1506734 (Refugee)

[2016] AATA 4639

1506734 (Refugee) [2016] AATA 4639 (1 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506734

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Pinto

DATE:1 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 01 November 2016 at 2:53pm

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. The applicant is a citizen of China. The applicant is from Ji Lin Province. She is aged in her early [age]. She arrived in Australia on a [temporary] visa [in] May 2014. [Details of child deleted].

2. The applicant applied to the Department of Immigration for the Protection visa [in] June 2014. The applicant claimed that she is a Falun Gong practitioner and she has been harmed in China as a result of her practise of Falun Gong. She claims that if she returns to China she will continue to practise Falun Gong and she will be harmed by the Chinese authorities.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] May 2015. The delegate did not accept that the applicant’s continuous employment for the government from 1994 to 2014 was consistent with her claims to be a Falun Gong practitioner. The delegate found that the independent evidence does not support the applicant’s claims that she could have maintained employment despite being a known Falun Gong practitioner. The delegate also found that her ability to obtain a passport and leave China is not consistent with her claims to have been a known Falun Gong practitioner. 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).

4. The Tribunal must consider whether the applicant has a well founded fear of persecution for reasons of her race, religion, nationality, membership of a particular social group or her political opinion. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution for one of these reasons, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China whether there is real risk that the applicant will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant indicated on the application form that she speaks, reads and writes ‘Chinese’. She stated that she was married in China [in] 1996. She stated that she had lived at the same address [for] the last 10 years. She stated that she had [number] years of education in China, including [tertiary education]. The applicant also stated that she was employed for [an] Office from September 1994 until May 2014. [Details of child deleted]. The applicant also indicated that her [husband] born on [date], resides in China. She also indicated that she has [siblings] residing in China.

6. In a statement provided with the application, the applicant states that she came to Australia on a Student Guardian visa. She states that she was born in ChangChun City, Ji Lin Province, which is the hometown of the founder of Falun Gong, Master Li Hongzhi. She states that since she was young she has not been in “the best of health”. She was always on medication and her parents spent quite a bit of time and money taking her to see doctors. It was only when she began practising Falun Dafa that her health improved. The applicant began practising in July 1994 [and] had lots of spare time. Her father told her that she should practise Falun Gong and he was one of the earliest Falun Dafa adherents. The applicant began practising Falun Gong in 1992. The applicant regularly exercised with her father for three hours from 5am with about 100 to 200 others. The applicant’s health improved and she continued to practise Falun Gong which assisted her when she gave birth to her [child].

7. The applicant states that things changed for her in April 1999 due to a “polemic” published [which] resulted in the arrests of [a number of]  Falun Gong students. The applicant refers to thousands of Falun Gong practitioners going [to] appeal and request the release of the Falun Gong students. The applicant states that [in] July 1999, the Chinese government began a “full scale persecution” of Falun Gong practitioners. The applicant arrived at the Provincial Government offices at about 4am [in] July 1999. She saw her father and fellow practitioners arriving with many other Falun Gong adherents from other cities. They wanted the the government to allow them to practice without interference. At 8.15am a large number of police and police cars arrived. The applicant and others were pushed by the police. The applicant was hit by a police officer and continually beaten. She was then pushed into a police car with many others and taken to [a location]. It was already filled with people who had been taken there for no reason. That afternoon, they had to fill out a form and they were released. The applicant states that on 22 July 1999 the Chinese Government released the document ‘People’s Republic of China Ministry of Civil Affairs Notice on the Investigation of Falun Gong’. After that date, she and her fellow practitioners became underground Falun Gong practitioners. She knew what she did was dangerous, but that did not deter her from practicing and advocating for Falun Gong. The applicant had discussions with persons from her workplace who told her that she should not practise Falun Gong again and she was told to write a guarantee letter and have it placed on her file. The applicant did not write the letter of guarantee but the company executives “pretended to overlook this matter”.

8. The applicant states that [in] February 2006 more than ten policemen charged into her home when her father and [other] practitioners were practising Falun Gong. The applicant states that they took all her father’s tapes and books on Falun Gong and arrested him and [other] practitioners. The applicant found out that her father and the others were detained at [a] detention centre. The applicant went to see her father who clearly had injuries. The applicant’s father’s health deteriorated. The applicant was accused of being “part of heretical teachings as well”. She argued with the police man and told him that she is a Falun Gong student and her practise does not harm anyone. The applicant was grabbed by the collar and [injured].

