1509891 (Refugee)

[2017] AATA 1117

1509891 (Refugee) [2017] AATA 1117 (27 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509891

COUNTRY OF REFERENCE:                  China

MEMBER:Jenny Strathearn

DATE:27 June 2017

PLACE OF DECISION:  Adelaide

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

I, Member Jenny Strathearn, certify that this is the

Tribunal’s statement of decision and reasons.

Statement made on 27 June 2017 at 1:13pm.

CATCHWORDS
Refugee – Protection visa – China – Political opinion – Father a Falun gong practitioner – Jailed – Attempted to have father released – Arrested and imprisoned for complaints – Credibility issues

LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 36(2A), 36(2B), 65, 91R, 91S, 424AA, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the 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] September 2014 and the delegate refused to grant the visa [in] June 2015.

3. The applicant appeared before the Tribunal on 30 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. The applicant’s registered migration agent did not represent the applicant at the hearing, as was previously advised.

   RELEVANT LAW

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.

   Refugee criterion

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. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

    Complementary protection criterion

15. 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. 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

19. The Tribunal had 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 received  [in] September 2014, his statutory declaration dated [in] November 2014 and various written statements made outlining his claims for protection and responding to enquiries from the Delegate, and identity documents;

    ·     Oral evidence from the applicant provided at the Department’s interview held [in] May 2015 and the Tribunal hearing held on 30 November 2016.

    ·     Copy of the Delegate’s decision dated [in] June 2015;

    ·     Country information about China including the Department of Foreign Affairs and Trade (DFAT) Country Report on China dated 3 March 2015, and the DFAT Thematic Report, Unregistered religious organizations and  other groups in the People’s Republic of China.

    Nationality and Receiving Country

20. On the basis of the applicant’s identity documents and evidence provided at the hearing the Tribunal accepts that the applicant is a national of China. Therefore for the purpose of s.36(2)(a) of the Act 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.

    Right to enter and reside in any other country

21. 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 he does not have a right to enter and reside in any other country in terms of s.36(3)-(5) of the Act, other than China.

    Migration History

22. As stated the applicant is a citizen of China. He was born on [date]. He has provided to the Tribunal a copy of the Delegate’s decision record which sets out, amongst other things, his claims and his migration history.

23. He first arrived in Australia [in] April 2011 as the holder of a [temporary] via. He departed Australia [in] May 2011.

24. He returned to Australia [in] June 2011 again as the holder of a [temporary] visa. He departed Australia [in] June 2011.

25. He again returned to Australia [in] February 2014 as the holder of a [different temporary] visa. That visa expired [in] May 2014. The applicant remained in Australia unlawfully until he lodged an application for a Protection visa [in] September 2014.

26. He has been granted a Bridging visa in association with the valid application for a Protection visa.

27. The Member was advised by the Tribunal on 22 March 2017 after the hearing that the applicant had departed Australia [in] December 2016 and had no right of return to Australia.

    Claims

28. The applicant first claimed that his father was imprisoned in China solely because he practised Falun Gong. He claimed to have had to pay prison guards approximately A$[amount] per month to prevent the guards from beating his father. He claimed that this bankrupted his family. He tearfully appealed his father’s case but received no sympathy. After a few futile appeals he was reprimanded by the police who he stated are controlled by the government. He was scolded and insulted. Average Chinese people who knew his father’s case would laugh and hurl insults at him. He could not tell his mother or others about how he felt about this. He had to stay calm for this mother.  His family has lost hope and there is no way out for him and his family. He was scarred emotionally for life and lived daily in fear and lack of hope. His father’s arrest hurt him deeply as a young student. When he saw his father in prison he had grown old and was in poor health.

29. The applicant claimed that he was detained by police, was scared, and was not treated properly during that period of time. He came to Australia to leave behind the terrible experiences in China.

30. If he returned to China he is ‘pretty sure’ that the Chinese authorities will continue hurting him. Their efforts to vilify Falun Gong practitioners never ceases. Attacks and persecution of them started in 1999 and continues. During 25 years he has heard that security or secret police ‘tail’ such persons. He believes that all of his activities will surely be monitored, that he will be oppressed by security, secret police and prison guards and there will be no freedom for him, as fear will be used to control him. He fears he will disappear soon after arrival in China or may be imprisoned without a proper trial. He may be labelled as a traitor and be charged with an offence.  They will make a fuss over petty things that may give them any reason to humiliate and persecute him and his family.  Other Chinese people who are brainwashed will laugh at him and snub him like they did before. He will be seen as a pariah and will not fit in his surroundings. His former classmates and many of his father’s colleagues will avoid him and cut him cold when they see him, and tell others to do so. This will make his life miserable.

