1517729 (Refugee)

[2018] AATA 3034

1517729 (Refugee) [2018] AATA 3034 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517729

COUNTRY OF REFERENCE:                  China

MEMBER:Roslyn Smidt

DATE:25 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2018 at 4:51pm

CATCHWORDS

Refugee – Protection Visa – China – Religion – Falun Gong – Particular social group – Family Planning program violator – Confused, contradictory and unconvincing evidence – Credibility concerns – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 499

Migration Regulations 1994 (Cth), 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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of China, applied for the visa on 29 October 2013 and the delegate refused to grant the visa on 4 December 2015.

3. The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   The relevant law

4. 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.

5. 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).

6. 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.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND AND SUMMARY OF CLAIMS

9. The applicant is [an age] year old man from Hebei Province in China. He arrived in Australia on a [temporary] visa on 14 August 2013. He was accompanied by his wife, daughter and stepdaughter. They were originally included in this application, but the applicant and his wife are now separated and she and their children are no longer included in this application.

10. The applicant lived in [Hebei] Province until about 1999 after which he worked [in a certain] industry in a number of different locations. He returned to his home town during periods in which he was unable to find work. In 2009 he married and from then until his departure for Australia he lived in Hangzhou, in Zhejiang Province, which is about 1,200 kilometres from his home town.

11. The applicant claims that he would be at risk of serious or significant harm on return to China because of problems he and his wife faced as a result of demands from family planning officials following the birth of their daughter and because he has been a Falun Gong practitioner since 1999.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues related to family planning

12. In written and oral submissions to the Department the applicant claimed that following the birth of his daughter, who was his first biological child, he and his wife were told that their daughter could only be registered if his wife agreed to have a tubal ligation within 45 days. The applicant and his wife wanted to have another child so his wife refused to comply. To avoid these problems they went to live in rented premises and did not answer their mobile phones and thus managed to avoid being caught. The applicant’s in-laws were also harassed by the authorities. The applicant’s daughter was eventually registered after he and his wife paid a large bribe. Despite this the family planning authorities continued to search for them after they came to Australia. In addition, the applicant claimed he was told that he was considered to have two children as he also had a stepchild, which also denied him and his wife the possibility of having further children.

13. During his interview with the delegate the applicant said that prior to the birth of his daughter he had applied to officials in his local village for a permit which is required for couples wishing to have a child, but he faced problems because he had been arrested for practising Falun Gong in 1999. His evidence regarding this was somewhat confused. He said that he had been required to provide a number of documents which were difficult to obtain and that even when they were obtained he was denied the permit until he paid a bribe. He also said that he had to pay bribes to obtain registration for his daughter.  He also claimed that his wife contacted family planning officials in her home village, which was located about 400 kilometres from their home in Hongzhou where they were living, to obtain a permit for the birth of their daughter, but it appears that this was refused. As a result she was denied a subsidy of some kind after their daughter was born and officials from her home village demanded that she have a tubal ligation within 45 days and threatened to come to Hong Zhou to get her if she refused to comply.  He said that they moved back to a property they had previously rented following this threat to avoid problems.  He said that he feared that his wife would be taken and sterilised if they returned to China.

14. The delegate accepted that family planning officials had demanded that his wife undergo a tubal ligation before they would register his daughter, but did not accept that they had any continuing interest in him or his wife after they paid a bribe and his daughter was registered. In reaching this conclusion he noted the applicant and his wife had remained in China for 15 months after refusing to comply with the requirement that his wife be sterilised. He also noted that the alleged demand that the applicant’s wife have her tubes tied did not affect the applicant directly.

15. I noted that the applicant had separated from his wife and family and asked what problems he feared he would face on return to China as a result of past problems relating to China’s family planning. He said that if he remarried and had another child he would not be able to obtain registration for that child. I advised him that it was my understanding that family planning rules had recently been changed and it was now possible for most Chinese families to have two children which suggested that he would not face this problem. I also observed that China’s family planning laws were laws of general application and problems of the kind he claimed to fear do not usually give rise to a claim for protection. Finally, I noted that his fears appeared to be based on speculation about what might happen at some time in the future and thus did not appear to support a claim for protection.  The applicant said that he had a bad reputation because of his involvement in Falun Gong and that the authorities wanted to cause problems for him because of this, but made no further submissions regarding possible problems related to family planning laws.

