1513519 (Refugee)

[2017] AATA 2672

1513519 (Refugee) [2017] AATA 2672 (7 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513519

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:7 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 November 2017 at 2:00pm

CATCHWORDS

Refugee – Protection Visa – China – Religion – Falun Gong – Genuine practitioner – Fear of persecution Witness credibility – Inconsistent claims

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration 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 who claims to be a citizen of the People’s Republic of China (China) entered Australia on a [temporary visa] [in] January 2015. She lodged an application for a Protection Visa [in] January 2015 and was granted a [Bridging] Visa [in] January 2015.

3. The applicant was invited to attend an interview with the delegate [in] September 2015 but failed to attend. The delegate refused to grant the visa [in] September 2015.

4. On 4 October 2015, the applicant applied to the Tribunal for a review of this decision and attended a hearing on 1 November 2017 where she gave evidence in support of her claims. She was assisted by a Mandarin interpreter.

CRITERIA FOR A PROTECTION VISA

1. 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, he or she 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.

2. 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 because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

5. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Claims

1. The applicant claims that she has a well-founded fear of persecution in China on the basis of being a Falun Gong practitioner. As noted in my findings, the applicant is a citizen of China and her claims will be assessed against that country.

2. The issue for the Tribunal is the credibility of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Written claims submitted to the department

1. In her written application, the applicant stated that she was a Chinese national. She was married and had one [child]. Both her husband and [child] remained in China. She had not had contact with relatives outside Australia and her only travel outside of China in the last [number of] years was to [Country 1] on [a specific date in 2014] where she stayed for [a number of] days. Since 1980, she had lived at the same address in the Zhejiang province in China. She completed middle school in [year].

2. The applicant stated that she once by chance became interested in Falun Gong. Once she practiced Falun Gong, she found her body and mental condition became better and better. She noted that Falun Gong is forbidden in China and anyone involved in Falun Gong will be severely punished. She stated that she was treated unfairly and unequally in China and had often been threatened by the authorities and she felt quite unsafe in China. Specifically, she said that she was threatened by someone who said that they were from the government and they began to threaten her. A few days later, people in uniform came to her home and forced her to go with them. They took her to a place that she did not know. They identified themselves as policemen and she pretended to obey them and then they let her go. She said that she began to escape from time to time.

3. She stated that if she was returned to China, she would suffer threats and abuse from the authorities and that no one can help her. She had tried to obtain help from the local government but this was in vain, as was help from a higher government level. She had tried to move out of her local area to another province of China but that was in vain. She cannot move at will. She said that people always keep an eye on her. She stated that because of her involvement in Falun Gong, her parents, husband and [child] all suffer from the same experiences as her and she hopes that her family members will all join her in Australia.

Tribunal hearing

1. At her Tribunal hearing, the applicant stated that she discovered Falun Gong when she looked on the internet for information about exercise routines to improve her health. She initially stated that this occurred [some time in 2014], but later clarified it was [a specific month in 2014]. She said that she was not sure what the website was, but got it through an application on her mobile phone. In the beginning, she just practiced according to the video. She did not receive any induction in Falun Gong by another practitioner, but merely followed the exercise instructions on the website.

2. When asked about her interactions with authorities concerning her Falun Gong activities, she stated that police had come to her house when [a number of] her friends were present. These friends were a mixture of former classmates and neighbours. The applicant was not present as she had taken her [child] to school. She was contacted by one of the friends who said that the friends had been brought to the police station for questioning and released. The friend told her that the police were looking for her and she was invited to go to the police station because the applicant was the leader. When asked by the Tribunal when this occurred, the applicant stated that it happened [at the end of a specific month in] 2014, although later in the hearing she said that it was [at the end of the month after the one first specified]. When asked if she knew how her practice in her home came to the attention of the police, she said that she did not know at the time, but later became aware that people had lodged a report about her.

3. The applicant was fearful and did not go to the police station. The applicant never returned home. She went to her aunt’s house (which is a [duration] minute drive away from her address) and never spoke to her husband or [child] again until she contacted her husband by telephone after her arrival in Australia. The applicant stated that this was her only dealing with authorities regarding her involvement with Falun Gong.

4. The applicant stated that she and her friends held gatherings at her house [a number of] times a week and had held gatherings many times before the police attended on that one occasion. Since the police attended at her house, she did not practice Falun Gong again until she arrived in Australia, where she now goes to a local park to complete Falun Gong exercises.