31. He believes that this will occur as the Chinese authorities have a proven track record of persecuting Falun Gong practitioners who cannot stand it and have to move overseas. If they return to China they will be tortured by the security police and they soon are ‘disappeared’. A very strong network monitors the movement of dissidents and potential threats to rule. He has reason to believe that they have gathered all his information. If they assume he has done anything detrimental to their interests they will take immediate action.

32. The Chinese authorities are the root of most problems for his family and his encounters have shown that they always treat them as followers of an evil cult who intend to topple their rule. His family is regarded as a sworn enemy who must be kept in check. No mercy will be given to him. The Chinese government control the media, military police and secret police. They will try to oppress him as evidenced by those with a similar background. He finds it difficult to trust a government who tries all means to limit and stifle individual freedom and who has persecuted so many dissidents and innocent people like his father.

33. A statement [in] September 2014 repeats some of this information and adds that his father’s case has been put on the back burner indefinitely with no hope. All means of appeal have been exhausted and he is exhausted financially. Some of his father’s friends financed his trip to Australia so that his grievances and frustrations with the Chinese legal system can be freely expressed and that he can apply for a humanitarian visa. He believes that with the intervention of the Australian Government his father can be released from prison.

34. A statement dated [in] September 2014 repeats some of the information set out above and adds his father as a Falun Gong practitioner was suddenly imprisoned by the secret police in 2000, and his father’s employer dismissed him. His father was ill and the imprisonment worsened his conditions. He accompanied his mother to seek help from police, public affairs offices, the courts of law and other relevant government organisations but their efforts were in vain. He found out his father’s whereabouts and visited him in prison. He continued to appeal his father’s case without success. He was reprimanded by police who tried to stop his petitions.  

35. The Statutory Declaration dated [in] November 2014 repeated some of the information set out above and added that his father has been in prison since 2000 and that he has spent money to convince government officers to review his case as well as prevent his father from torture. He and his mother have been blacklisted by the government. He could not find a job in China. He came to Australia to live a normal life.

36. His friends and family remain under surveillance in China and they are unable to assist him financially.

37. A statement dated [in] July 2015 restated some of the information set out above and also stated his father has been tortured in prison. The applicant stated he has been suffering from psychological problems of serious insomnia and he has been ‘self-imposed’. He wanted to seek help from the Falun Gong in Australia but he is worried that the Chinese authorities will know and he has hesitated to do so.

38. At the interview with the Delegate [in] May 2015 the applicant stated that he was not and never had been a Falun Gong practitioner. He has not been involved in any Falun Gong activities in Australia. He later stated in writing that he understands and respects the philosophies of the Falun Gong and believes it in his heart. He stated that anyone who supports and sympathises with Falun Gong risks persecution. The applicant has exposed his support through his appeal on behalf of his father.

39. He has not been involved in expression of any political opinion or contacted any human rights organisations about his father’s circumstances. The reason given is that he trusts the Australian government. 

40. He stated that he did not know when his father’s prison term would end or what the sentence was, and it has been too difficult to find out. He stated that his father was in [prison]. He did not have any independent evidence that this father was imprisoned as the Chinese government blocks information. He later added in writing that he left China in a hurry and did not know that he would be applying for a Protection visa or that such information was required.

41. He stated that he had been imprisoned on one occasion for [number] days in 2002 for lodging appeals for his father including in Beijing.

42. He stated that being blacklisted meant that he had no rights as a citizen in China, no right to work and no rights to social benefits such as employment insurance, superannuation, or land purchase. He was questioned about this given his stated   employment history. He responded that it was casual and basic work paid in cash.

43. He stated that he is not a member of any Falun Gong practice site and has had no contact with the Falun Gong organisation in Australia. He does not know any Falun Gong practitioners in Australia.

44. He stated that he had written letters of appeal to the Chinese government whilst in Australia which were similar to previous letters sent in 2000-2002 whilst in Australia but he has no evidence of them and did not retain any copies. He stated he did not receive any replies.

