1507620 (Refugee)

1507620 (Refugee) [2017] AATA 421 (8 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507620
COUNTRY OF REFERENCE:                  China
MEMBER:Gabrielle Cullen
DATE:8 March 2017
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 08 March 2017 at 12:19pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Falun Gong – Imputed political opinion – Social group – Harmed and detained in China – Public media profile – No State protection – Relocation not possible
LEGISLATION
Migration Act 1958, ss 36, 65, 91, 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

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).
The applicant, a female citizen of China, born in Shanghai, lived in Shanghai until her departure from China [in] July 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 1996 was detained and sent to brainwashing camps 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 return to China. She applied for the visa [in] September 2014.
[In] April 2014 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa [in] May 2015. The delegate doubted the applicant faced the difficulties she claimed in China as a Falun Gong practitioner on the basis that she was able to obtain a passport. She found that if she had faced the difficulties she had claimed as a Falun Gong practitioner who had twice been to a brainwashing centre she would not have been able to obtain a passport in [2013] or depart legally in July 2014. She also based this finding on the family’s prosperous employment and family circumstances and did not accept that with her heightened profile as a Falun Gong practitioner this would be the case. She also referred to her extended family’s migration history and their lack of for support for her case.
The applicant appeared before the Tribunal on 2 March 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 [Ms A], [Ms B] and [Mr C]. Her [son] attended as a support person.
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.
The issues to be considered in this case are as follows.
·Is the applicant credible as to her country of citizenship?
·Does she have a right to enter and reside in any other country?
·Is the applicant credible as to her claims?
·Does she have a well-founded fear of persecution in relation to China and meet the protection obligations under the Refugees Convention?
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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
The Tribunal has before it the Department’s file relating to the applicant. 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 applicant’s protection visa application [in] September 2014, including her statutory declaration outlining her claims for protection and identity documents.
·Oral evidence of the applicant provided at the Department interview held [in] April 2014 and the Tribunal hearing held on 2 March 2016.
·Evidence submitted to the Department including:
oPhotographs depicting her presence at a number of Falun Gong activities in Australia in 2014.
oNumerous Testimonials as to the applicant’s practice from claimed Falun Gong practitioners as to her practice in Australia and attending events in Australia. [Ms D] states that she is the volunteer Falun Gong coordinator in her area and witnessed the applicant at a number of public Falun Gong events from [August] 2014 to February 2015.
oStatutory Declarations dated October 2014 from [Ms A] and [Ms E], permanent residents of Australia indicating they witnessed the applicant practising Falun Gong from 1999 to 2001 at [a] University and as to the PSB imprisoning practitioners at that time.
oNotice of Detention issued by the PSB dated [in] September 2001.
oCertificate of Release from the Detention Centre, [district] Sub Bureau of PSB, Shanghai dated [in] October 2001.
oUniform Invoice for Legal Services in Shanghai dated [in] June 2003, with reference to the name of the applicant’s [spouse].
oReceipt for Confiscated Items issued by the PSB dated [in] July 2003.
oNotice of Detention from [district] Sub Bureau of the PSB dated [in] June 2003
oCertificate of Release from [district] Detention Centre in Shanghai dated [in] July 2003.
oRepresentation Agreement to provide assistance for criminal suspect [name] from [a] Law Firm, dated [in] June 2003.
oImposing Administrative Penalty by PSB dated [in] July 2003.
oSubmission of the applicant to the Department following the interview received [in] April 2015.
·Evidence submitted to the Tribunal including
oSubmission from the applicant’s representative dated 23 February 2017.
oFurther statutory declaration of the applicant dated 23 February 2017.
oCountry information as to the treatment of Falun Gong practitioners in China.
oTestimonials from [names], [Mr C] as to the applicant’s Falun Gong practice in Australia and associated activities. They claim she is a genuine Falun Gong practitioner.
oA further statutory declaration from [Ms A] adding that she fears for the applicant as a Falun Gong practitioner but also as she has openly attended so many Falun Gong activities in Australia and has been reported in the media.
