its concern regarding his falsifying an immigration document and lying to Australian immigration officials and he replied he did not know any other way to make a PVA in Australia. The Tribunal then noted that the PVA indicated only that he applied for his PVA ([in] August 2014) five days before his [temporary] visa expired ([in] August 2014) and would he like to comment on this coincidence as it might be regarded that he did not have a genuine fear of persecution. He replied that he did not remember.

    The Tribunal raised with the applicant his answer in his PVA that his religion was FG. He replied: yes. The Tribunal then asked the applicant to explain the inconsistency that he made an affirmation in the Tribunal based on Buddhist religious belief yet his PVA indicated  that his religion was FG. There was a pause but no answer.

    The applicant confirmed that he applied for a PVA [in] August 2014 some four months after he arrived in Australia. The Tribunal asked why he delayed four months to make the PVA and he replied that he did not know anyone. The Tribunal responded that the Australian Chinese community is one of the most robust, vibrant and long-standing ethnic communities in Australia going back to the early 1800’s and that while his answer might explain a week delay it did not explain four months delay. He replied he did not know the language or people.

    The Tribunal raised its concerns with the applicant regarding his honesty generally. The fact that he falsified details on his [temporary] visa application without any visible shame was worrying. As a result, the Tribunal raised with the applicant his obvious lack of concern to misrepresent facts on an Australian form and that he lied to Australian officials. He replied that everyone in China lies. The Tribunal then asked what was the overriding principal or theory behind FG and he replied Truthfulness, Forgiveness and Kindness. The Tribunal continued why it was that it should now believe what he was saying in relation to protection and fear of harm.  Despite prompting no further information was given.

    The Tribunal referred to question 35 on Part C of his PVA which indicated that the applicant’s reason for travel in 2013 was, in the words used in his PVA, seek for protection in [three specific countries] on dates from the months of February and March 2013 - all of which were read back to him. The applicant gave no answer. After repeating the question several times and more prompting he replied that he had not applied for protection in any other country other than Australia.

    The Tribunal gave independent country information (ICI) to the effect that if he was of such adverse interest to the Chinese authorities he would have, at least, been subjected to name-checking at the point of departure from China. It was also possible that if he had been detained it was also possible he may have been prevented from departing China altogether. The Tribunal then asked how was it that he was able to exit and re-enter China on several occasions without difficulty when he travelled to the countries above (2013) and when he departed for Australia in 2014 if he was of such adverse interest to the authorities as claimed. He replied he did not know how that happened.

    The Tribunal asked the applicant if he could explain the eighth month delay in acquiring his Australian [temporary] visa which he confirmed was [in] October 2013 and his departure for Australia in May 2014, if , indeed, he was in genuine fear of persecution and he replied that his father had died, his sister had died and that a festival had occurred which he had to attend. He provided no further details for the delay despite prompting.

13. Knowledge of Falon Gong and Claims

    When asked to provide supporting detail for both his claims he was unable to provide anything of substance that would indicate he had suffered anything at all because of his claimed FG beliefs.  

    At this point in time the interpreter asked for a five minute break.

    On resumption the Tribunal repeated its question. The applicant said he was taken to the local police station in [his district] at [address in] Shanghai [in] May 2012. The Tribunal indicated that this was a district where there many major international hotels and could he supply other details such as dates of detention and what happened but his only answers after some prompting was that the police  beat him. In answer to independent country information (ICI) being that the greater weight of authority was that FG practitioners are able to practise FG in their homes unharmed, he replied that exercising generally was OK but not FG exercises. In response the Tribunal repeated the question for a specific response and added that what he stated substantially conflicted with ICI. He gave no answer.

    In reply to whether he had suffered any other incidences of harm he replied that [in] May 2013  he was practising FG activities on a balcony of a friend’s home when they were all arrested and his friend’s FG CDs and books had been confiscated. He was tortured and detained for seven days. The Tribunal put to the applicant that at the delegate’s interview there was no mention of him practising FG at the friend’s house, on a balcony, which could be observed outside or that he was detained for seven days but rather one month. He replied that he had his head bashed by a baton and he forgot everything and has been told he now has depression. He repeated he could not remember anything at all.

    At this point in time the applicant asked for a break because his head hurt.

    On resumption he was asked to explain the discrepancy between the seven days detention he now introduced at the hearing with the claimed one month detention (second claim) he made at his interview with the delegate and he replied that the delegate must have been mistaken. The Tribunal reminded the applicant that his own written statement in his PVA claimed a month’s detention and not seven days. The Tribunal then asked the applicant to explain this discrepancy but there was no answer.

