1515891 (Refugee)

[2018] AATA 997

1515891 (Refugee) [2018] AATA 997 (21 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515891

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:21 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2018 at 4:00pm

CATCHWORDS
Refugee – Protection visa – China – Political opinion – Alleged imputed beliefs – Social group – Rural hukou holder – Father sheltered Falungong practitioner – Possessed anti-government documents – Harassment by 610 office – Not a witness of truth – Delayed protection application

LEGISLATION
Migration Act 1958, ss 5, 5J, 36, 91R, 91S, 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 who claims to be a citizen of China, applied for the visa on 3 June 2014 and the delegate refused to grant the visa on 23 October 2015. In his application, the applicant stated as follows:

I was born in an ordinary farm family. My father [supported] a family including raising my younger brother and me by farming. From [a time] after I graduated from high school till I left China in September 2012 I helped my father in farming.

[In] May 2010 I enrolled a two week course [in] Shijizhuang City which is about 50 to 60 km away from my home, I therefore stayed at a relative’s place for the purpose of convenience. During that period, my mother was at a [hospital] looking after my brother and my father was at home alone.

[In] May, a day before the course finished, my father called me in midnight saying his cousin [was] taken away from our home by police. In fact he was wanted by police due to the fact he was a Falungong practitioner engaged in many Falungong related activities such as gathering, handing out flyers to promote Falungong practice. He came to our home couple of days ago to avoid apprehension.

On that day when my father was on the way home from farm, he saw [his cousin] being dragged out of our place by police. My father said to me he was too frightened to go home at least for a short period of time. Should police come to look for him with the intention to causing trouble to the family we just put all the blame on him. Other than that my father also asked me to go home as soon as the course finished as there was still lots of farm works to do.

I told my father that the course would be completed following day and I should be home [in] May. In the next day which was [a date in] May, when I was on my way to class, I received a call from [the] police. They informed me that they suspected my father sheltered a Falungong practitioner and asked me if I knew where my father was at that time. Also they warned me that I had to provide my father’s whereabouts to the police and if my father called me, ask him to turn himself in.

Initially I thought given the fact my father was not a Falungong follower and the ongoing close relationship between my father and his cousin since their childhood it should not be a big deal for my father just to put him up at our place for a couple days. However I was wrong since [a date in] May police came to our home many times to look for my father and threatened us that if we failed to report my father’s whereabouts to the police we may be liable for criminal charges.

My father was hiding in [Hebei] province. [In] August my father told us through phone that [his cousin] was sentenced to 6 years, convicted of participating evil cult for many years, spreading nine commentaries of Communist Party and trying to sabotage the legality of the Communist Party as a ruling party. My father also told us he wanted to escape to overseas. One of his friends introduced a human smuggler snake head who can help him flee to [Country 1].

My mother and I was scared when we heard the news. We worried about my father to be arrested because he may face the same jail sentence. Also we knew how Falungong practitioners were treated in jail such as organs harvesting and torture. As a result we agreed it would be better for my father to go overseas to avoid the risk of been arrested and subsequently we provided him with most of our family savings in order to get a fraudulent passport.

[In] October 2010 my father and the human smuggler (female) pretended as a couple and flew to [Country 1]. On the third day of his arrival he lodged a protection application to [Country 1] government through a solicitor. After one year and four month assessment over his claims his refugee status was granted by [Country 1] government in February 2012.

Since my father left, my mother, brother and I lived in a panic under supervision. The village secretary of the party committee as well as village government came to our home from time to time and asked when my father would come back. They wanted my father to tell the authority he had nothing to do with that matter such that the police could finalise his case sooner. Police came to search our home on regular basis too.

In April 2011 in order to give me a peaceful life after my marriage, my mum told the village secretary of party committee that my father escaped to [Country 1] already and had no idea when he would come back. My father was not part of our family anymore, therefore it would be pointless to harass our family relentlessly. My mum also promised to father comes back home she would persuade my father to surrender himself to the law.

