1512146 (Refugee)

[2016] AATA 3675

1512146 (Refugee) [2016] AATA 3675 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512146

COUNTRY OF REFERENCE:                  China

MEMBER:Roslyn Smidt

DATE:30 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2016 at 11:32am

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 is a citizen of China, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] May 2014.

3. The applicant appeared before the Tribunal on 10 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   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. Relevantly for this review, s48a of the Act imposes a bar on a non-citizen making and further application for a protection visas while in Australia in circumstances where the non-citizen has already made an applicant for a protection visa which has been refused. The full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 held that the operation of s48A, as it stood at the time of this application, is confined to making a further application which duplicates an earlier unsuccessful application for a protection visa.

7. Applying the reasoning in SZGIZ the Tribunal finds that it does not have the power to consider the criterion in 36(2)(a) of the Act that sets out Australia’s protection obligations under the 1951 Convention Relating to the Status of Refugee as amended by the 1967 Protocol relating to the Status of Refugees because the applicant’s earlier application was refused on the basis of this criterion in July 2010. Instead the Tribunal had proceeded on the basis that it only consider the applicant’s claims under the complementary protection provisions of the Act set out in s36(2)(aa).

8. A person may 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 there are 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.

9. The phrase significant harm for these purposes is exhaustively defined in s36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; the death penalty will be carried out on the person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment or the person will be subjected to degrading treatment or punishment.

   CLAIMS AND EVIDENCE

10. The applicant is [an age] year old single man from Fujian in China. He commenced primary school in [year] and attended the Middle [School] in [year].  From [year] until [year] he attended [education institution] in [a] County where he studied English. He never worked in China.

11. The applicant arrived in Australia [in] March 2011 on a [temporary] visa issued [in] March 2011. He travelled on a legal Chinese passport issued [in] 2008. His visa expired [in] April 2011. He applied for a protection visa [in] May 2011. This application was refused by a delegate of the Minister [in] July 2011 and the decision was affirmed by a differently constituted Tribunal on 6 January 2012. The applicant remained in Australia and in July 2013 he was detained and placed in [a] Detention Centre. 

12. [In] September 2013 the applicant lodged a second protection visa application for consideration against the complementary protection provisions. This application was refused by the delegate [in] May 2014 and the delegate’s decision was affirmed by a differently constituted Tribunal on 20 April 2015.

13. On 2 September 2015 the case was remitted by the Federal Court as a facsimile sent to the Tribunal on 13 March 2015 had not been brought to the attention of the Member.

    First Protection visa application

14. The applicant’s evidence provided by the applicant in the statement provided [in] May 2011, during an interview with a delegate of the Minister [in] July 2011 and a hearing of the Refugee Review Tribunal held on 18 November 2011 is summarised below.

15. In his written statement the applicant claimed that his father had practiced Falun Gong since 1999, that he himself had begun to learn about Falun Gong in about April 2007 and that after this he practiced constantly with his father at home. He claimed that his father was detained for Falun Gong activities in 1999 and released in 2000 and that the police often came to his home after this. He claimed that he and his father were both detained in 2007 after one of his school mates discovered written material on Falun Gong which the applicant had hidden in a school book. The applicant was detained for a week and beaten then released when his mother and his teacher arranged bail. He had to report to the police every week. His father was released in early 2008, but the police continued to harass the family. The applicant became depressed and his parents decided to send him abroad. Because of his young age it was decided that his father would go with him. They obtained passports with the assistance of a relative who bribed a government official in [2008]. His parents saved for two years to obtain the money needed for a visa and other costs. A few days before the applicant and his father were due to leave China the police became aware of what they were planning and arrested his father. His mother insisted that he should leave the country without his father, which he did. He said that his father remained in prison at that time.

16. During his interview with the delegate the applicant said that he had only known two of the Falun Gong exercises at the time he left China, but he had learned the other three exercises from videos and information downloaded from the internet.   He said that he had not joined any Falun Gong groups in Australia.

17. When questioned about his father’s arrest in 2011 during this interview the applicant said that he had been detained at a [transport venue 1] in [city] as they were attempting to [travel] to [City 1] on the day they were scheduled to fly from [City 1] to Australia. When the delegate pointed out that this was at odds with the information in his written statement, the applicant withdrew this claim and said that his earlier evidence was correct.

18. When questioned about Falun Gong at the hearing the applicant confirmed that he only knew two Falun Gong exercises when he arrived in Australia. He said that this was because he had been at school and could not practice.  He said that it had taken him about 6 weeks to learn the first exercise and almost five years to learn the second. When asked why he had not joined any Falun Gong groups in Australia, he said he had not dared to contact them and added that his migration agent had told him the location of some Falun Gong groups, but they were too far away.

19. At the hearing the applicant was able to name the five Falun Gong exercises and after some prompting was also able to name the verse which accompanies one of the exercises.  He said that he had a copy of the main text written by the founder of Falun Gong and demonstrated some knowledge of its structure. However, he was unable to draw the distinctive symbol which appears on the cover of the book and was not aware of the difference between Falun Gong (the system of exercises) and Falun Dafa (the underlying philosophy), stating that both referred to the exercises.