45. He stated that he had not reported his father’s circumstances to the Australian government (apart from his Protection visa application) as he thought bilateral relations were close. He did not report his father’s circumstances to any other organisation, media outlet or the internet.

46. He later stated in writing that he has not had contact with Falun Gong as there might be a ‘mole’ within, or to any other organisations in Australia as he is scared of exposing his father’s situation, and this might result in an even heavier penalty or even that he be ‘disappeared’.

1. He was asked why he had not applied for a Protection visa until September 2014 given he arrived in Australia in February 2014 and his [temporary] visa expired in May 2014. He responded that he thought that bilateral relations were too strong between China and Australia but then observed that China was reported to have disapproved of a visit to Australia by a Japanese official and he then realised that he could apply for a Protection visa.

2. He fears return to China because he would be detained, convicted and sentenced possibly to life imprisonment as China is very strict on people who are on the blacklist especially if they have escaped to foreign countries whilst blacklisted.

3. He limited his time ‘on the frontline’. He finally found a chance to escape from China.

   Evidence obtained at the Tribunal hearing on 30 November 2016

4. At the hearing the applicant claimed that he was born in Tianjin, China and has no siblings. His parents are both retired. He stated that he has no relatives living in Australia. His father’s family name was listed on his application as [name] but the applicant insisted that there was a miscommunication between the migration agent and himself and that his father’s family name is [name], the same as his family name.

5. The applicant claimed that his father became a Falun Gong practitioner in 1999 or early 2000. His mother was not and did not become a Falun Gong practitioner. He stated that his father talked about Falun Gong with friends he recognised, and he was imprisoned in 2002 as it came to the notice of authorities that his father was a Falun Gong practitioner via other persons who were aware of it. It was put to the applicant that there was a discrepancy in his evidence about the date that his father was imprisoned. Specifically, his application stated that his father was imprisoned in 2000. The applicant responded that his father was not officially arrested officially in 2000 and no one was allowed to see his father. The applicant also stated that the information in his application might have been incorrect. The applicant stated that he does not have any evidence of his father’s imprisonment as such information is secret.

6. The applicant stated that he had to pay protection money to those holding his father in prison so his father would not be further harmed, as his father’s health had deteriorated. He was asked how this money was paid. He responded that he paid the money monthly to a fixed account number, and the name of the account holder was unknown to him. He was asked how this was arranged and he responded vaguely including that it was a general rule. The applicant then referred to corruption in China. He was asked how he could be sure that his father would be protected from harm by his paying the money. The applicant responded that he did not give this any thought. The applicant stated that the payments made came from his family’s savings.

7. The applicant was asked how he became aware of his father’s whereabouts in prison. He stated that friends who worked in the police department obtained the information internally and informed him.

8. The applicant stated that his father is still in prison. It was put to the applicant that country information about China indicated that persons who are imprisoned for Falun Gong activities received sentences for much shorter periods in usual circumstances. The applicant responded that he did not know why his father was not released.

9. The applicant was asked what duration was his father’s prison sentence. The applicant responded that he did not know and could not find out.

10. The applicant was asked what steps he took to try to have his father released. He stated that he approached police, courts and relevant Departments. He was asked specifics of agencies and dates but was vague in response. The applicant was asked if he had any evidence of the various complaints made by him. The applicant responded that he did not have any evidence and he responded that evidence would be seen as a takeover from the government. He stated that he did not receive any responses to his complaints from the various Chinese authorities.

11. The applicant was asked what activities his father engaged in as a Falun Gong practitioner prior to imprisonment. The applicant acknowledged that he lived at home at that time but was not sure what his father’s Falun Gong activities were. The applicant was asked if and how his father promoted Falun Gong to others. The applicant stated that he was unsure and did not wish to ask his father any questions. The applicant stated that he himself was not a Falun Gong practitioner either in China or Australia.

12. The applicant stated that he was arrested and imprisoned in 2008 and 2011 for [number] days each for making complaints to the government about his father’s imprisonment. He stated that during that time he was not given food and was not able to fully stand up in the space he was in. He was arrested [in] October 2011 for ‘disturbing society order’ following his complaints to the police about the imprisonment of his father for being a Falun gong practitioner.