We thought we would be left off the hook after telling them my father was overseas. But thing got worse that the case was transferred to 610 office. This is a special organisation set up in 1999 to suppress Falungong only. Its power is beyond any law enforcement division and provincial government. It reports the central government directly.

The people from that office came to us and asked about my father in detail such as what he did in overseas, did you participate any Falungong or anti-Chinese government activity. They forced my mum and I attended a study class held in [a] police office to learn government policy to the arrested Falungong practitioners. In class we were told that in detention centre each Falungong practitioner received [amount] yuan for monthly expenses and [amount] yuan for medical allowance per month and also got [amount] kg meat and [amount] kg tofu. They even asked a fake witness to testify how much welfare he enjoyed in jail.

In fact my mother knew the truth from a different tunnel that when my father’s cousin was first in [the] detention centre (did not know where he was transferred to later) he never received such kind of welfare. Every day’s meal was vegetable soup without any meat and oil. The medical expenses needed to be paid by family and no family visit allowed. No international human rights organisation was allowed to visit people being incarcerated there either.

Due to the ever growing number of Falungong practitioners in Zhao County, Hebei Providence, 6.10 office made a special order to Shijiazhuang Zhao County Public Security bureau Minister Lee Wang, Vice Minister Donnelly and is our County secretary Xianjun Sun to let them arrest those people and harass their families. I saw how they treated Falungong practitioners badly. Sometimes they rushed into people’s houses in broad daylight and took them away by force. They even arrested lots of innocent people in our village and had them detained at [a] police station. A couple of days later these people were released after their family paid monetary fine.

[In] January 2012 [our] family were making [dumpling]. Suddenly some police came to our house. Some of them were in uniform and some of them not. They questioned us if my father had returned and intimidated us once they found my father sending any documents about Falungong to us or my father engaged in any Falungong activity in [Country 1] we would be deemed as a family members of Falungong evil cult, therefore government would have every right to confiscate our farming land, which is about [number] Mu (one Mu=0.0667 hectares) in size.

My mum and I were petrified at that time. Our family was not able to subsist without the land. On top of that my brother could not find a job after he graduated from a [college] is every time when the employer asked for a police check we were not able to get one from local police office. We tried to bribe village leader and village secretary but all the certificates said his father is suspicious of harbouring Falungong members and the matter is still under investigation, which is why since my brother graduated in September 2011 he was at home and farming the land with me.

From that time onwards, I was planning to go overseas instead of living a life in the shadow of fear. More importantly if the land were seized by the government further down the track, I’d still be able to make money to support my family. Before long I instructed an agent to get all the documents and visa applications ready for me.

Four months later I got an Australian student Visa and arrived in Australia [in] September. I started to consult with immigration law practitioners the day after my arrival regarding the protection visa application. But I was told it was my father who was subjected to persecution not me. In addition I am not a Falungong practitioner so I did not meet the definition of refugee. The chance of getting a protection visa was slim and they asked me to lodge the application by myself.

I do not speak English nor do I understand the procedures associated with the visa application. It was extremely difficult for me to take out the application without assistance from a solicitor or an agent. As such I could not go ahead with my refugee claims. Two weeks ago, immigration compliance officers located me and informed me my student visa was cancelled and ordered me to leave Australia in one week time.

Later I consulted with my current legal representative and understood the based on the fact of my father’s persecution for sheltering the Falungong student and my family’s harassment from 610 office, I am eligible to apply for protection in accordance with complimentary protection provisions, implemented from 24 of March 2014.

3.    The applicant appeared before the Tribunal on 13 February 2018 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. The representative attended the Tribunal hearing.

5.    The applicant stated around May 2012 he told a Beijing agent about his background, his education and his father’s background but the agent said don’t worry about that just give me your paperwork and the applicant had no idea what documents had been submitted in order for him to come to Australia.

6.    The applicant stated that his English protection visa application form and statement had been read back to him in Mandarin and was correct. He did not want to change anything but added that around October 2016 his wife had wanted to divorce him, that he suspected it was because he came to Australia and because the local government put pressure on her because of his father’s issue and that the local government must suspect that they were involved in anti-government activities overseas.

