1515241 (Refugee)

[2017] AATA 2842

1515241 (Refugee) [2017] AATA 2842 (15 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515241

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:15 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2017 at 4:25pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Falun Gong practitioner – Fear of persecution – Credibility issues – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of the People’s Republic of China (China) and claims that she has a well-founded fear of persecution because she is a practitioner of Falun Gong.

3. The applicant arrived in Australia [in] May 2014 on a [temporary] visa which had been granted [in] May 2014. That visa expired [later in] May 2014. The applicant remained in Australia unlawfully.

4. [In] February 2015, the applicant applied for a protection visa and she was subsequently granted a [bridging] visa which allowed her to remain in Australia lawfully.

5. [In] September 2015, the applicant attended an interview with the delegate. The applicant was assisted by a Mandarin interpreter. The delegate refused to grant the applicant a protection visa [in] October 2015.

6. The applicant applied to the Tribunal for a review of that decision on 12 November 2015. On 6 November 2017, a hearing was held where the applicant attended to give evidence in support of her claims. The applicant was assisted by a Mandarin interpreter.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.  

11. 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

12. 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.

13. The Tribunal relies on the information contained in the DFAT Country Report and DFAT Thematic Report of 3 March 2015 and also relies on the English translations of the Zhuan Falun and the Falun Dafa by Li Hongzhi when considering the applicant’s claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Protection Visa Application

14. The applicant told the Tribunal that her written application was completed with the assistance of her migration agent who spoke Mandarin. The migration agent had gone through the application with the applicant and read it back to her. The application was completed by the migration agent on the applicant’s instructions. The applicant said that everything in the application was true and correct.

15. The application stated that the applicant had lived at [an address in] [Gayou] City Jiangsu Province in China from [2005] to May 2014 and that her occupation was an [occupation 1]. For details about her employment history, the applicant only put down ‘[occupation 1]’. She stated that she was married with a husband and had a [child], both of whom remain in China.

16. The applicant claimed that she was introduced to Falun Gong by a neighbour who noticed that the applicant’s health was not good. The neighbour taught the applicant how to practice Falun Gong. The applicant said that Falun Gong worked on her and that her health improved.

17. In October 2013, the applicant carried an appeal letter which she wrote the night before and travelled to Beijing to speak out about the advantages of Falun Gong at [a government agency]. She said that this letter was thrown into the trash by the police. The police then took her back to Gayou City where the applicant was locked in [a detention centre] with other practitioners. She said that was she entered the detention centre the local TV station videotaped her and the other practitioners.

18. The applicant states that at the detention centre she was handcuffed to a heating pipe for hours in a painful squatting position and was beaten by a guard with a plastic pipe. Because the applicant refused to renounce Falun Gong, she was handcuffed with one arm over her shoulder and one arm pulled back and around her waist and as a result she had no feeling in her arms for a long time.

19. She stated that after two months in the detention centre, she was transported to [a] Hospital and was forced to take drugs orally as well as by injection. She was also subject of electric shock treatment. She remained at the hospital for three months and was only released when the hospital was informed that the local authorities had no more money to pay for her stay at the [hospital]. She was then released to her family in March 2014.

20. The applicant stated that she has been tortured many times, both mentally and physically.

21. After coming to Australia, the applicant attended local Falun Gong practice.

    Analysis, Findings and Reasons

22. When the applicant appeared before the Tribunal to give evidence in support of her claims, a number of inconsistencies arouse between her oral evidence and her written application. While the Tribunal is mindful to adopt a liberal approach to claims and to give the applicant the benefit of the doubt when assessing her claims, there were a number of issues raised as a result of the applicant’s oral evidence which are of concern to the Tribunal about the applicant’s truthfulness.

    Knowledge and Practice of Falun Gong

23. The applicant demonstrated a lack of basic understanding of Falun Gong. She said that she practised sporadically in China, but practised daily in Australia. Her practice in both China and Australia was to practice at home.

24. The applicant stated that the philosophy of Falun Gong was ‘truthfulness, compassion and beauty’ and she was not able to name the five exercises involved in Falun Gong practice. When asked how many times the first exercise needed to be repeated, the applicant said that this was repeated give times, when the correct answer is three. When asked how many times the second exercise needed to be repeated, the applicant said that it was five times, when the correct answer is once. When asked how many times the third exercise needed to be repeated, she said she did not know. The correct answer is nine times. When asked how many times the fourth exercise needed to be repeated, the applicant said that she did not know and then said it is to be repeated five or six times. The correct answer is nine times. When asked about the Falun / Law Wheel and where it was located, the applicant said that it was located at the front of the chest. The correct answer is the abdomen.