13. It was put to the applicant that his evidence prior to the Tribunal hearing was that he had been imprisoned in 2002 for complaints to the authorities to have his father released, and he had not mentioned being imprisoned in 2008 or 2011. He responded that he was imprisoned many times and did not recall them all. The applicant later in the hearing after questioning about whether he was imprisoned in 2002 stated that the first detention was in 2002.

14. The applicant was asked if any other adverse consequences occurred. He responded in the negative. It was then put to the applicant that he stated earlier that he had been blacklisted. He responded that he had been blacklisted in about 2007 and just recalled that event. He stated there were no other adverse consequences from being backlisted apart from his arrest in 2008.

15. It was put to the applicant that he stated in his application that he was blacklisted in 2004 and that resulted in the loss of right to work. The applicant then stated that the loss of his right to work was correct. It was then put to the applicant a discrepancy in that his application included details of a 10 year work history with three different employers [2004 to 2014] and his employment included work as a [occupation] and [occupation]. It therefore did not appear that he had been denied the right to work. The applicant responded that his employment was private and not government, he was paid cash money and there was no superannuation or insurance benefits for him. He further responded that for a visa application he had to show he had a work history. It was pointed out to him that his application in which the information appeared was for Australia’s protection not a visa to enter Australia.  The applicant responded that returning to China would be difficult as he had been blacklisted as he would be under observation and would have ‘no support for life’.

16. It was put to the applicant that if he was blacklisted that this did not prevent him leaving from the airport in China in 2014.The applicant responded that he had some help from friends in leaving China in 2014 and many things can be solved with money and his other earlier departures from China were also with similar help.

17. At the hearing the applicant stated that he had evidence in the form of several photographs that showed he had a police record in China and that he was arrested [in] October 2011 due to his complaints made to the Chinese authorities to request that his father be released from prison. The applicant stated that these photographs of police files were taken by friends of his who were able to secretly access police records in China without the knowledge or authorisation of the police. The applicant showed these to the Member and it was evident that they were not in English. The applicant was asked why these photographs were not submitted earlier. The applicant responded that he needed to pay for the photographs and he believed them to be authentic documents and they were passed to him via ‘friend to friend’. At the hearing they were returned to the applicant for translation in order that they could be considered as evidence. The applicant agreed to ask his migration agent to have them translated and returned to the Tribunal within two weeks so they could be taken into evidence and considered. The Member advised that if there was more time needed for this process that his migration agent should contact the Tribunal to request additional time. No translations of the content of the photographs or any request for extra time was forthcoming after the hearing.

18. The applicant stated that he would be seen as a pariah in China as people who were brainwashed by the Chinese Government insulted and laughed at him following his complaints to the government about his father. The applicant was asked to elaborate on that. The applicant stated that he did not want to recall those details as this was his darkest memory.

19. The applicant was asked to clarify his earlier statement which indicated that he had ‘limited time in the front lines’. The applicant responded that his parents feared for his safety and encouraged him not to come under notice of the government by making complaints. However, the applicant stated that he did everything he could to try to have his father released. As a result the Chinese government has information about him.

20. The applicant was asked why he stated that he would be seen as follower of an evil cult as he is not a Falun Gong practitioner. The applicant responded that even persons who make complaints on behalf of Falun Gong practitioners are seen as ‘stings in the eyes’ of the government.

21. The applicant was asked if his mother had faced any adverse consequences in China. The applicant stated that she has not, but after 2002 her health deteriorated and it was only him involved in complaints to the government.

22. The applicant was asked why he feared return to China. The applicant responded that he received information from [a messaging service][1] but did not elaborate.

    [1] DFAT Report on China dated 3 March 2015 at 3.33 described this as a messaging service.

23. The applicant further stated whilst in Australia he received a parcel containing a knife which could have had blood on it. He was not sure. He did not know the sender, there were no words written and it was hand delivered. He could not be certain which city he was in at the time as he was moving between [cities] but was shocked and numbed.  He was not sure what it means. It was put to the applicant that it would be unlikely if such an event of this nature occurred that he would not recall where he was at the time. The applicant responded that he was moving house and cannot recall where he was.

24. The applicant stated that he has sought protection for himself for fear of persecution in China and so that his father can be released due to intervention by the Australian Government to the Chinese government.

25. The applicant was asked why he delayed his application for Australia’s protection until September 2014 given his arrival as a [temporary entrant] in February 2014. The applicant responded that he had to obtain employment so he could continue to provide protection money to keep his father from harm in prison. He therefore could not focus on his application for protection.