20. When asked about his father’s arrest in 2011 he said that his father had been arrested at the family home about three days before they were due to leave for Australia because the Public Security Bureau had discovered that he had applied for an Australian [temporary] visa. He said that he believed he had escaped arrest because he was young and because the authorities only suspected he was a Falun Gong practitioner when he was released on bail in 2007. When asked to explain why he had initially provided a different account of his father’s arrest when interviewed by the delegate, the applicant said that he had been nervous during the interview.

21. The applicant’s application was refused by the delegate and the first Member because they found that the inconsistencies in his evidence, his limited knowledge of Falun Gong, his lack of involvement with Falun Gong groups in Australia and his ability to obtain a passport and leave China indicated that he was not a credible or truthful witness and that he was not and never had been a Falun Gong practitioner.

    Second protection visa application lodged [in] September 2013

22. The applicant provided a written statement in support of this application and provided oral evidence during an interview with a delegate of the Minister [in] April 2014 and a hearing of the Refugee Review Tribunal on 13 March 2015.

23. The applicant again claimed that he had practiced Falun Gong in China and Australia and said that he feared he would be persecuted because of this if he returned to China.

    Falun Gong involvement in China

24. In a written statement provided with his application the applicant again stated that his father had begun to practice Falun Gong in 1999. He said that his father was detained in September 2000, but he continued to practice Falun Gong after he was released.  Members of the village committee and the police often came to the applicant’s home and asked him questions and his father was detained every time there were reports that Falun Gong followers were causing problems in Beijing. On one occasion when the applicant was about [age] years old the authorities came to his home and when they saw a picture of Falun Gong founder Master Li Hongzhi on the wall they violently assaulted his mother and detained her for a day.

25. The applicant said that while at school some people discriminated against him because he was a Falun Gong follower, while others sympathised with him.  He was deeply traumatised by his treatment during his teenage years so his father decided to take him out of the country when he grew up. He and his father both obtained passports and visas for Australia and were planning to travel together [in] March 2011.  However, when the customs officials checked his father’s passport at the airport they would not let him leave. The applicant’s father winked at him, which the applicant understood to mean that he should pretend that they did not know each other. He boarded the plane and came to Australia. 

26. When interviewed by the delegate the applicant said that he had started to practice Falun Gong during [one] year in [high school]. He said that he was aware that Falun Gong was banned when he began to practice, but he had self-confidence and was not concerned.  He said that his relatives and classmates and others knew he practiced Falun Gong. When asked if he had ever been caught practicing Falun Gong, he said that he had not, but his father had been detained in September 2000. He said that his father was not charged because of a lack of evidence and he was released after his mother paid a bribe.  When asked if his father was detained on other occasions, the applicant said he had been detained on numerous occasions in order to extort money and because he was suspected of practicing Falun Gong.  The most recent arrest occurred when the applicant and his father were about to board the plane to travel to Australia.

27. When asked why he had not been detained at the airport with his father, the applicant said that his father was often detained. He added that his father was being watched and he was not allowed to leave China. He said that while they were at the airport the officials had called his father’s name and he had been taken away, but the officials did not see the applicant and he was able to leave the country.

28. When asked about his father’s most recent arrest apart from the one at the airport, the applicant said that he could not recall as it had been a long time ago. He said the police came to his home once a month and unless they were paid money his father was detained.  If they could not find his father, they detained his mother.  The last time his mother was detained he was about [age] years old.

29. The applicant was asked if he himself had ever been arrested. He said that he had not.  The delegate noted that he had previously claimed that he was arrested in 2007. He said that he had been arrested once when he was at school because a small booklet his father had made for him had been discovered. When asked why he had said that he had never been arrested, the applicant said that he had not heard the question properly.

30. When asked about his involvement with Falun Gong in China at the hearing the applicant stated that he had begun to practice Falun Gong when he was about [age] years old and said that he had practiced at home with his parents in China. When asked if he had done anything to come to the attention of the authorities in China, he said that on one occasion he had put up a banner and done good things.

31. When asked about his father’s arrest in 2011 he said that his father had been arrested at a [transport venue 1]. The Member noted that he had previously given a different account of his father’s arrest, stating first that he had been arrested at home a few days before he and his father were scheduled to leave the country, then that he was arrested at the airport. The applicant maintained that his father had been detained at a [transport venue 1]. He said that this discrepancy had been caused by an error in the statement prepared by his representative and when he was released from detention he asked for it to be corrected. He said that his had a copy of his original statement in Mandarin with his handwritten corrections. The Member asked him to send a copy to the Tribunal immediately after the hearing. He agreed to do this. The Member did not receive a copy of the statement.

    The applicant’s Falun Gong involvement in Australia.

