1514257 (Refugee)

[2019] AATA 1764

1514257 (Refugee) [2019] AATA 1764 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514257

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:8 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2019 at 4:03pm

CATCHWORDS
REFUGEE – protection visa – China – imputed political protest – Falun Gong activities – fear of persecution, arrest, detention and mistreatment – claims of past harm and detention – altered and fraudulent passport – paying bribes – inconsistent information and claims – lack of supporting evidence – refugee status sur place consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth),ss 5, 36, 65, 91, 424, 499
Migration Regulations 1994, Schedule 2

CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347

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 China, applied for the visa on 13 October 2014 and the delegate refused to grant the visa on 24 September 2015.

3. The applicant appeared before the Tribunal on 15 January 2019 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.

5. The issue in this case is whether the applicant has a well-founded fear of persecution in China for one or more of the five reasons set out in the Refugees Convention (s36(2)(a)); and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China there is a real risk that he will suffer significant harm (s.36(2)(aa)).   

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

7. The applicant is a [age] year old married man from Liaoning Province, China.  He arrived in Australia in August 2014 on a passport under another name.  He provided one residential address from 2004 until his departure from China in August 2014, in Tieling City, Lianoning Province. He has been educated up to middle school level only and provided no details of any other qualifications.  He operated a [business] from 1995 until 2011 and was unemployed from then until his departure from China in 2014.  He provided details of his wife, who had a protection visa refused in Australia. He has a [son], [and other family] in China. 

8. In a statutory Declaration provided with the application, the applicant provides the following further information.  In January 1995 he and his wife established their own [business].  Their business developed successfully, but then his wife suffered from rheumatic conditions due to the weather conditions in Tieling. From August 2006 his wife began to follow [Mr A] (the uncle of a regular customer, [Ms B]) to secretly practice Falun Gong.  [Mr A] organised people to practice secretly at his [property] in the outskirts of Tieling. As Falun Gong was banned by the PRC authorities since 1999, it was very dangerous, but nonetheless the applicant’s wife decided to try it because of her severe illness. Her health gradually improved and after one year she was completely recovered from her rheumatics.  As a result of this she became a faithful Falun Gong practitioner. In February 2009 the applicant’s wife and son came to Australia, he on a student visa and she as his guardian. She was practising Falun Gong in secret before that at [Mr A]’s [property] with 5 others, including the daughter of [Mr A], [Ms C] whom his wife kept in touch with even after coming to Australia. At the end of March 2011 his wife sent the Nine Commentaries on the Communist Party (the Nine Commentaries) to [Ms C] at her request and she secretly distributed it among students as a protest against the Communist Party. [in] May 2011 [Mr A] was arrested for organising Falun Gong practitioners and he confessed about his daughter’s distribution of the Nine Commentaries among students and she was arrested [in] May 2011.

9. [In] May 2011 the applicant was arrested due to a confession by [Ms C]. Despite not being involved with Falun Gong or his wife’s activities he was detained by police and tortured to force him to expose his wife’s activities. He was hung by his arms and beaten by the police with electric sticks. Eventually he was released [in] June 2011 by bribing the [police].  After this his business got worse because of the publicity of his arrest. He closed his business in November 2011 after nearly 17 years. From 2011 until he left China in August 2014, the police gave him trouble.  He was taken away by police and locked up in a black room or put into political or legal classes. He lost his freedom.  He was physically and mentally mistreated and put through hell.  He was harassed at his residential place, with searches and questioning day and night. It was impossible for him to find a job.  His money was frozen at the bank and then later confiscated. He had to make money by selling off his personal items. Because of this he had to try every means to leave China.

10. The applicant claims his wife is a genuine Falun Gong practitioner. She sent Nine Commentaries on the Communist Party to her friend in China and because of this she came to the attention of the authorities and for this reason she has to remain in Australia.