oStatutory declaration from the applicant’s [son] indicating that he remembers the applicant practising Falun Gong a long time ago and remembers the police coming and his mother disappearing. He claims his parents told him she went on a business trip. He claims she has been attending Falun Gong activities since the second day after her arrival in Australia and that she has been to [City 1] to protest the organ harvesting.
oStatutory declaration from the applicant’s [sibling] confirming the difficulties the applicant faced in China, her practice in Australia, attendance at Falun Gong events and that she is a genuine Falun Gong practitioner.
oList of Falun Gong activities the applicant has attended from [July] 2014 to December 2016, including numerous groups practice sessions, Fa learning groups and over 50 public protests throughout [City 2] and in [City 1], including outside [a building] in [City 1].
oPhotographs of the applicant protesting as a Falun Gong practitioner in [Newspaper 1] dated [in] July 2016.
oExtracts from [a website] showing the applicant in a group practising at various events in [City 2] [in] September 2015, and [in] August 2016 and requesting signatures.
oTranscript of an interview with the applicant by [a] TV station [in] November 2015 and a Falun Gong event in [Suburb 1] and web link.
oNewspaper extract “[title]” indicating the applicant’s participation in this event and photograph of her being interviewed.
oPhotographs of the applicant at Falun Gong events in 2015 and 2016.
oTestimonial by [name] and her [country] Asylum Grant record and partial extract of her statement published by [website] as to difficulties she faced in China. In her testimonial she indicates she was detained with the applicant in 2001 at [District] Detention Centre for practising Falun Gong. She indicates that the applicant is a genuine Falun Gong practitioner.
oLetter from [an official] of Falun Dafa Association of Australia. He writes in support of the applicant’s protection visa. He notes that they do not generally write support letters for Falun Gong practitioners. He notes they rely on the testimony of veteran practitioners such as [Ms F] and [Ms D] who have provided statements in support of the applicant. He notes they are also aware of other practitioners who are aware of the applicant’s practice. He writes that he is very concerned at the Department’s reason for refusal being that she was able to obtain her passport questioning her claimed detention. He refers to information provided by him and [Ms B] to the Tribunal in 1996 which contradicts this.
·Statutory Declaration from [a person] who claims because of her perseverance and commitment to Falun Gong in February 2002 she had to attend brain washing classes at [district]. She claims she got to know the applicant there who was also attending the classes.
·Letter of support from [Ms F], coordinator of the [Suburb 1] Falun Gong site, dated [in] July 2016 indicating she has known the applicant since [July] 2014 and that she is a genuine Falun Gong practitioner and supporting her application.
·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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Is the applicant credible as to her country of citizenship?
On the basis of the applicant’s identity documents, and evidence provided at hearing the Tribunal accepts that the applicant is a national 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.
Does she have a right to enter and reside in any other country?
As there is no evidence before the Tribunal that the applicant has lived in another country or has any connection to another country the Tribunal finds that she does 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 .
Is the applicant credible as to her claims?
The Applicant’s Claims
The applicant claims in her statutory declaration attached to her protection visa application, that she frequently suffered health issues. She claims her health further deteriorated after the birth of her son in [year], where she suffered serious [health issues]. She claims [she] became very week and her physical movement was restricted. She claims she sought treatment in many hospitals but was unable to find a cure. She claims [in] September 1996 she visited [a doctor] and she discussed with her practising Falun Gong.
She claims she first attempted to practise Falun Gong [in] September 1996. She claims [the doctor] told her to practise at [a] Community where she was coordinator. She claims they practised the first to fourth exercises on weekdays and they practised the fifth exercise on the weekend. She claims after she attended practise it triggered a strong body cleansing reaction in her body. She claims her health improved and she began reading Zhaun Falun. She claims she felt impressed and enlightened as she read the lectures.
She claims in early 1996 she attended a cultivation experience sharing meeting in [a] Park. She claims she shared her experiences and grew stronger. She claims she also practised at [a] University as it was closer to her home. [Ms E] was the coordinator and there were about a dozen practitioners who attended the session. She claims they practised all five sets of exercise every morning from 6am to 8am. She claims after the exercise they would study the Fa. Around the end of 1997 due to construction at the practice site they moved to a vacant place in front of [a] Building of [a] University. She claims the number of practitioners increased to [number] people. She claims a man named [name] also became coordinator and they split into two groups as it would help disseminate Fa.
