1506549 (Refugee)

[2017] AATA 1044

1506549 (Refugee) [2017] AATA 1044 (31 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506549

COUNTRY OF REFERENCE:                  China

MEMBER:Gabrielle Cullen

DATE:31 May 2017

PLACE OF DECISION:  Sydney

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

(i)that the first and third named applicants satisfy s.36(2)(a) of the Migration Act; and

(ii)that the second named 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.

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

Statement made on 31 May 2017 at 3:25pm

CATCHWORDS

Refugee – Protection visa – China – Religion – Imputed political opinion – Particular social group – Falun Gong practitioners – Detention – Labour camp – Public media profile – Regular public protest – No State protection – Relocation not possible

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 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. 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 who claim to be citizens of China applied for the visas [in] August 2014 and the delegate refused to grant the visas [in] April 2015.

3. The first named applicant, a female citizen of China, lived in Shanghai until her departure from China [in] June 2014. She claims she fears return as she is a Falun Gong practitioner and as Falun Gong is banned in China. She claims she began practising Falun Gong in 1998 was detained and sent to a labour camp in China. She claims to continue to practise and protest against the Chinese government’s treatment of Falun Gong practitioners in Australia. She claims she will practise were she to return to China. She is the mother of the second named applicant, and the adult daughter of the third and fourth named applicants. Her spouse remains living in China.

4. The second named applicant is the minor daughter of the first named applicant born on [date]. She submitted a Part D form being an application for a member of the family unit who does not have their own claims for protection.

5. The third named applicant, a female citizen of China born on [date], is the mother of the first named applicant and spouse of the fourth named applicant. She claims she fears return as she is a Falun Gong practitioner and as Falun Gong is banned in China. She claims she began practising Falun Gong in 1997 was detained and also sent to a labour camp in China. She claims to continue to practise and protest against the Chinese government’s treatment of Falun Gong practitioners in Australia. She claims she will practise were she to return to China.

6. The fourth named applicant is the spouse of the third named applicant and father of the first named applicant.  He submitted a Part D form being an application for a member of the family unit who does not have their own claims for protection.

7. [In] April 2014 the first and third named applicants were interviewed separately by the Department. The Tribunal has listened to the tapes of those interviews and where relevant the evidence from those interviews appears in this decision.

8. The delegate refused to grant the visas [in] April 2015. The delegate doubted the first and third named applicants faced the difficulties they claim in China as Falun Gong practitioners on the basis that they were able to depart China without incident and were able to obtain passports. He also based this finding on the continuous employment of the first named applicant. The delegate noted that information indicated that Falun Gong practitioners have restricted employment opportunities. He referred to the prevalence of document fraud in China and placed no weight on documentation as to their Falun Gong practice in China. He also doubted that they had been detained in Labour camps on the basis of their verbal testimony. He found the first and third named applicants’ claims to be Falun Gong practitioners and to have faced the difficulties they claimed in China to be not credible.

9. The first, third and fourth named applicants appeared before the Tribunal on 27 April 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The Tribunal also received oral evidence from [several named witnesses].  All claim to have been Falun Gong practitioners for over ten years and permanent residence or citizens of Australia. [Mr A] claimed to be the volunteer coordinator at the [Suburb 1] Falun Gong practice site[1] where the first and third named applicants practise Falun Gong.

   [1] [Information deleted].

10. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

11. The issues to be considered in this case are as follows.

    ·Are the applicants credible as to their country of citizenship?

    ·Do they have a right to enter and reside in any other country?

    ·Are the first and third named applicants credible as to their claims?

    ·Do the first and third named applicants have a well-founded fear of persecution in relation to China and meet the protection obligations under the Refugees Convention?

    RELEVANT LAW

12. 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

13. 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).

14. 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.

15. 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.

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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

    Section 499 Ministerial Direction

23. 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

24. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited, to the following.

    ·The applicants’ protection visa applications of [August] 2014, including statements from the first and third named applicants outlining their claims for protection and identity documents.

    ·Oral evidence of the first and third named applicants provided at the Department interview held [in] April 2015 and the Tribunal hearing held on 27 April 2017, including the evidence of the witnesses.