7.    The applicant stated his last address in China was Jia Zhuan City, [in a] Village where he lived with his mother, brother, wife and child and where he worked as a farmer. In Australia he had worked [at different locations] as [two different occupations].

8.    The applicant stated the government had taken his house because his younger brother and mother went to [Country 1]. He stated the Chinese government introduced new regulations in 2017 and because his mother and brother went to [Country 1] in April 2015 and no one was living in the house and no one would inherit it, the government had taken it.

9.    The applicant stated that in May 2010 his father provided protection to his cousin who was a Falungong follower and who was trying to hide from the local government. He stated [in] May 2010 his father saw his cousin being arrested. He stated his father then tried to hide in his relative’s homes. He stated around August 2010 his father had called the family and said his cousin had been imprisoned for six years. He stated his father was so scared he went to [Country 1] [in] October 2010.

1. The applicant stated he came to Australia because after his father went to [Country 1] and after he got married his mother told the village committee about his father’s situation. He stated before his father went to [Country 1] the village committee had come to their home and demanded to know if his father had returned. He stated around April 2011 his mother told the village committee that his father was in [Country 1] and that his father’s issues were not their issues. After that the authorities transferred his father’s case to the 610 office who sent staff to their home and made them go to brain washing classes. He stated [in] January 2012, officials broke into their home and said that if they found out their father was involved in illegal activities such as anti-Chinese government activities then their land would be confiscated. He stated at that time he realised he was a farmer with a farmer hukou paper and without land he could not support his family so he thought he should go overseas and earn some money. He also stated that after his father fled but before he went to [Country 1] the officials came from time to time, but after his father went to [Country 1] they came from time to time to see whether his father had sent anti-communists materials or not. He then stated one or two weeks after his father went to [Country 1] the officials from the local committee notified them that they needed to attend brain washing classes. When asked how often the officials  would visit he stated 5 to 6 times per year. He then stated after his father went into hiding and before his father went to [Country 1] they came roughly 3 times per week for 3 to 4 months.

2. The applicant stated he came to Australia because after he got married his mother told the village committee that his father was already in [Country 1]. His father’s case was transferred to office 610 who sent officials to his home and demanded answers as to whether his father was involved in Falungong activities overseas and pushed them to go to brain washing classes which he went to from April 2011 until he arrived in Australia. He stated he attended 5 to 6 times in total, the last one was in March 2012 and he arrived in Australia [in] September 2012.

3. The applicant stated he had no freedom in China and had been pushed to attend study classes. He also stated they had taken his land and house and he had no right to survive because he held rural hukou paper and his wife divorced him. He also said that if he returned to China they would detain him because he had been in Australia for many years and they would demand to know whether he was involved in Falungong in Australia, even though he was not.

4. The applicant stated he arrived in Australia on a student visa. When asked what he came to study he stated he just gave the agent his papers and his agent told him he would study [a course] which surprised him. He stated he came to Australia to flee and did not come to study.

5. The applicant stated it took nearly two years for him to apply for a protection visa because the day after he arrived he found an agent who told him that although he was harassed by the local government, he was not a Falungong practitioner and could not meet the refugee definition. A second agent wanted to charge $[amount] to submit an application. He also stated the agent in China had told him that he could work on a student visa, so he thought he could do that and then find an agent who would help him. He also stated that when he was working his friends told him he could not put in the protection visa application because his student visa would be cancelled and then he could not work.

6. The applicant stated he attended classes for two months because the agent in China said that he only needed to enrol and attend class but after that he did not have to attend class. The Tribunal put to him that he had just said that he had spoken to his friends who said that if he applied for a protection visa then his student visa would be cancelled but given he was not attending classes then his student visa would have been cancelled anyway. He stated he did not know that at the time and only knew his student visa lasted for two years and that he could work. He also stated that the Chinese agent told him he could work and did not say that if he stopped attending classes his student visa would be cancelled.