She claims she was assigned to split into a smaller group with another [practitioner] and they opened a new site to practise. She claims she practised on [a] road in [suburb]. She said they had about [number] people practising.
She claims [in] July 1999, her husband, a public servant, informed her that the government had made Falun Gong illegal. She claims [in] July 1999 the head of the local community Communist branch attended their practice site in plain clothes and prohibited them from practising. She claims [in] July 1999 two government staff attended the apartment of her husband’s parents and told them the applicant was prohibited from practising. The applicant claims she and her husband lived next door. She claims from that day government employees would frequently visit her home to try and get her to give a written guarantee not to practise Falun Gong.
She claims in December 2000 she was working at [a] property and [the] General Manager warned her that Falun Gong is illegal. She claims she insisted the practice was good for her and he asked her to write a resignation statement and she was dismissed from the company.
She claims she continued to distribute Faun Gong material. She claims the material contained information s to how Falun Gong practitioners were being persecuted by the Chinese Communist party.

She claims she was arrested [in] September 2001 and interrogated by [number] police officers at the police [station] and [in] September 2001 the police ransacked her home. She claims they took all her Falun Gong material and books.
She claims she was transferred to the [District] Detention Centre and locked in a cell with [number] other women. She claims she was transferred to another cell with another Falun Gong practitioner [who] told her she was arrested for distributing Falun Gong material and was sentenced to two years in a labour camp. She claims she was released after [number] hours and was required to attend the police station to sign a document promising to obey rules and regulations.
[In] December 2001 she was arrested by the police and taken to [district] Police Station and confined to one room. She claims they attempted to brainwash her against Falun Gong. She claims after [number] days she was still not brainwashed so she continued in confinement. She claims after [a further number of] days she agreed to do what the staff wanted and was released.
She claims on release she realised she was wrong to denounce the practice that had cured her of her illnesses and diseases. She claims she wrote to the police and the brainwash centre advising she wished to withdraw the statement. She claims the police and local community officers required her to attend brain washing centres for a week. She claims her parents-in-law were threatened to stop her practising.
In 2003 she claims another practitioner [gave] her some Falun Gong material. After [he] was caught the police again commenced to harass her and [in] June 2003 she was interrogated by [a] division of the PSB as to whether she still practised Falun Gong. When asked if she continued to practise Falun Gong she answered in the affirmative. She claims her home was ransacked and her parents-in-law again threatened. At the police station she claims her right arm was twisted and she was again sent to the [district] Detention Centre. She claims she was detained for [number] days and then sent to [a] Brainwashing Centre in [a] district. She claims she was forced to watch and read material slandering Falun Gong and they threatened that if she continued practising her husband would be dismissed. She claims she was also told her husband was seeking a divorce. She claims she was released after [number] days and after her release police officers and local community authorities frequently attended her home and threatened her.
She claims as their apartment building was due to be demolished, they rented a new apartment but were evicted before the tenancy finished as the landlord had been told to evict them as the applicant was a Falun Gong practitioner. She claims harassment by the police and local community officials continued.
She claims she moved to [another] District in 2005 and the harassment continued after they moved to their new home. She claims she was threatened by local officials and her husband was reprimanded and he pressured her to stop practising Falun Gong.
She claims at the time of the 2008 Olympics she was threatened by local officials that she could not leave her home otherwise she would be sent to the brainwashing centre.
She claims in 2009 she continued to be required to attend the local community officers to be reprimanded.
She then refers to her son studying in Australia, the applicant immediately joining the local Fa group 3 days after her arrival [in] July 2014, participating in protests in [City 2] against the persecution of Falun Gong in China. She claims [in] July 2014 she joined the joined the truth – clarification activity at [a railway] station, holding the banner. She claims [in] August 2014 she participated in a collective exercise and [in] August 2014 attended another Fa activity. She claims to attend Fa study group each Saturday night with other practitioners in [City 2].
She outlines the health benefits of practising Falun Gong that she fears return due to her practise of Falun Gong and how the Chinese authorities in [City 2] spy on local practitioners.
