1516032 (Refugee)

[2016] AATA 4376

1516032 (Refugee) [2016] AATA 4376 (23 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516032

COUNTRY OF REFERENCE:                  China

MEMBER:Gabrielle Cullen

DATE:23 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2016 at 4:15pm

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, a citizen of China, claims to fear return as he was a member of an anti-government group in China, he was detained as a result and the authorities have regularly visited his home and threatened his family. He also claims that he fears return as a follower and believer of Yi Guan Dao, a religious sect banned in China[1] and as he was involved in protesting against the Family Planning Policy.

3. As outlined in the Department decision[2]  and in evidence to the Tribunal the applicant arrived in Australia on a false [Country 1] passport in the name of [his Alias] [in] September 1997 and applied for a protection visa [in] August 1998, which was refused by the Department [in] October 1998 and Tribunal on 25 August 1999. As it was determined his matter was SZGIZ affected he was permitted to make a further application, which this matter pertains to. The applicant then applied for a protection visa [in] November 2013.

4. [In] April 2014 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision. The delegate refused to grant the visa [in] May 2014. The delegate did not accept the applicant was credible as to his claims, including being involved in anti-government activities in China and illegally exiting China.

5. The applicant appeared before the Tribunal (differently constituted) on 30 April 2015 to give evidence and present arguments. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

6. On 8 May 2015 the Tribunal (differently constituted) affirmed the decision of the Department.

7. [In] November 2015 the Federal Circuit Court ordered by the consent of both parties that this matter be remitted to the Tribunal for reconsideration.

8. On 25 July 2016 the applicant appeared before the Tribunal and where relevant the evidence from that hearing appears in this decision.

9. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his claims?

   ·Does he meet the protection obligations under the complementary protection provisions of the Migration Act?

   RELEVANT LAW

   The Effect of SZGIZ and its relevance to this review

10. Relevantly, in SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 (`SZGIZ’), the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal’s powers on review, appears to be the criterion against which the applicant has previously been assessed. 

11. As was raised with the applicant at hearing, the information before the Tribunal indicates that the applicant’s initial application was refused by the Department [in] October 1998. The visa application under review is a valid application because the applicant is considered `SZGIZ-affected’ as he has not left Australia since final determination of his previous protection application, which preceded complementary protection laws. Pursuant to SZGIZ, the primary applicant has standing to make the application under review to afford hearing of his complementary protection claims. As the applicant has previously had his claims for protection assessed under s.36(2)(a), on the terms of SZGIZ, the Tribunal must confine its consideration to whether he satisfies the requirements of  ss.36(2)(aa) and (c). 

12. The Tribunal has proceeded (as indicated at the hearing) to consider the applicant’s claims in relation to the complementary protection requirements of s. 36(2)(aa). 

    Complementary protection criterion

13. 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’).

14. ‘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.

15. 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

16. 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 – to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited, to the following.

    ·The applicant’s protection visa application [in] November 2013, claims made as part of the application and identity documents.

    ·Oral evidence of the applicant provided at the Department interview [in] April 2014, at the Tribunal hearing (differently constituted) on 30 April 2015 and the Tribunal hearing held on 25 July 2016.

    ·Taoist baptising card dated [in] December 2015. The applicant claimed at hearing this is required to formally join the Yi Guan Dao sect.

    ·Photos of the applicant who claims they were taken at the Yi Guan Dao temple in [City 1] and photos of the temple.

    ·Documentary evidence of a donation which the applicant claims he made when he received service on [a date in] June 2016 and [in] July 2016 at the Yi Guan Dao temple.

    ·Picture of Guanyin revered by Yi Guan Dao followers.

    ·Photos of temples in China, not necessarily Yi Guan Dao temples as the applicant indicated at hearing, which the applicant submitted at the hearing.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

    ·DFAT, DFAT Country Report China, 3 March 2015 and DFAT DFAT Thematic Report - Unregistered religious organisations and other groups in the People’s Republic of China 3 March 2015.

18. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Is the applicant credible as to his claims?

    The Applicant’s Claims

    Current Application – [November] 2013

19. The applicant claims to fear return in his application for a protection visa as he was a member of an anti-government group in China. He claims there was a political purge to capture him. He claims in or about 1997 he was caught by the government and questioned for 5 months and he claims he felt intimidated to continue to stay in China. He claims he lost his job as a result and he claims his wife was afraid and went and lived with her mother. He claims they threatened him to release the list of members associated with the anti-government party. He claims he suffered physical and emotional harm during this time.

20. He claims he could not talk of his involvement in the anti-government group nor could they meet in public places. He claims they met in private locations. He claims he is afraid that his past involvement will attract the government’s inhumane persecution, not only of himself but also of his family. He claims anti-government activity is forbidden in China. He claims his wife and family were also threatened in China because of his involvement in the anti-government group. He claims he came to Australia to seek an opportunity to gain freedom and not to fear persecution. He claims the authorities would regularly visit his home and threaten his family. He claims his name has been kept by the authorities and those of his family in a database and he was paid visits at his home in China. He claims he fears his freedom will be deprived and that he and his family will suffer inhuman persecution and imprisonment if he returns to China. He claims if he returns he will be captured and tortured again. He claims he will not be protected in China as the Chinese authorities have successfully persecuted members of the anti-government group he belonged to and will go to a terrifying extent to do so, as the authorities are afraid that they could threaten the government’s dominance in the country.  He claims he will face persecution and possibly death on return. 

    Application of [September] 1997 – referred to in Department decision

21. The applicant claims in the initial application that he was persecuted by the Chinese authorities and lost his basic human rights as he was in an organisation viewed as illegal by the government. He claims that he was dismissed by his work unit and that his basic human rights were seriously violated.  He claims to long for democracy and freedom.