    ·Evidence submitted to the Department including:

    oPersonal and Family Experience Statements of the first and third named applicants and supporting evidence.

    oAdditional lengthy statements from the first and this named applicants at folio 191 and 179 of the Department file

    oPhotographs depicting the first and third named applicants' presence at numerous Falun Gong activities in Australia since their arrival in 2014 with website references.

    o[Articles] referring to the practise of the first and third named applicants and their detention in China. The Tribunal went to the web addresses provided for the articles and they are as claimed.

    oNumerous Testimonials as to the first and third named applicants practice of Falun Gong in Australia and China, attending protest events in Australia and China, and being detained in China including from [five named witnesses]. [One witness] states that she is the volunteer Falun Gong coordinator in her area and has witnessed the applicants practising Falun Gong at her practice site since July 2014.Statutory declarations from [three other witnesses] refer to knowing the first and third named applicants in China and of their detention for being Falun Gong practitioners.

    oStatutory declaration from [a named witness] indicating the first named applicant came to work at [a newspaper] in August 2014 in the [specified] area. She notes that [it] is a community newspaper which brings restricted Chinese news to people. She notes seeing the first named applicant at Fa study groups and believes she is a genuine Falun Gong practitioner.

    oLetter from the Assistant Fa Study Group at [Suburb 1] advising that all of the family participate in Falun Dafa activities, including Fa study at [Suburb 1] on Tuesday night and Fa study in [Suburb 2]. She also indicated that the third named applicant goes to [a specified location] to practise Falun Gong as a protest [often] and that the first named applicant [occupies a position] at [Newspaper 1]. She refers to them practising Falun Gong at [an international event] in [two locations] as a protest.

    oLetter from [Newspaper 1] dated [March] 2015 confirming the first named applicant works on a part-time basis for the newspaper and confirming she is a genuine Falun Gong practitioner

    oCriminal Judgement against the first named applicant from [a Chinese court] dated [in] 2012.

    oNotice of Re-education Through Forced Labour relating to the first named applicant dated [in] 2001.

    oNotice of Detention for Family relating to the third named applicant dated [in] 2001.

    ·Evidence submitted to the Tribunal including:

    oTranslated Chinese documents as to the first named applicant dropping out of school. It indicates that she was required to quit school dated [February] 2001.

    oNotification for Hiring Defence Counsel dated [in] 2012 with regard to the case against the first named applicant being involved in an evil cult.

    oReceipts for the first named applicant’s daily necessities issued by [a] Detention Centre dated [in] 2011 and [2012].

    oLetter to the relatives of the first named applicant, including her father, [sibling] and husband indicating that they can visit the first named applicant at [prison].

    oLetter as to the first named applicant’s items in need at [the] Detention Centre.

    oPhotograph of [Newspaper 1] with the first named applicant on the front page (untranslated).

    oPicture of the first named applicant, with her name stated and details as to her practise of Falun Gong and detention on the front page of [a local newspaper], dated [in] July 2015.

    oSubmission and letter of support dated [in] December 2015 from [named] who was granted refugee status in [another country in] April 2003 and citizenship in 2006. He indicates he is currently studying at [university] to gain a Doctorate. He claims to have known the first named applicant for 15 years and met her in July 1999 after the crackdown of Falun Gong practitioners when he met her with other practitioners at [university]. He claims he knew she was arrested and incarcerated in a forced labour camp. He claims he learnt from [a] website that she had been arrested again. Evidence of his grant of asylum by the [named] government was also provided.

    oSubmission from [a] [country] citizen dated [November] 2015 and fellow practitioner indicating he practised Falun Gong with the first named applicant in China in 1999 at [university]. He outlines the difficulties he and the first named applicant faced after Falun Gong was banned in 1999 consistent with the first named applicant’s testimony. He confirms she was detained in 1999 and placed in a labour camp in 2001. He claims her husband is also his close friend and he learnt that in 2011 she was illegally arrested and placed in prison.

    oPetition and letter of support from 31 claimed Falun Gong practitioners indicating that the applicants are genuine Falun Gong practitioners. The submission indicates that are part of [a] big Fa group which meets every Saturday evening in [Suburb 2] from 6.30pm to 9.3pm, they belong to a local Fa study group held from 7.30pm to 10pm in [someone’s] home and have been part of a rally to submit a lawsuit against Jiang Zemin to stop organ harvesting.

    oLetter from [Newspaper 1], Chief Executive Officer dated [in] April 2017 indicating the first named applicant works full time there [and] has done so since July 2016. He confirms she is a genuine Falun Gong practitioner.

    oLetter from [an official of a] Falun Dafa Association [dated] [in] April 2017. He writes in support of the first and third named applicants’ protection visas. He notes that they do not generally write support letters for Falun Gong practitioners. He notes they rely on the testimony of veteran practitioners who have provided statements in support of the applicants. He notes they are aware of practitioners confirm the applicants practice of Falun Gong and detention in China. He writes that he is very concerned at the Department’s reason for refusal being that the applicants were able to obtain passports to leave China questioning their claimed detention. He refers to information provided by him and [another named person] to the Tribunal in 2006 which contradicts this.