32. During his interview with the delegate the applicant said that he practiced Falun Gong twice a week at home in Australia. He said that he had not joined any Falun Gong groups in Australia but he had held a Falun Gong banner in the city on seven occasions, most recently during a candle light vigil in [Location 1] with about [number] or [number] people [in] April the week before the interview. He said that these people belonged to group called the Falun Gong organisation which he said was led by someone called [Ms A][1]. He said that he had first met [Ms A] when he saw her and others practicing Falun Gong in [Location 2] about a week after arriving in Australia. He had only practiced Falun Gong with the group once because he was shy, but said that [Ms A] called on his phone to tell him about the events. He could not recall when he first attended a meeting and held a banner, but it was after he attended the first hearing of the RRT.  He said that sometimes the meetings were in [Location 2], sometimes in [Location 4]. He said that he had not mentioned these meetings before because he was not asked. The delegate noted that he had been asked if he tried to make contact with a Falun Gong organisation in Australia. He said that he had not heard that question.

33. When asked about his involvement in Falun Gong at the hearing the applicant said that initially he had practiced at home twice a week, but since his release from [the] Detention Centre in September 2013 he had attended weekly exercise and study classes at [Location 3] on Tuesdays. When asked to name the leaders of the group he said that one was called [Ms A] and another was [name], but he did not know their family names. The Member noted that he had told the delegate in April 2014 that he only practiced at home twice a week because he was shy. The applicant said that he might have omitted something in his earlier evidence.

34. The Member asked the applicant why he had not provided any letters of support from other Falun Gong practitioners from the [Location 4] group. He said that he had asked for a letter, but he had been told that he was a young kid and not serious and despite knowing he was to attend a hearing at the Tribunal, nobody would give him a letter. The Member advised him that she was aware that practitioners often provide letters of support to protection visa applicants and suggested that the absence of such a letter suggested that others in the group did not believe he was a genuine practitioner. The applicant said that he did not have good relations with the group and that perhaps they thought by providing a letter would cause problems for the group.

    The applicant’s knowledge of Falun Gong

35. When asked by the delegate to speak about Falun Gong, the applicant said it was a religious belief like Buddhism. He said that it emphasised truthfulness and forbearance and tried to save everyone.  He said that he did the physical exercises every day and explained that each exercise had its own verse.  He was able to name the exercises and said that he liked the second exercise, the Falun Standing Stance, best.  He demonstrated this exercise and recited the verse which accompanied it. He was asked about spiritual aspects of Falun Gong. He spoke in general terms about virtue and kind deeds and said that it was easier for people who practiced with others as they had a teacher, but he was shy so he just practiced the exercises at home and read books. He said he read a yellow book on Falun Gong which he said that the book had taught him to save people and bring them to higher levels. 

36. The applicant was questioned at length about his knowledge of Falun Gong at the Tribunal hearing. He was able to provide some information about the five exercises. The Member asked him to perform the fourth exercise. In her decision the Member noted the comments of Dr Benjamin Penny in a presentation to the Tribunal on 26 July 2006 when he stated that all genuine Falun Gong practitioners should know and be able to perform the five exercises confidently. She noted that the applicant’s demonstration of this exercise was significantly flawed as it missed a number of crucial components and was not performed in the manner expected of someone who had practiced Falun Gong for eight years.

37. The Member asked the applicant how he applied the Falun Gong philosophy to his life. He said that he could be a truthful person and do good things, help others and endure things which others could not. When pressed for a more detailed explanation of how Falun Gong worked in his life the applicant said he was more extroverted and that he was understanding and helpful to his friends.

38. The Member questioned the applicant about his knowledge of books on Falun Gong. He stated that Li Hongzhi had written a book called Zhuan Falun and this contained everything about Falun Gong and there were no other books. He said that he had obtained Zhuan Falun from the clearwisdom website and had studied it for the last 18 months while attending the [Location 4] meetings. He was aware that Zhuan Falun contained nine lectures, but was unable to describe a number of key Falun Gong philosophies. When asked if there was a book called Falun Gong, the applicant said that there was not. The Member noted that there is a book called Falun Gong which contains information on the Falun Gong exercises. She also noted that Zhuan Falun was not available for download from the clearwisdom website.

    The whereabouts of the applicant’s family

1. During his interview with the delegate the applicant said he had not been in contact with his family since he left China. When asked why he had not mentioned this previously, he said that he had not seen it as important.  When asked if he had any idea what had happened to his family, the applicant said that they were in hiding and did not dare return to their home village because the village secretary would ask for money and detain his father if they returned.

2. During the second hearing the applicant again said he did not know the whereabouts of his family as he had last communicated with them in about March 2011 when he left China, but it was established that he had communicated with his mother in May 2011 when she send him a copy of his household registration. It was also established that his grandmother and a number of relatives still lived in his home area as did [a relative], who was married to the [relative] with whom the applicant resided in [Australia].

   Second Tribunal decision

3. The second Tribunal noted that Falun Gong practitioners may face persecution in China and included an overview of information from a range of sources regarding in the treatment of Falun Gong practitioners in China in her decision. However, she found that the applicant had fabricated all his claims and did not accept that he was a genuine Falun Gong practitioner. She did not accept that he or any member of his family in China had ever practiced Falun Gong or been detained or ill-treated for practicing Falun Gong.