11. He claims his wife’s application for protection was unexpectedly refused and although she sought a review, it too was refused at the RRT. The applicant does not believe his wife’s case was fairly considered by the RRT.  She continues to actively practice Falun Gong even after her application was refused.

12. Since the applicant arrived in Australia he has also followed his wife to practice Falun Gong. 

13. A copy of the Refugee Review Tribunal (RRT) decision in respect of the applicant’s wife’s protection visa application, dated 29 June 2012, is included in the Department file, as are file notes relating to a refusal of a visitor visa application in 2009.

14. The applicant was interviewed by an officer of the Department on 30 March 2015 and a copy of an audio recording of the interview is included in the Department file.  The Tribunal has listened to a recording of the interview. 

    Evidence before the Tribunal

15. On 23 November 2018, the applicant provided some photos purportedly showing himself participating in Falun Gong practice and activities in Sydney.

16. At the hearing the applicant confirmed his current address and past address history.  He lives with his wife.  His son returned to Australia in June 2018, after departing Australia in December 2014 from [a] detention centre, and lives separately with his own wife. He returned as a permanent resident on the basis of a spouse application. The applicant and his wife are both working. The Tribunal asked the applicant why his wife was not present today to give evidence in support of his application, given his claims largely rely on her activities. He said that he was not aware it was necessary as no one told him to bring her.  The Tribunal noted that he is and has been represented throughout the application and it is a matter for him to present his case. The applicant’s representative, when asked if this had been discussed with the applicant, said his wife currently has no valid visa and is afraid for this reason to become involved.

17. The applicant’s son stayed in Tieling City Liaoning Province, in the applicant’s house when he returned to China in 2014.  He lived alone and had no issues during his period there. 

18. The applicant operated his own [business] when he was in China, from 1995 to 2011.  He ceased the business from about October or November 2011 because the customers stopped coming due to problems he suffered and he was forced to close it down. After that he had various casual jobs to make money to survive and somehow he managed to live like that for the next three years.

19. Prior to his last entry to Australia in 2014, the applicant had travelled here once before in 2007. He participated in a group holiday visit to [Country 1] and Australia with a tour group arranged by an employer he worked with at that time. He also travelled at his own expense to [Country 2] that same year. He had no issues obtaining a passport or departing the country at that time.  In 2014 he departed China on his own passport, which was renewed in 2009.  He had no issues departing the country on this occasion.  He went to [Country 3] and stayed there 3 days.  He was then given a false passport with his photo on it and used the false passport to travel to Australia.  The Tribunal noted that the two documents had been examined by the Department and he agreed with the assessment that the passport used to enter Australia had been altered and was fraudulent.  The current passport in his name, used to depart China, is his genuine passport.

20. The Tribunal discussed with the applicant his claims.  He said his wife came to practice Falun Gong due to her ongoing rheumatism condition.  Falun Gong practice was suggested to her by friends and friends.  She was introduced to a man named [Mr A] by a client of the business, [Ms B], who was the niece of [Mr A].  He practiced Falun Gong in his [property] and the applicant’s wife started going there to practice. The applicant said he does know the details of how she practiced because he was not involved at that time. She went to the [property] around 6-8pm usually on Saturdays and sometimes a few times a week.  They practiced about 2-3 hours. He usually drove her but wouldn’t always stay.  It was a 10 minute drive.

21. The applicant said he knew at the time that Falun Gong practice was outlawed and it was dangerous to be discovered.  That was the reason they practiced in the evening time. She did not have any problems however during this period when she was practising Falun Gong in China.  He also had no problems.  After about a year of her practice, she made almost a complete recovery from her rheumatism condition but she continued to practice Falun Gong even after that, until she came to Australia. The applicant confirmed that neither he nor his wife had any problems as a result of her Falun Gong practice between 2006 and 2009 when the applicant’s wife departed for Australia.