    oStatutory declaration from [a named witness] as to the practise at [suburb] daily of the third named applicant and that she goes to [a specified location often] to practise Falun Gong and protest at the treatment of Falun Gong practitioners dated [in] April 2017

    oCertification as to the first named applicant hiring defence counsel in 2012, receipt for daily needs and other document’s relating to her detention in 2012.

    oOfficial documents relating to the third named applicant’s one year re-education through forced labour in 2011/2.

    oNumerous photos of the first and third named applicant practising Falun Gong and protesting in [two locations] at the treatment of Falun Gong practitioners.

    oNewspaper articles including [several news sources] indicating the third named applicant was part of [efforts] to raise awareness of the persecution of Falun Gong practitioners. The articles refer to the third named applicant as a Falun Gong practitioner, with her photo and name, and on a number of occasions refer to her harsh treatment in China. The Tribunal confirmed that these are [genuine].

    oStatutory declaration from [Mr A] indicating he is a volunteer coordinator at four practice and Fa study sites which are at [four locations]. He also indicates he is in charge of the group morning exercise at [Suburb 1]. He claims he knows the first and third named practitioners from practising Falun Gong with them since 2014. He also attached his official [change] of name [form].

    oNumerous photographs and links to the media coverage of the first named applicant’s practice and persecution in China at Falun Gong organised events in Australia in 2015 and 2016.

    ·DFAT DFAT Country Information Report China – March 2015

    ·DFAT DFAT Thematic report Unregistered Religious Organisations and Other Groups in the People’s Republic of China March 2015

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

1. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Are the applicants credible as to their country of citizenship?

2. On the basis of the applicants’ identity documents and evidence provided at hearing the Tribunal accepts that the applicants are nationals of China. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that China is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that China is the receiving country.

   Do the applicants have a right to enter and reside in any other country?

3. As there is no evidence before the Tribunal that the applicants have lived in another country or have any connection to another country the Tribunal finds that they do not have a right to enter and reside in any other country in terms of s.36(3) – (5) of the Migration Act, other than China .

   Are the first and third named applicants credible as to their claims?

4. The delegate found that the applicants’ claims had been made for the purpose of supporting their protection visa applications. He was of the view that the applicants were not credible witnesses and their claims were fabricated to support their claims for protection.

5. However, on the basis of considerably more evidence, as well as the first and third named applicants’ ability to provide consistent, detailed and persuasive evidence at the hearing about their practise of Falun Gong in China and Australia, which displayed a depth consistent with knowledge drawn from actual experience, as well as the supporting documentation from Falun Gong practitioners in Australia and China the Tribunal has reached a different conclusion than the delegate. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

6. At the Tribunal hearing held on 27 April 2017 the applicants answered questions in detail and without hesitation. They were able to reiterate their evidence as to the difficulties faced in China consistent with their previous evidence. The Tribunal also considers that the first and third named applicants spoke about their involvement in Falun Gong in a manner which the Tribunal accepts was from their own personal experiences, rather than a fabricated account of their experiences.

7. The Tribunal found the applicants’ evidence to be unrehearsed, detailed and responsive to the Tribunal’s questions as to their knowledge of Falun Gong, their practice in Australia and China, the difficulties faced and the concerns raised by the Department. The Tribunal examined with scrutiny their beliefs and practise in Australia which was consistent with independent information. At the Tribunal hearing they were able to name the exercises and perform the first and third exercises correctly, as well as the verses recited in Chinese before each exercise. They were able to describe consistent with independent information the principles of the exercises. They were able to answer consistent with independent information questions in detail, in an unrehearsed manner as to the theory of Falun Gong.

8. The evidence of the witnesses who have practised with them some since their arrival in July 2014 was highly persuasive as to confirming that the first and third named applicants are genuine Falun Gong practitioners who had practised in China. All of the witnesses who are veteran practitioners confirmed when the applicants arrived July 2014 they were knowledgeable as to the practise of Falun Gong. [Mr A] [coordinator] of the [Suburb 1] site was an impressive witness. When asked how he knew a person was a genuine Falun Gong practitioner, he indicated that an experienced practitioner can tell by talking to them and doing the exercises with them. He said the first and third named applicants were experienced Falun Gong practitioners on their arrival in Australia in 2014. Other veteran practitioners also gave evidence that they are genuine Falun Gong practitioners.