22. He claims to fear return as in September 2005 he became involved with young people who graduated from [a named] University. He claims he came to know [Mr A] and he told him (the applicant) much about western culture, the political system and the meaning of basic human rights. He claims in June 1996 [Mr A] set up a worker’s organisation in the company and it was an underground political organisation asking for democracy and freedom. He claims soon after he became a key member of the organisation. He claims he was in charge of the propaganda section to manufacture the handbills as well as other publications. He claims he also participated in secret meetings, discussions and project activities. He claims he recruited at least ten new members. He claims the organisation was classified as illegal by the authorities, and the government warned the workers not to involve themselves in this organisation but the applicant was insistent.

23. He claims after he was discovered to participate in these activities at the [named] Company in January 1997, he was questioned by the security department of the company and forced to report who was the leader of the organisation and what they did. He claims when he refused he was cruelly mistreated by the Chinese authorities. He claims he was put into a dark and small room and not allowed to return home, and detained for five months. He claims his wife bribed the leaders of the company to release him and he had to sign a statement not to involve himself in any more anti-government activities. He claims when released he found he had been dismissed from the company and was not able to obtain a job, he was sometimes questioned by police and forced to report his activities.

24. The applicant claims that, due to his political background, it was difficult to get a passport and exit permit, and that he borrowed money from relatives and friends and changed his name and personal details to leave.  He claims he will be punished for illegal departure from China, will be put in jail and will be forced to do hard manual jobs for many years and will be persecuted to death.  The applicant claims that the person who helped him leave China was arrested by police.  He claims that his arrest led to many problems for his family.  He claims his home was searched, his wife was questioned and letters were confiscated and monitored by Chinese authorities. He claims he left China through an underground tunnel, via [a certain] boundary.

    Department Interview – [April] 2014

25. The applicant repeated generally the claims made in his application, that he feared return due to his involvement in an anti-government organisation in China. He also claimed he would engage in anti-government activity were he to return. He claimed he would be imprisoned on return as he departed illegally and due to his anti-government activity. The Delegate asked a number of questions and raised concerns as to his credibility, which where relevant have been referred to below in this decision.

26. The applicant added that he feared return as a result of his involvement in family planning activities. He said in 1991, they arrested all pregnant women and wanted to force them to have abortions, and that he participated in protests against abortions.  He claimed that this occurred in [a certain] County, and that many people from dozens of villages were involved.  He claimed many women were arrested, and when women could not be arrested, men were held and sterilised.  He claimed village leaders called police, who bashed people and arrested them.  He claimed that he was arrested and held for four days, and was given no food. 

    Tribunal Hearing (differently constituted) – 30 April 2015

27. As to the applicant’s departure from China, asked when he first obtained the [Country 1] passport in his physical possession, he indicated that everything was arranged by the agent.  Asked again when he first got it, he responded he was not sure how he managed it, but that he received it in [Country 2].  Asked if he left the China on a Chinese passport, he then said that he never applied for one.  Asked if he had a Chinese passport after all, he indicated that everything was taken care of by the agent.  Asked again if he had a Chinese passport he said that the smuggler took it in [Country 3].  He then confirmed that he actually left China on a Chinese passport issued in his own name using his correct name.  He confirmed that it was a genuine Chinese passport but that he paid $[amount] United States dollars for it or [amount]RMB. 

28. Asked if he had any problem leaving China using his genuine Chinese passport issued in his own name, he responded that he thought the smuggler worked together with customs in the Chinese airport and that all went well because the smuggler had been involved in getting people out of China for a long time. 

29. The applicant later confirmed that he left the China through the airport without difficulty.

30. He repeated that he fears being arrested and imprisoned in China, and fears the Chinese police as he was involved in an ant-government organisation. He also claimed that he fears return due to his involvement in a protest against the family planning policy.

31. He claimed he belonged to an underground organisation within his company.  Asked what its purpose was, he said that it was so they can have freedom to work, and also because he was against the one-child policy in 1991.  Asked what the purpose was of the group relating to freedom to work, he indicated that they objected too many things, in particular, getting no pay raise.  

32. Asked what issue he had with the one-child policy, he responded that lots of women were pregnant in 1991 and were forced to have abortions.  Asked how this concerned him, the applicant indicated that people in the village were forced to have abortions, even late in pregnancy, and men faced compulsory sterilisation. 

33. When asked why given that this was in 1991, any of this would put him at risk in China today; the applicant indicated that it was because he participated in protests against the village government.  Asked how, he said that there was a protest by several villages who gathered in front of the village office.  Police attended and people were beaten.  The applicant claimed that he was beaten and taken into custody and said that he “hates the PRC”.

34. He claimed he was detained for four days.  He claimed he was released after his [Relative 1], who knew someone in the police, got him released by talking to him.  Asked if anything happened after his release he said he then started working for a company which formed the group for freedom of work.  Asked if he had further problems relating to family planning, he said he did not.  He claimed he was held in the police station.  He said he does not have any documents relating to his detention.

35. He confirmed only having one child.  He indicated that he is in contact with the child in [another country] on the internet.  Asked if he still is married, he indicated that he does not talk to his wife any more.  Asked if she remarried, he said he did not know.  He said he last had contact with his wife in 2012 when his child went [overseas] to study.  He said he had to give permission for overseas study. Asked how he gave permission for overseas study, he said this was done through the child’s grandfather and the child was born in [year]. 

36. The applicant was asked what motivated him to become involved in an anti-government group at his workplace.  He said it was because he hates the Chinese government because of the one child policy and the lack of freedom of work. 

37. Asked what the name was of the organisation, the applicant replied that lots of people took part in this group, but that it did not have a name.  He contacted people in the group. The group did protests against the government and expressed freedom.  Asked how this was done he said he advertised for the group when they were making a gathering.  Asked how he advertised, he said he just let anyone know about protests and parades against the government.  Asked how often he participated, he said once or twice in 1996.  Asked until when, he said he left in 1997 so June 1997.  Asked what he did, he said to advertise.  He said four or five were arrested. 