She claims to want to freely practise Falun Gong so she can express her beliefs without persecution. She claims during her stay in Australia she has committed herself to raising awareness about the persecution of Falun Gong in China.
At the Department interview the applicant reiterated her claims to fear return as a Falun Gong practitioner. The delegate was of the view the applicant had deliberately engaged in the Falun Gong activity to enhance her claims for protection.
In her response in the post-hearing submission she referred to why she had incorrectly stated how many times the Falun wheel rotates, the source of funds to buy her new flat and why she believes organ harvesting in China is true.
In submissions to the Tribunal she advised she was able to obtain a passport and leave as she is not a wanted criminal. She claims many Falun Gong practitioners who were sentenced have been able to obtain a passport. She outlines that her son’s study was from three sources; [amount]RMB from her and her husband, [amount]RMB from her parents-in-law and the rest from the [sibling] of her husband. She refers to recent activity, including her photo being published on [a website] and in [Newspaper 1]. She claims she also filed a lawsuit against Jiang Zemin in her real name wand was featured in [a] program of [a] TV station.
She claims the local government has continued to harass her family in Australia. [In] August 2014 and [in] January 2015 the security principle of the local neighbourhood went to her home asking her family members when she would be back. She claims her husband has been approached twice by the public order principal as to when she would be returning. She claims in 2015 the [Office] of the [other] District indicated to her husband and that they are aware of her practice in Australia and asked him to persuade her not to attend Falun Gong activities, otherwise she would be in trouble on return.
She claims she has had several experiences of her photo being taken by unidentified strangers. She claims in July 2016 she was collecting signatures calling for the end of organ harvesting and an unidentified stranger took a photo of her. She also claims on a Saturday morning in 2016 she returned to the [Newspaper 1] distribution point at [name] Street after delivering papers to the language school and fan unidentified person was taking pictures of her.
She attaches a six page document outlining the Falun Gong activities she has attended in Australia from 2014 to 2016 including practising and protests in [City 2] and [City 1].
She attaches web addresses confirming her picture in three events in 2015 and the interview by [the television station]. The Tribunal has watched the interview and recording of the program and the applicant appears, named under the heading involving a lawsuit against Jiang Zemin. It refers to her as a Falun Gong practitioner.
At the Tribunal hearing the applicant reiterated her claims for protection. She was able to name the exercise and perform the second exercise. She was able to answer questions as to the practice of Falun Gong and the theory of Falun Gong. She outlined her practice in Australia, and said she practises privately at home in the morning and attends the [Suburb 1] practice site on [day] at [time] and on [day] evening discusses the Fa with other [City 2] practitioners. She referred to the numerous protests she has attended. The Tribunal asked the interpreter to advise if the applicant’s name was recorded on [the television station] and it was confirmed it was. The Tribunal discussed with her how she was able to obtain a passport and depart legally if she was detained and known by the Chinese authorities in Australia. She said she had not been employed since 2001.
[Ms A] advised that she is the joint coordinator of the [Suburb 1] practice site with [Ms F]. She referred to her previous statutory declaration and that she knew the applicant in China and they practised together there in 1999 at the University. She indicated she is a citizen who came to Australia not on a protection visa. She said the applicant has been practising since July/August 2014 and continues to practise in [Suburb 1]. She said when she arrived she was knowledgeable as to the exercises. She said many people can exit China who have been detained as Falun Gong practitioners. She said how easy it is depends on where one lives and therefore which is the relevant passport office. She said Shanghai is the easiest and her husband who was detained for three years as a practitioner was able to obtain a passport. She said she is from a different area, smaller and she was subjected to questioning. She referred to the difficulties practitioners face in China. She said she is a long term practitioner who was also detained in China. She said she has never appeared as a witness at the Tribunal before.
[Ms B] indicated that she is a citizen who was granted a protection visa due to her Falun Gong practice. She confirmed the applicant began practising in [Suburb 1] in July 2014 and continues to practise with her there and attend protests. She said she had been a practitioner since July 1996 and confirmed the applicant is a genuine practitioner. She said on her arrival the applicant was an experienced practitioner and had been practising since July 2014. She said she has never appeared before the Tribunal as a witness before.