   Hearing held on 10 February 2016

4. The applicant said that he had lived with his [relative] since arriving in Australia.  He stated that his [relative] had arrived several years earlier and had lodged an application for protection before he [the applicant] arrived in Australia. He said that his [relative] was also a Falun Gong practitioner.

5. The applicant’s contact with his family was discussed. He said that he had last spoken to them by telephone in May 2011 when he learned that his father had been released from detention. After that he tried unsuccessfully to call them, but they did not answer. He asked [a relative] if she knew where they were but she said she had no information about them. The applicant said he thought she might have been fearful about telling him anything as her phone might have been monitored.

6. The applicant said that he had not experienced any problems getting a new passport from the Chinese Consulate in [Australia] in [2013]. He said he had obtained the passport because someone at the Department of Immigration had advised him to do so.

7. I noted that the applicant’s case had been remitted by the Federal Court because the previous Member had not been given a copy of a document which he claimed had been faxed to the Tribunal, which I understood to be a copy of his statement in Mandarin with corrections he wanted his agent to provide to the Tribunal. I advised him that I had been unable to locate a record of this fax being received by the Tribunal prior to the decision of the previous Tribunal. The applicant provided a copy of his statement in Mandarin. It was established that the document had been prepared by his representative based on information which the applicant had provided by phone. The interpreter advised that there were several handwritten corrections on the documents, mostly related to dates and one which deleted the word airport and replaced it with the word [transport type 1].

8. The applicant confirmed that his father had begun to practice Falun Gong in 1999 [and] had been detained shortly afterwards.  When asked to confirm that his father had been detained from 1999 to 2000 the applicant said that his father had been detained in September 2000. When I observed that he appeared to have changed his evidence he said that he had not understood the first question as I was speaking too fast.

9. The applicant confirmed that he had begun to practice Falun Gong with his father when he was in Middle School and that he had practiced Falun Gong regularly with his father from the age of [age] onwards. He said that his father had given him a note detailing the major Falun Gong writings which he carried with him and studied and confirmed that he had been detained for about a week in 2007 after these were discovered. His father had been detained at the same time

10. I asked the applicant how often his father had been detained in China. He said that he was detained for a month in September 2000 and again in 2007 when the applicant himself was detained.  On the second occasion he was released in early 2008. He said that to the best of his knowledge he was only detained twice.

11. I asked the applicant where his father was currently. He said that he had last seen his father when they were in [a city] about to board [his transport]. They were on different levels and he saw some people in plain clothes say something to his father and take him away.  I asked the applicant why he had boarded the [transport] and left without knowing what had happened to his father. He said that he had seen the identity documents of the men who took his father and knew he had to leave. I observed that this seemed unlikely as they were on different levels. The applicant maintained that he was telling the truth.

12. The applicant confirmed that he had only learned two Falun Gong exercises prior to leaving China and had learned the others by downloading videos from the internet in Australia. He said that he had also down loaded copies of Falun Gong writings from the internet in Australia and studied them.

13. The applicant confirmed that he had practiced Falun Gong at home in Australia until after he was released from [the] Detention Centre in September 2013.  He said that he had begun to attend the group meetings at [Location 3] immediately after release from [the] Detention Centre. He first said that he had gone sometimes on a Tuesday, then said he went every week, then said he had only gone occasionally because he was shy.  When asked how often he had gone to [Location 4] in the last six months, he said about 10 times.

14. The applicant said that he had also attended Falun Gong meetings in [Location 5] about once a fortnight on Saturdays for about 6 months after he was released from [the detention centre].  He said that the meeting was in a building in [Location 5], but he could not provide the address.

15. When asked if he had done anything else related to Falun Gong since he arrived in Australia the applicant said that he had put up a banner the week before in [a suburb] and about two months earlier in [Location 4].   He said that the pictures showing him with a banner had been taken a week ago.

16. I asked the applicant about [Ms B] who had provided a letter in support of his application.  He said that he had practiced Falun Gong in [the detention centre] with her and added that she was knowledgeable about Falun Gong and had taught him more about the exercises and the philosophy of the group.  He said that he still saw her at the study group and sometimes at her home.

17. I asked the applicant why he had not been able to obtain a letter from [Ms A] or one of the other leaders of the group as it appeared that he had known them for a long time. He said that he asked [Ms A] for a letter but she said that she believed he would only be involved for a short time. When asked he said that he had seen [Ms A] the previous day in [Location 3].

18. I advised the applicant that I had a number of concerns about the credibility of a number of his claims and advised him that I would give him an opportunity to respond in writing, but noted that he appeared to have changed his evidence regarding when his father was detained for the first time.  I also noted that he had stated that his father was detained from 2007 until 2008 in his first protection visa application, but failed to mention this in his second application. He said that he had not been asked about this detention.

19. I noted that during the hearing the applicant had told me his father was detained only twice and appeared not have recalled his earlier claim that his father was detained around the time he left China until questioned about his departure. I also noted that he had given very different accounts of where and when his father was detained, stating at different times that he was detained at home, that he was detained at the airport or at a [transport venue 1]. The applicant maintained his father was detained at a [transport venue 1] and said that the confusion was the result of a misunderstanding.