1. Asked what happened to him as a result of his association with the unnamed group, he said he was arrested by security guards of the company because he knew the members of the group.  Asked what power company security would have to detain people he said they have the power.  Asked where he was held, he said it was a small place at the workplace for five months before he was released. Asked what sort of authority his workplace would have to detain him for five months, he indicated that they associate with the police, and in this way have authority.  Asked if he was charged with an offence, he said he was not, but he was held because of his participation in the group.  He claimed the police would have an interest in him because of his previous participation with the one child policy protests and therefore they knew of his activities.

   Tribunal Hearing – 25 July 2016

2. At the hearing before me, at the outset he submitted a number of photos and documents concerning his involvement in [City 1] in Yi Guan Dao.

3. As to his departure from China, he indicated he departed China by plane on a legal Chinese passport. He said money was paid to customs so no one would know, otherwise he would have been stopped. He said he picked up his [Country 1] passport in [Country 3].

4. He claims he fears return as if his record is found he will be again imprisoned by the authorities. He repeated his claims as to fearing return due to his involvement in an anti-government group and being involved in a family planning protest in 1991.

5. As to fearing return as he was involved in a family planning protest, he said he was involved in a protest in 1991 where one to two thousand people were involved in protesting against pregnant women being forced to have abortions. He said he was arrested for four days by the PSB and released as his [Relative 1] knew someone at the police station. He said after his release he did not face any more difficulties as a result of this involvement and said it was because he signed an undertaking not to be further involved.

6. As to his involvement in the anti-government group; he said the name of the group was [name]. He was asked numerous questions as to the ideology of the group, when and why he joined, and the number of members, what his role was and the claimed protests. He repeated that he was detained in January 1997 and said it was for five months. He said he was detained by the company security guards. He said he was released as his wife paid a bribe. He said after he was released the police came on one or two occasions before he left to ask who the leader was. He said his family were also questioned and this continued to occur after he came to Australia. He referred to a [person] who had been previously part of the group and was arrested when he returned to China in 2013.

7. The applicant also claimed to fear return due to his belief and involvement in Yu Guan Dao. He said he first became interested in February 2014 and from that day practised at home every day until he was formally welcomed [in] December 2015.  He said he has practised with many people from that date in the temple in [Suburb 1]. He said he did not practice in China and the photos he had submitted which he said were taken in China were just of a range of temples from other religions, not Yi Guan Dao. He said he feared return as the Government has banned the practise of Yi Guan Dao as it is considered an evil cult.

8. He said his wife has also been practising Yi Guan Dao since February 2016 and his wife has been warned that she will be arrested if she continues to practise. He said she was reported to the police.

9. The Tribunal raised with the applicant a number of concerns and questioned whether he is a witness of truth as to his claims and why he fears return to China. Where relevant these have been outlined in detail in the paragraphs below.

   Assessment of the Applicant’s Claims

10. The Tribunal accepts that the applicant’s name at birth is [name] and he was born in China. On the basis of the applicant’s evidence and that of the Department[3] the Tribunal accepts that the applicant is a national of the People’s Republic of China (China). Therefore for the purposes of s.36(2)(aa) the Tribunal accepts that the People’s Republic of China is the receiving country.

11. As to the applicant fearing return for the reasons he claims, or facing the difficulties he claims in China, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. For the reasons that follow it finds the applicant is not genuinely interested or a genuine practitioner of Yi Guan Dao, or that he was involved in a protest against family planning in China, or involved in an anti-government organization or departed illegally. It follows it does not accept he was detained on any occasion by the police or security guards in China for any of the reasons he claims or was of any adverse interest to the authorities or anyone else at the time of his departure for the reasons he claims. It finds the applicant’s testimony inconsistent, vague and lacking in detail for the reasons below. This leads the Tribunal to find that the applicant is not a witness of truth.

    Anti – Government Organisation

12. Central to the applicant’s claim as to why he fears return to China is his claim of involvement in an anti-government organisation from around 1996 to 1997 while he was employed at the [named] Company and his detainment for being involved in this group. He claims his family have been harassed and threatened because of this involvement, and another member of the group who returned to China from [overseas] in 2013 was arrested, However for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to his involvement in any anti-government group in China and the difficulties he or his family has faced as a result.

13. Firstly, the applicant’s evidence has been vague as to the beliefs, aims and ideology of the group despite claiming to have been involved for over a year, being a key member, undertaking publicity for the group, convincing others to join and attending meetings and protests. At the hearing before me when asked what the group believed in; he said it was anti-government. When asked if there was anything else the group believed in; he responded nothing and then referred to the workers. When the Tribunal raised with him that his evidence appeared vague and asked whether he could provide any further detail; he said the group was illegal and repeated it was anti-government. When asked again what the group believed in, its ideology and why he joined; he responded that he believed the group was doing justice for the people. When asked again what the ideology of the group was; he said the government said it was illegal. When asked again why he joined the group; he said as he knew the organisation and the government was not doing the right thing. When asked what he meant by that; he referred to having to work ten hour days and not getting promotions. When the Tribunal suggested to him that his evidence appeared vague and lacking in detail which may lead it to find he was never involved in the group in the manner he claimed; he responded that the ideology of the group was anti-government.

14. The applicant’s evidence was similarly vague and lacking in detail at the Department interview held [in] April 2014[4]. When asked about the goals and political ideology of the group; he said its aim was to carry out anti-government activities. When the question was rephrased and the applicant was asked what the objective of the group was; he responded it was a group for the people. He said the government does this and that and the group stands up to protests. When asked what he protested about; he responded that the Chinese government is not good to the people and do ‘this and that”. When asked for more evidence and to be specific; he said sometimes the government would ask people in the company to do things without increasing ages, so they protested. He said sometimes the government would bully the people in the community and they would stand up for them. When asked for its ideology, he said it was for the freedom of the people and workers.