7. The Tribunal put to him that he only applied for a protection visa after he was found by compliance and at the compliance interview he did not say that he would be investigated because of his father or that he feared returning to China. He stated that was because compliance broke into his home at night, some of them were in uniform and interrogated him and the situation was very similar to China and he was very nervous and fearful. He also stated he had drunk a glass of alcohol and had only mentioned that his parents were in [Country 1]. He stated at that time his father was in [Country 1] and had been granted refugee status but his mother and brother were completing paperwork to go to [Country 1]. He also stated he really wanted to apply for a protection visa but had no money and his English was poor. He stated because he gave the Chinese agent money and his son was just born he thought he would rather earn some money first and then find an agent. He stated the reason he didn’t tell compliance officials was because it was too similar to what happened to him in China, he was fearful and three people interrogating him was nerve racking.

8. The Tribunal put him that he had said his father was not involved in Falungong but let a cousin stay in his house and was not sure why that would affect the applicant. He stated his father provided protection to a Falungong practitioner, his father was in [Country 1] and the Chinese government had no idea whether he was involved in Falungong or not so they were definitely suspect his involvement in Falungong.

9. The Tribunal put to him that he told the Department of Immigration [in] October 2015 that the authorities found documents in his house but that was not in his statement. He stated that material was from his cousin. The Tribunal put to him that Falungong had been outlawed and identified as a cult for a long time and was having trouble believing that a Falungong practitioner would leave incriminating documents lying around. The Tribunal also indicated that the applicant had not stated that documents had been found in his home in his statement even though that would put him into serious trouble. He stated when his father’s cousin was detained he was not at home and only knew that from his father over the phone.

10. The Tribunal put to him that he told the compliance officers when they asked him his purpose in coming to Australia that he wanted to migrate to Australia and that initially he wanted to study but he didn’t have money. The Tribunal asked why he said that if the reason he came to Australia was because he was frightened to return to China. He stated he was scared he would be detained. The Tribunal put to him that they would detain him no matter what he said as his visa had been cancelled since April 2014 because he was not attending class and asked him what made him think he could remain in Australia on a student visa if he was not attending classes. He stated he did not know and the Chinese agent said the student visa lasted for more than two years and during that time he could work. The Tribunal asked if he questioned that advice given that he came to Australia to study and had friends that had told him that if he applied for a protection visa then his student visa would be cancelled. The applicant stated he did not question that advice and only knew one person in Australia who told him he did not have to go to classes and could work.

1. The Tribunal also put to him that he told the Department of Immigration in October 2015 that in China he was interviewed every three or five days. He stated after his father disappeared the authorities came to his home three or four times per week. The Tribunal put to him he told the Department they came three times per week for the first 3 to 4 months and then 5 to 6 times per year which was not the same as every three or five days. He stated at the beginning it was correct. The Tribunal put to him that it was correct for a limited period of time in 2010 but for the next two years he stated they only came five or six times per year.

2. The Tribunal put to him that it accepted that his father had obtained refugee status in [Country 1] in 2012 but was not sure if that had any ramifications for the applicant because he did not apply for a protection visa until after he was detained by compliance after his student visa had been cancelled, when asked if there were any reasons he could not return to China it was recorded in writing that he said ‘I don’t have anyone in China, my parents are now in [Country 1]’, and he didn’t want to return because he didn’t have anything there. The Tribunal put to him these things may not be consistent with someone who was frightened to return to China because his father had obtained refugee status in [Country 1]. The applicant stated he had been nervous and had suffered from similar situations too many times in China. He also stated his mind had gone blank.

3. The applicant stated that his wife had divorced him and the government had taken his house and land. He stated he had no way to survive in China if he went back because he could not work. The Tribunal put him that he had worked as [an occupation]. He said he could not do that in China because he was a farmer’s son and had a rural hukou and had no other skills. He said he could only live in a rural area and had nothing. The Tribunal put to him that he had family back in China. He stated he was an adult and how could his family help him for the rest of his life. He also stated that his wife and child had left him and his parents were in [Country 1]. He also said because he had been in Australia for so long they would investigate him and could perhaps torture him.