22. The applicant’s wife and son came to Australia for the purpose of his son to study.  The applicant said he wanted his son to study whatever level he could and was committed to supporting him. He started studying English, and from there arranged further study but the applicant did not know what course or subject area.  He said his wife was here and she arranged it and that is why he did not know.  He heard from his wife that there was a misunderstanding with the college and as a result his son’s visa was cancelled and this caused a lot of stress for his son.  After this his son gave up studying. The applicant said that he was aware his son did not complete his studies but there were complicated reasons for this. When his visa was cancelled, he did not receive the letter informing him of this and then the time to seek review expired so after all of this he gave up on studying. It was out of his control. 

23. The applicant told the Tribunal that when his wife and son went to Australia, his business was going well. It went well until 2011, when things changed because of the actions of his wife.  As a study member of Falun Gong she was required to send home copies of materials which she did. Around May [Mr A] was arrested by the authorities. After he was arrested and tortured he gave information about his daughter and the applicant’s wife sending materials. The applicant said he did not know anything about this until after he was arrested himself.  He was arrested [in] May 2011.  He was in the market at the time.  About 5-6 officers came and asked for him by name. They took him to the police station and asked him if he knew what crime he had committed and would confess. He told them he has not committed any crime. They said if he does not admit it he would be made to suffer physical torture. They physically attacked him. They were not reasonable with him. He was kept in a room, locked to a chair and they used electric tools and water.  He was kept like this for over 24 hours a day. They kept asking him to admit to the crime but he was unaware of what crime he had committed. Eventually he had a friend who arranged for him to be released on payment of a bribe.  The Tribunal asked if he was ever charged with any offence. He said after two days of torture they told him that is wife was involved in Falun Gong activities and that he was considered to be colluding with an overseas organisation. The applicant said they accused him of being a member of an evil cult because of his wife’s activities and demanded him to admit it.  He kept saying he is an ordinary citizen and refused to admit to anything. 

24. The applicant confirmed he had no knowledge of what his wife had done in Australia until after he was arrested and told by the police officers about it.  After this he became aware that she had sent some commentary materials against the Communist Party. When asked why she would have done this given the danger to him, he said she did not think it would cause him harm because he was not practising Falun Gong.  She was the one practising Falun Gong and she had to because of her illness. She did what she thought was right and he does not blame her.

25. The Tribunal asked the applicant if he had any documentary evidence of his arrest, detention or release. He said he has a scar on his head from this incident.  He said he wanted to talk about this at the interview but the officer was not interested in what he had suffered, they were only interested in whether he would suffer in future. The applicant said on the 2^nd day he was held the police officers went out for a meal after they had questioned him for some hours. He was left locked to a heater and somehow fell asleep facing the heater. When they came back in they kicked him and swore at him.  He suffered injuries and they took him for treatment and he received 9 stitches.  The Tribunal asked if he has evidence of this medical treatment. He said he does not, the hospital would not release his records because the police arranged the treatment. The Tribunal noted he had not mentioned this injury and treatment in his written statement or at the Department interview and given these omissions, the Tribunal may have doubts about the truthfulness of the claim. He said he did not mention it at the interview because the officer was not interested in listening to him. They doubted him from the beginning.

26. The Tribunal asked if he had any documentation upon being released. He said because of the seriousness of his injuries they did not want to take responsibility so he was released. He did not have to appear in court, was just asked to report regularly, asked to attend study classes and his freedom was limited.  He was not actually charged with anything. 

27. The Tribunal put to him that if he was of ongoing interest to the authorities or had an outstanding matter, how would they have allowed him to depart the country.  He said he was arrested and persecuted and then released. There was no official charge of a crime to limit his ability to depart.  In China people can achieve a lot by bribing officials. He agreed he had no problems leaving China.