20. I noted that the applicant had stated in his first application that he had been detained in 2007 but he had told the delegate he had never been arrested. The applicant said that he had been nervous in the small room.

21. I noted that that applicant had claimed that he had not been in contact with his family and had no knowledge of their whereabouts or circumstances, which seemed unlikely given that he had a number of relatives in the area. The applicant said that his relatives might know the whereabouts of his family but be afraid to say because they were being monitored.

22. I advised the applicant that I did not propose to test his knowledge of Falun Gong again as I did not think it would tell me anything particularly useful. I noted that he had said that he had learned a lot about Falun Gong from the internet in Australia and he had learned more from his friend while in [the detention centre], which suggested that he should have acquired a reasonable knowledge of Falun Gong. I observed that testing his current knowledge would tell me nothing about whether he practiced Falun Gong in China and knowledge of Falun Gong gained in the manner he claimed did not necessarily mean he was a genuine and committed practitioner in Australia. I advised him that I would be considering all of his evidence when assessing these matters, including his responses when asked about Falun Gong in earlier hearings and interviews.

23. I advised the applicant that I had difficulty accepting that he had only learned two Falun Gong exercises before arriving in Australia. The applicant said that he had started with one exercise and moved on to the next and only knew two when he arrived in Australia.

24. The applicant’s representative submitted that even if the applicant only practiced Falun Gong at home in China he would be at risk of serious harm.

    Documents provided at the hearing

25. The applicant provided a letter from the [relative] with whom he resides in Australia which states that the applicant has been practicing Falun Gong at home on a regular basis and also occasionally goes to the Falun Gong practice site in [Location 4], to meetings in [Location 6] on Saturday nights and from time to time to outward activities organised by Falun Gong. It states that the applicant is aware of Chinese spy networks in Australia and therefore timid about participating in public activities. It adds that the writer’s wife, the applicant’s [relative], was either unable or unwilling to provide any information about the whereabouts of the applicant’s parents.

26. The applicant provided a letter from [Ms B] who describes herself as a senior Falun Gong practitioner in Australia. It states that she got to know the applicant at [the] Detention Centre in July 2013 and they often practiced Falun Gong together. They were both released in September 2013 and have remained in contact since. [Ms B] states that she can confirm that the applicant practices Falun Gong at home and adds that she has often seen him at the [Location 6] practicing site, although he is always very quiet. She said that she had urged him to take part in Falun Gong protests, but he fears that he may be reported by spies and does not attend.

27. The applicant provided photocopies of a number of photographs. Several show the applicant practicing Falun Gong at home. Two show him holding one end of a Falun Gong banner and two show him practicing Falun Gong in a park with several other people. According to the applicant’s notes they were taken at [another location].

    Tribunal’s letter of 18 February 2016 and the applicant’s response

28. The letter noted that the applicant had given inconsistent evidence regarding the occasions on which his father was detained. It noted that he had stated on different occasions that his father had been first detained in 1999 and in 2000. In his first application he stated that his father had been detained in 2007 and released in 2008. However, this detention was not mentioned in the written statement provided with his second application or during his interview with the second delegate. During that interview the applicant stated that his father had been briefly detained many times, then the two most recent interviews the applicant confirmed that his father had been detained in 2008. [This should have read 2007-2008].

29. The letter noted that the applicant had stated that in 2011 his father had been detained at his home, at the airport and at the [transport venue 1]. It also noted that the applicant had initially stated but failed to mention this detention at the most recent hearing, stating he had only been detained twice, once in 2000 and again in 2007.

30. In response the applicant said he had only been [age] when he first applied for a protection visa in 2011 and he had been confused when providing evidence for this application. He said that he had not mentioned that his father had been detained in 2008 prior to the 2015 hearing because he was at school when it occurred and he had not seen it first-hand. However, after his agent advised him to include details of everything that had happened, he included the 2007-2008 detention. With regard to the claims regarding his father’s detention in 2011, he said that his father was detained at the [transport venue 1] and he believed that the apparent contradiction arose because his representative misunderstood his evidence.

31. The letter noted that in his first application the applicant stated that he had been detained for a week in 2007, but he failed to mention this in the statement provided with his second application and during his interview with the delegate and stated that he had never been caught practicing Falun Gong and had never been arrested, but changed his evidence when reminded of his earlier claim.

32. In response the applicant said that he had never been caught practicing Falun Gong. He said that he and his father had been detained in 2007 after Falun Gong material was found at his home during a random search by police.

33. The letter noted that the applicant had stated in his statement of 28 April 2014 that he practiced Falun Gong at home twice a week but he had not joined any Falun Gong groups. He also said that he had practiced Falun Gong once at [Location 2] and he had held a Falun Gong banner in the city seven times, most recently during a candle light vigil in [Location 1] [in] April 2014.  During the hearing held on 13 March 2015 he said that he had attended weekly exercise and study sessions at [Location 3] every Tuesday evening since September 2013.  During the hearing held on 10 February 2016 he said that he had practiced Falun Gong while detained at [the detention centre] and that he said that he had started to attend meetings of a Falun Gong group in [Location 3] in September 2013, although not every week. He also said that he attended a study group somewhere near [Location 5] Station and had put up Falun Gong banners three times,  the first occasion being about two months before the hearing and the most recent a week before the hearing.