4. Following the hearing, the Tribunal wrote the following:

   Movement records and the conversation between you and compliance [in] May 2014

   Movement records state that you entered Australia [in] September 2012 on a student visa that was cancelled [in] April 2014 after which time you became unlawful.
   It is also recorded in writing that the following conversation occurred between you and compliance [in] May 2014:
   Q. Are there any reasons why you cannot return to your home country?
   A. Yes
   Q. What are those reasons?
   A. I don’t have anyone in China, my parents are now in [Country 1]
   Q. Are you willing to depart Australia?
   A. No because when I go back I don’t have nothing there.
   This is relevant because, subject to your answers the Tribunal may find that your
   answers at that compliance interview and the fact that you lodged your application for
   a protection visa only after you were detained [in] May 2014 is not consistent with
   your claim that you fled China because you feared persecution. If the Tribunal found
   your late protection visa application and your answers at the compliance client
   interview are not consistent with your claims that you feared persecution the Tribunal
   would, subject to your comments affirm the decision under review.

   How often authorities came to your home
   At interview [in] October 2015 it is orally recorded the following conversation occurred between you and the Department of Immigration:
   Q. How many times did they go to your home and question your family?
   A. Immediately after my father left they went to my home daily, afterwards they went there weekly, then afterwards they went there when there were some important festivals…
   Q. You mentioned in your statement that you wanted to travel to Australia to avoidance living a life in the shadow of fear?
   A. Every 3 or 5 days I was investigated and probably I would be persecuted the way some other anti-China people are.
   Q. When you say investigated you mean you were questioned every 3 to 5 days as to your father’s whereabouts?
   A. Yes I even couldn’t work, I was constantly in fear.

   This is relevant because when asked at hearing how often they would visit per year, you initially stated they came 5 to 6 times per year. When asked if that was after your father went into hiding or after your father went to [Country 1], you stated after your father went into hiding and before he went to [Country 1] they came roughly 3 times per week for 3 to 4 months and then after he went to [Country 1] they came 5 to 6 times per year.

   This is relevant because, subject to your answer, the Tribunal may find your evidence in relation to when you were questioned has changed. If the Tribunal finds that your evidence has changed, then subject to your answers, it would affirm the decision under review.

   Whether they found Falungong material at your home
   At interview [in] October 2015 it is orally recorded the following conversation
   occurred:
   Q. Was your father ever found to be involved in Falungong?
   A. No actually they were interested in finding a cousin of my father who was a major
   Falungong practitioner however in my home they found some documents for
   propagating Falungong.
   Q. I haven’t heard that claim before that there would documents found in your home?
   A. I probably forgot when I wrote this statement.
   Q. Do you know what documents were found?
   A. My father told me that there were some documents, commenting on Communist
   Party of China there were nine chapters.
   This is relevant because your written statement lodged with your application for a protection visa did not indicate that documents propagating Falungong were found in your home. This is relevant because, subject to your answer, the Tribunal may find that if documents propagating Falungong were found in your home, then you would have included that in your statement. This may lead the Tribunal to conclude that you are not a witness of truth and subject to your answers, it would affirm the decision under review.

5. The applicant’s adviser provided a copy of the applicant’s father’s statement that the adviser said he submitted to the [Country 1 officials] in 2012 and responded as follows:

   In terms of the first concern raised by the Tribunal which is what the review applicant said to the compliance officers [in] May 2014 was not consistent with what stated in his claims for refugee status.

   Adding to [the applicant’s] response given to the Tribunal in the hearing on 13 February 2018 and to the delegate of the Minister in the interview [of] October 2015 we submit failing to express his well-founded fears in the compliance interview does not necessarily imply that the review applicant is not credible and honest.

   The reason(s) being he was caught by uniformed compliance officers just before he was about to go to bed that night. The review applicant was then been interrogated. He was virtually petrified and the scene triggered the flashback of what happened to him in China which was too overbearing and intimidating to him. The effect of that could have significant impact on his emotional and mental state and in turn, affected on his ability to collect his thoughts and express his genuine fears. Moreover it never occurred to [the applicant] nor was he warned that his answers to all the questions put to him may potentially become the evidence against his future visa application.