28. The Tribunal put to the applicant that the fact his son was able to live in Tieling City, in his house, for over 3 years from 2014 to 2018 without having any problems from the authorities suggests there is no ongoing interest.  In response the applicant said his son was a minor when he left China and therefore the authorities have no interest in him.  He told the Tribunal that his son has nothing to do with his claims and the Tribunal should not bring him into it.  The Tribunal put to him that if he is claiming that the authorities arrested and tortured him because of his wife’s activities overseas, then would it not also reasonably follow that their son, as a close family member, would be at risk of harm for the same reason?  The fact that the applicant had no concerns for him upon his return and nothing happened to him may detract from the credibility of his own claims.  In response the applicant repeated again that his son was a minor when he left China and secondly, that before he left the applicant had arranged everything though bribery and that’s why his son was safe.  He said that is how things work in China, you pay money to smooth things over. 

29. The applicant confirmed that his wife did not send any more materials to China apart from this one time in 2011 because of the serious implications for the family. His business closed after his arrest and detention because everyone saw the authorities arrest him at the market and after that people did not want to get involved and stopped coming to his business. The money in his bank account was frozen, but he still had some other money available to him and he managed to survive on that plus income from casual work. 

30. The Tribunal put to the applicant under s424AA evidence given by his wife in her protection visa review about her practice of Falun Gong in China.  She told that Tribunal she practiced in [Mr A]’s [property] on the outskirts; that she attended once a week on Sundays at 1am for about 2-3 hours, until 3.30am; that her husband picked her up;  and that it was about 30 minute drive from their house.  This was inconsistent with his evidence that she practiced from 6-8 pm on Saturdays and up to 2-3 times a week; that he drove here there and back and that it was a 10 minute drive away. The Tribunal put to the applicant that the inconsistency in their accounts may lead the Tribunal to have doubts about the credibility of the claim that his wife practised Falun Gong in China and if it made this adverse credibility finding it would contribute to the reasons for affirming the decision under review.  The  Tribunal told the applicant he could respond now or ask for additional time, however he indicated he would respond immediately. He said that in Falun Gong it is not necessary to practice at a particular place or frequency.  So when he said his wife practiced a few times a week, that is correct, but when she went early in the morning because of their business requirements, she did not need him to pick her up.  When she practiced in the early evening he would pick her up.  The applicant stated that there is nothing inconsistent in their responses, both are correct.

31. The Tribunal put to the applicant under s424AA information before it that his son’s visa was cancelled in March 2011.  It explained that this was relevant because the Tribunal may rely on this to find that the cancellation of his son and wife’s visas around this time in 2011 coincides with the claim that she sent material to China and he was arrested and it may have doubts about the credibility of the claims she sent this material on the basis that she needed a basis to claim protection at this time.  The applicant was invited to respond now or request additional time.  He elected to respond immediately, saying there is no connection between his son’s visa cancellation and his wife’s actions.  He repeated that his son’s situation is not relevant to their circumstances in any way. Also his son only came to know about the cancellation of his visa sometime after it expired and this also supports that there is no connection or coincidence of the timing of the two events.

1. The Tribunal discussed with the applicant his actions after coming to Australia.  He said about one month after arriving he decided also to start following Falun Gong, though he is not a good practitioner.  When asked why he started following Falun Gong here given he did not follow it in China, he said he saw that his wife was continuing to follow it with her heart and he also was of the view that it was not an evil cult as the government was saying and just required one to be truthful.  He had already been persecuted in China even though he was not practising, so when he came here he needed to make a protection visa application on this basis and so he started to follow it. 

2. The Tribunal explained s91R(3) of the Act, which requires the Tribunal to disregard conduct in Australia unless satisfied that he engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.  The applicant in response said he did not start practising only for his protection visa application but also because it brings him health benefits and it is not illegal here to do so.

3. The applicant said he started practising first in [one location], and has also been to [two other locations]. He does not do it that often, only when he has time and is free to practise. He said there is no necessity to practise with any particular frequency or place. Last Saturday was the last time he practised. He did some reading and also some practise. He referred to the Zhuan Falun that he had read, and spoke generally about the law wheel, positive and negative energies and essential teachings of truthfulness, kindness and tolerance.  He referred to the 5 exercises, and at the Tribunal’s request demonstrated one of them. When asked if there were any words or text associated with the exercises, he said there is not, but there is music and descriptions for each of the gestures. The applicant was asked if he was aware of particular dates marked by Falun Gong practitioners.  In response he said he does not know any, every day is important and he follows what his fellow practitioners tell him. He was unware of what day is Falun Dafa Day.