34. In response the applicant said that he had only been involved in a few Falun Gong activities since 2013, mostly promoting Falun Gong practice and basic tenets, because he was introverted and shy and afraid that Falun Gong had been infiltrated by Chinese government agents which could mean he would suffer serious consequences at some time in the future.

35. The letter noted that when questioned about his knowledge of Falun Gong during his interviews with the Department and hearing with previous Tribunal there were significant gaps in his knowledge and ability to perform the exercises routinely performed by practitioners which called into question his claim to be a genuine Falun Gong practitioner.

36. In response the applicant said that practitioners had different levels of knowledge and understanding, but he was a genuine practitioner.

37. The letter noted that despite the fact that he was staying with [a relative] who had been living in Australia for several years and had already lodged a protection visa application, the applicant did not apply for a protection visa until two months after he arrived in Australia, which might indicate that the was not fearful of persecution at that time. The applicant responded that his passport had been taken by the [organiser] from the group which brought him to Australia and without a passport he had been unable to find a migration agent who was prepared to assist him with his passport.

38. The letter noted that the applicant had been able to obtain a passport and leave China legally in 2011 and had obtained a new passport from the Chinese Consult in [Australia] [in] 2013, which suggested that the was not of adverse interest to the Chinese authorities and that he was not fearful of returning to China in 2013 when he obtained a new passport.

39. The applicant responded that all Chinese citizens are entitled to a passport, that he obtained the passport in 2013 because an officer at the Department of Immigration told him he needed one. He added that the officials at the consulate would have seen him as a student and not asked him any questions.

    Document’s received on 5 March 2016

40. The applicant’s representative forwarded two untranslated documents in Mandarin . It was confirmed that these documents contained the Mandarin version of his responses to the information contained in the Tribunal’s letter of 18 February 2016.

41. The applicant’s representative also forwarded a submission which contains information regarding Chinese spy networks in overseas countries and the arrest of Falun Gong practitioners who only practice at home in China. He submitted that this evidence supports the applicant’s claim that he was afraid to practice publicly and the claim that he is at risk of persecution in China even if he only practices at home.

    Documents received on 28 March 2016

42. The applicant’s representative provided photocopies of five photographs of the applicant. According to the applicant, 3 of them show the applicant taking part in Falun Gong exercises in [Location 1] two days earlier on 26 March 2016. The other two are undated and show the applicant standing in front of what appears to be a closed shop holding one end of a banner which says “Bring former leader Jiang Zemin to justice for persecuting Falun Gong”.

    COUNTRY INFORMATION

43. According to the DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China published on 3 March 2015 Falun Gong are at risk of detention, violence and discrimination in China. Unlike other organisations identified as “cults” by the Chinese government, practitioners of Falun Gong are not considered victims but rather as people operating in deliberate opposition to the Chinese government’s policies.

44. Practitioners are generally able to practice privately in their homes relatively free from interference by authorities. However, members regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours, although societal violence is not common. Generally speaking, the possession of banned materials (books, CDs, or information about Falun Gong) would likely attract a fine or short-term period of administrative detention, but punishments vary according to location, the profile of the individual and local political circumstances. Falun Gong practitioners who are sentenced to criminal punishment most commonly receive verdicts of three years’ imprisonment or less. Most informed observers believe the number of Falun Gong practitioners in detention has reduced significantly since 2009, but one source reported that the government launched a new, three-year crackdown against Falun Gong practitioners in 2013.

    CONSIDERATION OF THE APPLICANT’S CLAIMS UNDER S.36(2)(aa) (COMPLEMENTARY PROTECTION )

1. I have considered all the information from the applicant’s Department file and the previous Tribunals files and evidence provided to the current Tribunal. I have watched the video recording of the applicant demonstrating the fourth Falun Gong exercise and listened to the recording of his hearing with the Tribunal on 13 March 2015.

2. For the following reasons I did not find the applicant to be a truthful or a credible witness. I do not accept that he is or ever was a genuine or committed Falun Gong practitioner or that he or his father were detained at any time because of their involvement in Falun Gong.

   Falun Gong practice in China

3. The applicant had given inconsistent and implausible evidence regarding his practice of Falun Gong in China and the problems which he and his family faced as a result of this.

4. According to the applicant’s evidence, he had learned only two of the five key exercises which all members are required to learn and practice when he arrived in Australia. I do  not believe that someone who was committed to Falun Gong and had been studying and practicing Falun Gong exercises for some 5 years would have learned only two exercise in that time.