25. When asked to explain this lack of understanding, the applicant stated that she practised in a ‘messy way’. She said that she had no mentor, although the written application stated that she was taught to practice Falun Gong by her neighbour. The Tribunal finds it difficult to accept that the applicant would not know the basics of the Falun Gong exercises and the location of the Falun / Law Wheel. It is reasonable to expect that a practitioner would a basic level of understanding of Falun Gong practices and teachings, especially when her evidence was that she practiced daily.

26. When the Tribunal asked when the applicant became aware that the Chinese authorities did not tolerate Falun Gong, the applicant said that she found this out in around 2009 or 2010 but she could not remember exactly. She said that she did not know about Falun Gong prior to being given the book by her neighbour and that she did not read the book at the start. When asked why the applicant would not read the book if she did not know that its contents were prohibited by the Chinese authorities, the applicant stated that she did not read it because she did not know what it was, and many things are banned by the Chinese authorities. She found out later that Falun Gong was banned by the authorities after reading about the Tiananmen Square Protests of 1989 when there university students conducted self-immolation to protest against the Chinese government saying that Falun Gong was a heretical religion and had been banned. The students had wanted to advocate for the righteousness of Falun Gong.

27. The Tribunal put to the applicant the country information that Falun Gong appeared in 1992 so it was not possible that the Tiananmen Square protest had anything to do with Falun Gong. It was a protest regarding democracy. The applicant said that she believed that the Tiananmen Square protest was linked to Falun Gong. This was concerning to the Tribunal and it appeared that the applicant had no understanding of the history of Falun Gong and was in conflict with her written application where the applicant made reference to Falun Gong being the subject of nationwide persecution as a result of the 20 July 1999 crackdown by Chinese authorities. 

    Instances of Past Harm

28. The Tribunal asked about the applicant’s previous instances of past harm and the applicant said that an incident occurred around 2012 or 2013. The applicant said that police came to her house where she lived with her parents, seizing a Falun Gong book from her bedside table and dragged her directly to the hospital. The hospital was less than an hour away from her parents’ house and she stayed there for two or three months. During that time in hospital, she was given injections every day and oral medication. She said that at times she had her hands tied behind her back but there was nothing else that happened to her, but later said she couldn’t remember. She was released because the authorities believed that she would no longer practice Falun Gong because she had ‘been tortured.’ She said this was the only time she was detained by the authorities. She was unsure how the authorities knew about her practice of Falun Gong and confirmed that she only practiced at home.

29. The applicant later said that when she was taken from the house her face was covered and that she was transported by police in a car. They had stopped for a bit and she had gotten out of the car but did not know where she was or for how long as her face was covered.

30. The Tribunal informed the applicant that this claim was very different to her written application. The Tribunal notes that in her written application, the applicant states that she was taken to the hospital following her time in a detention centre, but her oral evidence was that she was taken from her house directly to the hospital.

31. The Tribunal asked the applicant why she did not inform the Tribunal about her detention following her trip to Beijing with her appeal letter. She said that her months in the hospital had an impact on her and that sometimes her memory was not good. She also said that she may not have remembered her detention prior to the hospital because it was ‘not serious’. The Tribunal told the applicant that it had great difficulty in believing that the applicant would not be able to remember her initial detention where she, according to her application, was handcuffed to a heating pipe, beaten with a plastic pipe and handcuffed in a position which her application was described as ‘carrying the sword’. There is no way that such instances could be described as ‘not serious.’

    Departure from China

32. The applicant was able to leave China on a passport issued [in] 2014 following her purported detention in China. She did not experience any difficulties in obtaining a passport or travelling out of China. Country Information states that Falun Gong practitioners who were known to authorities likely find it very difficult to obtain a passport to leave China. Given the applicant was released in March 2014 according to her written application from the hospital where she has been taken because of her Falun Gong belief, the Tribunal finds it difficult to accept that the applicant could obtain a passport to leave China. The applicant stated that she could perhaps leave China because she was not seen by the authorities as ‘a big issue’. The Tribunal has difficulty accepting that this applicant who, according to her written application, was detained for approximately five months, would not be seen as a concern to the authorities and would be able to leave China unhindered.

