1507840 (REFUGEE)

[2016] AATA 4747

1507840 (REFUGEE) [2016] AATA 4747 (2 DECEMBER 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507840

COUNTRY OF REFERENCE:                  China

MEMBER:Tania Flood

DATE:2 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2016 at 1:37pm

CATCHWORDS

Protection visa – China – Religion – Falun Gong practitioner – Protest activity in Australia – Tuidang (Quitting the Party) movement – Falun Gong lectures – Decision under review affirmed

LEGISLATION

Migration Act, 1958, s.65

Migration Regulations 1994, s.36

SECONDARY MATERIALS

Illustrations and Explanations of the Falun Gong Exercise Movements, Chapter 2, Li, Hongzhi, Falun Gong, April 2001

RRT Background Paper, China – Falun Dafa, December 2012

UK Home Office 2002, Revolution of the Wheel – the Falun Gong in China and in Exile

DFAT, Thematic Information Reports, China – Unregistered Religious Organisations, March 2015

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] May 2015.

3. The applicant appeared before the Tribunal on 11 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. The issue in this case is whether there is a real chance the applicant will suffer serious harm for a Convention reason on return to China or alternatively, whether there are substantial grounds for believing there is a real risk he will suffer significant harm if he is removed from Australia to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of claims

10. In his application for a Protection visa the applicant claims:

11. He left China to travel.

12. Because of his involvement with, and practice of, Falun Gong in Australia he will be prosecuted as well as physically and mentally harmed, if he returns to China.

13. He will not be able to choose his religion freely and believe in the religion he chose without prosecution.

14. He will be detained by the government and will lose his freedom as a human being.

15. He will be tortured, beaten up and have his organs harvested.

16. The government does not protect Falun Gong members.

17. In a Statutory Declaration dated [in] June 2014 it is claimed:

18. From March 2000 to April 2001 he lived in [an address of a] City of Jiangsu Province.  [Ms A] was his neighbour at the time.  [Ms A] was a key member of the local Falun Gong committee and was kind, nice and friendly to everyone.

19. [Ms A] was [an occupation] at [a local employer] and her husband was [a different occupation] and worked at the same [employer].  [Ms A’s] daughter attended [a] University.

20. During his stay in those apartments [Ms A] always preached to him the mission statement of Falun Gong – Zhen, Shan, Ren (True, Compassion, Tolerance).  [Ms A] practices Falun Gong regularly and had a peaceful and happy life until 2001.

21. In 2001 Falun Gong was declared an evil cult by the Chinese government.  As an active senior member of Falun Gong, [Ms A] was taken into custody.  She was held in [a] Detention Centre for 3 years.  He was shocked by this news.

22. In October 2013 he travelled to [Country 1].  During that trip he came across a group of Falun Gong members, practicing and advertising their religion in [Town 1].  The members revealed to him their stories and persecution encounters with the Chinese government.  Since then he realised he had been brainwashed by the Chinese government.  The Community Party he learnt about outside the regime was nothing like he learnt in China.  He also realised that on many occasions the communist party slandered Falun Gong in China and harvested Falun Gong members live organs. 

23. He was a member of the Communist Youth League since he was in [school] and was a good student.  After learning the true nature of the communist party he decided to participate in Falun Gong’s Tuidang (Quitting the Party) movement.  He attended the Global Service Centre for Quitting the Community Party on Falun Gong’s website and quit the Youth League and Youth Pioneers.  The website allows people to use fake names or serial numbers to participate in ‘Quitting the Party Movement’.   Due to fear of the consequence of returning to China after actively quitting the communist party and joining Falun Gong he used a fake name.

24. [In] March 2014 he met a group of Falun Gong members who were protesting against the Chinese government’s persecution in front of the Chinese Consulate in Australia.  Based on his knowledge of Falun Gong and empathy for the members he joined the protesters.

25. He actively participated in Falun Gong events to promote the mission and purpose of Falun Gong.  He wants to let more people know about how the government and communist party persecute and torture Falun Gong members in China.