5. In his first protection visa application he said that he was detained in 2007. He failed to mention this in the written statement which accompanied his second protection visa application. During his interview with the delegate he was asked if he had ever been caught practicing Falun Gong. He said that he had not, but spoke about his father being detained in 2000. Later in the interview he was asked if he had ever been detained and responded that he had not. When reminded of his earlier claim that he was detained in 2007 he said that this was correct and claimed that he had misunderstood the earlier question. When these discrepancies were pointed out in the Tribunal’s letter to the applicant he responded that he had never been caught practicing Falun Gong so there were no contradictions in his evidence and added that he and his father had been detained after Falun Gong materials were found during a random search of their house.

6. It is true that the applicant never claimed that he was caught practicing Falun Gong. However, I find the fact that he spoke about his father’s detention but not his own when asked if he had be caught practicing Falun Gong indicates that he had forgotten his earlier claim. Nevertheless, I would not have rejected the applicant’s claim regarding his 2007 detention on the basis alone. However, as noted above, this claim was not mentioned in the written statement which accompanied his second application and when asked later in the interview if he had ever been detained the applicant said that he had not. When reminded of his earlier claim the applicant said he had not understood the delegate’s question. I do not accept this explanation. I believe that the applicant stated that he had never been detained because this was true and he had forgotten the evidence provided in his 2011 application. This finding is supported by the applicant’s most recent evidence regarding this detention when he stated that he and his father were detained when Falun Gong materials were found during a random search of their home which is at odds with his earlier evidence he was detained when a fellow student found Falun Gong material in one of his school books.

7. Finally, the applicant has given inconsistent evidence regarding the occasions on which his father was detained. In his first application the applicant claimed that his father was detained from 2007 until 2008. There is no mention of this detention in the written statement which accompanied the applicant’s second application.  When asked about his father’s periods of detention during his interview with the delegate the applicant claimed for the first time that he had been detained briefly on many occasions, but said nothing about the 2007 to 2008 detention. In response to the Tribunal’s letter pointing out these discrepancies the applicant said he had failed to mention his father’s detention in 2007-2008 prior to the 2015 hearing because he was at school when in occurred. I do not accept this explanation. It is at odds with the applicant’s earlier evidence that he and his father were detained together in 2007 and does not explain why he failed to mention the 2007-2008 when specifically asked about his father’s detention by the delegate or why he claimed for the first and only time during that interview that his father had been briefly detained on numerous occasions.

8. I find that the applicant gave conflicting accounts of his father’s periods of detention between 2000 and 2011 because these claims were concocted and he was confused about his earlier fraudulent claims.  In considering this claim I have taken account of the fact that the Tribunal’s letter stated at one point that the applicant had been detained in 2008 rather than 2007-2008. However, it is clear from this that the applicant understood this to refer to the claimed 2007-2008 detention.

9. The applicant has also given conflicting accounts of his father’s claimed arrest in 2011, stating at different times that his father was arrested at home a few days before the applicant left China, that he was arrested at the airport and that he was arrested at a [transport venue 1]. The only explanation he had provided for these very significant differences is the claim that his representative misunderstood his evidence and mistakenly said that his father was detained at the airport rather than at a [transport venue 1]. This does not explain why the applicant originally stated that his father had been detained at the family home several days before he [the applicant] left China, or why he confirmed to the second delegate that his father was detained at the airport. I do not accept that the contradictions in the applicant’s arose because his representative misunderstood his claims. I believe that the applicant gave conflicting accounts of these events because he concocted the claim that his father was detained in 2011 when he lodged his first application but forgot the specifics of this false claim and provided different accounts in later submissions.

10. The applicant has also given differing evidence in relation to his father’s first claimed detention, stating on different occasions that it occurred in 1999` or in 2000. Given the passage of time since 1999 and the applicant’s young age at that time I have not placed any weight on this apparent inconsistency.  However, after considering all of the applicant’s claims I have found that he is not a credible or truthful witness and as a result I also reject this claim.

11. After considering all of the relevant evidence I do not accept that the applicant was a Falun Gong practitioner prior to his departure from China or that he or his father were detained at any time because they practiced Falun Gong.

    Falun Gong Practice in Australia

12. The applicant has provided inconsistent evidence regarding this practice of Falun Gong in Australia.

13. In his first application the applicant said that he had only practiced Falun Gong at home since arriving in Australia. During his interview with the delegate [in] April 2014 he said that he had practiced Falun Gong once with a group in [Location 2] in 2011 but otherwise practiced only at home. At the hearing held on 13 March 2015 he said that he attended weekly exercise and study sessions at [Location 3] every Tuesday evening since September 2013 when he was released from [the] Detention Centre.  He repeated this claim at the hearing on 10 February 2016, but said that he had attended occasionally rather than weekly.

14. The applicant has also given inconsistent evidence regarding his participation in Falun Gong protest activities in Australia.  He told the delegate that [in] April 2014 he had held a Falun Gong banner in the city seven times between 2012 and April 2014, but told me during the hearing on 10 February 2016 he had put up Falun Gong banners three times, the first occasion being in about December 2015 and the most recent a week before the hearing.