26. The applicant stated that he attended [an] event in [city] in 2015 prior to the DIBP interview [in] May 2015 which was an event to [details deleted]. He later stated it was to advocate for Falun Gong practitioners not to be harmed in China. He stated that the event went for 2-3 days although he could not recall where or when it was held. When asked further what was his involvement he stated that about [number] people came and went and that he was present for less than five minutes and signed his name.

27. The applicant showed the Tribunal a photograph purportedly taken at that event. The applicant was asked why he did not provide this photographic evidence at the interview [in] May 2015, and he responded that he did not have the photographic evidence then so did not mention it.

28. The applicant was asked if he had written to the Chinese Government about his father since coming to Australia. He stated that he had not done so. It was put to him that he had stated to the Delegate [in] May 2015 that he had written to the Chinese [Embassy]. The applicant denied having written any such letter to the Chinese [Embassy].

29. It was put to the applicant that the Member under section 424AA of the Act wanted to inform him that there were several issues of concern which may lead to a decision that the applicant should not be given Australia’s protection.

30. The inconsistency regarding the year of his father’s imprisonment was earlier stated to be 2000 but in the hearing was stated to be 2002. The applicant made no comment.

31. The several inconsistencies in the years given by the applicant regarding his own imprisonment were pointed out to him. The applicant suggested that he did not understand the questions or the Member did not understand his responses.

32. The evidence about the parcel containing a knife received in the mail was not mentioned earlier and the Member may not accept that it had any connection with his fear of persecution in China. The applicant made no comment.

33. The evidence about the Falun Gong event in [city] in 2015 was vague and unconvincing and may be considered to be fabricated and put forward to embellish his claims for protection. The applicant made no comment.

    CONSIDERATION

    What is the applicant’s country of Citizenship and receiving country?

34. On the basis of the applicant’s travel document and evidence provided at the hearing the Tribunal accepts that the applicant is a national of China. Therefore for the purposes of s.36(2)(a) of the Act the Tribunal accepts that China is the country of nationality and for the purposes of s.36(2)(aa) of the Act the Tribunal accepts that China is the receiving country.

    Does the applicant have the right to enter and reside in another country?

35. 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 he does not have a right to enter and reside in any other country in terms of s.36(3)-(5) of the Act, other than China.

    Is the applicant credible as to his claims?

36. The applicant claimed that he was born in Tianjin in China on [date], that he is the only child of his parents and that he has no other relatives in Australia. Based on the available evidence the Tribunal finds that that information is correct.

37. The Tribunal accepts that the applicant’s father’s family name is [name] and that it appears as [name] in his application due to a miscommunication between the applicant and the migration agent.

38. The applicant stated that his father was a Falun Gong practitioner in China from 1999. Although the applicant lived at home he was unsure of what activities his father engaged in or how he practised Falun Gong, or whether he practised in private or in a public way. However, he stated that his father spoke with other persons about Falun Gong and it was through this that he was reported to the authorities.

39. The applicant stated that his father was imprisoned by the Chinese Government for practising Falun Gong and that he remains in prison where he is in ill health and had been tortured. The Tribunal had concerns about the discrepancy in evidence about the year his father was imprisoned. In his application and in the interview with the Delegate he stated that his father was imprisoned in the year 2000. In the Tribunal hearing he stated it to be the year 2002. When questioned about this and other discrepancies the applicant stated that he did not understand the Tribunal’s questions or that the Tribunal member did not understand his responses.

40. The Tribunal heard from the applicant that although he was not a Falun Gong practitioner himself that that he made many complaints to various Chinese authorities to attempt to have his father released from prison. The applicant provided no evidence as to of any of these complaints, stated that he did not have records of copies of any of his complaints, and did not receive any response from the authorities. The Tribunal noted that the applicant has not provided any evidence of his father’s imprisonment or of his father’s ongoing imprisonment.

41. The applicant stated that his father is still in prison. It was put to the applicant that country information provided by the Delegate[2] indicates that a prison sentence for being a Falun Gong practitioner in China is unlikely to be for a period of so many years  unless a person is high profile or that there are particularly serious reasons for a longer imprisonment. The applicant reiterated that his father is still in prison for the reasons he had given.