26. He participates in group practice at 7pm every night.  Every Saturday and Sunday he also joins the larger group practice and sends ‘Forth Righteous Thought’ at [Location 1]. He is now an official Falun Gong member in the group in [Suburb 1]. 

27. Recently he has also advocated for his religious beliefs in [a location].  He advertises quitting the communist party during ‘Great Wall of Truth’ events as well as raising awareness of the forced organ harvesting of Falun Gong practitioners in China.

    FINDINGS AND REASONS

    Country of reference

28. On the basis of the applicant’s People’s Republic of China passport provided to the Tribunal on the day of the hearing, the Tribunal finds he is a citizen of the People’s Republic of China and has assessed his claims against China.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than China.  Therefore the Tribunal finds the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.

29. Central to the applicant’s claims is that he is a Falun Gong practitioner.  For reasons discussed below, the Tribunal has formed the view the applicant is not a witness of truth and has dismissed his claims.

30. The applicant claims that he was introduced to Falun Gong in China by a neighbour who he knew as [Ms A].  Despite that the applicant was confused at hearing about the year in which this occurred, the Tribunal is prepared to accept this may have occurred.  However, the Tribunal notes he has never claimed to have practiced Falun Gong in China.  When asked at hearing why he came to Australia in 2014 the applicant replied that it was for [certain] purposes.  He confirmed he was not afraid for his life in China at that time.  Based on his evidence the Tribunal finds the applicant was not a Falun Gong practitioner in China and has suffered no past harm in China for this reason.

31. The applicant claims that in 2013 while visiting [Country 1] he met some Falun Gong practitioners and as a result of his interactions with those people he quit the Communist Youth League on Falun Gong’s website, using a fake name.  When asked where he met those people the applicant was unable to answer despite claiming in the Statutory Declaration dated [in] June 2014 that it was in [Town 1].  The applicant claims he spoke with two to three people on one occasion for several hours. 

32. The Tribunal asked the applicant what it was that inspired him so greatly that he decided to quit the Communist Youth League after just a few hours discussion with people he had never met before.  He said they talked about how the Chinese government persecuted Falun Gong practitioners and harvested their organs for sale.  The Tribunal put it to the applicant that it is surprising he made such an important decision in such a short period of time despite claiming to have known for years prior to this that Falun Gong practitioners were harshly treated by the Chinese authorities.  The applicant reiterated he went online to quit the Communist Youth League before even departing [Country 1] stating that he already had negative views about the communist party before travelling to [Country 1]. 

33. The Tribunal has considered the applicant’s responses but is not persuaded by his claims.  The Tribunal finds it improbable that a person who was not even a Falun Gong practitioner would participate in this Falun Gong practice of ‘quitting the party’ and especially not after just one discussion with a few [practitioners].  In view of the fact he was unable to state at hearing where he met these people in [Country 1], the Tribunal is not persuaded such a meeting ever took place.

34. The applicant claims that he commenced practicing Falun Gong after his arrival in Australia.  He said that he was due to stay in Australia for three months and about one month after his arrival he met some Falun Gong practitioners outside the Chinese embassy in [City 1] and he joined in their protest.  He said they invited him to lectures and he decided that Falun Gong is the lifestyle he wants to follow.  The Tribunal put it to the applicant that again, he appears to have made a life changing decision, including not to return to his wife and child in China, after attending a few Falun Gong lectures in the course of just one month.  He then said it was roughly two months after this involvement that he made his decision to choose this lifestyle.  He said he noticed how nice and sweet Falun Gong people are.

35. The Tribunal asked whether he discussed this life changing decision with his wife in China and he first said he did not.  He said he felt it was his own decision to make and he did not want to discuss Falun Gong with his family in the beginning.  Later he said he told his wife he had found something he wanted to commit to, to be devoted to.