[Mr C] is also a Falun Gong practitioner who is a citizen and been practising for [number] years. He claims he came in 2002 and was granted a protection visa and said he practises at the [Suburb 1] site. He gave consistent evidence with the applicant as to her attendance at [Suburb 1] on [day] afternoons, [day] evenings and at protests. She said he can’t exactly remember when the applicant started. He said he has appeared before the Tribunal as a witness on a number of occasions.
Assessment of the credibility of the applicant’s claims
The delegate found that the applicant’s claims had been made for the purpose of supporting the protection visa application. He was of the view that the applicant is not a credible witness and her claims were fabricated to support her claim for protection.
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, two coordinators from her local practice site in Australia, witnesses who practised with her in 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.
At the Tribunal hearing held on 2 March 2017 the applicant answered questions in detail and without hesitation. The Tribunal found the applicant’s evidence to be unrehearsed, detailed and responsive to the Tribunal’s questions as to her knowledge of Falun Gong, her practise in Australia and China, the difficulties faced and the concerns raised by the Department.
The Tribunal examined with scrutiny her beliefs and her practise in Australia. The evidence of the three witnesses who have practised with her since her arrival in July 2014 was highly persuasive as to confirming the applicant is a genuine Falun Gong practitioner who had practised in China. All of the witnesses who are veteran practitioners confirmed when the applicant arrived in July 2014 she was knowledgeable as to practise. [Ms A] the joint coordinator of the [Suburb 1] site, with [Ms F] was an impressive witness. All of the witnesses are citizens, and [Ms A] and [Ms B] have never appeared in front of the Tribunal before.
The Tribunal also views the letter of support from the Falun Dafa Association of Australian Inc to be persuasive as to the applicant’s credibility as to being a genuine Falun Gong practitioner. The letter refers to support given to the applicant by two veteran practitioners who have provided testimony of behalf of the applicant, being [Ms F] and [Ms D]. The Tribunal notes that independent evidence indicates that [Ms F] is coordinator of the [Suburb 1] site[1]. The site refers to practise on [day] from [time][2] consistent with the applicant’s evidence as to when she goes there. Both [Ms D] and [Ms F] provided written evidence in support of the applicant’s claim to be a Falun Gong practitioner.
[1] [Information deleted].
[2] Ibid
It also views as persuasive the extent of her protests in Australia represented by the numerous photographs submitted.
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.[3] 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 also considers that the applicant’s evidence was consistent with her detailed written statement which was provided to the Department and the witnesses who appeared at the hearing. 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.
[3] Falun Gong: An Academic’s Perspective, by Dr Benjamin Penny, 26 July 2006.
For these reasons, the Tribunal accepts as credible and genuine her motivation to practise Falun Gong and does not accept it was done for the purpose of strengthening her claims for protection. It finds her a credible witness in this regard.
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. It accepts her evidence that she was forced to resign from her employment.
The Tribunal has concerns about the applicant’s ability to obtain a passport and to leave China in 2014, in circumstances where she claims she was known by the police and local committee and had been detained on two occasions. 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.[4] 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.[5]
[4] 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.
[5] Department of Foreign Affairs and Trade 2008, DFAT Report No. 943 – China: RRT Information Request: CHN34077, 16 December.
The Tribunal has also had regard to the evidence of [Ms A] at hearing that the situation differs depending on where the passport is issued. As the applicant departed in 2014, the Tribunal does not view her ability to obtain a passport to be determinative that she is not a Falun Gong practitioner.
As to the delegate’s concern as to her lack of her family support in Australia, the applicant’s son appeared at her hearing as a support person and her [sibling] provided a statutory declaration in support of the applicant to the Tribunal.
As a consequence the Tribunal accepts the applicant to be a truthful witness as to her claims. In summary it accepts as true the following:
·The applicant is a genuine Falun Gong practitioner who began practising Falun Gong in China in 1996.
·After it was banned in 1999 she and her husband were harassed by the local police, local communist community branch [in] the manner claimed as she was a known Falun Gong practitioner.
·She was arrested, interrogated and detained at the brainwashing centre by the police in 2001 and 2003 due to her being a Falun Gong practitioner.