9. [In] October 2006, the applicant received a telephone call advising her that she should go to the hospital immediately. When she arrived she saw her father lying unconscious on the bed, covered with bruises and injuries. Her mother fainted and although her father recovered he was told he would have to return to detention. The applicant took [amount] yuan to the police and she and her mother then took him home. After 20 days her father eventually recovered although [deleted]. The applicant states that [in] August 2011 the image of [name] appeared on the news and her father died the following day.

10. The applicant states that after finding out that Falun Gong is freely practised in [Country 1] she travelled there with [other] practitioners in November 2012. They were led by an experienced practitioner. For the first time she was allowed to practice in an environment of freedom of speech and religion. The applicant could see Falun Gong practitioners practising everywhere and during that time she stood up and spoke about her love for Falun Gong and told tourists about organ harvesting of Falun Gong students. Although she knew there may be problems for her, she was even more determined to continue practising Falun Gong. When they were departing [Country 1], their leader noticed that [number] [practitioners] were missing. They then discovered that they had been arrested and their cameras which showed them practising Falun Gong had been confiscated. The leader told them to destroy all records to avoid attracting any attention. [Details deleted].

11. The applicant’s “nightmares continued” and [in] November 2012, she went to hand out brochures with other practitioners. As always, they went together into a living quarter but entered different buildings. The applicant was suddenly grabbed by a policeman who taken to the local police [station] and beaten and assaulted. The applicant yelled for the Master to save her. The applicant was released but had to write the “five letters” (letters of guarantee, repentance, disclosure, determination and renouncement). The applicant was taken to the hospital and the doctors found glass fragments inside her foot which were removed. The most serious injury was [to a body part] and required surgery. The applicant was on a waiting list until [January] 2012 but because the wound was too big, the first surgery was unsuccessful. [In] April 2013 she had a second surgery to repair her [injury]. The applicant went to the hospital for a check upon [in] April 2014. The wound had still not fully healed and she believes she will have [problems] for life.

12. The applicant states that [in] May 2014 she left China and arrived in Australia and began looking for Falun Dafa groups immediately. The applicant saw practitioners giving out brochures near where she lived. They told her that [in] May there will be a large parade for Falun Gong in the city. The applicant attended the Falun Gong parade and since arriving in Australia she studied Falun Gog [every] Saturday [night] and participates in related activities every Sunday afternoon. The applicant also states that [in] May she studied as part of a big group and [in] May went to a small park to practise Falun Gong. She states that she and other practitioners resigned from the three groups, including the Communist Party, the Communist Youth League and the Young Pioneers. She states that [in] May she listened to a talk by a practitioner who had just returned from a Falun Dafa conference [overseas] and she was very excited by this. She also states that [in] May in [Suburb 1] she practised Falun Gong and signed the petition to stop live organ harvesting. [In] May at 3pm she arrived early at the front gates of [a venue] to set up displays and banners and to give out brochures with other practitioners. They also asked passers-by to sign the petition. The applicant states that [in] May she participated in a Falun Gong procession in [a suburb] and saw people of different skin colours doing what they want to do. The applicant states that she has never stopped practising Falun Gong and she continues to advocate for it. She states that her detention has not elapsed and if she returns to China she would be detained again. The applicant states that the only reason she was able to leave China because she was injured by the police during her detention and required medical treatment. The applicant states that she used this as an opportunity to leave China. It is only here in Australia that she is able to practise Falun Gong without bringing danger to her life.  

13. Documents provided with the application included her Chinese passport, indicating that it was issued in Ji Lin [in] 2013; a travel permit for travel to [Country 1]; and a notarial and marriage certificate. The applicant also provided documents from [a hospital], dated [April] 2006, for “sudden trauma approximately two days ago”. The report indicates that the applicant underwent [treatment] and follow up treatment on [date] April 2006; and [date] April 2006. Further medical documents from the [hospital], dated [date] November 2012, were provided. The applicant was diagnosed with “[details deleted]”. Photographs of the applicant’s [deleted] were provided.