36. The Tribunal asked the applicant what he likes about the Falun Gong lifestyle.  He replied that he likes the spirituality.  The Tribunal asked whether his lifestyle includes smoking and drinking and he said he smokes but does not drink.  When asked what Falun Gong says about smoking he replied nothing.

37. When asked to relate some of his knowledge of Falun Gong[1] the applicant said he reads Zhuan Falun during group study and the practice is about truthfulness, compassion and forbearance.  He stated that Falun Gong was founded by Master Li Hongzhi in roughly 1990 in north east China.   Despite what is written in his claims, he stated that it is not a religion but that the Chinese government consider it an evil cult.  When asked when World Falun Dafa Day is celebrated he indicated it is on 25 December but stated he has no idea of the significance of that date.  Noting the significance and importance of XinXing to Falun Gong practice the Tribunal asked the applicant what it is.  The applicant hesitated and then stated it means the beginning of every life; it is innocence and compassion.  When asked how practitioners cultivate XinXing he said it is through exercise.  Noting that XinXing is among other things cultivated by eliminating Karma the applicant was asked how Karma is reduced.  He was unable to answer. 

    [1] Illustrations and Explanations of the Falun Gong Exercise Movements, Chapter 2, Li, Hongzhi, Falun Gong, April 2001; RRT Background Paper, China – Falun Dafa, December 2012; UK Home Office 2002, Revolution of the Wheel – the Falun Gong in China and in Exile; DFAT, Thematic Information Reports, China – Unregistered Religious Organisations, March 2015.

38. The applicant stated that when he practices Falun Gong he performs the full set of Falun Gong exercises and correctly named four of the five exercises.  He said he performs the exercises twice per month, sometimes at gatherings in parks, sometimes in a community centre in [Suburb 1].  He said he seldom practices at home because he lives in a rental property with many other people.  When asked if he recites any versus associated with the exercises he said no.  When asked whether there was any verbal component to the practice he said there was not.   The applicant was asked to demonstrate the fifth exercise and he performed a series of movements in the standing position.

39. When asked how Falun Gong has impacted his life he said he has not experienced any significant impact because his cultivation energy is not very deep.  He said he has not followed the lectures or done the exercises daily because he is under a lot of pressure in Australia. 

40. The applicant was asked whether he participates in any other Falun Gong activities in Australia.  He said he joined a group in [Suburb 1] in March or April 2014 and they go together to spread Falun Gong news to other people.  He said they distribute booklets and hold up posters in [three locations].  He said he usually participates in these activities if he has time and the last time he attended was in [Suburb 1] a month ago.  When asked whether he is involved with the Falun Gong Association of Australia he said he is not because they are all high level members and he is not.

41. The Tribunal referred to a series of four photographs on the Department file depicting the applicant exercising in a park and distributing leaflets and standing beside a banner in a public place.  The Tribunal asked how he came to have those photographs and he replied that they were taken by another Falun Gong member.  The Tribunal pointed out that the pictures appear to have been taken quite some time ago because his physical appearance has changed and he agreed.  The Tribunal asked whether he has any more recent photographs.  He replied that he had more photographs on his old phone but it is broken and he cannot access them.

42. The Tribunal  put it to the applicant that the photographs are old and appear staged and explained that under the refugee criterion, pursuant to s.91(R)(3) of the Act, the Tribunal is not to have regard to activities undertaken in Australia which have been done for the sole purpose of strengthening a person’s claims for protection.  The applicant stated that he found the photographs when his solicitor asked him to provide related information.

43. The Tribunal considers the applicant’s responses at hearing to questions put to him about the philosophy and practice of Falun Gong and his motives for becoming a Falun Gong practitioner in Australia, call into question his claims to be a genuine Falun Gong practitioner.     The Tribunal finds it improbable the applicant decided not to return to his wife and child in China after attending a few lectures with Falun Gong practitioners in [City 1] in the course of just one month and without first discussing his intentions with his family.  Further, while he claims to have made this life changing decision to devote himself to Falun Gong, on his evidence he does not practice his exercises or follow group lectures regularly and has not achieved a deep cultivation of the practice.  Despite claiming to have made a decision to devote himself to the Falun Gong lifestyle, which does not encourage practices such as smoking or drinking, on his own evidence he smokes and had no knowledge that the practice is not encouraged by Falun Gong. 

