1515022 (Refugee)

[2015] AATA 3762

1515022 (Refugee) [2015] AATA 3762 (2 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515022

COUNTRY OF REFERENCE:                  China

MEMBER:Carolyn Wilson

DATE:2 December 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 02 December 2015 at 1:50pm

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 [in] October 2015 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 [in] May 2015. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(a) or (aa).

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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 – 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. The applicant is a [age] year old single man from Fuqin City, China.  He arrived in Australia in 2008 as the holder of a Subclass 571 Student visa.  His Student visa ceased in March 2010 and he remained without a visa.  In January 2015 he was stopped by police and found to be an unlawful resident.  He was detained by Immigration in January 2015 and has been in detention since that time.

11. The applicant applied for a Protection visa [in] May 2015.  His only claim for protection was that the ‘Chinese government will punish me because Immigration locked me up with those anti-Chinese government people’. 

12. The delegate interviewed the applicant about his claims.  The applicant was unwilling to give details of his residential addresses or places of employment in Australia.   He told the delegate he wanted to remain in Australia because his life was better and he was settled here.  He said he was afraid to return to China because of his parents. He was unable to explain some of the answers in his Protection visa application form.  He said he did not complete the forms, but a friend in detention did it for him. When asked about his claim to fear harm for an imputed political opinion he said he had met some Falun Gong practitioners in detention and they showed him photographs.  The delegate concluded the applicant’s claim to fear harm for an imputed political opinion was not credible.

13. On review the applicant did not provide any documentary evidence, written submissions or additional claims.

14. At hearing the applicant said he came to Australia to study and maintained he studied for at least a year.  The Tribunal notes this is inconsistent with the delegate’s decision, which states the applicant never commenced his course in Australia.  The Tribunal has not sought further evidence of his purported study however as it is not material to his claims for protection.

15. The applicant said he has been working as [occupations] in Australia.  When asked why he hadn’t been back to China for a visit, he said he didn’t have the money to do so and now is worried he may be arrested one day in China if he returns.  He said he is in contact with his parents and they are aware he is in detention.

16. The applicant said he fears the Chinese authorities will arrest him one day because he has been detained with Falun Gong practitioners.  He said he has been exposed to some of their beliefs.  When asked if he himself identified as a follower of Falun Gong he said he did not. 

17. The applicant said he wants to remain in Australia because he’s lived here for 7 years and likes it here.  He wants to get out of detention as he has some financial affairs to resolve.  He clarified this referred to getting his salary (which the Tribunal presumes is wages which are owed to him) and also getting money back from friends that he has loaned money to.  The Tribunal asked the applicant if he applied for the Protection visa only so that he would have grounds to apply for a Bridging visa.  At first he said yes, although the Tribunal is not relying on that answer as it was a complicated question and the Tribunal is not sure the applicant understood the question at first.  After asking the question a number of ways the applicant said he applied for the Protection visa because he believes he’s a refugee.  He fears he’ll be hurt or arrested by the authorities in China, maybe not as soon as he returns, but maybe in the future.  He maintains he fears this because he has been detained in Australia alongside Falun Gong followers.

18. The applicant confirmed there was no other reason why he fears returning to China.

19. The Tribunal has considered information in the DFAT Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China (3 March 2015) on the treatment of Falun Gong practitioners in China:

    Falun Gong

    3.23 Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Taoism, Buddhism, and qigong (a traditional Chinese exercise). Falun Gong practitioners say the movement has ancient origins, but it first appeared in its modern form in 1992, when group founder Li Hongzhi began teaching the exercises in Changchun, China. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and north-eastern China.

    3.24 Proving membership of Falun Gong can be difficult because practitioners identify with Falun Gong through a belief system and physical practice. Reading books on Falun Gong, practicing qigong and engaging in private practice at home are the most common ways for members to express their belief. When asked about the benefits of practicing Falun Gong, practitioners usually try to identify positive physical changes that have taken place within their own bodies. Because of the risks involved, it would be rare for someone to actively seek out Falun Gong or practice in public. Rather, Falun Gong practitioners tend to identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong.