4. The Tribunal put to the applicant that having regard to his evidence, it may not be satisfied that he has engaged in Falun Gong activities in Australia otherwise than for the purpose of strengthening his or her claim to be a refugee. In response he said he was persecuted in China despite not being involved with Falun Gong and so he had to start practising here otherwise he would not have been able to make his protection claim but it also strengthens his health.

5. The applicant said he cannot return to China because he will be persecuted because he escaped while on bail pending trial.  The Tribunal put to him that he had said earlier he was not charged with anything. He responded that in China it is unnecessary to have specific charges, he can still be sentenced. They can do anything there, that is the way things work. Considering what happened to him before, he is afraid he will be arrested again on return regardless of the grounds.

6. The Tribunal put to him, given that he was not a Falun Gong practitioner in China previously, it may not accept he would practice upon return. He said he probably would now that he has become involved in Australia.  Even though he said he was not a good practitioner here, he just meant that he is still working on his practice and has much to learn, for example he needs to learn to control his emotions better. 

7. On 16 January 2018 the Tribunal wrote to the applicant under s424A and put to him information before it contained in the decision of the Refugee Review Tribunal relating to his wife’s protection visa application that the Tribunal may rely on to find that she was not a Falun Gong practitioner in China and she did not send materials to China from Australia leading to the applicant’s arrest as claimed, and that if the Tribunal makes these findings it would, subject to his comments or response, contribute to reasons for affirming the decision under review. A copy of the RRT decision relating to his wife’s review was attached to the correspondence.

8. On 17 January 2019 the Tribunal received a Statutory Declaration from the applicant in response to its invitation.  The applicant explains in the declaration why he disagrees with the RRT’s decision in his wife’s case and requests the Tribunal to revisit this decision in its consideration of his own case. 

   FINDINGS AND CONSIDERATION

   Nationality

9. The applicant entered Australia on a passport in a name which is not his. He stated in his application his correct name and provided his passport in his name.  The two documents were evaluated by the Department’s Document Examination Unit and the applicant’s own passport was verified as legitimately manufactured and unaltered, whereas the passport on which he entered was found to be altered by page substitutions and contain counterfeit identity pages.

10. The Tribunal finds, on this evidence of the Document Examination Report and having sighted the applicant’s own passport, that he has the identity indicated in his genuine passport and is a Chinese national. The Tribunal will therefore assess his claims against China as the country of nationality for the purposes of the refugee criteria and as the receiving country for the purposes of the complementary protection criteria. 

11. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by protection visa applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

    Consideration of applicants’ claims

12. The applicant claims his wife practised Falun Gong in China and after she came to Australia in 2009, she sent the Nine Commentaries to one of her fellow Falun Gong practitioners which led to the applicant being arrested, detained and mistreated by police and subsequently harassed repeatedly until he left China in 2014. He left China on his own passport and travelled to [Country 3] where he was provided a false passport to enable him to travel to Australia.  He claims that since he has come to Australia, he has followed his wife and taken up the practice of Falun Gong. 

13. The applicant provided no further documentary evidence in support of his claims to the Department. Before the Tribunal, on 23 November 2018, he provided some photos purportedly showing himself participating in Falun Gong practice and activities in Sydney.

14. The Tribunal observes that, despite his claims relying substantially on his wife’s actions and background no direct evidence from her has been provided to the Department or Tribunal. 

15. For reasons that are explained below, the Tribunal does not accept that the applicant was arrested, detained or mistreated by police in China.  It does not accept that the applicant’s wife practised Falun Gong there as claimed or that she sent Nine Commentaries material to China from Australia in 2011.  The Tribunal is not satisfied the applicant has genuinely practised Falun Gong in Australia at any time. Consequently the Tribunal finds that he will not practice Falun Gong in China if he returns in the reasonably foreseeable future, nor is he, or would he be, the subject of adverse interest of the authorities in China for this or another other reason.