44. In addition, the applicant claims no involvement with the Falun Gong Association in Australia for reasons the Tribunal did not find persuasive and has made no effort to produce any third party evidence in support of his claimed practice in Australia.  The set of four photographs which were previously provided to the Department were in the Tribunal’s view taken soon after his arrival in Australia and do not demonstrate evidence of any ongoing commitment to Falun Gong.  In any event, the Tribunal finds he provided only very general information about his claimed Falun Gong activity in Australia.   

45. Based on the photographic evidence, the Tribunal accepts the applicant has attended at best one or two Falun Gong protest meetings in [a location] in which he stood alongside banners and distributed pamphlets and participated in one group practice session in [Location 1].   The Tribunal is also prepared to accept he may have attended a few Falun Gong lectures soon after arriving in Australia and that he may have attended a few meetings of a Falun Group in [Suburb 1].   However, the Tribunal has formed the view that the applicant’s participation in these activities was undertaken for the sole purpose of strengthening his claims for protection and the Tribunal has had no regard to these activities in assessing his claims under the refugee criterion. 

46. The applicant demonstrated some limited knowledge of Falun Gong at hearing, including its foundations and some familiarity with the five sets of exercises. However,  his inability to articulate any sound understanding of key concepts such as XinXing and Karma and his lack of knowledge of the significance and correct timing of World Falun Dafa Day together with his inaccurate demonstration of the fifth exercise which is performed in the seated position and not the standing position, indicate to the Tribunal that whatever knowledge he was able to demonstrate during the hearing was learned from Falun Gong literature which is freely available in Australia and through his limited involvement in the Falun Gong activities acknowledged above.

1. At the commencement of the hearing, the applicant stated that he maintains some contact with his mother in China.  He said that the police always call his mother wanting to know where he is and claiming that they want him to return to China to clarify his involvement with Falun Gong.    He then claimed his family found out he is on a suspect list when they tried to obtain a criminal history check as part of the legal requirements for his child’s enrolment in school.  He confirmed that as none of his family, including his wife, are involved with Falun Gong, they have suffered no immediate consequences of his involvement. 

2. When the Tribunal expressed its concerns about the genuineness of his claims to be a Falun Gong practitioner the applicant stated that he does not hold the Chinese government in high regard and he sympathised with Falun Gong members which is why he wanted to changed his lifestyle even if that means  losing his wife and family. 

3. The Tribunal has considered the applicant’s responses and claims but for reasons set out below does not accept that his family is harassed by the Chinese authorities because of his involvement with Falun Gong in Australia.  In the absence of any evidence to support that his name is on a Falun Gong suspect list and in view of the Tribunal’s concerns about his overall credibility it also does not accept that the applicant’s name appears on any suspect list.

4. Having carefully considered his claims and evidence, the Tribunal accepts the applicant first became aware of the practice of Falun Gong in China through his neighbour.  However, for the above reasons, the Tribunal considers the applicant is not a reliable witness and does not accept the following:

   -    That the applicant ever practiced Falun Gong in China or [Country 1].

   -    That the applicant entered into discussions with Falun Gong practitioners in [Country 1].

   -    That the applicant quit the Communist Youth League, using a fake name, while in [Country 1] due to the influence of Falun Gong practitioners he met there.

   -    That the applicant decided to devote himself to Falun Gong soon after his arrival in Australia.

   -    That the applicant is a genuine Falun Gong practitioner or will be denied the right to practice his beliefs in China because the government has banned the practice.

   -    That the applicant’s family are harassed by the Chinese authorities because of his involvement with Falun Gong in Australia.