16. As set out below, I do not accept that the applicant practised Falun Gong or experienced any problems because of Falun Gong prior to his departure from China. I therefore do not accept that any problems which he may have faced with family planning officials were caused by his involvement with Falun Gong.

17. For the purposes of this decision I accept that the applicant and his wife had difficulty obtaining permits from officials in their home villages prior to the birth of their daughter and that family planning officials demanded that his wife have a tubal ligation before they would register the birth of her second child. However, I do not accept that he and his wife continued to be of interest to the authorities after they overcame this problem by paying bribes. As pointed out by the delegate, they remained in China for over a year after the birth of their daughter without facing any further problems. I note that they continued to operate a business which, according to the applicant’s evidence at the hearing, was licensed in his wife’s name which suggests that they would not have been difficult to locate even if they had changed their residential address. 

    Involvement with Falun Gong

18. For the reasons set out below I do not accept that the applicant is or ever has been a genuine follower of Falun Gong. I believe that he concocted these claims for the purpose of supporting his claim for protection in Australia.

    Country information

19. By way of context, Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism and Qigong (traditional breathing and meditation). Found by Li Hongzhi in 1992 it focuses on private exercises and meditation. It was declared illegal and ‘an evil cult’ after a large protest by followers at the Chinese Communist Party headquarters in Beijing in April 1999. The authorities have established a number of bodies with the aim of eradicating Falun Gong activities. Practitioners continue to face detention, including residential and other forms of administrative punishment. It reportedly remains active throughout China, although its illegal status makes this difficult to verify.

20. Falun Gong practitioners in China are generally able to practise privately in their homes, but once known to authorities, colleagues or neighbours, they face widespread official and societal discrimination, pressure to renounce their faith and possible arrest and detention. Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly.

21. Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport. DFAT understands some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.

22. Falun Gong has a presence in Australia. [An Australian] Falun Gong group is [Organisation 1].[1]

    [1]  [Source deleted]

    The applicant’s involvement with Falun Gong in China

    Discussion of claims and evidence

23. I found the applicant’s evidence regarding the problems he faced in China because of his involvement with Falun Gong to be confused, contradictory and unconvincing.

24. In written and oral submissions provided to the Department the applicant claimed that he began to practise Falun Gong in early 1999, before the practice was banned.  In his initial written submission he claimed that he was detained in 1999 after which he only practised his faith in private by reading Falun Gong materials, mediating and so forth. He also claimed that he lost his job in about 2000 because he had spoken positively about Falun Gong when chatting to colleagues. His superiors told him that he was a threat to the safety of others and it was best that he left the project.

25. During his interview with the delegate the applicant confirmed he was arrested in 1999 and that he had not practised Falun Gong in public following that, but had lost his job in 2000 after speaking about Falun Gong. In addition he claimed that he had been hit and kicked while in detention in 1999, that he had handed out brochures about Falun Gong secretly at night until the autumn of 2000 when he began to work away from home, and that someone had reported him to the police for practising Falun Gong in mid-2000 and he was given another warning. When asked why he had failed to mention these claims previously he said that he had not been aware of the level of detail required and had believed he could provide additional details during his interview.

26. When his problems were discussed again later in the interview the applicant said that he had only experienced problems with the authorities in China on one occasion. He also repeated the claim that he had also lost his job. When asked, he confirmed that these were the only problems he had experienced before leaving China. When asked about his earlier claim that he had received another warning from the police in 2000 he said that he had been seen handing out brochures by someone associated with a police officer who grabbed all of the brochures which he had not already handed out. He said that this was only a minor problem compared to the difficulties faced by others and he had not thought it necessary to include all of the information.

27. When asked for details of his arrest in 1999, the applicant said that he had not been greatly concerned when he was taken to the police station and he had called his parents to come and pick him up, which they did. When asked if anything happened at the police station he said that because he was young and not a leader he was only given a warning. When asked what the police had said or done to him at the police station he said that they had said that he was young and he was not learning good things. The delegate then asked if he had been physically harmed and he said he had been kicked and slapped.  The delegate observed that he had initially failed to mention being physically abused when asked to describe what had happened at the police station. The applicant said that he had already mentioned this claim earlier in the interview.