14. The applicant also provided several statements from persons in China stating that she is a Falun Gong practitioner and [sustained injuries] when she was bashed by the police. Various photographs of her participating in Falun Gong activities in Australia were also provided. Most of the photographs are undated, with one dated [May] 2014. The applicant is pictured conducting Falun Gong exercises and holding banners related to Falun Gong. 

15. The applicant was interviewed by the delegate. The Tribunal has listened to the CD Rom recording of the interview. During the interview, the applicant provided a copy of a pamphlet she claimed she distributed when she was arrested and showed the delegate at copy of Zhuan Falun, a text on Falun Gong, which she had purchased in Australia. The applicant also showed the delegate a copy of Minghui International, a newspaper which reports on the activities and persecution of Falun Gong activists in China.

    Application for review

16. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

17. Following and immediately before the Tribunal hearing, the applicant provided further documentation, including several photographs of her participation in various Falun Gong activities in Australia; newspaper reports on the persecution of Falun Gong activists in China; a medical certificate, dated [December] 2012, stating that the applicant was bashed a month prior to that time and had sustained serious [injuries]; and statements from several persons who state that the applicant has participated in various Falun Gong events and is one of the practitioners of the [Suburb 1] Branch of Falun Dafa Association Australia. The applicant also provided a statement in which she set out the various Falun Gong activities in which she had been involved in Australia, signed by [the] events co-ordinator of the [Suburb 1] Branch of the Falun Dafa Association, Australia; a list of several persons with their telephone numbers whom the applicant states are fellow Falun Gong practitioners; and numerous ‘Weichat (Weixin)’ ‘chat’ records from 2014 to 2016 addressed to the applicant on her mobile telephone number advising her of various Falun Gong events and the addresses of those events. 

18. The applicant appeared before the Tribunal on 31 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution for a Convention reason?

19. The Tribunal has considered whether the applicant has a well founded fear of persecution for reasons of her membership of a particular social group of Falun Gong practitioners. As stated above, the delegate found that the applicant’s continued employment and her ability to leave China on her own passport were not consistent with her claims to have been a genuine Falun Gong practitioner who had been detained and mistreated in 2012. The delegate also considered that any involvement in Falun Gong in Australia may have been for the purposes of strengthening her claim to be a refugee. The Tribunal has considered these issues and has had regard to them when considering the evidence and the applicant’s claims. However, on the basis of considerably more evidence, as well as the applicant’s ability to provide consistent, detailed and persuasive evidence at the hearing about her practise of Falun Gong in China and Australia, which displayed a depth and flexibility consistent with knowledge drawn from actual experience, as well as the supporting documentation from Falun Gong practitioners in Australia and China, including those involved in an organisational role in the Falun Dafa Association, 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.

20. As indicated above, the applicant has claimed that her father was a Falun Gong practitioner who was beaten badly whilst imprisoned for his practise of Falun Gong in 2006 and that he later died in 2011 as a result of [the] assault in 2006. When asked at the hearing about her father’s practise of Falun Gong the applicant spoke persuasively of his interest in Falun Gong and participation at various practise sites in her home town of ChangChun in Ji Lin. The applicant stated that ChangChun was one of the earliest places where Falun Gong was practised as Master Li, the founder of Falun Gong, had lived in ChangChun. The applicant stated that her father practised at the same practise sites as Master Li until the Master left China in 1998 and was unable to return. The applicant stated that at the practise sites where her father initially practised there were about 200 people, but the numbers subsequently grew to more than 500 people. She began practising with her [father]. She would generally practise for three hours a day, with the first two hours being the exercises and the final hour involving tuition from a Falun Gong tutor who would instruct newcomers on the exercises and philosophy of Falun Gong. The applicant stated that she also learned the exercises from two discs on Falun Gong. The first disc depicted Master Li undertaking the five exercises and was about half an hour in duration and the other disc was Master Li talking about the philosophy of the movement. The applicant began by practising three to four times per week, but soon after she practised every day. The applicant did not practise at the same site as her father after some time because the site had become too big so her group would practise at [a] separate site. The applicant also began living with her husband’s family in 1996 when she married and after that time she generally practised at a different site than her father.