9. The Tribunal also views the letter of support from the Falun Dafa Association [to] be persuasive as to the applicants’ credibility as to being genuine Falun Gong practitioners The letter refers to support given to them by veteran practitioners who have provided testimony on their behalf as to their genuine belief in Falun Gong and that they practised Falun Gong in China.

10. Dr Benjamin Penny, an academic who has undertaken considerable research on Falun Gong, has provided advice to the Tribunal regarding the factors he considers a genuine Falun Gong practitioner should know, including the existence of Zhuan Falun, the main scripture for Falun Gong practitioners, how many chapters it contains, the existence of the five sets of exercises and an ability to perform them confidently, an ability to explain why Falun Gong is important to them and how it has helped them and others.[2] Whilst not definitive, the Tribunal considers the evidence given by the first and third named applicants to be consistent with what Dr Penny has suggested a genuine Falun Gong practitioner should know. The Tribunal is mindful that information about Falun Gong can be learnt for the purposes of supporting a claim to be owed Australia’s protection. However, as stated above, the Tribunal also considers that the applicants’ evidence was consistent with their detailed written statements and their testimony as to their beliefs and practice was genuine, detailed and unrehearsed.

    [2] Falun Gong: An Academic’s Perspective, by Dr Benjamin Penny, 26 July 2006.

11. The Tribunal also views as persuasive the extent of the protests they have attended in Australia to be indicative of genuine Falun Gong practitioners as represented by the numerous photographs submitted and referred to in a number of newspaper articles.

12. It views as persuasive that the first named applicant is a genuine Falun Gong practitioner, her full time employment with [Newspaper 1], and the numerous media articles submitted as to the difficulties she faced in Chian as a Falun Gong practitioner and to her protesting as to the Chinese Government treatment of Falun Gong in Australia. Photographic evidence and evidence from the witnesses as to the third named applicant’s attendance at the [specified location] [where] she peacefully practices Falun Gong, adds to the Tribunal’s finding that the third named applicant is a genuine Falun Gong.

13. As the Tribunal accepts that the first and third named applicants are genuine Falun Gong practitioners, it accepts as credible and genuine their motivation to practise Falun Gong and protest against the Chinese Government at numerous locations in Australia since their arrival in 2014.  It does not accept it was done for the purposes of strengthening their claims for protection. It finds the first and third named applicants to be credible witnesses in this regard.

14. The Tribunal has concerns about the first and third named applicants’ ability to obtain passport and to leave China in 2014, in circumstances where they claim they were known by the police and local committee and had been detained. The DFAT report indicates that Falun Gong practitioners who are committed to their faith and who were already known to authorities or who had overtly engaged in behaviour considered to be politically sensitive would likely find it very difficult to obtain a passport to leave China.[3] However information from around 2011 indicates that someone who had been the subject of administrative detention may still have been able to legally acquire a passport and exit China. Question 3 of Country Advice CHN38003 (January 2011) provides information on this subject. This includes DFAT advice on the ability of Falun Gong leaders and followers to leave the country. DFAT advises that:

    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.[4]

    [3] Department of Foreign Affairs and Trade 2015, Thematic Report: Unregistered Religious Organisations and other Groups in the People’s Republic of China, 3 March at para. 3.30.

    [4] Department of Foreign Affairs and Trade 2008, DFAT Report No. 943 – China: RRT Information Request: CHN34077, 16 December.

15. The Tribunal has also had regard to the evidence of witnesses at hearing that the situation differs depending on where the passport is issued and Shanghai being an easier place to obtain a passport. As the applicants departed in 2014, the Tribunal does not view their ability to obtain a passport and leave China to be determinative that they are not Falun Gong practitioners.

16. As a consequence the Tribunal accepts the applicants to be truthful witnesses as to their claims.

17. In summary it accepts as true the following with regard to the first named applicant’s claims:

    ·She is a genuine Falun Gong practitioner who began practising Falun Gong at [a university] in China in 1998 after she became aware of the benefits of practise from her mother.

    ·After it was banned in 1999, she took part in a number of petition activities at [Shanghai] and in Beijing, where she was consequently detained on a number of occasions from 1999 to 2000.

    ·She was detained in 2001 after the self-immolation incident of other practitioners at Tiananmen Square, by the [Police] and placed in a labour camp for two years. She suffered beatings and numerous difficulties as they tried to convince her to give up Falun Gong.

    ·She was released in 2003 but continued to be monitored. She contacted [a fellow practitioner] and they were married in 2004.

    ·Their whole family including the third and fourth named applicants were monitored by the 610 office.