5. The applicant stated that she was aware of Falun Gong before she commenced her practice. She became aware of it in 1999 when many people practiced Falun Gong in ‘Beijing Square.’ The Tribunal asked the applicant why she would invite people around to her house to practice Falun Gong when it is banned by the Chinese Government. The applicant said that it had been a long time since 1999.

6. When asked about the beliefs of Falun Gong, the applicant stated that for her, it just teaches exercising of the body. She said that Falun Gong was a very good thing. She was not able to tell the Tribunal about the philosophy of Falun Gong, nor any teachings apart from the exercises, nor the name of master of the movement. The applicant responded that her heart was pumping when she was trying to provide the Tribunal with the name of the master. She later said that she thought the name was “Hoang” (my spelling of the sound of the word she used) but could not provide the spelling.

7. The applicant stated that there were five exercises in Falun Gong. She told the Tribunal that the first exercise was called ‘Extending a Thousand Arms’, the second exercise was called ‘The Falun Way’, the third exercise was ‘Penetrating the Cosmic Extreme’, and the fourth was ‘Falun Cosmic Orbit’. She could not recall the name of the fifth exercise. She told the Tribunal that the third and fifth exercises needed to be repeated three times each, and that was all she could do due to her physical condition.

8. When asked about the role of the Law Wheel in Falun Gong, she said that she did not really know about Falun and only really uses it for exercises. When asked about where the Falun is located, the applicant stated that it was located in the middle of the body, but was not clear where exactly.

9. The applicant stated that if she were to be returned to China, she is worried about what would happen to her and that believed that the police would do something to her. She applied for a visa to Australia because she was fearful. She told the Tribunal that she thinks the police are still looking for her.

10. The applicant told the Tribunal that her application, which was written in English, was done by a [Mr A], whose first name she did not know. He was not a migration agent and met him when introduced through a friend with whom she had become acquainted in Australia. She said that [Mr A] had gone through the application with her, and she accepted that she had signed the application declaring that it was truthful.

11. The applicant also confirmed that she had travelled to [Country 1] [during specified dates in 2014] and said that she went there for a tour.

Independent country information

1. The DFAT Country Report for China and Thematic Report for China, dated 3 March 2015 are the most recent publications. Relevantly to the applicant’s evidence, the reports advise that:

• Falun Gong practitioners are generally able to practice privately in their homes relatively free from interference by authorities, although practitioners regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours

• The Chinese Communist Party is committed to the eradication of Falun Gong as an evil cult and practitioners who are sentenced to criminal punishment regularly receive imprisonment of three years or less. Once released from detention, practitioners can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs

• The Chinese Government is the third most restrictive country in the world in terms of internet access and the government internet censorship and surveillance policy implemented in 2003, which results in the regular censoring of material that is deemed politically sensitive

• Falun Gong practitioners who are committed to their faith and who are known to authorities find it very difficult to obtain a passport to leave China because their behaviour is considered politically sensitive. DFAT assesses that because the majority of claims about discrimination and violence relate to state-sanctioned policies, state protection against abuses by police or other authorities would be inadequate.

• A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports and China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.

Information about Falun Gong

1. Relevantly to the applicant’s evidence, the Tribunal relied upon the 2016 7th edition (English translation) of the Falun Gong by Li Hongzhi and the 2014 edition (English translation) of the Zhuan Dafa by by Li Hongzhi (who is the master of Falun Gong) which state that:

• The teachings of Falun Gong are based on the principles of zhēn, shàn, and rěn (which translate approximately as truthfulness, benevolence, and forbearance)

• There are five exercises in Falun Gong which are ‘Buddha Stretching a Thousand Arms’, ‘Falun Standing Stance’, ‘Penetrating the Cosmic Extremes’, ‘Falun Cosmic Orbit’ and ‘Reinforcing Supernatural Powers’. The third and fourth exercises are repeated nine times

• The Law Wheel (Falun) has the same nature as the universe, for it is a miniature of the universe. Cultivators of Falun Gong not only rapidly develop their supernatural abilities and gong potency, they also develop an incomparably powerful Law Wheel in a brief period of time. It is located in the abdomen

Analysis and Findings - Refugee

1. The Tribunal accepts the applicant’s identity and that she is a citizen of China on the basis of her passport which was produced to both the Department and the Tribunal. There is no evidence to suggest that this is a bogus document.

2. The Tribunal accepts that the applicant does not have any other citizenship of have a right to enter and reside in a third country. There is no evidence to suggest that such rights exist for this applicant.