   On the initial look of what the review applicant addressed to this concern raised by both the Tribunal and the delegate of the minister, it would be reasonable to expect the Tribunal to be sceptical. However having due regard to the supporting evidence that [the applicant] later on presented to the then DIBP decision-maker in the Tribunal, we submit is explanation of failing to disclose his genuine fears of returning to China in the compliance interview is made out.

   Disregard his entire claims and relevant critical evidence merely because of [the applicant’s] failure to reveal his fears to compliance officers at the interview would be in contradiction with AAT’s guidelines on the assessment of credibility.

   As far as the second concern put to [the applicant’s] by the Tribunal is concerned, inconsistencies and omissions may arise in the duration of the hearing due to his nervousness, forgetfulness and the ability of recalling his personal traumatic experience which is not an uncommon occurrence. We submit the Tribunal may have to assess the overall consistency and coherence of the review applicant’s claims and the oral evidence he gave to the Tribunal on the hearing. In our assertion, inconsistency as such is not material to [the applicant’s] entire claim and should not lead to an adverse credibility finding.

   When it comes a third concern raised by the presiding member we noted that the review applicant did raise this in the interview with the delegate of the Minister which was before the primary decision made [in] October 2015. In page 7 of the decision record [a witness] states the applicant claims to fear investigation and harassment based on his been accused of sheltering the Falungong practitioner during a time when no other family members were at home… Further at the applicant stated that anti-government documents were found at his home address relating to propagating Falungong and nine chapters commenting on the Communist party he said these documents had belonged to his father’s cousin who was arrested and claimed his father had warned him about the anti-government documents found in the family home by the authorities.

   Regardless of whether the review applicant put it in his written statements of claim or not, [the applicant] raised it with that then DIBP decision maker who subsequently accepted that anti-government documents claim to have been found in the family home could be perceived by the Chinese authorities as an implied expression of political opinion. It is not a new claim and [the applicant] apparently took the opportunity in the previous interview and raise the decision-maker. Therefore we submit the Tribunal should not draw an inference unfavourable to the credibility of his claims

6. Also attached was a statement from the applicant’s father.

7. According to DFAT Country Information Report People’s Republic of China 21 December 2017:

   Unlike other religions, Falun Gong focuses on private exercises and meditation. The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. 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’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating 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. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and north-eastern China, although its illegal status makes this difficult to verify.

RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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

1. 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).

2. 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.

3. 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.

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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

1. 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’).

2. ‘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. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) in China 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.

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

3. The applicant has stated in his written claims that in May 2010 his father’s cousin came to their home to avoid apprehension because he was a Falungong practitioner who engaged in many Falungong related activities such as gatherings and handing out flyers promoting Falungong practice. He also stated that after his father’s cousin was dragged out of their place by police, the police told him that they suspected his father of sheltering a Falungong practitioner and that after his father escaped overseas, he and his mother were ordered to attend a study class. He also stated that in January 2012 police came to their house and questioned them about his father and intimidated them and after that, he planned on going overseas instead of living a life in the shadow of fear.  He has also stated that because his father provided protection to a Falungong practitioner and his father was in [Country 1], the Chinese government had no idea whether his father was involved in Falungong so they would suspect his and the applicant’s involvement in Falungong.

1. The Tribunal accepts that the applicant’s father has been recognised by the [Country 1] authorities as a convention refugee. However, having spoken to the applicant, the Tribunal has concerns about the veracity of the applicant’s responses and his evidence. Firstly, the Tribunal finds that the applicant’s evidence in relation to these events has changed over time, that is at interview [in] October 2015 the applicant stated that immediately after his father left the authorities went to his house daily, then weekly, then on important festivals but later at that interview he stated that he wanted to travel to Australia because every 3 or 5 days he was investigated as to his father’s whereabouts. At hearing his evidence again changed in that he said after his father went into hiding and before he went to [Country 1] the authorities came roughly 3 times per week for 3 to 4 months and then after his father went to [Country 1] they came 5 to 6 times per year. If the authorities did come daily, then weekly and then on important festivals as the applicant initially claimed, then the applicant should have been able to repeat that rather than change that evidence to say the authorities initially came roughly 3 times per week and then after his father went to [Country 1] 5 to 6 times per year or that he came to Australia because he was being investigated every 3 or 5 days. It is also difficult to believe that the police would be so concerned as to devote such resources to the matter by attending the house or investigating the applicant on so many occasions.