    [2] CXB1676372190 Article 300 Criminal Law of the People’s Republic of China, Ministry of Foreign Affairs of the People’s Republic of china, 14 March 1997

42. The applicant earlier stated that he limited his time on the “front line” and found an opportunity to escape from China in 2014. The applicant was asked in the hearing what this meant. He responded that his parents tried to encourage him to limit his complaints as they were concerned about him.  However he stated that he ignored them and pursued complaints about his father’s imprisonment as he believed he should do so. The Tribunal noted the contradiction over time about the applicant’s activities.

43. The applicant stated that he had to pay protection money to ensure his father was not harmed in prison. He stated that he paid a monthly amount to a fixed account number, the account holder of which was unknown to him. This had left his family in financial stress. He was asked how these payments were arranged and he responded in vague terms that it was a general rule. He was asked how he could be sure that the money was not taken from him and his father was still ill- treated. The applicant stated that he did not give any thought to that question.

44. The Tribunal finds that this evidence is vague and unconvincing and there is doubt as to its reliability.  

45. The applicant stated that he was imprisoned in 2008 and [in] October 2011 for [number] days on each occasion due to making complaints against the Government to try to secure his father’s release as he was regarded as disturbing order in society.  He was asked if he suffered any harm in prison.  He stated that he was not given any food and that he could not properly stand up in the space. The applicant produced some photographs to the Tribunal which were purportedly photographs of police records in China about him which were obtained without police knowledge or authority. He stated that these photographs were taken by friends of friends and showed that he was arrested and imprisoned. However, his friends could not obtain similar photographs of files regarding his father’s imprisonment as Falun Gong matters were secret and kept in another place. The Tribunal returned the photographs to the applicant as they were not able to be taken into evidence unless translated. The applicant agreed to seek the assistance of his migration agent to have the contents of the photographs translated and returned to the Tribunal within two weeks. However, no translations of the documents were received in that period or since. The photographs were therefore not taken into evidence.

46. The Tribunal questioned the applicant about the discrepancy in his evidence about the years he was imprisoned. In his application and in the interview with the Delegate he stated that he was imprisoned in 2002 for [number] days and that was the only occasion. He at first reiterated in the hearing that the years of imprisonment were 2008 and 2011 but later added that there was an administrative detention in 2002 for [number] days. He then told the Tribunal that he was imprisoned many times and that he could not recall all of the occasions. The Tribunal found this and other evidence about both his father’s and his imprisonment to be inconsistent, vague and unconvincing and it casts doubt on whether the applicant’s father or he was imprisoned in China.

1. The applicant stated that other Chinese persons ridiculed, mocked or ignored him due to making complaints to the authorities. The applicant was asked to elaborate on these. He stated that he declined to do so on the basis that he did not wish to recall the ‘dark memories’. The Tribunal found this evidence and the reasons for non-disclosure of any detail to be unconvincing and indicative of fabrication.

2. The applicant stated to the Tribunal that he was blacklisted in 2007 and this resulted in his imprisonment in 2008. This evidence is inconsistent with earlier evidence provided in his application and to the Delegate that he had been blacklisted in 2004 and that this resulted in loss or right to work and social benefits. Further the Tribunal referred the applicant to his application which contradicted his evidence of the loss of the right to work. It listed a work history of 10 years from 2004 to 2014 which included a [occupation] and a [occupation]. The applicant responded that this employment was casual, cash money, and had no social benefits such as access to superannuation or insurance. 

3. The Tribunal asked the applicant how he was able to legally leave China in 2014 if he was blacklisted. The applicant responded that he had friends who assisted him and that many issues in China are resolved by money.

4. The Tribunal considered that the discrepancies in evidence about being blacklisted including the timing of it and the purported consequences raised serious doubts about the veracity of that evidence. It raised doubts about whether the applicant was blacklisted by the Chinese authorities.

5. The applicant claims that he feared return to China as China has gathered information about him, that he would be under constant surveillance, imprisoned without proper trial, labelled as a traitor and follower of an evil cult, charged with an offence, treated badly by others in the community, and even ‘disappeared’.  He also feared that petty issues would be used to humiliate and persecute him. The Tribunal found that these claims were not supported by any oral or written evidence and were not plausible based on his overall evidence. The Tribunal does not accept these claims.   