15. As raised with the applicant the Tribunal views as of concern and casting doubt on his credibility as to being involved in the anti-government organisation his vague evidence, lacking in detail as to the aims, ideology or beliefs of the group at the Department interview and the Tribunal hearing. The Tribunal is of the view that if he was involved to the extent he claims, protesting on a number of occasions, being involved in publicity and being a key member, he would be able to provide more specific details as to these mattes, rather than repeating general statements as to it being illegal and anti-government.

16. In making this finding the Tribunal has considered the evidence given at the Tribunal (differently constituted) hearing on 30 April 2015, that the purpose of the group was freedom to work and also because he was against the one child policy. It notes when asked what the purpose of the group was relating to freedom to work, he indicated that they objected to many things, in particular, obtaining a pay rise.

17. However, although he was able to provide more specific detail at the Tribunal hearing on 30 April 2015, his evidence at that point in time does not overcome the Tribunal’s significant concerns as to his vague evidence as to these matters, lacking in detail at the Tribunal hearing held in July 2016 and Department interview held in 2014, as outlined above. The Tribunal is of the view that if the applicant was involved in such a group to the extent he claims he would be able to provide more specific evidence than he could at those instances. While it notes these claims relate to activities nearly twenty years ago, it is similarly of the view he would be able to provide more detailed evidence of the aims and beliefs of the organisation, if it were true. This is particularly so as he claims it is because of his beliefs and involvement in this organisation and his subsequent detainment as to why he fears return.

18. This adds to the finding that the applicant is not credible as to his involvement in the anti-government organisation in the manner claimed and adds to the finding he is not a credible witness.

19. Secondly, the applicant has provided inconsistent evidence as to the number of members in the anti-government group and how many were involved in the protest. As raised with the applicant via the process outlined in s.424AA the applicant indicated at the Tribunal (differently constituted) hearing held in 1999 in relation to the previous application, that the group had 30 to 40 members in his area but many members throughout China and indicated about 30 to 40 members attended each protest. However, in contrast as raised with the applicant, he stated at the hearing before me and at the Department interview held in 2014 that there were 400 members in the group and the 400 were from his area. He said and confirmed at the hearing before me in contrast to his previous evidence to the Tribunal in 1999 that the group only operated in his area and not throughout China. He said at the Department interview in 2014 that 400 members usually protested. When the inconsistencies in evidence were raised via the process outlined in s.424AA and that it may lead the Tribunal to find he is not credible as to his involvement in the anti-government organisation and may lead it to find he is not a credible witness, he responded that it is a fact he participated in the group and may be persecuted on return. The Tribunal does not accept this response as explaining the inconsistencies in evidence. Even taking into account the lengthy passage of time, it views as significant his discrepancy in evidence given to the Tribunal in 1999 and in his current application as to the number in the group, whether it was local or throughout China and the number that protested to be of concern. This adds to the finding he is not credible as to his claim of involvement and activities with the anti-government group. It adds to the finding he is not a credible witness.

20. Thirdly, the applicant has provided inconsistent evidence as to how often he protested with the group and where the protests took place. At the hearing before me the applicant indicated that he was involved in many protests and when asked for more specific detail as to how many protests he attended, he said more than ten. He said they were held in front of the government building in the village. However in contrast he said at the Department interview held in 2014 that he protested many times, about eight times and the protests were usually held next to the company building. However as noted in the Department decision submitted with the application for review, in the previous Tribunal hearing held in 1999 he only referred to protesting on three occasions and said they were in 1996 and in front of a government building. When the inconsistencies between the evidence at the Tribunal hearing held in 1999 and Department interview held in 2014 were raised by the Department as to the number of protests he said he remembered eight but it was a long time ago and he cannot remember clearly. When the inconsistencies in his evidence were raised at the hearing before me, he responded that he did attend the protests and was detained for five months. The Tribunal does not accept this response and is of the view if he attended these protests and as a result was detained and fled China that he would be consistent as to where they were held and generally as to how many he attended. It views three to more than ten to be significantly different. While it accepts that these events occurred over twenty years ago it does not accept that this explains why he would be unable to provide consistent evidence as to where the protests were held or to be generally consistent as to how many he attended. This leads the Tribunal to find he was not involved in protests for the anti-government organisation as claimed and adds to the finding he is not credible as to his involvement in an anti-government organisation and the difficulties he claims as a result. It adds to the finding he is not a credible witness.

21. Fourthly, as to his claim of being detained as a result of being involved in the anti-government organisation, while he has been consistent that he was detained for a period of five months in 1997 he has provided inconsistent evidence as to who detained him. At the hearing before me and in evidence to the Department in 2014 the applicant indicated he was detained by the security section of the company. However as noted in the Department decision, this account is inconsistent with the applicant’s written statement which states that he was caught by the government and detained; and his evidence to the Tribunal hearing in 1999 which indicates  his period of detention was characterised as being with the local PSB or police. In response when raised by the Department at interview in 2014 and by me; he responded that he was detained by the security guard. The Tribunal does not accept this response and views the inconsistency to be of concern as it is of the view if the applicant was detained for five months he would be consistent as to whether he was detained by the PSB/police or the security section of his company. This adds to the finding the applicant is not credible as to these claims and adds to the finding he is not a credible witness.

22. Fifthly, the applicant has also provided inconsistent evidence as to the subsequent police interest and whether he and/or his wife provided the names of anybody involved in the organisation. At the hearing before me the applicant indicated that the police visited him once or twice before he left. He said they would ask who the leaders were; however he said neither he nor his wife ever provided the name of any member of the organisation to the police or the company. In contrast at the Department interview held in 2014 he said the police often visited his house, approximately weekly. When asked why they visited he said that they wanted the leader’s name and for him to give them secret documents. However as raised by the Department with the applicant at interview in 2014, at the Tribunal hearing held in 1999 the applicant had indicated that his wife had released the names of the group’s leaders and they had fled. When raised with him at the hearing before me he said they questioned his wife and child while he was in Australia. At the Department interview in 2014 when the concerns in this evidence was raised he said that she had not given the list but they had fled. The Tribunal does not accept his response as explaining the inconsistency in evidence and is of the view that if the applicant was questioned by the police he would be consistent as to how often they came before he departed. It also views as of concern his claim they were interested to discover the names of the leaders when his previous evidence was that his wife had provided them with that information. This adds to the finding the applicant is not credible as to the police interest in him as claimed. It adds to the finding he is not a credible witness.