    ·In December 2011 she was arrested as a result of letters she had sent exposing the truth of Falun Gong. She was sent to the [Detention] centre. She was sentenced to two years imprisonment until [2013].

    ·Since her arrival in Australia in July 2014 she has practised Falun Gong at numerous sites, including [suburb] and [Suburb 1] and studied the Fa in [Suburb 2].

    ·She has attended numerous Falun Gong protest events in [Australia].

    ·Her picture has appeared on the front page of [a local newspaper], with her name and photo protesting against the treatment of Falun Gong practitioners and outlining her practise of Falun Gong and the difficulties faced in China. [5] Her photo and name also appears [on] a number of occasions protesting against the Chinese government.[6] Her photo and name also appears on the front page of [Newspaper 1] with the original submitted 

    ·She works full time at [Newspaper 1].

    [5] [Information deleted].

    [6] [Information deleted].

18. In summary it accepts as true the following with regard to the third named applicant’s claims:

    ·She is a [profession] and retired in 1995.

    ·She began to practise Falun Gong exercises for health reasons in 1997 and taught others the exercises.

    ·Following the crackdown on Falun Gong in 1999 she was visited at her home by the authorities and threatened to cease being involved. She gave up her practice in public but did so at night.

    ·She continued to be monitored and the authorities harassed her husband who was a senior [occupation] by directing him to do demeaning work.

    ·In November 1999 she was called to collect the first named applicant who had been detained because of her involvement in Falun Gong.

    ·In 2001 she was detained and questioned at [a] Police Station for keeping and transferring Falun Gong material after a fellow practitioner was detained. She was later transferred to [a] Labour [Camp].

    ·She continued to practise Falun Gong in private on her release.

    ·In 2008 her husband retired and the couple relocated to Shanghai to live with their [adult child] where they continued to be visited by the authorities.

    ·In December 2011 she learned the first named applicant had been arrested by the [Police]. She visited her often.

    ·On the release of her daughter she decided she should depart China with her daughter.

    ·Since her arrival in Australia in July 2014 she has practised Falun Gong at numerous sites, including [suburbs] and [Suburb 1] and studied the Fa.

    ·She has attended numerous Falun Gong protest events in [Australia].[7]

    ·She visits [a specified location] and protests against the treatment of Falun Gong practitioners and practises Falun Gong [on] an almost daily basis.

    ·Her picture, name and often the story of her persecution in China has appeared in newspaper articles including [named news sources] when she was part of [efforts] to raise awareness of the persecution of Falun Gong practitioners in China.[8] Her photo and name has appeared [on] a number of occasions protesting against the Chinese government.[9]

    Do the first and third named applicants have a well-founded fear of persecution in relation to China and meet the protection obligation under the Refugees Convention?

    [7][Information deleted].

    [8][Information deleted].

    [9][Information deleted].

19. Having accepted that the first and third named applicants are committed and genuine Falun Gong practitioners in China and in Australia, and protested publicly in Australia, the Tribunal has considered whether there is a real chance that they will suffer serious harm for reasons of their involvement and association with Falun Gong and public protest.

20. In its 3 March 2015 Country Report on China the Australian Department of Foreign Affairs and Trade (DFAT) reported that “Falun Gong practitioners, or those engaged in activities perceived to be “anti-government” in nature risk adverse treatment by authorities, including discrimination, harassment, detention, and violence.”

21. In its March 2015 Thematic report Unregistered Religious Organisations and Other Groups in the People’s Republic of China DFAT states that Falun Gong is banned and considered an “evil cult” in China. It also notes the following:

    3.25 Credible sources have told DFAT that Falun Gong practitioners are generally able to practice privately in their homes relatively free from interference by authorities. However, Falun Gong members regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours. Generally speaking, the possession of banned materials (books, CDs, or information about Falun Gong) would likely attract a fine or short-term period of administrative detention. However, punishments can vary according to location, the profile of the individual and local political circumstances

    3.26 The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address “evil cults”. This group maintains an extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong), to eradicate Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as “transformation through re-education centres” to force practitioners to relinquish their faith. Since the general abolition of re-education through labour centres was announced in late 2013, 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. According to Duihua’s Political Prisoner Database (PPDB), the number of Falun Gong prisoners known or believed to be in custody has nearly halved since 2009 and approximately 2,369 cases were documented for 2013. The United States Commission on International Religious Freedom stated there were 486 known Falun Gong practitioners serving prison sentences as at the end of 2013. According to Freedom House, the Chinese government launched a new, three-year crackdown against Falun Gong practitioners in 2013.