16. The applicant’s claims relating to his arrest, detention and mistreatment by police in China rely on his claim that his wife practised Falun Gong in China before she came to Australia and that after she came here, she sent the Nine Commentaries to a Falun Gong associate.  He claims that he was arrested because of a confession made by this person which implicated his wife. 

17. The Tribunal observes that these claims are substantially the claims made by the applicant’s wife in her own protection visa application made in July 2011.  Those claims were rejected for lack of credibility and the application was refused by the Department and subsequently on review by the RRT in June 2012. The applicant’s wife has provided no written or oral evidence in support of the applicant’s present case to the Department or the Tribunal.  This is despite the applicant having the benefit of representation by a registered migration agent throughout the application process.  When asked by the Tribunal at the hearing why his wife was not available to give evidence given his reliance on her experiences for his claims, the applicant stated that he did not know she needed to attend. His representative told the Tribunal that she does not currently hold a visa and for this reason was afraid to get involved. 

18. The Tribunal has before it the decision of the RRT relating to his wife’s protection visa application.  In the absence of other or direct evidence from the applicant’s wife, the Tribunal has considered the evidence she gave to the RRT to make its own assessment of the credibility and reliability of her claims to the extent that these are relevant to the applicant’s claims.  In doing so, it has taken into consideration the applicant’s oral evidence at hearing and his Statutory Declaration dated 17 January 2019 in response to the Tribunal’s s424A invitation to comment on the evidence she gave in her application and findings of the RRT.

19. Having considered all of the material before it, the Tribunal does not accept that the applicant’s wife practised Falun Gong in China from 2006 to 2009 as claimed by the applicant or that she sent back to China a copy of the Nine Commentaries, which led to the applicant being arrested, detained and mistreated by police.  The Tribunal observes that the applicant’s oral evidence about his wife’s Falun Gong practice was inconsistent in significant respects to the evidence she gave in her application.  She stated that she practiced once a week from around 1-3.30 am in the morning at [Mr A]’s [property], which was less than half an hour’s drive from her house.   In his evidence to the Tribunal the applicant said she went to the [property] from 6-8 pm on Saturdays and sometimes a few times a week to practice Falun Gong and that they would practice for around 2-3 hours.  He said he usually drove her there and it was about a 10 minute drive.  The Tribunal put this inconsistency orally to the applicant for his comment at the hearing, to which he responded that there was nothing inconsistent in their evidence. The Tribunal disagrees with this.  It considers their evidence about the frequency and days of practice and means of transport are inconsistent. In the context of the claim made, the Tribunal considers these inconsistencies to be significant and casts doubts on the reliability and credibility of the claim. The applicant’s wife did not attend the hearing to give evidence in person and the Tribunal was unable to question her further or directly.  The Tribunal also takes into consideration that the applicant’s wife’s claims in her own application were rejected by the delegate and RRT on review. The Tribunal has carefully considered the applicant’s response to its s424A invitation to comment, disagreeing with the RRT’s decision on the basis that it was erroneous and biased. However there is no evidence before the Tribunal to indicate she sought judicial review of the RRT decision and therefore the legal status of that decision is that she was found not to be a person to whom Australia owes protectin obligations under s36(2)(a) or s36 (2)(aa). The Tribunal has considered the evidence she gave in her own application for protection as recorded in the RRT decision, in its own consideration of the applicant’s claims made in the present application. It finds his account to the Tribunal about her Falun Gong practice was inconsistent in significant and material respects with the account she provided.  On the material before it, the Tribunal does not accept that she practiced Falun Gong in China. It considers the evidence before it is unreliable and lacking in  credibility. 