23. For the reasons outlined above, based on the inconsistent evidence and evidence lacking in detail as to core aspects of his involvement in the anti-government organisation, the Tribunal cannot be satisfied the applicant is a credible witness as to ever being involved in an anti-government organisation, participating in protests or meetings and being detained as a result. It follows this adds to the finding the applicant is not a credible witness.

    Illegal Departure

24. The applicant also claims he fears return on account of his illegal departure from China. However the applicant has provided inconsistent evidence as to whether he departed illegally or not and how he departed, which further adds to the Tribunal’s finding that he is not a credible witness.

25. As raised with the applicant at the hearing before me the applicant has provided the following inconsistent evidence as to how he departed and whether he departed illegally.

    ·In his original application he claims to have departed China illegally though an underground tunnel, via [a certain] boundary.[5]

    ·At the Department interview held in 2014 he said all travel was by plane and he departed on a false [Country 1] passport acquired in [1997]. He said he could not obtain a genuine passport because of being detained. He said he first went to [one country] and then to [another country] and on to [Country 3], then Australia.

    ·At the Tribunal (differently constituted) hearing held in April 2015 the applicant first said he obtained the false [Country 1] passport in China, and then said he obtained it in [Country 2]. He initially denied he departed on a Chinese passport then stated and confirmed he departed on a Chinese passport in his own name using his correct identity. He said he did not have problems as the smuggler, who assisted him to depart worked together with customs and he paid a significant amount of money.

    ·At the hearing before me he said he departed China by plane and travelled from his home to the airport on a genuine Chinese passport in his name. He said he was able to depart through customs as money was paid to a customs officer. He said he picked up the [Country 1] passport in [Country 3].

26. When the above inconsistencies were raised with the applicant he referred to the agent organising it. The Tribunal does not accept this response as it does not explain the inconsistencies in his evidence. The Tribunal views his changing evidence as to whether he departed China on a false passport, whether he departed by plane or through a tunnel via [a certain] boundary to be significant.

27. It adds to the finding the applicant is not a credible witness.

    Family Planning Protests

1. The applicant also claims to fear return because of his involvement in protesting against China’s family planning policies and forced sterilisations in 1991. He claims because he was detained for four days due to his protesting he has a record which will be the reason or part of the reason why he will be targeted by the authorities on return. At the hearing before me when asked why he feared return he referred to and confirmed because he participated in an ant-family planning demonstration in 1991. He said he protested once and one to two thousand protested because of forced abortions. He said he was detained for four days and released as his [Relative 1] had contacts. However for the reasons that follow the Tribunal does not accept the applicant is a credible witness as to his involvement in protesting against China’s Family planning policies, including the one Child policy, being detained by the police as a result or fearing return on this basis or for any reason associated with being opposed or perceived to be opposed to China’s Family planning policy.

2. Firstly, despite claiming a fear of return for this reason at the hearing before me, the applicant did not mention it as a reason why he fears return in his original application[6] in 1998, and his application of November 2013. When raised with him he said he mentioned it to the Department but it was not accepted. The Tribunal does not accept this response and is of the view if he fears return for this reason he would have referred to it in his original application in 1998, particularly as it was made soon after his arrival in Australia, and his application of 2013. This adds to the finding that the applicant is not credible as to fearing return on this basis and adds to the finding he is not a credible witness.

3. Further, as raised with the applicant via the process outlined in s.424AA, while the applicant did mention a fear of return because of the family planning policy, rather than was his claim before me, at the previous Tribunal hearing in 2015 and the Department interview in 2014, he referred to a different reason why he feared return on this basis at the Tribunal hearing held in 199 and did not refer to attending a protest. At the Tribunal hearing in 1999, he indicated that he was persecuted because of family planning regulations and as he was underage when he married. He claimed he was supposed to pay a fine and as he did not, his son could not obtain registration. He claimed his son could not go to school as he had not paid the fine. He claimed when he departed China he did not have a registered marriage and claimed to fear return as he she would then have to have a tubal ligation. When the inconsistency in his evidence was raised with him at the hearing before me applicant responded that he attended a demonstration in 1991 and was detained. He said in [year] his wife gave birth to a son and he was fined and until he paid the fine his son could not go to school. He claimed his wife ran away until she gave birth and she was arrested at her mother’s home. He indicated she was arrested as she was underage and pregnant and they wanted her to have a sterilisation but she was very sick and the Doctor would not allow it. He claims he guaranteed to the government he would not have a baby again and they paid the fine of [amount] Yuan.

4. While the applicant was able to provide a detailed response when the matters were raised via s.424AA due to the change in evidence and why he feared return on this basis, the Tribunal does not accept his response as explaining why his evidence has changed, why he did not mention a fear of return on this basis in his two applications for protection and why he did not mention protesting in his initial application. On the basis of this and the above concerns the Tribunal cannot be satisfied as to the truth of his claims as to his fear of return because of being in opposition to the Family planning policy, protesting against it and the forced abortion and sterilisation of women and being detained. This adds to the finding the applicant is not a credible witness.

   Yi Guan Dao

5. At the hearing before me the applicant raised a new claim of fearing return as he is a follower of Yi Guan Dao, a religious sect that is banned in China. He claims to have started practising at home in early 2014 and since December 2015, once baptised, he has been attending and practising at the temple in [City 1]. He claims his wife in China is also a Yi Guan Dao practitioner and has been warned by the authorities to cease practising or be arrested. He claims a fear of return as a result of his own practise and that of his wife.