    Delay in seeking protection

33. The applicant arrived in Australia [in] May 2014 and lodged her protection visa application [in] February 2015. When asked about the reason for delaying her protection application, the applicant stated that she did not know what to do. The applicant stated that she only found out a protection application when she attended a friend’s birthday party where another person told her about protection visas. The friend who hosted the birthday party was a person named ‘[name]’ who she met through work. She could not remember the name of the person she had a discussion with about her protection application. This person referred her to a migration agent.

34. The Tribunal finds difficulty in accepting that the applicant, who has left China because of persecution and is fearful of returning to China, would only enquire about protection in Australia when attending a birthday party, especially given the applicant’s unlawful status which could have resulted in her interception by Australian authorities and removal to China.

    Previous Employment, Residences and Marital Status

35. The applicant stated in her oral evidence that she worked as [an occupation 2] in a business with her husband. They had their own business [in occupation 2] for more than 10 years and this business finished in May 2011. The business was located in Shanghai and she and her husband and [child] lived next door to the business. After the business finished, she went to live with her parents in Gayou City and her husband did not live with her. Her parents address is four hours away from Shanghai. She and her husband separated following the sale of the business in May 2011 and he now lives in [another country].

36. The applicant went to work [for] a [service] company full time and this job started in November 2011 where she worked consistently until she came to Australia. She said that she had time off for holidays or sick leave, but otherwise worked consistently at that business.

37. The Tribunal noted that this information was not contained in her written application, where she declared that her only job was an ‘[occupation 1]’. The applicant could not explain why her previous employment was not detailed in her application, and the Tribunal notes that the applicant did not declare in her application that she was separated from her husband, despite this being the case since 2011 when they sold the business, and did not disclose that in her application that she had lived in Shanghai.

38. The Tribunal also asked the applicant about the conflict in her working for a [a service] company from 2011 until she arrived in Australia when she was in detention and a hospital for about five months and left China shortly thereafter. Country information suggests that Falun Gong practitioners experience difficulty finding employment beyond low-skilled jobs such as cleaning. The applicant stated that her detention in the hospital occurred about half a year before she left China and that she was able to request leave and that she did not work every day. The Tribunal noted that this was in conflict with her earlier evidence when she told the Tribunal that her work was fulltime, and the Tribunal notes that it is in conflict with her written application where the applicant states that she was released in March 2014 and left China in May 2014.

    CONCLUSION

39. The issue before the Tribunal is the credibility of the applicant. The Tribunal accepts that the applicant is a citizen of China on the basis of her passport and that she does not have an entitlement to protection in a third country because there is no evidence to suggest that she is entitled to such protection, but otherwise rejects the applicant’s claims because the Tribunal does not find that the applicant is a witness of truth. Quite simply, the Tribunal cannot rely upon anything that the applicant says.

40. The inability of the applicant to tell the Tribunal even the most basic information regarding Falun Gong exercises, the fact that her written claims regarding past harm (and her employment, residence and marital status) differed significantly from her oral evidence, her ability to depart China without difficulty and her delay in applying for protection in Australia lead to the inevitable conclusion, when viewed cumulatively, that the applicant’s claims are not true.

41. The applicant was vague about dates and circumstances, (most prominently when the detention in the hospital occurred where the applicant, on one hand, said that this occurred a year and a half before she left China to explain how she was still working before she left, and on the other hand, said that she was released from the hospital in March 2014) and on more than one occasion attempted to justify her inability recall detail due to her being given medication in hospital. The Tribunal rejects this explanation because it does not accept that the applicant was detained as either outlined in her claim or as outlined in her oral evidence. The Tribunal finds that the applicant could not remember detail because the previous instances of harm did not happen. Rather, the applicant attempted to use the purported detention and medication in a hospital to justify her inability to remember details about her claims in the hope that this would provide her enough latitude to survive being questioned about the specifics of her claims.

1. The Tribunal does not find that the applicant is a genuine Falun Gong practitioner, and finds that the previous instances of past harm have not occurred. The Tribunal does not accept that the applicant practiced Falun Gong either in China or Australia. Accordingly, there is no real risk in the foreseeable future that the applicant will face serious harm if she were to return to China.

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), nor does she meet 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)

   DECISION

3. 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.

   …