20. Regarding the timing of the applicant’s wife’s protection visa application, and possible motivation to lodge the application to seek to remain in Australia, the Tribunal acknowledges the explanation provided by the applicant that his wife did not know at the time she lodged her application that their son’s student visa was cancelled in March 2011. The Tribunal accepts the material before it supports that the applicant’s son and wife appear only to have became aware of the cancellation of his Student visa upon attending the Department in August 2011 to advise a change of address. It notes he was found to be out of time to seek review of that decision.  Given this, the Tribunal accepts that the applicant’s wife’s decision to make a protection visa application in July 2011 and claims made in that application was unlikely to have been motivated by the cancellation of her son’s student visa in March 2011.  Notwithstanding this, the Tribunal observes that her own subclass 580 Student Guardian visa was due to expire in on 31 July 2011. It finds the expiry of her own visa may have precipitated her decision to make a further application at that stage to remain in Australia.

21. Having rejected that the applicant’s wife practised Falun Gong in China, the Tribunal also rejects that she sent a copy of the Nine Commentaries from Australia to one of her fellow Falun Gong practitioners.  Given it does not accept she practised as claimed, it does not accept that she was asked to send this material by another Falun Gong practitioner. There is no other evidence to support this claim, such as evidence relating to how and when she sent it, in what form or its cost. The Tribunal also considers it is not plausible or credible that the applicant’s wife would send this material knowing as she did at that time that it was impermissible and dangerous and her husband still lived there. 

22. Having rejected these claims, the Tribunal also rejects the applicant’s claim that he was arrested, detained and mistreated by police as a result of his wife’s actions.   It does not accept his claims to have been arrested, tortured in detention, released by paying a bribe or subsequently repeatedly harassed by police and authorities due to his wife’s actions. When asked if he had any documentation to support his claimed detention and subsequent release he said he did not.  He later changed his evidence and said he was never in fact charged with anything, but released because the police did not want to take responsibility for the injury to his head they had caused. The evidence about the injury was mentioned by the applicant for the first time at the hearing and no supporting evidence of treatment received has been provided.

23. Additionally, on the applicant’s own evidence, his son returned to China in 2014 and lived in the family home (the same address as the applicant claims he was harassed at by police) without any problems from the authorities for a period of 4 years until his return to Australia in 2018.  The applicant stated, when it was put to him for comment that this does not appear to support his claim about the authorities interest in him due to his wife’s actions, that his son was a minor when he left China and the authorities would therefore have no interest in him. The Tribunal considers this response contradicts his own claims to have been arrested, detained, mistreated and hounded solely because of his family association with his wife who was alleged to have sent impermissible material. If true, the Tribunal considers it would reasonably follow that the applicant would fear the same consequences for his son if he returned home.  The ability of his son to live safely and without incident for almost 4 years from 2014-2018 detracts from the credibility of the applicant’s claims and indicates there is no official adverse interest in the applicant’s family.    

24. Finally, the Tribunal takes into account that the applicant was able to depart China in August 2014 on his own passport without problems.  This contradicts his claims to have been of ongoing interest to the authorities over an extended period from 2011 to 2014, being harassed, searched and questioned regularly, having his money frozen, and being unable to find employment. Independent information before the Tribunal indicates that China has sophisticated and extensive monitoring systems in place, the major airports have a centralised system with name matching alert capabilities, facial recognition technology is widely deployed, security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies.[1]  Given this, the Tribunal considers it is not credible the applicant would have been able to depart China on his own passport without problems if he had previously come to the attention of the authorities and was arrested and detained as claimed for the reasons claimed.

    [1] DFAT Country Report on China paragraph 5.20, p40

25. Having rejected the applicant’s claims relating to his past experiences in China, and his wife being a Falun Gong practitioner, the Tribunal has serious doubts and concerns about his claims to have embraced Falun Gong in Australia.  The Tribunal has concerns about the credibility and motivations of the applicant embracing Falun Gong in Australia when he, on his own evidence, had no interest in it in China. 