6. In favour of the applicant’s claim that he is a genuine Yi Guan Dao practitioner is the documentary evidence that he has been baptized to formally join Yi Guan Dao and that he has attended the temple in [City 1] and provided donations. However attendance at the temple, learning and undergoing baptism may have been undertaken for the purpose of simply enhancing the current application.

7. The Tribunal finds the applicant’s testimony as to being a genuine follower of Yi Guan Dao a fabrication for the reasons set out in the paragraphs below. As a result it does not accept that the applicant is a witness of truth and does not accept that the applicant is and ever was a genuine Yi Guan Dao practitioner and will face the difficulties he claims on return to China. Together with the matters above this adds to the Tribunal’s overall finding that the applicant is not a witness of truth as to his claims of fearing return to China.

8. Firstly, despite claiming to have been practising at his home every day from February 2014 until he was formally welcomed into the group [in] December 2015 in [Suburb 1], when he began practising at the temple; he did not raise or refer to a fear of return as being a practitioner of Yi Guan Dao at the Department interview held [in] April 2014 and Tribunal (differently constituted) hearing held on 30 April 2015. This is despite knowing the group was illegal in China and as raised with him via the process outlined in s.424AA being asked at the Department interview whether he had anything else to add or feared return on any other basis. Further at the Tribunal hearing held on 30 April 2015 he gave evidence that he feared return as he was involved in an anti-government campaign and stated that there was no other reason why he feared return. The applicant responded that he was practising at the time. The Tribunal has considered the applicant’s response and does not accept it as explaining why he did not previously mention this practice and fear of return. The Tribunal views the applicant’s lack of evidence and as to a fear of return on this basis to the Department and at the Tribunal hearing (differently constituted) to be significant, when it is his evidence that he was practising daily at the time since February 2014 and was aware Yi Guan Dao was banned. This leads the Tribunal to find he is not credible as to having had any interest or involvement or to be practising daily Yi Guan Dao at the time of the Tribunal hearing on 30 April 2015 or prior. This adds to the finding the applicant is not a credible witness as to his claim to be genuine in his belief of Yi Guan Dao.

9. Further, despite asking the applicant on numerous occasions why he fears return to China at the hearing before me, he did not refer to his practice of Yi Guan Dao, even though it is his claim, when later directly asked by the Tribunal about the practice that he feared return on this basis and that it is banned in China. When the Tribunal raised it with him he referred to the photos he had submitted at the beginning of the hearing as to his attending the temple, being baptised and donating money. However the Tribunal does not accept this response and expects if the applicant was genuine in his practice and belief in Yi Guan Dao when repeatedly asked at the beginning of the hearing why he fears return, he would have referred to it. This adds to the finding that the applicant is not genuine as to his belief in Yi Guan Dao, or fears return as he will continue to practise Yi Guan Dao.

10. This adds to the finding the applicant is not a credible witness

    Credibility Summary

11. For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome.  On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.

12. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. It has also considered that some of the claims relate back to events which occurred twenty or over twenty years ago. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.

13. In making this finding the Tribunal accepts that some information has been consistent over time, including his claim that he was involved in an ant-government organisation in China, attending protests, being detained for five months and the subsequent interest of the police in him and his wife. However the Tribunal considers that these matters are relatively easy matters to recall and learn and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

14. In making the findings the Tribunal has also considered the photographs of him attending the Yi Guan Dao temple, the baptism certificate of December 2015, the photos of the Yi Guan Dao temple and evidence of donations made at the Yi Guan Dao temple in [Suburb 1]. However, based on the applicant’s lack of credibility, these photos indicating attendance at the temple, practice of Yi Guan Dao and baptism into Yi Guan Dao, the Tribunal finds are not, in the applicant’s case, indicative of a genuine practitioner or belief but finds his attendance and practice, including baptisms was done for the purpose of enhancing and strengthening the current application.

15. It has also considered the photos submitted of temples in China but not Yi Guan Dao temples, as noted by the applicant at the hearing before me, and the photo of Guanyin. However, based on the applicant’s lack of credibility. photos of temples in China and of figure revered by Yi Guan Dao followers, the Tribunal finds are not, in the applicant’s case, indicative of a genuine practitioner or belief.

16. As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows that that the Tribunal does not accept that the applicant has or had a genuine interest in Yi Guan Dao, or practised at home from February 2014 because he has or had a genuine interest or belief in Yi Guan Dao. It also does not accept as true that he was baptised in December 2015, made the donation or attended the temple at any time because he has or had a genuine interest or belief in Yi Guan Dao and is of the view he is only involved in Yi Guan Dao, in any manner whatsoever, in Australia to strengthen his claim for protection. As the Tribunal has found that the applicant is not genuinely interested in Yi Guan Dao or a genuine believer in Yi Guan Dao, it follows that the Tribunal is not satisfied that the applicant will participate in any Yi Guan Dao activities in any way on return or will suffer persecution by being prevented from being involved in or being prevented from choosing his religion and beliefs.

17. Based on the applicant’s lack of credibility it also does not accept that his wife is or ever was a Yi Guan Dao practitioner, or that she has been warned by the police that she will be arrested if she continues to practise. It follows it does not accept as true that the applicant he will be arrested or face any difficulties as his wife is a Yi Guan Dao practitioner.

18. As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows that it does not accept that he was ever a member of an anti-government group or an illegal group or a political underground group in China protesting or campaigning for workers’ rights or democracy or against the family planning program or on any matter considered to be in opposition to the Chinese government. It follows it does not accept that while he lived in China he was involved in any anti-government propaganda or publicity for the claimed group as he hated the Chinese government, he protested against the government or the organisation he worked for, he participated in secret meetings, discussions and project activities, he recruited at least ten new members or was a key member of the anti-government/illegal group. It follows based on his lack of credibility that it does not accept as true that the organisation was classified as illegal by the authorities, and the government warned the workers not to involve themselves in this organisation or that his human rights were violated because of any involvement in an anti-government organisation

19. It follows based on his lack of credibility that it does not accept as true that there was a political purge to capture him, in or about 1997 he was caught by the government, the PSB or the security arm of the firm, detained in any manner whatsoever, cruelly mistreated by the Chinese authorities or security arm of the organisation he worked for, held in a small room and not allowed to return home, tortured, mistreated or questioned for 5 months. It follows it does not accept as true that he was released as his wife paid a bribe or that he had to sign any statement not to involve himself in any more anti-government activities or that either he or his wife had to provide the names of the other leaders or members of the anti-government/illegal group.