·She was required to attend the police station and local community officers in China in the manner claimed.
·Both she and her husband faced the difficulties claimed with regard to their employment in China.
·Since her arrival in Australia in July 2014 she has practised Falun Gong at the [Suburb 1] site on [days] and attended the Fa group in [City 2]. She also practises the exercise at home.
·She has attended numerous, over [number] Falun Gong protest events in [City 2] and [City 1], including at [a building] in [City 1] from 2014 to 2016.
·Her picture has appeared in [Newspaper 1] [in] July 2016 and on the [website] as a Falun Gong practitioner and criticising the Chinese Government.
·[In] November 2015 while at a Falun Gong event in [Suburb 1] she was interviewed by [a television station], which named her and referred to her as a Falun Gong practitioner. In the interview she refers to her Falun Gong practice, the difficulties she faced as a Falun Gong practitioner, including being detained on two occasions. In the interview she accuses Jiang Zeming of prolonged detention and illegal intrusion.
Does she have a well-founded fear of persecution in relation to China and meet the protection obligation under the Refugees Convention?
Having accepted that the applicant was a committed and genuine Falun Gong practitioner in China and is one in Australia, 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 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.”
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.

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.[6] This is consistent with previous advice provided by DFAT in 2007, and later confirmed as current in 2008 and 2009.[7] 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.[8]
[6] 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>
[7] 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>
[8] 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>
Information indicates that [a television station], the channel who interviewed the applicant and named her, was founded in [year] by Falun Gong practitioners and is based in [country].[9] There are reports that the Chinese government has tried to scare off [the television station]’s sponsors and business partners and censors the station in China[10]. A report [indicates] that the Chinese government monitors [the television station] and outlines instances where Chinese officials have threatened and intimidated [the] journalists, its President and their family members due to coverage criticising China.[11]
[9] [Information deleted].
[10] [Information deleted].
[11] [Information deleted].
In 2005, Chen Yonglin[12] 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.[13] 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’.[14] Chen Yonglin also referred to a ‘global list’ of Falun Dafa practitioners.[15] According to Chen Yonglin there are ‘over 1,000 Chinese secret agents and informants in Australia’.[16] In 2005, Christian Science Monitor[17] 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.[18] 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.[19] 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.’[20] In April 2011, DFAT confirmed that this advice remained current.[21]
[12] Chen Yonglin is the former First Secretary and Consul for Political Affairs at the Chinese Consulate in Sydney (2001 to 2005).
[13] ‘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>
[14] ‘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>
[15] ‘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>
[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, pp. 34-35 < > Accessed 10 April 2008 <\\ntssyd\REFER\Research\2011\Web\Falun Gong and China's Continuing War on Human Rights.pdf>
[17] Christian Science Monitor is a newspaper published by the First Church of Christ in America. It publishes international and US news and features.
[18] ‘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>
[19] ‘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>
[20] 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)
[21] 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>
Based on the above country information, together with what the Tribunal accepts of the applicant’s circumstances, the Tribunal has concerns for the safety of the applicant should she return to China. Specifically, the Tribunal accepts that the applicant is a genuine Falun Gong practitioner who intends to continue practising Falun Gong in the future. The Tribunal also accepts that she has practised for several years in group practice sites in Australia, as well as practising in private. The Tribunal is mindful that the applicant’s risks of harm in connection with her Falun Gong practice is heightened should she not be discrete in her Falun Gong practice in China and should she want to continue to practise with others and in public as she has done in Australia.
The Tribunal also accepts that the applicant has 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 she has participated in a public interview denouncing the Chinese Government and outlining that she is a Falun Gong practitioner, in which she is named.
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 returns 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.
The Tribunal does not consider that s.91R(3) is enlivened as it has found she is a genuine Falun Gong practitioner and genuine in her actions to protest against the Chinese government and its treatment of Falun Gong practitioners.
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 nor is state protection available.
The Tribunal therefore finds that the applicant faces 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.
Having carefully considered the applicant’s claims, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason if she returns to China, now or in the reasonably foreseeable future.
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Gabrielle Cullen

Member

[2017] AATA 421

8 March 2017

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