15. No explanation has been given for these inconsistencies.

16. I do not accept that the applicant would have failed to mention that he had been practicing Falun Gong in [Location 3] for seven months when he was interviewed by the delegate in April 2014 if this had occurred or that he would have been able to recall with a reasonable degree of accuracy when he attended public events at which he held Falun Gong banners.  I find that the applicant has given differing evidence in relation to his participation in Falun Gong activities in Australia because he has not participated in these activities and that he fabricated these claims to enhance his claim for refugee status.

17. At the hearing on 16 February 2016 the applicant claimed for the first time that he had also attended a Falun Gong group somewhere near [Location 5] railway station on a regular basis.  I found his evidence regarding attendance at these meetings vague and unconvincing and in light of his demonstrated willingness to concoct claims and overall lack of credibility, I do not accept this claim.

100.   I do not accept that the applicant practiced Falun Gong on a regular basis with any group in Australia or that he has been involved in public protests in Australia. I accept that he has attended a limited number of Falun Gong gatherings at some time in Australia. However, in light of his demonstrated willingness to fabricate claims and his overall lack of credibility, I find that this was done to provide a basis for a claim for protection in Australia and not because he has a genuine commitment to Falun Gong. I note that the leaders of the group refused to provide him with a letter of support because they did not believe he was serious, which I find a further strong indication that he is a not a genuine practitioner.

101.   I also have considered that the applicant’s evidence that he is a genuine Falun Gong practitioner, but he practiced mainly at home in Australia because he is shy by nature and because he is fearful of being identified by Chinese spies and facing future problems as a result. However, this claim is at odds with the evidence that he attended Falun Gong meetings and protests on many occasions following September 2013. I accept that the applicant studied Falun Gong exercises and teachings at home after arriving in Australia using materials downloaded from the internet. However, I find that he did this only in order to provide a basis for his application for protection in Australia.

102.   In reaching the conclusion that the applicant is not a genuine Falun Gong practitioner, I have considered the letters and photographs provided by the applicant, including the photographs provided on 28 March 2016. However, I believe that these letters were written at the applicant’s request and do not accept that they provide an accurate or honest account of his commitment to or involvement with Falun Gong. Furthermore, I find that the photographs were staged by the applicant purely to support his application for refugee status.

The applicant’s knowledge of Falun Gong

The level of knowledge displayed by the applicant when questioned about Falun Gong by the delegate and during the hearing held on 13 March 2015 was not at a level which would be expected of someone who was a committed follower and had practiced Falun Gong for some nine years. In response to the Tribunal’s letter requesting comment on this, the applicant pointed out that practitioners can have different levels of knowledge and said that he had been slower at acquiring knowledge than others. I acknowledge that not all Falun Gong practitioners will have the same level of knowledge or expertise. However, I do not accept that a committed follower of Falun Gong would have been unable to display a greater understanding of Falun Gong and greater ability to perform the exercise requested by the previous Member. I find the applicant’s limited knowledge of Falun Gong a further indication that he is not a genuine Falun Gong practitioner.

Conclusions

103.   After considering all the relevant evidence, I do not accept that the applicant is or ever was a genuine Falun Gong practitioner or that he or his father were detained in China at any time because they were involved with Falun Gong. I believe that he falsely claimed to be a Falun Gong practitioner and concocted the claims regarding his and his father’s detention in China in order to make a case for protection in Australia.  

104.   As I do not accept that either the applicant or his father are or ever were Falun Gong practitioners or that either of them was ever detained as a result of their involvement with Falun Gong it follows that I do not accept that the applicant’s family has been missing or in hiding since 2011 because of problems or fears relating to Falun Gong. I find that this claim has also been concocted to enhance the applicant’s claim for protection in Australia.

105.   In considering the applicant’s case I have noted his adviser’s submission that even those who practice Falun Gong at home are at risk of significant harm in China. I acknowledge that Falun Gong practitioners are at risk of harm in China if their membership or the group is discovered. However, the applicant is not a Falun Gong practitioner and I do not accept that he will practice Falun Gong in any way if returned to China and therefore do not accept that he would be at risk of significant harm for this reason.

106.   Finally, I have considered whether the applicant would be at risk of harm in China because he studied Falun Gong at home and attended a very limited number of Falun Gong gatherings in Australia. However, there is nothing in the evidence before me which suggests that the Chinese authorities would be aware that he had practiced Falun Gong exercises at home. Furthermore, I do not accept that he would have been reported to the Chinese authorities as a Falun Gong practitioner by spies or informants in Australia because he attended a small number of Falun Gong meetings during which he was not able to convince the leaders of the meetings he attended that he was a genuine practitioner. In these circumstances and in light of the fact that I have found that the applicant is not a genuine Falun Gong practitioner and would not have any involvement in Falun Gong in China, I do not accept that he would be at risk of significant harm in China because of his activities in Australia.

Findings in relation to s.36(2)(aa)

107.   After considering the applicant’s claims and taking account of all the relevant evidence, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to China, there is a real risk that he will suffer significant harm

CONCLUSIONS

108.   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).

109.   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).

110.   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

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

Roslyn Smidt
Member