20. It follows it does not accept as true he lost his job as a result, his wife was afraid and went and lived with her mother, the police visited he and his wife regularly or at any time, he had to report his activities to the police, he or his wife were threatened and harassed to release the list of members associated with the anti-government party or he ever had to go into hiding or live elsewhere due to the police interest or that after he departed the police continued to harass and threaten his wife and family. It follows it does not accept as true there is any record of him or his name is on a database with the police or authorities as a person who is politically opposed to the Chinese government or was involved in an anti-government illegal organisation or protested against the government. It follows it does not accept as true he suffered physical and emotional harm during this time or faced any of the difficulties he claims.

21. As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows that it does not accept that he was ever involved in protesting against the family planning policy in 1991, including the forced sterilisation of women and pregnant women being forced to have abortions, was detained or arrested or beaten by police as a result and was only released as his [Relative 1] bribed the police and he guaranteed he would not be involved in any such activity again. It also does not accept as true he or his wife were sought by or ever arrested by the police or authorities as they married under the age or had a child under age or in breach of the family planning policy or that he had to pay a fine so his child could be registered. It follows it does not accept that either he or his wife has any record or is on any database with the police or the authorities because of any involvement in breaching or protesting against China’s Family planning police, including the one child policy. It follows it does not accept as true that the applicant fears return due to any involvement in protesting against the family planning policy or because he or his wife breached the family planning policy.

22. It follows that the Tribunal does not accept at the time he departed China in 1997 he held any concerns for his safety for the reasons he claims or was of any interest to the Chinese authorities or had a record with them or was considered to be opposed to the Chinese government for any of the reasons he claims.

23. Based on his lack of credibility the Tribunal therefore does not accept as true that due to his political background, it was difficult to get a passport and exit permit, and that he borrowed money from relatives and friends and changed his name and personal details to leave, or that the person who helped him leave China was arrested by police. Based on his lack of credibility and as the Tribunal has found he is not of witness of truth it follows it does not accept as true that he departed China illegally with the help of a smuggler and by paying any money in any manner claimed for the reasons he claimed, including using a false passport or via an underground [tunnel] or paying of a customs official or any illegal manner whatsoever. It follows it does not accept as true that the authorities have any record or knowledge of him departing illegally, as the Tribunal does not accept he departed illegally. It follows it does not accept he will be punished for illegal departure from China, will be put in jail and will be forced to do hard manual jobs for many years and will be persecuted to death or face any of the difficulties he claims for this reason.

24. As the Tribunal does not accept the applicant is a credible witness and does not accept he was involved in any anti-government/illegal/political underground group or family planning protest or that he departed illegally or has any record with the authorities as being in opposition to the Government, it follows it does not accept as true that his past involvement will attract the government’s inhumane persecution, his name has been kept by the authorities, not only of himself but also of his family, including his child, and he came to Australia to seek an opportunity to gain freedom and not to fear persecution.

25. As the Tribunal does not accept that the applicant is a credible witness and as it has found he is not credible as to ever being involved in any ant-government/illegal/political underground activities, being involved in any anti-government protests or protesting against the family planning policy, breaching it or departing illegally it follows that the Tribunal is not satisfied that the applicant will participate in any anti-government activities in any way or express any anti-government political opinion or promote any political opinion perceived by the government to be opposed to it, including with regard to worker rights, democracy and freedom, or express opposition to the family planning policy or engage in any political activity opposed to the family planning policy on return or will suffer persecution by being prevented from being involved. It does not accept as he has not been involved in the past that he will work for any anti-government organisation on his return. Similarly as it does not accept that his wife were ever arrested or faced any difficulty by being viewed as anti-government or opposed to the family planning policy, including due to underage marriage or being pregnant underage the Tribunal is not satisfied he will participate in any activities in the future which would place the applicant or his family at any risk of harm.

1. It follows it does not accept as true his freedom will be deprived and that he will be arrested on return, he and his family will suffer inhuman persecution and imprisonment if he returns to China, he will be captured and tortured, he will face persecution and possibly death on return. It follows it does not accept he will be physically assaulted, arrested, detained, deprived of his liberty, killed, threatened, tortured, suffer injury, be abducted, beaten, derogated, disrespected, ashamed, punished, humiliated or face any difficulties he claims for the reasons he claims if he returns to China at the hands of the authorities, government, the police, or anyone else for the reasons he claims. The Tribunal rejects his claims in their entirety.

   Does he meet the protection obligations under the complementary protection provisions of the Migration Act?

2. Based on its findings as to the applicant’s lack of credibility and on the evidence before it the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to China at the hands of the authorities, the government, the law, the agents of the government, or anyone else due to departing illegally, including  bribing a customs officer or using a false passport or escaping though a tunnel or any of the claims he has made with regard to departing illegally.

3. Based on its findings as to the applicant’s lack of credibility and on the evidence before it the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to China at the hands of the authorities, the government, the law, the agents of the government, the police or anyone else due to he and/or his wife breaching the family planning policy, evading arrest, attending family planning protests, being detained, having a record because of this or being viewed as anti-government because of his opposition to the family planning policy.

