1513236 (Refugee)

[2018] AATA 241

1513236 (Refugee) [2018] AATA 241 (8 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513236

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:8 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2018 at 3:15pm

CATCHWORDS
Refugee – Protection visa – China – Multiple protection visa applications – Federal court remittal – Complementary protection criterion – Social group – Falun Gong – Credibility issues – Inconsistent evidence – Not a genuine Falun Gong practitioner

LEGISLATION
Migration Act 1958 ss 36(2)(a)-(c), 65, 499

CASES
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of the People’s Republic of China and applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] September 2015.

3. The applicant applied to Tribunal for a review of this decision on 28 September 2014.

4. The Tribunal notes that the applicant previously lodged an application for a protection visa which was rerfused by a delegate [in] November 2008. The applicant lodged an application for a review of this decision with the Migration and Refugee Tribunal on 7 December 2008. On 10 March 2009, Member Short (Case 0808466) affirmed the decision to not grant the applicant a protection visa.

5. The applicant sought review of the Tribunal's decision by the Federal Magistrates Court and [in] October 2009 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.

6. Following the remittal of the matter to the Migration and Refugee Tribunal, on 22 December 2009, Member Jacovides (Case 0908909) affirmed the decision to not grant the applicant a protection visa.

7. The applicant was able to apply again to the department for a protection visa due to the Federal Court decision of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013), as his previous application was assessed only against the refugee criteria, and not the ‘complementary protection criterion’ which commenced on 24 March 2012. That means that the Tribunal must only consider whether 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: s.36(2)(aa) (‘the complementary protection criterion’). ‘Significant harm’ is exhaustively defined as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal is limited to this criteria because it has already considered, in case 0908909 the refugee criteria.

8. The applicant appeared before the Tribunal by video-link from Melbourne on 20 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a Mandarin interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 and Border Protection –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.

   Analysis, Findings and Reasons

10. The applicant claims that he has suffered past harm in China as a result of being a Falun Gong practitioner and that he will suffer harm if he is returned there.

11. The issue in this case is the credibility of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed because the Tribunal finds that the applicant is not a genuine Falun Gong practitioner.

12. Firstly, the applicant gave inconsistent answers about how he was introduced to Falun Gong during the hearing and demonstrated no knowledge of Falun Gong at all. The Tribunal is conscious of not applying an arbitrary standard of knowledge when testing the applicant’s understanding of Falun Gong, but it is reasonable to expect that the applicant, who claims to have practised Falun Gong exercises from 2007 and 2014, would be able to answer at least basic questions about Falun Gong.

13. Initially, the applicant stated that he was introduced to Falun Gong ‘sometime after 2000’ but then clarified it could have been 2005, 2006 or 2007. He was introduced to the practice by two people, his [cousin] and his [friend]. He was introduced to the practice to address [an] injury. Initially the applicant told the Tribunal that it was his cousin who first introduced him to Falun Gong exercises, but later said it was his friend who was the first to do so. The applicant stated that both men had been practitioners before the applicant, but could not remember for how long.

14. The applicant told the Tribunal that he was taught how to practice by the men doing the exercises in front of him and the applicant would then practice with them. The applicant could not remember how many times he and his cousin and his friend had practiced. After a period in detention (discussed later in these reasons), he continued practising Falun Gong at another friend’s place in his village.

15. When the applicant arrived in Australia in July 2008, he said that he continued his Falun Gong practice here. He attended several times at a group [in a particular suburb]. He saw that group practising when he went with his friend’s to visit another friends place. He said that he would go once every two weeks or once a month when he had the financial resources to catch public transport to get there.

16. The applicant conceded that he did not know anything about the philosophy or teachings of Falun Gong as he did not learn any of that from his cousin or his friend. His learning was centred only on the exercises. The applicant stated that he did not practice Falun Gong exercises consistently, but practiced them on and off throughout the period from his introduction until 2014. He would practice when [his injuries bothered him], and then when his [injuries stopped bothering him], he would stop.

17. When questioned by the Tribunal about how many exercises there were in Falun Gong, the applicant told the Tribunal there were four. When asked to name the exercises, the applicant said he had forgotten all of them. He said that his memory was no good and he was an uneducated man who did not finish primary school. When asked by the Tribunal to demonstrate the exercises, the applicant said that he could not remember any of them.

18. While the Tribunal accepts that some genuine practitioners of Falun Gong may not have a sophisticated understanding of its philosophy, it is reasonable to expect that someone who claims to have practiced Falun Gong exercises from 2007 to 2014, who has used those exercises to help with [injuries], would be able to demonstrate a basic understanding of those exercises. The Tribunal does not accept that the applicant’s memory is no good or that because he is an uneducated man he cannot remember or demonstrate any of the exercises. The fact that the applicant said there were four exercises in Falun Gong when the correct answer is five, could not name those exercises, and could not demonstrate those exercises, demonstrates to the Tribunal that the applicant has not undertaken those exercises.

