1510817 (Refugee)

[2016] AATA 4985

1510817 (Refugee) [2016] AATA 4985 (21 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510817

COUNTRY OF REFERENCE:                  China

MEMBER:B. Mericourt

DATE:21 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 December 2016 at 5:01pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong practitioner – detention – bribery – torture – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91R, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 on 18 August 2014 and the delegate refused to grant the visa on 7 July 2015.

3. On 10 August 2015 the applicant lodged an application for review of the Department’s decision with the Tribunal.

4. The applicant appeared before the Tribunal on 21 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   RELEVANT LAW

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   BACKGROUND

10. The following information was obtained from the applicant’s application form.

11. The applicant was born in [year] in Liaoning Province, China and is a citizen of China. His parents reside in China. The applicant completed junior high school in [year] and then worked as [an occupation] until November 2010 when he was detained for 12 months. He was unemployed after his release in December 2011 until September 2012 when he was detained again for 3 months. He was unemployed from November 2012 to March 2013. He then worked as [a related occupation] from March 2103 to March 2014 when he departed China.

12. On 27 February 2014 the applicant was granted a [student visa] and he entered Australia [in] March 2014. His visa ceased [in] March 2018. He lodged his application for protection on 20 August 2014.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Information before the Tribunal

13. The Tribunal has had regard to the evidence the applicant provided to the Tribunal at his hearing, the applicant’s Department file which includes his written statement of claims, information about the practice and teachings of Falun Gong and the DFAT Country Report, People’s Republic of China, 3 March 2015.

    Written statement of claims dated 16 October 2014

14. The applicant stated that he started to practice Falun Gong in June 2007. His boss at his work introduced him to the benefits of Falun Gong. He practiced 2-3 times a week at night at about 10pm for an hour. Sometimes he practised with his boss and sometimes alone. In November 2010 two police came to his workplace and took him to [City 1] police station. They tied him to an interrogation chair and left him there until the next morning without anything to eat or drink. He was transferred to [City 1] detention centre the next day. Later he heard that his boss was also arrested. He suffered torture in the detention centre where he remained for one year. His parents bribed a police officer with RMB[amount] to have him released.

15. After his release he stayed home for nine months and then he was arrested again. He was forced to learn anti-Falun Gong materials and sign declarations promising not to practice Falun Gong again. He was detained for two months and was required to pay RMB[amount] or he would not be released. In March 2013 he went to Fushun City to find work and hide from the police. One day in September 2013 when he returned to the [workplace] he saw the police talking with his boss. He left quietly and called his boss that night who told him the police were looking for him. The applicant knew the government would not give up persecuting him. He went to Shenyang city in October 2013 and his parents borrowed money to prepare documents for him. His parents bribed the head officer at [City 1] police station with RMB[amount]. His parents spent a total of RMB150,000 to send him abroad. Most of this money was borrowed. He fears persecution if he returns to China

16. The applicant did not attend his scheduled interview with the Department on 3 July 2015.

17. On 7 July 2015, the delegate refused the application for a protection visa as the delegate was not satisfied that he has a well-founded fear of harm as a result of his Falun Gong practice. He failed to attend the interview to give evidence and present arguments to substantiate his claims that he had been a Falun Gong practitioner in China .

    Claims made at the Tribunal hearing on 21 December 2016

18. The Tribunal discussed the applicants’ background, current circumstances and claims for protection which are summarised as follows;

19. The applicant confirmed he was born in [year] in Liaoning. His parents still live in the family home. His parents are farmers growing [produce]. He speaks to them by telephone about once a fortnight. He last spoke to them a week ago and they are both well.

20. The applicant started doing casual work [after] he left junior high school.

21. The applicant is currently living in [a suburb]. He is only staying there temporarily for two weeks while a person he met on the internet is visiting from China. He will be returning to his home in an apartment in [another suburb] which he shares with other Chinese people. He has his own room. He does not know if anyone else in his household is applying for protection. He is not sure if anyone from his province is applying for protection in Australia.

22. The applicant entered Australia as the holder of a student visa and studied English for almost three months. He had applied to study [another subject] but did not commence the course and lodged the application for protection instead.

23. The applicant said an agent assisted him to lodge his application form and translated his story into English. The agent read back what he had written to the applicant so he could check the statement he made was accurate. He thinks his written statement of claims is accurate and does not wish to change or add anything.