26. While it is generally accepted that a person can acquire refugee status sur place where he has a well-founded fear of persecution as a consequence of events that have happened since he left his or her country, this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. When the Tribunal put this to the applicant during the hearing, he acknowledged that he began practising it here to be able to make a protection claim, though he also said that it brought him health benefits.

27. The Tribunal has considered the applicant’s evidence about his practice and knowledge of Falun Gong provided at the hearing and the photos provided purportedly showing him in practice and attending Falun Gong activities in Sydney. The Tribunal accepts, on this evidence, that the applicant has some knowledge of the practice and was able to demonstrate some movements, consistent with his claimed limited practice and that he may have attended publicly with Falun Gong groups in Sydney. However, it also considers that the knowledge and practice he has demonstrated could easily have been learned from sources publicly available, to support and strengthen his protection claims.

1. Considering all of the reasons and concerns referred to above, and the rejection of the applicant’s claims regarding his past experiences in China and his wife’s Falun Gong claims, the Tribunal is not satisfied that the applicant has engaged in Falun Gong activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention, and for that reason it must disregard this evidence for the purposes of considering his refugee claims.  In any event, it is not satisfied that he is a genuine Falun Gong practitioner or that he will practice Falun Gong upon return to China in the reasonably foreseeable future. 

   Risk of future harm

2. The Tribunal has, above, rejected the applicant’s claims of past harm in China.  It has rejected that his wife practised Falun Gong there in the past, or that she sent impermissible materials to a fellow Falun Gong practitioner in March 2011.  Consequently it rejected that he was arrested, detained and mistreated by the police or authorities for this reason.  Pursuant to s91R(3) the Tribunal is required to disregard the applicant’s conduct in Australia because he has not satisfied the Tribunal that he engaged in Falun Gong activities here otherwise than for the purpose of strengthening his claim to be a refugee.   The Tribunal finds that the applicant is not a genuine Falun Gong practitioner and would not engage in Falun Gong practice upon return to China in the reasonably foreseeable future.  Therefore it is not satisfied that he faces a real chance of serious harm on the basis of being a Faun Gong practitioner, a family member of a Falun Gong practitioner, or for his real or imputed political opinion, or any other reason, upon return to China in future. 

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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary Protection

4. 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). For the same reasons given above, the Tribunal does not accept that the applicant’s wife practised Falun Gong in China or that she sent Nine Commentaries on the Communist Party to China, or that the applicant was arrested, detained or mistreated as a result. 

5. The Tribunal is not precluded from considering his conduct or activities in Australia for the purposes of consideration of his complementary protection claims (as there is no equivalent to s91R(3) for this criteria). Therefore, on the basis that he was able to demonstrate some, albeit limited, knowledge of Falun Gong at the hearing and the photos submitted showing him participating in public in Falun Gong events, the Tribunal is prepared to accept he has engaged, at least on some level, in Falun Gong activities in Australia.   It is not, however, satisfied that he is a genuine practitioner. The applicant was not involved or interested in Falun Gong in China and on his own evidence he stated he became involved here so that he could make a protection application. The Tribunal has considered his claim that he also started to practice because it brings him health benefits and it is not illegal here to do so but it does not accept this is supported by the level of knowledge he demonstrated about it or the evidence about his commitment to practice. There is also no evidence before the Tribunal to indicate he has come to the attention of the Chinese authorities in relation to these activities.  Given these findings, the Tribunal does not accept that he will practice Falun Gong in China upon return.  

6. For these reasons, the Tribunal is not satisfied there are substantial grounds to believe there is a real risk he will face significant harm for reasons of his Falun Gong activities, or any other reason, upon removal from Australia to China.

7. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. 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

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

   Meena Sripathy
   Member

   
   

   RELEVANT LAW

10. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

11. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

12. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

13. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

15. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

16. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

17. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

18. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

19. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    Sur place claims – s91R(3)

20. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention.

21. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

22. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

    Section 499 Ministerial Direction

25. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.