3. The Tribunal does not find that the applicant has a well-founded fear of persecution on the basis of being a Falun Gong practitioner. The Tribunal has made this finding based on the following:

1. Firstly, the applicant demonstrated no understanding of philosophy of Falun Gong and was not able to name the master of the religion, nor was she able to state all the names of the exercises, nor the location of the Law Wheel, nor the correct number of repetitions required for some exercises. I find that the applicant’s lack of knowledge about these basic concepts is a reason to reject her claim that she is a genuine practitioner of Falun Gong.

2. Secondly, the applicant’s circumstances of becoming involved with Falun Gong were not believable. In a country such as China, with the regularly censoring of material that is politically sensitive, the Tribunal has great difficulty in believing that the applicant could just stumble onto Falun Gong exercises when she was simply looking at potential exercise regimes.

3. Thirdly, the applicant was able to leave China on a passport without interference from the authorities. As noted in the Country Information, she would have encountered difficulties doing so if police were looking for her because she was an organiser of a Falun Gong meeting where she was, in effect, on the run from police because she did not go to the police station after being told by her friend that the police wanted to speak to her.

4. Fourthly, the applicant’s claims regarding past harm in China was inconsistent between the written application and the evidence given to the Tribunal. While the Tribunal could understand minor inconsistencies between oral evidence and written claims, the fact in this case is that the written claims were not those presented to the Tribunal. The applicant’s explanation for the inconsistency was that the written forms were completed by another person and she did not know what he had written. She stated to the Tribunal that she told this person what her claims were and that it was the single claim raised at the Tribunal. The Tribunal does not accept this explanation because if that was the case, the Tribunal would have expected that the claim she relied upon at the Tribunal hearing would have been included in the written application.

   The Tribunal must draw an adverse inference as to the credibility of the applicant’s claims where an applicant raises a claim or presents evidence that was not put before the primary decision maker unless the applicant has a reasonable explanation for doing so. Her explanation was that her written application was completed by another person and that she told that person about this claim. For that to be reasonable, the Tribunal would have to accept that the person who wrote these claims ignored the sole claim that the applicant told him, and went on to make up claims on her behalf. The Tribunal does not accept that this is the case because the applicant signed the forms to declare that their contents were true and she would not do that unless she was aware of the contents. The Tribunal does not find her explanation for not raising her claim in her written application to be reasonable.

5. Fifthly, the applicant’s evidence at the Tribunal about the date that the police attended her premises changed during the hearing. Initially, the applicant told the Tribunal that police attended her premises in [a specific month in] 2014, and then clarified that the police came to the house sometime between [two specified dates in that month in] 2014. When the Tribunal noted that she travelled to [Country 1] [within those dates] and returned to China [after those dates], the applicant stated that she did not tell the Tribunal that the police came in [that month] and insisted that she had told the Tribunal that police had come to her house in [the month after that].

   On listening to the recording, it is clear that the applicant did initially tell the Tribunal that police attended at her premises in [the earlier month specified in] 2014. If police had attended at her premises in [that month in] 2014 because she was the organiser of a Falun Gong meeting, the applicant would have had experienced difficulty leaving China shortly thereafter based on the country information. In the view of the Tribunal, the applicant gave evidence that the police attended her premises in [the month after that in] 2014 to provide an answer as to how she was able to leave China unhindered by the authorities in [the earlier month in] 2014.

1. The Tribunal does not find that the applicant is a Falun Gong practitioner, and it follows that the Tribunal does not accept her claim that the police came looking for her at her home in China or that she suffered any instances of previous harm because she is a Falun Gong practitioner. The applicant does not face a real chance of serious harm in the foreseeable because she is not a Falun Gong practitioner.

2. 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 s.36(2)(a).

Analysis and Findings – Complementary protection

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal must considere the alternative criterion in s.36(2)(aa).

2. As noted in the previous finding, the Tribunal does not find the applicant is a Falun Gong practitioner and does not find that the claimed instance of past harm has occurred. The Tribunal does not accept that if the applicant was to return to China that there are substantial grounds for believing that there is a real risk the applicant would suffer the significant harm required by s.36(2)(aa) to enliven protection obligations.

3. 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 s.36(2)(aa).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Nathan Goetz
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)   a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)   any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA  Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36Protection visas – criteria provided for by this Act

…

(2A)A non‑citizen will suffer significant harm if:

(a)   the non‑citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non‑citizen; or

(c)   the non‑citizen will be subjected to torture; or

(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)   the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…