4. Based on its findings as to the applicant’s lack of credibility and on the evidence before it the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to China at the hands of the authorities, the government, the law, the agents of the government, the police or anyone else due to being involved in any manner whatsoever in an anti-government/illegal/political underground organisation, including one that argued for freedom and democracy, workers’ rights, was opposed to the Family planning policy or involved in any activity which was and is viewed by the government as in opposition to it, or perceived to be in opposition to the Government or as he was detained, or as he protested or has a record with the authorities or for any of the reasons he claims.

5. Based on its findings as to the applicant’s lack of credibility and on the evidence before it the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to China at the hands of the authorities, the government, the law, the agents of the government, the police, or anyone else as he will engage in anti-government activity in the future or activity opposed to the Family Planning policy or because he will promote freedom and democracy or holds a political opinion opposed to the Government or will be perceived to hold a political opinion in opposition to the government for any of the reasons he claims.

6. Similarly based on its findings as to the applicant’s lack of credibility, and as the Tribunal does not accept he will engage in any underground political, anti-government or illegal activity or protesting or being opposed to the family planning policy on his return in private or otherwise, the Tribunal finds therefore there is no real risk of future significant harm he will suffer due to any future involvement in China in such activities or because he will be prevented from doing so.

7. Based on my findings as to the applicant’s lack of credibility above and on the information before it, the Tribunal has found he is not a genuine Yi Guan Dao practitioner and does not accept that he would, nor would he wish to, practise Yi Guan Dao on return to China. It has also found that he is not credible that his wife is a Yi Guan Dao practitioner and has been warned to cease practice or be arrested. It follows that the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to China at the hands of the authorities, the government, the law, the agents of the government, the police or anyone else due to his or his wife’s religious opinion, practice or belief in Yi Guan Dao or because his wife has been questioned and warned by the police or is known to the authorities as a Yi Guan Dao practitioner.

8. Given the Tribunal’s finding as to the motivation of the applicant in joining Yi Guan Dao in Australia and the lack of the genuineness of his belief, the Tribunal does not accept that the applicant would engage in the practice of Yi Guan Dao on his return to China in private, or otherwise. The Tribunal finds therefore there is no real risk of future significant harm the applicant may suffer due to any future practice of Yi Guan Dao in China or because he will be prevented from practicing Yi Guan Dao.

9. Notwithstanding, the Tribunal accepts that the applicant has attended Yi Guan Dao related activities in Australia and attended the Yi Guan Dao temple in [City 1] on a number of occasions, at least three, obtained knowledge, practised at home to obtain knowledge, read Yi Guan Dao material, made donations while attending the temple and been baptised into Yi Guan Dao at the temple as outlined in the photos and evidence submitted to the Tribunal in 2016.

10. The Tribunal has considered whether this conduct will result in a real risk of significant harm on the applicant’s return to China. In coming to this conclusion, the Tribunal has considered country information on China obtained by the Department of Foreign Affairs and Trade (DFAT) in relation to the treatment of returnees. While there is no specific information as to the treatment of Yi Guan Dao followers it has looked to the treatment of Falun Gong practitioners and others viewed as opposed to the Government. In 2007, DFAT assessed that a person applying for asylum in Australia would not necessarily be imputed with political disloyalty. DFAT stated “Our impression is that these days Chinese authorities view seeking to remain in Australia through a protection application as more commonplace behaviour rather than a sign of political disloyalty”.[7] In March 2002 DFAT advised that “As far as we are aware, the likely treatment of Tiananmen-era returnees would depend to a large degree on their behaviour on return, as well as on the nature and extent of their involvement in protest activities abroad”.[8] In September 2006, DFAT advised that “If practitioners have played an active role in Falun Gong organisations overseas, the Chinese authorities are more likely to take an interest in their cases.”[9]

100.   The Tribunal has rejected above that the applicant is a genuine Yi Guan Dao practitioner and it has found he would not practice on his return as he is not genuine in his belief. There is no evidence before the Tribunal to suggest that he organised any activities or events or had any leadership role in these activities and events. There is no evidence that he publicly demonstrated his belief in Yi Guan Dao.

101.   The Tribunal is not satisfied that the applicant would have been identified or recognised by the Chinese authorities or have any profile imputed to him as a result of his attendance at the temple or practising at the temple. However, even if the applicant was identified or recognised by the Chinese authorities, the Tribunal is not satisfied that there is a real risk of significant harm on his return to China for the reasons given below. 

102.   In these circumstances, the Tribunal is satisfied he would not be of adverse interest to the Chinese authorities on his return, because of the limited nature and extent of his involvement in Yi Guan Dao related activities and events in Australia and due to his behaviour on return to China in not practising Yi Guan Dao.

103.   The Tribunal finds that there are no 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 because of his attendance at the Yi Guan Dao temple, attendance at services in the Yi Guan Dao temple or baptism in the Yi Guan Dao temple, providing donations to the Yi Guan Dao temple or practice of Yi Guan Dao in Australia. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) for these reasons. 

104.   Having carefully considered the cumulative effect of each of the individual claims raised by the applicant, in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that 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 as defined in subsection 36(2A).

CONCLUSION

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

106.   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) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Gabrielle Cullen
Member

[1] Independent information indicates that Yi Guan Dao was outlawed in China and continues to remain illegal.

[2] The Department decision was attached to the Application for Review

[3] [Information deleted].

[4] As outlined in the Department decision which was attached to the Application for Review.

[5] As outlined in the Department decision attached to the Application for Review

[6] As noted in the Department decision attached to the Application for Review.

[7] Department of Immigration and Multicultural Affairs 2007, Publication of client details, Country Information Report No. 07/30 (sourced from DFAT Information of 3 March 2007), 22 March <CISNET China CX174138

[8] DIMIA Country Information Service 2002, Country Information Report No. No. 61/02 Treatment on return of demonstrator (sourced from DFAT advice of 12 March 2002), 12 March 2002.

[9] DIAC Country Information Service 2006, Country Information Report No. 06/53 – China: Return of failed asylum seekers, (sourced from DFAT advice of 14 September 2006), 15 September 2006.