21. The Tribunal considers that in addition to the above, the applicant was also able to also speak persuasively about the way her practise changed after Falun Gong was banned. When asked by the Tribunal how her practise changed after Falun Gong was banned in 1999, the applicant stated that after that time she never practised in public. The applicant stated that she generally practised in her own home by herself, but after a short period of time she was joined by two or three other practitioners and they would also conduct study sessions at each other’s homes. The applicant stated that although all her colleagues knew she was a Falun Gong practitioner, they did not ever inform on her because she kept her practise private and did not attempt to influence them, although one or two of her colleagues had also become Falun Gong practitioners and had followed her when she first began practising.

22. The applicant was also able to refer in detail to her father’s detention and injuries that he sustained during the beating. She told the Tribunal that her father was first arrested for a very short period of time in 1999 when he was detained with numerous others whilst protesting about the ban on Falun Gong. He was again beaten [in] February 2006, two weeks before the Chinese New Year. The applicant stated that she and her mother did not know where her father had been held for some time and saw him in hospital where they discovered that [he had sustained injuries]. The applicant also spoke about her own detention in 2012 and provided details which were consistent with medical documentation provided to the Department and the Tribunal. The applicant confirmed that she was detained on two occasions; the first time was [in] 1999 when she was arrested with her father whilst protesting about the ban of Falun Gong, and the second occasion was in 2012 when she was distributing pamphlets. When asked about the detention in 2012, the applicant stated that she had been distributing pamphlets in November 2012 in the late afternoon when it was becoming dark. The applicant was beaten by the police and sustained serious [injuries].

1. The applicant was also asked during the hearing about her knowledge and practise of Falun Gong, which the Tribunal found to be consistent with her claims to have been practising for a number of years and to be a devoted Falun Gong practitioner. During the Department interview, the delegate asked the applicant some questions about her practise of Falun Gong. The applicant appeared to respond appropriately to those questions during the interview, and during the hearing she was also asked several questions about her knowledge and practise of Falun Gong. The applicant referred to the importance of Falun Gong to her spiritual and physical health and was able to discuss in some detail the various parts of Zhuan Falun and the meaning and verses chanted during the five Falun Gong exercises. The applicant was also able, during the Tribunal hearing, to provide details of the various events she attended in Australia and the names of organisers with the [Suburb 1] Practise site that she attends. The applicant advised the Tribunal during the hearing that [the] co-ordinator for the [Suburb 1] Falun Dafa Association, could be contacted to confirm her involvement in Falun Gong in Sydney, but the Tribunal was unable to contact him. As stated above, the applicant’s participation in a range of Falun Gong events and protest activities is supported by photographic evidence provided to the Department and the Tribunal and statements from fellow practitioners and organisers, as well as records indicating that she has been involved in these activities since 2014 when she first arrived in Australia.

2. 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.[1] Whilst not definitive, the Tribunal considers the evidence given by the applicant 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 listened to the CD Rom recording of the interview, and the Tribunal also considers that the applicant’s evidence was consistent with her oral evidence to the delegate and her detailed written statement which was provided to the Department. The Tribunal also considers that the applicant spoke about her involvement in Falun Gong in a manner which the Tribunal accepts was from her own personal experiences, rather than a fabricated account of her experiences. The Tribunal accepts that the applicant is from ChangChun, which was one of the earliest centres of Falun Gong, with many thousands of practitioners openly practising Falun Gong for many years until it was banned in 1999. The Tribunal also found the applicant’s evidence regarding her father’s practise of Falun Gong and her own interest in Falun Gong to be similarly detailed and persuasive and her ability to practise Falun Gong privately in her own home for many years is consistent with reports by the Department of Foreign Affairs and Trade which has stated that “Falun Gong practitioners are generally able to practice privately in their homes relatively free from interference by authorities”.[2]

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

   [2] Department of Foreign Affairs and Trade 2015, Unregistered Religious Organisations and Other Groups in the People’s Republic of China, 3 March, para. 3.25.