19. Secondly, the applicant gave inconsistent answers about his detention. In his written application, the applicant stated that on [a particular day in] 2008 he and his cousin were arrested by the authorities at [a particular time of day] when they were practising [Falun Gong]. He and his cousin were sent to the local police station before being sent to the [a] detention centre where they were detained for [a number of] days. The applicant claims that during that time, he was beaten with [weapons] and that [he still has] scars from those beatings. He was released after his wife paid a fine and he wrote a letter of remorse.

20. At the Tribunal hearing, the applicant stated that he thought that he was detained in 2006 and that he was practising Falun Gong with his cousin and some friends and that he was part of a group of [a number of] people. When he was released, he had to report every day to police, was asked by the police to identify any other Falun Gong practitioners and was requested to hand over his Falun Gong CDs and Books, which he did not do because he did not want to. When questioned whether he had to do anything else as part of his release, he did not mention having to sign a letter of remorse.

21. The fact that the applicant, whose written application stated that he was “forced to write a letter of remorse” but “thanks to doctrines and comprehension of Falun Gong, I survived”, but did not tell the Tribunal that he was forced to write such a letter in his evidence, and spoke about other release requirements which were not included in his original application, and gave answers that there were [a number of] people with whom he was arrested when his applicant stated he was with one other person, demonstrate to the Tribunal’s that the applicant’s evidence is untruthful due to its inconsistencies.

22. Thirdly, the applicant gave inconsistent answers about the incident involving a police officer and the applicant’s wife. In his written application, he wrote that [in] 2014, he was speaking to his wife on the telephone. She told him not to go back to China. She told him that she was raped by a police officer named [Mr A] in [2011]. [Mr A] was supervising his wife and the police wanted to catch the people who made a forged passport for the applicant. The Tribunal notes that the applicant originally travelled to Australia on a fraudulent [passport]. The applicant wrote that he arranged another cousin to beat up the police officer and that the officer was subsequently hospitalised. That cousin is now in hiding in [Country 1]. After release from hospital, the police officer went to the applicant’s home in China and beat his wife and [child]. The police officer swore that he would catch the people who beat him, and would sue the applicant for organising the beating. The applicant stated that the police officer knows that the applicant is a Falun Gong practitioner and would detain him for three to five years.

23. At the Tribunal hearing, the applicant stated that the rape of his wife by the police officer happened in either [a range of months] in 2012 and that he thought the police officer raped the applicant’s wife because of the applicant’s past involvement with Falun Gong. He said that the last time he spoke to the cousin who did the beating was in February 2014 when the applicant asked him to beat up the officer. That cousin went into hiding in [Country 2]. The police officer was beaten up [later in] 2014 by the cousin. The applicant also told the Tribunal that his wife told him about the police officer attended the home [later in] 2014 swearing to catch the people who beat him, and that the police officer would beat the applicant to death.

24. The fact that the applicant wrote that the cousin responsible for the beating went to hide in[Country 1], but told the Tribunal that the cousin went to hide in [Country 2], changed the year in which his wife was raped by the police, and told the Tribunal that the threat made to him was reported to the applicant by his wife in [2014], when his written application which addressed that fact was dated by the applicant [earlier in] 2014 (making that occurrence impossible) demonstrate to the Tribunal that this evidence is untruthful.

25. The applicant answer to these inconsistencies was that he could not remember some details because these things happened a long time ago. The Tribunal rejects that explanation. An incident of detention (noting that the applicant has only been detained once), the date of the rape of the applicant’s wife, and the location of the person responsible for carrying out a beating on the applicant’s behalf are details that it would be reasonable to expect that the applicant would remember.

    Conclusion

26. As a result of the cumulative effect of the applicant’s inconsistent evidence and his demonstrated lack of knowledge of Falun Gong, the Tribunal finds that the applicant is not a credible witness and the Tribunal rejects his claims. The Tribunal does not accept that the applicant has ever practiced Falun Gong, does not accept that the applicant has ever been detained by the authorities, and does not accept that the applicant’s wife has been raped by the police, or that threats have been made by that police officer to the applicant’s wife directed at the applicant. The Tribunal rejects the applicant’s claims in their entirety.

27. 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)(aa).

28. Further, there is nothing on the material which would raise a claim that the applicant would meet the criteria under s. 36(2)(b) or (c).

    DECISION

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

    Nathan Goetz
    Member