    The Tribunal asked if he could tell the Tribunal his understanding of FG and the objectives of the five universal FG exercises and he repeated he could not remember anything. He was asked if he could remember anything about the objectives of any of the exercises. He said he could not explain. It then asked if he could list the recent FG publications and/or CD’s he read or listened to which every FG practitioner was required to do a continual basis to maintain their commitment to the practice. He replied he could not remember but that his back felt better.

    The applicant continued he only learnt about FG during his time in Australia. The Tribunal indicated to him that this disclosure conflicted substantially with his claims of persecution in China if he had only heard about FG in Australia and he replied that he had nothing more to say.

    In reply to the ease with which he was able to depart China on his trip to  [the three specific countries] in 2013 and his more recent seamless departure from China for Australia in 2014 without attracting the adverse attention of the Chinese authorities - he replied he did not know why that happened. He continued that he still believed, nevertheless, that he would be arrested on his return to China.

    In reply to whether he practised FG in Australia he claimed he only practised at his home  and occasionally with a friend when he had time.

    As the Tribunal approached the conclusion of the hearing it asked whether he wished to give any further information in support of his PVA and  the applicant replied he did not have anything more to add.  

    The Tribunal noted that during the hearing there was a regular, palpable display of irritation by the applicant when he was asked questions of any sort or probed to explain answers which were either incomplete or unresponsive. The Tribunal had the impression that the applicant believed that going to the Tribunal was nothing more than a necessary and useless step in attaining a positive refugee outcome. 

    The applicant concluded his attendance at the Tribunal by saying that it was up to him to say it or not. He continued it was up to the Tribunal to believe him or not and if the decision did not support him he intended to appeal to a higher court. He concluded that he would die in Australia.

14. Findings

    The Tribunal does not find the applicant to be a person of credit.

    The applicant has made an admission that he lies and that he had lied in his application for a [temporary] visa and to Australian immigration officials.

    The applicant has indicated a total lack of remorse for dishonesty in supplying information in his [temporary] visa form. He has justified this by stating that this was the only way he could claim refugee status. The Tribunal does not accept this explanation as informative in any way.

    The applicant could not provide any convincing explanation as to why it took him eight months to depart China after his [temporary] visa was granted. Equally, he could not provide any plausible explanation as to how he only coincidentally applied for the PVA some five days before his [temporary] visa expired. Similarly, he could not provide any believable explanation as to why he delayed his PVA some four months after he arrived in Australia. All these incidences of delay together do not support a genuine fear of harm.  

    The Tribunal does not believe that the applicant called for a break because his head was hurting but rather because he could not/or did not want to answer the Tribunal’s questions. The adjournment came at a time when he suffered spontaneous memory loss as to any knowledge of FG at all.

    Irrespective of whether the applicant went to [the three specific countries] to seek for protection or for a trip, it is clear from his evidence that he faced no restrictions on his travel in and out of China because of his FG beliefs. Equally, his departure from China to Australia also reflected a similar lack of adverse interest by the Chinese authorities. From this the Tribunal has concluded he was of no interest to the Chinese authorities for any reason.

    The applicant’s lack of FG knowledge generally and limited FG activities in Australia, which he only undertakes occasionally, is not consistent with a FG practitioner who allegedly was beaten by the authorities in China because of his FG beliefs.

    The inconsistencies in his claimed accounts of persecution such as the introduction of new details of being observed on a home balcony (the second claim) at the hearing and the amount of time detained changing from one month to seven days (again the second claim) is indicative of  fabrication.

    The above together with  the applicant’s inability to talk about FG in any informed manner at all has lead the Tribunal to the belief that he is not a FG practitioner nor ever has been.

    It follows that the Tribunal does not believe that he suffered any of the incidents claimed.

    The Tribunal finds that there is no detail or evidence produced to make any positive findings which would indicate that the applicant faces a real risk of significant harm if he returns to China because of his FG practice.

    There is no convincing evidence before the Tribunal to support his claim that he was ever at risk in China because of his claimed FG practice. The Tribunal finds that there is no chance or real risk that he would be arrested on his return to China in the foreseeable future.

    In consideration of the evidence available to the Tribunal, it finds that if the applicant was to return to China he would not practise FG or be involved in any FG-related activities in Australia or China.  For these reasons, the Tribunal is satisfied that there is no real chance that the applicant would suffer serious harm on the basis of religious faith/FG practice. The Tribunal does not believe that the applicant has a well-founded fear of persecution in China if returned to China in the foreseeable future.

    Given this paucity of information there is nothing to indicate that should the applicant return to China that, as a real and necessary and foreseeable consequence of his removal from Australia back to China, there is a real chance or risk of significant harm to him because of his FG practice.

15. CONCLUDING PARAGRAPHS

16. 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).

17. 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).

18. 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

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

    Geraldine Hoeben
    Member