3. As stated above, the evidence cited by the delegate indicates significantly reduced employment opportunities for Falun Gong practitioners and it was on this basis, as well as some other factors, that the delegate was not satisfied that the applicant had been a genuine Falun Gong practitioner. The Tribunal advised the applicant during the hearing that the independent evidence, including that cited by the delegate, indicates that Falun Gong practitioners have restricted employment opportunities and her ability to maintain employment for a lengthy period of time in government employment is not consistent with her claims to have been a Falun Gong practitioner. The Tribunal referred to the United States Department of State reported in 2010 that there were “widespread reports that employers, both local and foreign, were discouraged from hiring Falun Gong practitioners” and that many Falun Gong practitioners were unable to obtain employment after being identified as Falun Gong. In response, the applicant stated that she told the delegate during the interview that she was demoted to the position of [occupation] and had been able to continue her employment due to family connections. When asked for further details of this, and the applicant was advised that the Tribunal considers it unlikely that she would have been able to maintain stable employment from 1999 to 2014 if she had previously been detained and her father detained for Falun Gong, the applicant stated that in addition to having some family connections she was in a low level position and her employer would take a proportion of her wage. The applicant also referred to her privacy and the fact that she maintained secrecy about her Falun Gong practise.

4. When asked how she had managed to avoid detention following her first detention in July 1999 and 2012, in circumstances where she was known to be the daughter of a Falun Gong practitioner and she has previously been arrested, the applicant stated that she was very cautious. She stated that everyone knew she was a Falun Gong practitioner but she was private and did not interfere with anyone. When asked about her ability to obtain a permit for [Country 1], given that her father was a known Falun Gong practitioner, and she had previously been detained in 1999, the applicant stated that someone from a travel agency in China assisted her to obtain it. The applicant also told the Tribunal she only went to [Country 1] for one day. When the Tribunal advised the applicant that her ability to obtain a permit for [Country 1], to avoid continued detention after having been detained distributing pamphlets, is not consistent with independent evidence regarding the treatment of Falun Gong practitioners in China, the applicant referred to her injury and stated that as a result of the [injury] she required two operations. The applicant also stated that the policeman took her to [a] Hospital and she had an operation, but her [condition] continued to decrease and she required another operation which she had at a different hospital. The applicant stated that it was only because of the injury and the need to have further operations [that] she was able to avoid further detention. She was also required to attend the police station on a weekly basis and she believes that this enabled her to avoid detention. The applicant stated that because she was injured she was always receiving treatment and was told that when she recovered she would have to undergo re-education or be charged. The applicant stated that her husband was also able to “pull some strings” and she paid [amount] to [amount] yuan to obtain a police clearance certificate and approximately [amount] yuan to obtain a passport and leave the country.

5. The Tribunal has had regard to the evidence cited by the delegate regarding employment difficulties for Falun Gong practitioners, but accepts that the applicant’s own employment opportunities were severely reduced and although she had completed studies in [tertiary course] she was employed as a [occupation] on a reduced wage and was able to maintain her employment by ensuring that she did not promote Falun Gong in her workplace. The Tribunal also considers that there is considerable evidence indicating that China is an arbitrary and corrupt state and connections and bribery can assist persons to secure certain advantages accepts, therefore, that the applicant was able to maintain employment due to her connections and low level position as a [occupation]. As stated above, the Tribunal has also accepted that there is independent evidence which supports the applicant’s claims that she was able to avoid detention by practising largely in the privacy of her own home, in the same manner as many other Falun Gong practitioners.

6. The Tribunal has some remaining concerns about the applicant’s ability to obtain a passport in 2013 and to leave China in 2014, in circumstances where she claims she was required to report to the Department on a weekly basis. The independent evidence, 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] The Tribunal has some concerns that the applicant was not arrested in 2014 upon her return from [Country 1] to China and considers her claim that she was distributing pamphlets soon after her return from [Country 1], in circumstances where two other practitioners with whom she travelled to [Country 1] to have been detained, to be not credible. The Tribunal considers it likely that the applicant was able to obtain a passport to leave China because she had not been detained since 1999 due to her ability to maintain privacy and to continue her practise of Falun Gong in her home without drawing any attention to herself. The Tribunal further considers that the medical documentation provided by the applicant in relation to the [injuries] does not establish that it occurred in the context she claimed.