    3.25 Credible sources have told DFAT that Falun Gong practitioners are generally able to practice privately in their homes relatively free from interference by authorities. However, Falun Gong members regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours. Generally speaking, the possession of banned materials (books, CDs, or information about Falun Gong) would likely attract a fine or short-term period of administrative detention. However, punishments can vary according to location, the profile of the individual and local political circumstances.

    3.26 The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address “evil cults”. This group maintains an extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong), to eradicate Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as “transformation through re-education centres” to force practitioners to relinquish their faith. Since the general abolition of re-education through labour centres was announced in late 2013, Falun Gong practitioners have reportedly been sent to black gaols, sentenced to other forms of administrative punishment, or have been released after receiving propaganda training. According to Duihua’s Political Prisoner Database (PPDB), the number of Falun Gong prisoners known or believed to be in custody has nearly halved since 2009 and approximately 2,369 cases were documented for 2013. The United States Commission on International Religious Freedom stated there were 486 known Falun Gong practitioners serving prison sentences as at the end of 2013. According to Freedom House, the Chinese government launched a new, three-year crackdown against Falun Gong practitioners in 2013.

    3.27 Falun Gong practitioners who are sentenced to criminal punishment most commonly receive verdicts of three years’ imprisonment or less. Once in detention, Falun Gong practitioners are under pressure to denounce their faith in Falun Gong. Methods reportedly used against Falun Gong practitioners include sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings. Reports of psychological treatment used against practitioners have also been documented in international human rights reports. Reports of psychiatric experimentation and organ harvesting being imposed on Falun Gong practitioners in detention could not be independently verified.

    3.28 Leaders and regular followers tend to receive the same type of treatment in detention. Falun Gong practitioners who sign confessional statements early can possibly face better treatment in detention and can be permitted to return to their normal lives and jobs. Others who are persistent in defending their beliefs and who refuse to sign a statement can face worse treatment in detention. The lack of transparency into China’s prison and detention centres makes it difficult to verify these claims.

20. The Tribunal accepts that active Falun Gong followers are targeted for harm by the authorities in China.  The Tribunal has read information that family members of Falun Gong followers and lawyers representing Falun Gong followers can also face harassment and more serious harm from Chinese authorities. There is no claim the applicant is a Falun Gong practitioner, only that he has met such followers in detention and by being detained with them has been exposed to some of their ideas.  He does not claim to be attracted by the movement, or to be related to any Falun Gong follower, nor to have done anything that would associate him with Falun Gong. 

21. The Tribunal finds his claim that he’ll be targeted for harm merely for being detained with Falun Gong followers, even being exposed to some of their beliefs, is farfetched.  The Tribunal finds it is too farfethced to amount to a real chance.  The Tribunal does not accept he’ll be imputed with a political opinion of being pro-Falun Gong or anti-regime for being detained in Australia in centres where pro-Falun Gong or anti-regime persons have also been detained.  There is nothing in the applicant’s history or profile to indicate there’s a real chance he’ll be imputed with a political opinion or otherwise be of adverse interest to the Chinese authorities.

22. The Tribunal considers the applicant applied for this visa because he prefers life in Australia.  He has spent some of his formative years here, being only [age] when he first arrived.  He has found work and says he has money owed to him Australia which he wants to recover.  The Tribunal considers he applied for the Protection visa as it was his only visa option, and also because it is a ground upon which he can apply for a Bridging visa and get out of detention.

23. The Tribunal is not satisfied the applicant faces a real chance of persecution for reason of an imputed political opinion, should he return to China in the reasonably foreseeable future.  Accordingly, the Tribunal finds he does not have a well-founded fear of persecution and does not satisfy s.36(2)(a).

24. As the Tribunal has found the applicant is not a refugee, it has considered the alternative criterion in s.36(2)(aa).  As found above, the Tribunal finds it farfetched that the applicant would face harm for reason of having been detained in Australia with Falun Gong followers and anti-regime persons. 

25. The Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

    Conclusion

26. 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).

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

28. 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

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

    Carolyn Wilson
    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.

    …