6. The applicant stated in the hearing in response to a question, that he had not contacted the Chinese authorities whilst in Australia. This evidence contradicts his evidence to the Delegate which indicated that he had forwarded a letter to the Chinese [Embassy] about his father’s Falun Gong practice not being of a political nature. The Tribunal finds that the applicant’s contradictory evidence on this issue casts doubt on his overall credibility.

7. The applicant stated in the hearing that he attended [an] event in [city] in 2015 prior to his interview with the Delegate. He produced a photograph with Chinese characters purportedly depicting this event.  He was asked several questions about this event and provided vague and incomplete responses including lack of clarity about when and where this event was held. When further questioned he stated that the event was for 2-3 days, [number] persons came and went at times, and it was for the purpose of advocating for persons imprisoned in China relating to Falun Gong practice. After further questioning he stated that he attended for less than 5 minutes and signed his name. It is not clear to the Tribunal why he signed his name. The photograph was returned to him to arrange with his migration agent for the contents to be translated and returned in two weeks. However no translation was received within two weeks or since. The photograph is not taken into evidence by the Tribunal.

100.   The applicant was asked why he did not mention this event in 2015 to the Delegate at the interview in March 2015. The applicant responded that he did not then have the photograph and this is the reason for his not mentioning it at that interview. Due to the vague and unpersuasive nature of the evidence the Tribunal does not accept that the applicant attended an event in 2015 to support Falun Gong practitioners in China, and that this evidence was fabricated with the intention of embellishing his claims for protection.

101.   The applicant stated in earlier evidence that whilst he is not a Falun Gong practitioner that he understands and respects it and believes it in his heart. He stated that he is not and has not been a Falun Gong practitioner. The Tribunal finds that the applicant’s views about Falun Gong expressed prior to the hearing do not provide grounds for the applicant to have a well-founded fear of persecution in China or that there is a real risk of significant harm to him in China.

102.   The applicant stated in the hearing that he had information from [a messaging service] but did not elaborate on that. He continued to state that he received a hand delivered parcel containing a knife in Australia and that he thought it might have had blood on it. He stated that he was shocked and numbed. He did not recall which city he was in at the time as he had been travelling from [cities] many times. The applicant did not know who the sender was and there was no writing on the parcel.  He was not sure what this meant. The Tribunal finds that the evidence provided about [a messaging service] and this event is vague and unconvincing and there is no evidence that this evidence has any connection or relevance to the applicant’s claims for Australia’s protection.

103.   The applicant was asked why he did not make an application for protection until September 2014 when he arrived in Australia in February 2014. The applicant responded that he had to find employment so he could continue to pay protection money so that his father was not harmed. This meant that he could not do other things including the application until September 2014.  This contradicts the reasons given to the Delegate. He told the Delegate that he at first thought that the Australian and Chinese governments were closely aligned but later after hearing a news item came to a different conclusion.

104.   The applicant earlier stated that he had psychological problems including insomnia and he was ‘self imposed’. The Tribunal had no evidence before it to indicate that these conditions had any connection with his reasons for seeking protection.   

105.   The Tribunal noted that the applicant has maintained that he seeks Australia’s protection for himself but also he hopes that his father can be released from prison through the intervention from the Australian government with the Chinese Government. 

106.   As indicated above the Tribunal finds that the applicant is an unreliable witness and that his evidence contains many inconsistencies which cast serious doubt about his overall credibility.

107.   The Tribunal finds on the available evidence that the applicant’s father was not imprisoned in China due to his practice of Falun Gong, that the applicant did not make several ongoing complaints to the Chinese authorities in attempts to secure his father’s release, that the applicant has not been targeted by other members of the Chinese community or the Chinese Government for ridicule and abuse or persecution.

108.   The Tribunal further finds that the applicant did not write to the Chinese [Embassy] to advocate on his father’s behalf, he did not attend an event in 2015 to support Falun Gong practitioners and that any event relating to the receipt of a knife in the mail in Australia or information the applicant received from [a messaging service] had no connection with his application for protection or the reasons for it.

109.   The Tribunal found extensive internal inconsistencies in the evidence from the applicant in relation to central aspects of his case, and that responses by the applicant in many instances to Tribunal questions were vague and unconvincing. The Tribunal concluded on all of the evidence before it that the claims for protection are fabricated.

110. For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China for any reason or is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

111. Having concluded that the applicant does not satisfy s.36(2)(a) the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to a receiving country. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act

112. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s36(2) of the Act.

DECISION

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

Jenny Strathearn
Member