   [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.

7. Nevertheless, the Tribunal accepts that the independent evidence outlined by DFAT states that persons in the possession of Falun Gong material may only attract a short term period of detention and this varies according to various factors. DFAT has reported that “generally speaking, the possession of banned materials (books, CD’s or information about Falun Gong) would likely attract a fine or short term period of administrative detention. However, punishments can vary according to the location, the profile of the individual and the circumstances.[4] Given that the Tribunal found the applicant to be credible and persuasive in other respects, the Tribunal is prepared to accept that the applicant was detained in 2012 and was able to avoid continued detention because of her medical problems, and she was able to obtain a passport and other documentation through bribery and contacts. The Tribunal has also accepted that the applicant was a Falun Gong practitioner in China from the early 1990s and her father was also a Falun Gong practitioner. The Tribunal has also accepted that the applicant has publicly and openly participated in Falun Gong activities in Australia and has demonstrated a strong commitment to Falun Gong. The Tribunal is satisfied the applicant engaged in this conduct otherwise than for the sole purpose of strengthening her claim to be a refugee. The Tribunal accepts, on the totality of the evidence before it that that the applicant is a genuine Falun Gong practitioner who intends to continue practicing Falun Gong upon her return to China.

   [4] Ibid. DFAT states at para.3.25

8. Having accepted that the applicant was a committed and genuine Falun Gong practitioner in China, the Tribunal has considered whether there is a real chance that the applicant will suffer serious harm for reasons of her involvement and association with Falun Gong. In its  Country Report on China, dated 3 March 2015, the Department of Foreign Affairs and Trade (DFAT) reported that “Falun Gong practitioners, or those engaged in activities perceived to be “anti-government” risk adverse treatment by authorities, including discrimination, harassment, detention, and violence. DFAT has also reported in its Thematic report on Unregistered Religious Organisations and Other Groups in the People’s Republic of China that Falun Gong is banned and considered an “evil cult” in China. Reliable sources before the Tribunal also indicate that the Chinese authorities monitor the activities of Falun Dafa practitioners overseas, including in Australia. Advice received from DFAT on 14 September 2006 indicates that the Chinese authorities are able to ascertain if Falun Dafa practitioners have played an ‘active role’ in Falun Dafa organisations while overseas. This is consistent with previous advice provided by DFAT in 2007, and later confirmed as current in 2008 and 2009. Additionally, 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 and it also states that “we believe that the Chinese authorities monitor all media reports critical of China”.[5]

   [5] DIAC Country Information Service 2006, Country Information Report No. 06/53 – China: Return of Failed Asylum Seekrs, 15 September; DIAC Country Information Service 2011, Country Information Report No.11/15 – CHN11513 Falun Gong Updated, 8 April and DIAC Country Information Service 2007, Country Information Report No. CHN8980 – China : Publication of Client details, 22 March.

9. The Tribunal accepts that the applicant has attended a number of public events in Australia aimed not only at promoting Falun Gong, but also at raising awareness of the Chinese Communist Party’s violation of human rights in its mistreatment of Falun Gong practitioners in China. The Tribunal considers that these factors cumulatively heighten the applicant’s profile to a level which, on her 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 applicant 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 she returned to China now or in the reasonably foreseeable future. The Tribunal further finds that the persecution which the applicant fears 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 her liberty as defined in s.91R(2) of the Act.

10. Accordingly, having considered all of the evidence the Tribunal finds there is a real chance that the applicant will suffer serious harm if she returns to China because of her practice of Falun Gong, whether Falun Gong is regarded by the authorities in China as a religion, or a particular social group of which she is a member, or gives rise to an imputed political opinion of being opposed to the Chinese Government. The Tribunal finds that the applicant’s religion, membership of a particular social group of “Falun Gong practitioners”, or her actual or imputed political opinion, is the essential and significant reason for the persecution. Furthermore, the Tribunal finds the applicant 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. The Tribunal finds the applicant has a well-founded fear of persecution for a Convention reason throughout China if she returns now or in the reasonably foreseeable future.

    CONCLUSIONS

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

13. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa.’

    Refugee criterion

14. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

15. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

16. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

1. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

2. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.