2. In reaching this conclusion, the Tribunal has taken into account the applicant’s father’s claims in his statement that the PSB regularly came and questioned his wife as to his whereabouts however those comments are hearsay as he was not there. 

3. In addition, the Tribunal finds that the applicant first alleged at interview [in] October 2015 that the authorities found Falungong documents that belonged to his father’s cousin in his home but that this claim was not in his written statement.  In light of independent information that indicates Falungong is a prohibited activity in China and that people caught practicing it or possessing its materials are treated harshly and usually imprisoned, it is difficult to understand why someone who was wanted by the authorities because of his Falungong involvement and who was in hiding would leave such incriminating evidence behind. It is also difficult to understand why the applicant would not have mentioned such evidence given its potential to incriminate not only himself but his family in a prohibited activity.

4. The applicant also entered Australia [in] September 2012 on a student visa that was cancelled [in] April 2014 after which time he became unlawful and he did not apply for a protection visa until [June] 2014 which was after he was detained [in] May 2014. It is also recorded in writing that when the applicant was asked by compliance [in] May 2014 if there were any reasons why he could not return to China he stated he could not return because he did not have anyone in China and that his parents were in [Country 1] and that he was unwilling to depart Australia because he had nothing in China.

5. The Tribunal is not satisfied that the applicant’s answers at that compliance interview and the fact that he lodged his protection visa application only after he was detained and more than one and a half years after he entered Australia are consistent with his claim that he fled China because he feared persecution. When this was put to him at hearing, he stated compliance had broken into his home at night, he was scared he would be detained, he was nervous and fearful and he had drunk a glass of alcohol at the time. He also stated that he had suffered from similar situations too many times in China and that his mind had gone blank. After hearing, his agent submitted that the applicant was virtually petrified and that the scene triggered a flashback of what happened to him in China. While the Tribunal has considered this, it has also considered that the applicant provided compliance with a coherent and what the Tribunal considers is a reasoned answer as to why he could not return to his home country. The Tribunal is also of the view that had the applicant feared returning to China then he would have mentioned that to compliance at the [May] 2014 interview. In the Tribunal's view, the applicant's explanation at that interview is his first and most sincere explanation as to why he could not return to China and is not consistent with his claim to fear persecution in China because of his (and his father’s) alleged imputed beliefs.  In reaching this conclusion, the Tribunal has also considered that the applicant did not apply for a protection visa until after he was detained. When this was raised at hearing, the applicant stated that the day after he arrived in September he found an agent who told him that because he was not a Falungong practitioner, he could not meet the refugee definition and that a second agent had wanted to charge him $[amount] which he could not afford. He also stated that the agent in China had told him that he could work on his student visa and that he did not need to attend class and his friends told him that if he applied for a protection visa application his student visa would be cancelled and he could not work. The Tribunal considers these explanations are a carefully crafted attempt to paper over the applicant’s delay. The Tribunal does not accept that the applicant would be so naïve as to assume that he could remain in Australia on a student visa and work but not study. The Tribunal does not accept that the applicant would be influenced by his friends to not apply for a protection visa because his student visa would be cancelled at a time when he was not attending classes and his student visa was potentially subject to cancellation anyway. For these reasons, the Tribunal also finds that the applicant is willing to adjust and adapt his evidence regardless of the truth and does not accept that he consulted an agent one day after his arrival or that he was persuaded not to apply for a protection visa because of that agent’s advice or because another agent was going to charge him $[amount] to submit an application. Neither does the Tribunal accept that he did not apply because he had no money and his English was poor.  