    3.27 Falun Gong practitioners who are sentenced to criminal punishment most commonly receive verdicts of three years’ imprisonment or less. Once in detention, Falun Gong practitioners are under pressure to denounce their faith in Falun Gong. Methods reportedly used against Falun Gong practitioners include sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings. Reports of psychological treatment used against practitioners have also been documented in international human rights reports. Reports of psychiatric experimentation and organ harvesting being imposed on Falun Gong practitioners in detention could not be independently verified.

    3.28 Leaders and regular followers tend to receive the same type of treatment in detention. Falun Gong practitioners who sign confessional statements early can possibly face better treatment in detention and can be permitted to return to their normal lives and jobs. Others who are persistent in defending their beliefs and who refuse to sign a statement can face worse treatment in detention. The lack of transparency into China’s prison and detention centres makes it difficult to verify these claims.

    3.29 On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs (such as cleaning toilets or subways).  Discrimination of Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships. There have been cases where officials have targeted family members in order to pressure Falun Gong practitioners. Officials working within the government, members of the police force and workers within state-owned enterprises are commonly required to sign an acknowledgment clause stating they and their families are not Falun Gong members.

    3.30 Falun Gong practitioners who are committed to their faith and who were already known to authorities or who had overtly engaged in behaviour considered to be politically sensitive would likely find it very difficult to obtain a passport to leave China. DFAT has been told of some immigration agents in China who coach people about what to say in order to convince others that they practiced Falun Gong. DFAT was also told that some lawyers and other “people who wanted to make money” (particularly those located in transit countries with some training in immigration matters) had been discovered teaching people about Falun Gong practices in order to aid their clients’ claims for asylum. Falun Gong practitioners who denounce their faith in order to avoid punishment by Chinese authorities would likely be rejected from the Falun Gong community in China. However, this was not necessarily the case for those seeking to join the Falun Gong community overseas, where knowledge of their actions in China would not necessarily be well-known or easily disproved.

    3.31 Human rights lawyers who defend Falun Gong practitioners can be denied access to their clients in detention or court and can be subjected to adverse treatment by authorities (such as harassment, loss of legal licenses, pressure on family members and occasionally, violence). Unlike other organisations identified as “cults” by the Chinese government, practitioners of Falun Gong are not considered victims but rather as people operating in deliberate opposition to the Chinese government’s policies.

    3.32 DFAT assesses that Falun Gong practitioners, and the lawyers who defend them, can be at risk of official discrimination and violence. The Chinese government’s widespread propaganda campaign and security surveillance system have effectively discredited Falun Gong beliefs within mainstream Chinese society leading to potential societal discrimination in instances where Falun Gong’s secretive activities have been exposed. Societal violence against Falun Gong practitioners is generally low.

1. Reliable sources before the Tribunal also indicate that the Chinese authorities monitor the activities of Falun Dafa practitioners overseas, including in Australia and in other western countries. Advice received from the Australian Department of Foreign Affairs and Trade (DFAT) on 14 September 2006 (and confirmed on 6 April 2011) indicates that the Chinese authorities are able to ascertain if Falun Dafa practitioners have played an ‘active role’ in Falun Dafa organisations while overseas.[10] This is consistent with previous advice provided by DFAT in 2007, and later confirmed as current in 2008 and 2009.[11] It is noted, that on 6 April 2011 DFAT advised the Tribunal that the Chinese authorities no longer focus primarily on Falun Dafa leaders, but also on common practitioners. This advice also indicates that the Chinese authorities monitor the Australian media.[12] The Immigration and Refugee Board of Canada provide the updated advice on 19 October 2016

[10] DIAC Country Information Service 2006, Country Information Report No. 06/53 -  China: Return of Failed Asylum Seekers (sourced from DFAT advice of 14 September 2006), 15 September <CISNET China CX161676); DIAC Country Information Service 2011, Country Information Report No.11/15 – CHN11513 Falun Gong Update (sourced from DFAT advice of 6 April 2011), 8 April <CISNET China CX262422>

[11] DIAC Country Information Service 2007, Country Information Report No. CHN8980 – China: Publication of Client Details (sourced from DFAT advice of 22 March 2007), 22 March <CISNET China CX174138>; DIAC Country Information Service 2008, Country Information Report No. 08/8 – Review of Information on Falun Gong (sourced from DFAT advice of 12 February 2008), 12 February 2008 <CISNET China CX193304>; DIAC Country Information Service 2009, Country Information Report No. 09-35 – Update on Failed Asylum Seekers (sourced from DFAT advice of 16 April 2009), 16 April <CISNET China CX224438>

[12] DIAC Country Information Service 2011, Country Information Report No.11/15 – CHN11513 Falun Gong Update (sourced from DFAT advice of 6 April 2011), 8 April <CISNET China CX262422> 

[13] Immigration and Refugee Board of Canada, CHN105635.E China: Monitoring of Chinese citizens who practice Falun Gong (Falun Dafa) outside of China; consequences upon return to China (2013-September 2016), 19 October 2016.