    Claims

24. The applicant said that he got to know his boss, [named], when he was working in his first job after he left school. His boss introduced him to Falun Gong between 2004 and 2005. He started practicing Falun Gong a few weeks later because he was bored and his boss “came to him a lot”. He had heard that it was banned in China but as his boss was encouraging him to join in his practice and he felt he couldn’t refuse him all the time. He practiced every couple of days at the [workplace] at night. He only practiced when his boss was there for about 15 minutes each time. He did not practice on his own.

25. A police officer came to their worksite a few months after he started practicing and took him and his boss to the detention centre in [City 1]. He was interrogated about where he learnt Falun Gong, how many people were involved, how long he had been practicing and if he knew Falun Gong was bad. They wanted him to give them names of people practicing Falun Gong. He was kept in the detention centre for a few days. His family members found out he was detained and they talked to the head of the detention centre and paid a bribe of about RMB[amount] to have him released. He had no contact with his boss and does not know if he was released at that time.

26. After he was released he stayed home for about two months and then the police returned to take him back to a detention centre in [City 1]. It was a permanent detention centre unlike the first one which was temporary. He had not been practicing Falun Gong at home as his family did not allow him to do so. He was detained for 12 months. He was “re-educated” although he didn’t actually know much about Falun Gong as he had only been doing it for a short time. He denied being a practitioner of Falun Gong. He was also beaten several times, sometimes being slapped, punched in the chest or kicked. The beatings lasted for about the first three months. His family paid about RMB[amount] to have him released after 12 months. His family “pulled some strings” and found the person who was the leader of the permanent detention centre in [City 1] could be bribed.

27. After his release the applicant stayed at home for about a year. He then went to Fushun city to work [after] the new year in 2007. He worked there for more than six months. Police came to Fushun to his workplace to find him. He saw them and was scared and ran away. He had a “shadow in his heart”. He went to his friend’s house in Shenyang and called his boss in Fushun to confirm the police were looking for him. His boss told him they were investigating his current situation. He then called his family to see if they could pull some strings to solve the problem. The police told his family it was only a routine check and they were worried that because he was young he may contact other Falun Gong people. After talking to his parents the applicant decided the issue was not serious and he returned to [City 1] and reported to the police as requested.

28. The police talked to him about Falun Gong and asked him if he still was in contact with his first boss. He told them he had no contact with him and he does not practice Falun Gong. Then he went home. He was told by the police to wait to see if there were any results from the investigation. They told him not to go anywhere else to work. His family decided that this situation could not continue as the police were always asking for him. Some relatives arranged for his police file to be deleted.  He could not work in [City 1] or nearby as the police would find him. Consequently he found it difficult to find a job so his family helped him to go overseas.

29. The Tribunal put to him that the chronology did not work as there appeared to be a gap of almost 7 years between the last incident when the police looked for him in 2007 and when he departed China in March 2014.  The applicant said that he tried to travel to other countries unsuccessfully and he also lost his passport and had to have it replaced. It took time to do that and to lodge his application for the visa for Australia. He said that he stayed at home for about one year and then did some casual [work] in his area. He was not arrested, detained or interrogated during those 7 years. He has not practiced Falun Gong since he was first detained in 2005 and does not practice Falun Gong in Australia. He does not consider himself to be a Falun Gong practitioner.

30. Pursuant to s.424AA the Tribunal put to the applicant that the information in his written statement was significantly different to the evidence that he had just given the Tribunal at the hearing. The Tribunal advised the applicant of his rights and put the specific inconsistencies in the applicant’s evidence to the applicant for his comments and/or response. The applicant said he could not remember dates and responded according to his recollections. He had brought his notes and if he had been allowed to read his statement he would not have given any wrong answers. He would have recited his statement one or two days earlier if he had wanted to give fluent answers. (The Tribunal understands him to mean he would have memorised his statement and recited it at the hearing). He told his story ‘from his imagination’ and ‘from his instinct’. (The Tribunal understands him to mean he was relying on his memory). He cannot remember exact dates.

31. The Tribunal put to the applicant that a very significant difference was that in his written statement the last incident that occurred when the police looked for him in Fushun happened only six months prior to his departure from China, whereas he had told the Tribunal at the hearing that this incident occurred about seven years prior to his departure from China. The Tribunal asked him whether this incident occurred just prior to his departure or some years before his departure. The applicant stated it occurred some years before his departure. The applicant could not explain this discrepancy other than to say if he had read his statement there would not have been any errors

32. The Tribunal asked the applicant if he feared returning to China for any other reason and he said there were no other reasons.