6. For all of the above reasons cumulatively, the Tribunal finds the applicant is not a reliable witness. In light of its findings that he was not a reliable witness, the Tribunal does not accept that his evidence about the key aspects of his claims are based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection. This means that the Tribunal does not accept the applicant’s claims. For these reasons, on the evidence before it, the Tribunal does not accept that his father’s cousin [did] stay at his home or that he was wanted by police due to the fact he was a Falungong practitioner who engaged in many Falungong related activities such as gathering and handing out flyers to promote Falungong practice. The Tribunal does not accept that [the father’s cousin] was detained by police at the applicant’s place, or that he was sentenced to 6 years detention, or that his father went into hiding. Neither does the Tribunal accept that the applicant received a call from the authorities saying that they suspected his father of sheltering a Falungong practitioner or that they warned him to tell them of his whereabouts or that they repeatedly returned to the applicant’s home including [in] January 2012 or that he and his mother had to attend study classes or that the authorities have threatened that they would take his home. Neither does it accept that the applicant’s brother could not find a job after he graduated from a [college] because he was unable to get a local police office check. Given the applicant’s propensity to fabricate his claims, neither does the Tribunal accept that the applicant is now telling the Tribunal the truth when he states that his wife wants to divorce him and that the authorities have taken his house and land and that because he has a rural hukou, he will be unable to survive in China because he will be unable to relocate or work. Neither does the Tribunal accept that the applicant will be investigated merely because he has been in Australia for a long time.

7. Because the Tribunal accepts that the applicant’s father has been recognised as a Convention refugee by the [Country 1] authorities, the Tribunal has considered if it is wrong and his father’s cousin [did] stay at his home and was wanted by police due to the fact he was a Falungong practitioner who engaged in many Falungong related activities such as gathering and handing out flyers to promote Falungong practice and that [the father’s cousin] was detained by police at the applicant’s place, and he was sentenced to 6 years detention, and that his father went into hiding and went to [Country 1]. Even if the Tribunal accepts this, the applicant has never stated that his father is a Falungong practitioner. Neither does the Tribunal accept that any of the personal experiences that the applicant said happened to him in fact occurred, that is the Tribunal does not accept that the applicant received a call from the authorities saying that they suspected his father of sheltering a Falungong practitioner or that they warned him to tell them of his whereabouts or that they repeatedly returned to the applicant’s home including [in] January 2012 or that he and his mother had to attend study classes or that the authorities have threatened that they would take his home.  For these reasons and on the evidence and information before it, the Tribunal does not accept there is a real chance the applicant would suffer serious harm on return for reasons of his having been linked to or of his having had an imputed connection to his father’s case or for any imputed Falungong or anti-government opinion of for any other related or other reason. In reaching this conclusion, the Tribunal has considered the applicant’s father’s claim that his two children were kicked out of school because of his activities however this is not consistent with the applicant’s statement that his brother graduated from schooling or the applicant’s protection visa application that states he himself finished schooling in [year].

8. Accordingly, on the evidence before it, and having considered the applicant's claims individually and cumulatively, the Tribunal does not accept that there is a real chance that he would suffer serious harm for a Convention reason if he returned to China now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in China. 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).

9. 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 has found that the applicant is not credible and it does not accept that his evidence is based on any his personal or actual experiences. This means that it does not accept that any of the claimed events have occurred. Even if the Tribunal is wrong and accepts that the applicant’s father’s cousin [did] stay at his home and was wanted by police due to the fact he was a Falungong practitioner who engaged in many Falungong related activities such as gathering and handing out flyers to promote Falungong practice and that [the father’s cousin] was detained by police at the applicant’s place, and he was sentenced to 6 years detention, and that his father went into hiding and went to [Country 1], in light of its earlier reasons for decision, the Tribunal does not accept that any of the personal experiences that the applicant said happened to him in fact occurred. Given this, the Tribunal does not accept there is a real risk that the applicant has been linked to or has been imputed with an actual or imputed connection to his father’s case or for any imputed Falungong or anti-government opinion of for any other related or other reason. Having considered the applicant's circumstances singularly and on a cumulative basis, the Tribunal finds there are no 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.

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

11. 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

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

Angela Cranston
Member