In correspondence with the Research Directorate, the Director of the Australian Centre on China in the World at Australia National University, whose research interests include religious and spiritual movements in China such as Falun Gong and who provided information after consulting with his own contacts who are long-term practitioners, indicated that "Chinese citizens and Australian citizens (particularly those who were previously Chinese citizens) who are Falun Gong practitioners are certainly monitored [in Australia], especially if they are at all active in Falun Gong activities" [13]

1. In 2005, Chen Yonglin[14] stated in a testimony to the US House of Representatives Committee on International Relations, that the Chinese Government considers Australia along with the US to be the base of Falun Dafa outside of China.[15] Chen Yonglin stated that the Chinese authorities maintain a ‘broad “black list” of Australia[n] Falun Gong [Dafa] practitioners used for border checking and surveillance’.[16] Chen Yonglin also referred to a ‘global list’ of Falun Dafa practitioners.[17] According to Chen Yonglin there are ‘over 1,000 Chinese secret agents and informants in Australia’.[18] In 2005, Christian Science Monitor[19] quoted Chen Yonglin as stating that during his time at the Chinese Consulate-General in Sydney, fortnightly reports on groups of interest (including Falun Dafa members) were filed and bi-weekly meetings were held to receive ‘fresh intelligence data’ on Falun Dafa including new names of members and details of their family members in Australia or China.[20] It is noted, however, that in 2005 Chen Yonglin claimed to have deleted the ‘black list’, although was unable to delete the ‘global list’ of Falun Dafa practitioners.[21] Responding to a question from the previously named RRT about ‘black lists’ in July 2000, DFAT stated that Chinese border police use a ‘movement alert list’ and that ‘it is likely that the names of known Falungong [Dafa] activists are included on this list.’[22] In April 2011, DFAT confirmed that this advice remained current.[23] 

   [14] Chen Yonglin is the former First Secretary and Consul for Political Affairs at the Chinese Consulate in Sydney (2001 to 2005).

   [15] ‘Falun Gong and China’s Continuing War on Human Right – Joint Hearing before the Committee of International Relations’ 2005,  US House of Representatives website, 21 July, p. 73 < > Accessed 10 April 2008 <\\ntssyd\REFER\Research\2011\Web\Falun Gong and China's Continuing War on Human Rights.pdf>

   [16] ‘Falun Gong and China’s Continuing War on Human Right – Joint Hearing before the Committee of International Relations’ 2005,  US House of Representatives website, 21 July, p. 37 < > Accessed 10 April 2008 <\\ntssyd\REFER\Research\2011\Web\Falun Gong and China's Continuing War on Human Rights.pdf>

   [17] ‘Chen Yonglin; My Story’ 2005, The Epoch Times, 31 August, < > Accessed 15 November 2011 < \\NTSSYD\REFER\Research\2011\Web\CHN Chen Yonglin My Story.doc>

   [18] ‘Falun Gong and China’s Continuing War on Human Right – Joint Hearing before the Committee of International Relations’ 2005,  US House of Representatives website, 21 July, pp. 34-35 < > Accessed 10 April 2008 <\\ntssyd\REFER\Research\2011\Web\Falun Gong and China's Continuing War on Human Rights.pdf>

   [19] Christian Science Monitor is a newspaper published by the First Church of Christ in America. It publishes international and US news and features.

   [20] ‘Chinese Defector Details Country’s Espionage Agenda’ 2005, Christian Science Monitor, 30 June – Accessed 30 June 2005 <\\NTSSYD\REFER\Research\Factiva\Chinese defector details country's espionage agenda.doc. Also see: ‘Chen Yonglin; My Story’ 2005, The Epoch Times, 31 August,< > Accessed 15 November 2011 <\\NTSSYD\REFER\Research\2011\Web\CHN Chen Yonglin My Story.doc>

   [21] ‘Chen Yonglin; My Story’ 2005, The Epoch Times, 31 August, < > Accessed 15 November 2011 < \\NTSSYD\REFER\Research\2011\Web\CHN Chen Yonglin My Story.doc>