   -    That the applicant’s name appears on any Falun Gong suspect list.

5. As the Tribunal is not satisfied that the applicant is a genuine Falun Gong practitioner or that he will practice Falun Gong on return to China it finds there is not a real chance he will face serious harm on return to China for this reason.

6. As noted above, the Tribunal accepts the applicant may have attended one or two Falun Gong protest meetings in [City 1] at which he distributed Falun Gong materials and attended one public practice session in [City 1].  Further, the Tribunal is also prepared to accept he attended a few Falun Gong lectures soon after arriving in Australia and that he may have attended a few meetings of a Falun Group in [Suburb 1].   While the Tribunal has disregarded these activities for the purpose of assessing his claims under the refugee criterion it has considered the implications of this activity for the purpose of assessing whether he is owed complementary protection.

7. An RRT Background Paper on Falun Gong in China dated December 2012 states the following:

   Sources consulted indicate that the Chinese authorities monitor the activities of Faun Dafa practitioners overseas, including in Australia.  Advice received from 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.  It is noted that on 6 April 2011 DFAT advised the tribunals 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.

   The paper goes on to state:

   In 2005, Chen Yonglin stated in a testimony to the US House of Representatives Committee on International Relations, that the Chinese authorities maintain a broad black list of Australia(n) Falun Gong (Dafa) practitioners used for border checking and surveillance.  Further, according to Chen Yonglin there are over 1,000 Chinese secret agents and informants in Australia.

   Concerning the treatment of Falun Dafa returnees the paper states:

   According to DFAT advice from September 2006 (which remained current in April 2011) if practitioners have played an active role in Falun Gong (Dafa) organisations overseas, the Chinese authorities are more likely to take an interest in their case.

8. While the Tribunal accepts the Chinese authorities take an interest in the activities of Falun Gong practitioners overseas, the Tribunal considers the above reporting indicates that they are more likely to monitor the activities of ‘active’ Falun Gong practitioners or persons taking an ‘active role’ in Falun Gong activities.  For the reasons provided above, the Tribunal does not accept the applicant is an active Falun Gong practitioner or a person who is actively involved in Falun Gong activities in Australia.  While the Tribunal accepts he has had some minor involvement in public Falun Gong activities in Australia there is no reliable evidence before the Tribunal to support that he has continued to regularly participate in such activity or that he will do so in future.  The Tribunal is not satisfied this limited activity has or will mean he has developed the profile of a person who plays an active role in Falun Gong such that he will come to the attention of the Chinese authorities in Australia or in the event he is returned to China.  Nor does the Tribunal accept that the applicant’s family members have been harassed in China for this reason or that the applicant’s name appears on any Falun Gong suspect list as a result.  The Tribunal is satisfied that there are not substantial grounds for believing there is a real risk the applicant will suffer significant harm for reason of his limited past involvement in Falun Gong activities in Australia if he is removed from Australia to China.

9. At the conclusion of the Tribunal hearing the applicant stated that he doesn’t think the Chinese government is good and that under the current leadership ordinary people in China are not living a free life and the social environment is also not good.  He added that there is no trust between people and corruption is rife in the country.   The Tribunal acknowledged these concerns but noted that his general discontent with the Chinese government and his views about the way the country is run is not likely unique to him.  The Tribunal pointed out that his views are likely not dissimilar to large segments of the general population and in any event he has claimed no past involvement in opposition to the government or any past harm for these reasons.  The applicant has not demonstrated he has the profile of a person who actively voices his opposition to the government and there is nothing before the Tribunal to indicate he is likely to do so, on return to China or that he will refrain from doing so out of fear.   Accordingly, the Tribunal is not satisfied there is a real chance or a real risk he will suffer serious or significant harm on return to China for reason of any actual or perceived political opinion or for any other reason.

10. Having considered the applicant’s claims both individually and cumulatively, the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations under the criterion set out in s.36(2)(a) or (aa) of the Act.

11. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

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