    FINDINGS AND REASONS

33. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Requirement that the decision-maker be ‘satisfied’

34. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Nationality

35. On the basis of the applicant’s People’s Republic of China (PRC) passport provided to the Department, the Tribunal finds that the applicant is a citizen of the People’s Republic of 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 that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of China, the Tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

36. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

37. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196). However, the Handbook also states (at paragraph 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

38. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

39. For reasons discussed below, the Tribunal formed the view that the applicant is not a witness of truth and that he has fabricated his claims for the purpose of obtaining a permanent visa to remain in Australia. The Tribunal found the applicant’s evidence provided at the hearing to be significantly different from his written statement of claims provided to the Department. Pursuant to s.424AA of the Migration Act the Tribunal put to the applicant inconsistencies in his evidence to the Department and to the Tribunal and advised him of his rights to respond or comment after an adjournment or in writing.

1. The applicant stated that if he had been allowed to read his statement of claims he would have gotten the dates and sequence of events correct. His memory for dates is poor and he was unable to answer the Tribunal’s questions correctly about when things happened.

2. The Tribunal put to him that the evidence about the length of time between most recent incident that occurred in China and his departure from China was so significantly different (six months vs seven years) that this suggested that he was not telling the truth. He had no other explanation for this discrepancy.

3. Pursuant to s.424AA the Migration Act, the Tribunal put to the applicant that his claims were so similar in its particulars to other claims for protection before the Tribunal that had been lodged by the same migration representative, that this suggested to the Tribunal that the migration representative had written the claims on the applicant’s behalf. The applicant stated that he wrote the claims himself in Mandarin and his agent only translated them.

   Claims that the applicant was a Falun Gong practitioner in China

4. The applicant claims that he commenced practising Falun Gong in either 2004/05 (his evidence at the hearing) or in 2007 (his evidence in his written statement of claims).

5. The applicant claimed at the hearing he was first detained for a few days in 2005 when he was interrogated and then released. He was detained a second time for 12 months in 2007 where he was interrogated and beaten for a period of about three months. In his written statement of claims, the applicant stated he was detained for the first time in November 2010 for 12 months and he was tortured during the period he was detained. He was detained a second time for a period of two months and released after re-education and promising not practice Falun Gong again.

6. The applicant claimed at hearing that he went to Fushun to find work in early 2007 and about six months later police came from [City 1] looking for him. He ran away, but after speaking with his boss and his parents he decided the issue was not serious and he returned to his home and reported to the police station where he was questioned. Nothing further happened before his departure from China in March 2014. In his written statement of claims, the applicant stated that he went to Fushun to find work in March 2013. About six months later police came from [City 1] looking for him. He ran away to Shenyang in October 2013 and after his parents spent a lot of money for the preparation of documents and bribing the head officer at [City 1] police station, he departed Australia six months later in March 2014.

7. The applicant claimed at the hearing that he stopped practising Falun Gong after the first time he was detained in 2005. He has not practised Falun Gong since then. He does not practice Falun Gong now and does not know anything about Falun Gong. He made no claims in his written statement about his practice of Falun Gong after his detention in China or in Australia.

8. Based on the extreme discrepancies in the applicant’s evidence as outlined above and put to him pursuant to s.424AA at the hearing, the Tribunal considers that the applicant has fabricated his evidence about his practice of Falun Gong, his arrests, detention, interrogation and mistreatment whilst in detention.

9. The applicant told the Tribunal that he was unable to tell it anything about the practice or teachings of Falun Gong, as he was only involved very briefly with occasional practice with his boss in 2004/05.

10. The Tribunal therefore does not accept that the applicant ever practised Falun Gong in China, that he was arrested and detained in either 2005, 2007, 2010 or 2013 or at any other time as a result of being suspected or accused of practising Falun Gong. The Tribunal does not accept that the applicant was ever interrogated by police about his own or others’ practice Falun Gong. The Tribunal does not accept that he was mistreated by police at any time in China.

11. The Tribunal accepts the applicant’s evidence that he knows nothing about the teachings or practice Falun Gong and is not currently practising Falun Gong in Australia.

12. Based on the above findings, the Tribunal is not satisfied that the applicant has a genuine fear of persecution in China for a Convention reason as a result of his practice or belief in Falun Gong or for any other reason. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm (having regard to the examples provided in s.91R(2) of the Act) if he returns to China now or in the foreseeable future.

13. Based on the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) if he returns to China now or in the foreseeable future.

    CONCLUSION

14. For the reasons given above, the Tribunal is not satisfied that the applicant 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).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. 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 s.36(2).

    DECISION

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

    B. Mericourt
    Member