   [22] DIAC Country Information Service 2000, Country Information Report No. 396/00 – Update on Falun Gong (Falun Dafa), (sourced from DFAT advice of 17 July 2000), 28 July <\\NTSSYD\REFER\Research\INTERNET\EASTASIA\Falungong\CX43498.doc> (CISNET China CX43498)

   [23] DIAC Country Information Service 2011, Country Information Report No.11/15 – CHN11513 Falun Gong Update (sourced from DFAT advice of 6 April 2011), 8 April <CISNET China CX262422>

2. Based on the above country information, together with what the Tribunal accepts of the first and third named applicants’ circumstances, the Tribunal has concerns for the safety of the first and third named applicants should they return to China. Specifically, the Tribunal accepts that the first and third named applicants are genuine Falun Gong practitioners who intend to continue practising Falun Gong in the future. The Tribunal also accepts that they have practised for several years in group practice sites in Australia, as well as practising in private. The Tribunal is mindful that their risk of harm in connection with their Falun Gong practice is heightened should they not be discrete in their Falun Gong practice in China and should they want to continue to practise with others and in public as they have done in Australia.

3. The Tribunal also accepts that the applicants have attended a numerous public events in Australia aimed not only at promoting Falun Gong, but also at raising awareness of the CCP’s violation of human rights in its mistreatment of Falun Gong practitioners in China. The Tribunal also accepts that the third named applicant attends [a specified location] almost on a daily basis and practises Falun Gong [as] a protest against the treatment of Falun Gong practitioners in China. The Tribunal also accepts that the first and third named applicants have conducted public interviews denouncing the Chinese Government and outlining they are Falun Gong practitioners. It accepts they both have been publicly named.

4. The Tribunal considers that these factors cumulatively heighten the first and third named applicants’ profile to a level which, on their return to China, will give rise to a real chance of mistreatment. For the reasons discussed above, the Tribunal is satisfied that there is a real chance that the first and third named applicants will come to the adverse attention of the authorities in China, and will be harassed, intimidated, arrested, and suffer significant physical harassment and ill-treatment, if they return to China now or in the reasonably foreseeable future. The Tribunal further finds that the persecution which the first and third named applicants fear involves ‘serious harm’ as required by s.91R(1)(b) of the Act, as it involves significant physical harassment and significant ill-treatment and/or a threat to their liberty as defined in s.91R(2) of the Act.

5. The Tribunal does not consider that s.91R(3) is enlivened as it has found that the first and third named applicants are genuine Falun Gong practitioners and genuine in their actions to protest against the Chinese government and its treatment of Falun Gong practitioners.

6. Accordingly, having considered all of the evidence, the Tribunal finds there is a real chance that the first and third named applicants will suffer serious harm if they return to China because of their practice of Falun Gong, whether Falun Gong is regarded by the authorities in China as a religion, or a particular social group of which they are members, or gives rise to an imputed political opinion of being opposed to the Chinese Government. The Tribunal finds that the applicants’ religion, membership of a particular social group of “Falun Gong practitioners”, or their actual or imputed political opinion, is the essential and significant reason for the persecution. Furthermore, the Tribunal finds the first and third named applicants’ fears persecution from the Chinese Government and authorities, and therefore the feared persecution is not localised. As such, the Tribunal finds that relocation within China is not an option in these circumstances nor is state protection available.

7. The Tribunal therefore finds that the first and third named applicants face a real chance of serious harm due to systematic and discriminatory conduct for the essential and significant Convention reason, and that there would be a failure on the part of the state of China to protect her throughout the whole of the country.

8. Having carefully considered the first and third named applicants’ claims, the Tribunal finds that they have a well-founded fear of persecution for a Convention reason if they return to China, now or in the reasonably foreseeable future.

9. For the reasons given above, the Tribunal is satisfied that the first and third named applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the first and third named applicants satisfy the criterion set out in s.36(2)(a).

   CONCLUSION

10. For the reasons given above the Tribunal is satisfied that the first and third named applicants are persons in respect of whom Australia has protection obligations. Therefore the first and third named applicants satisfy the criterion set out in s.36(2)(a).

11. The Tribunal is satisfied that the second named applicant is a member of the same family unit as the first named applicant and that the fourth named applicant is a member of the family unit of the third named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first and third named applicants’ applications. It follows that they will be entitled to a protection visas provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

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

    (i) that the first and third named applicants satisfy s.36(2)(a) of the Migration Act; and

    (ii) that the second named 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.

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

    Gabrielle Cullen
    Member