28. The applicant was asked if he had experienced any other problems in China after 2000. He said that he had not experienced any problems, but also claimed that he had problems obtaining a permit for the birth of his daughter and registering her after she was born because of his involvement with Falun Gong (see above for details).

29. When asked how he had practised Falun Gong after losing his job in 2000 the applicant said that he only practised in his heart. He said that while working in [a certain] industry he shared hotel rooms with colleagues who believed the Chinese authorities’ claim that Falun Gong was evil, so he could not practise while working, but he said that he had practised privately when he returned to his home village during breaks from work.  When asked how he avoided problems he said that he had not practised in public. Later in the hearing he said that he frequently practised Falun Gong in private prior to leaving China in 2013.

30. In a written submission provided following the interview the applicant’s representative repeated many of his earlier claims.  It confirms that he handed out Falun Gong leaflets between June 1999 and autumn 2000 and also states that he was taken to a police station and given a second warning about practising Falun Gong in the summer of 2000.  It submits that he failed to mention the latter claim prior to his interview with the delegate because he was not jailed or detained and did not feel that it was necessary to mention such a small incident. The submission also included a number of articles and reports on monitoring of Chinese citizens outside China, particularly those who practise Falun Gong.

31. At the hearing I noted that the applicant had previously claimed that he was briefly detained and released with warning for practising Falun Gong in 1999; that he had also been fired from his job for talking about Falun Gong and had also been warned to stop handing out brochures. However, he had not mentioned experiencing any problems related to Falun Gong after 2000. The applicant confirmed that this was correct.

32. I asked the applicant to tell me about the problems which resulted in him losing his job. He said that this occurred in about 2002 or 2003 when he spoke to a colleague about the benefits of practising Falun Gong.  I noted that he had just confirmed that he had not experienced any problems after 2000. He said that when he had responded to my earlier question he had not been sure whether I was asking about times he was detained by the police or other matters.  He confirmed that he had continued to work in [a certain] industry following this incident, but said that he was hired less often. I noted that he had told the delegate that he only practised Falun Gong in his heart after 2000. He confirmed that this was correct. He said that he did not have the freedom to do what he wanted and he was afraid to practise.  Later in the hearing he said that he had continued to practise Falun Gong in private after 2000 during periods when he was not employed and returned to his home town.

33. I asked the applicant to tell me about the incident when he was caught distributing leaflets. He said that this had occurred in 1999 or 2000. He, his cousin and other practitioners were handing out Falun Gong brochures in a public place in order to combat the false information being spread by the government. I observed that I found it somewhat unlikely that he would have engaged in this activity if he had already been detained once for practising Falun Gong and there was an ongoing government campaign against the group. He said that he had not been aware that the government would be so strict.

34. Later in the hearing the applicant claimed that he had handed out Falun Gong brochures at night when he was in his home town from about 2000 until 2009. He said that he placed the brochures in letter boxes or left them outside people’s houses. When asked how often he had done this he said it varied, but in 2009 he spent about two or three months in his home town and distributed leaflets during that period. I noted that he had not mentioned handing out brochures in his initial statement of claims and had told the delegate he was only engaged in these activities between 1999 and 2000. I advised him that this and other apparent inconsistencies in his evidence cast doubt on his credibility. The applicant maintained that his claims were true. He said that he did not know why his involvement in handing out brochures was not mentioned in his initial statement, but he recalled telling the delegate about these activities during his interview.

    Findings of fact

1. I am not satisfied that the applicant has provided an honest or accurate account of his involvement in Falun Gong in China. As noted above, he has given differing accounts of his involvement, claiming at times that he practised only in his heart after about 2000 and at others that he continued to practise in private until his departure from China. More significantly he has given differing accounts of other Falun Gong related activities and the problems he faced because of Falun Gong.

2. In his initial written submission, which was prepared with the assistance of a registered migration agent he stated that he had been detained in 1999 and warned to stop practising Falun Gong or face serious repercussions, and had lost his job in 2000 for speaking about Falun Gong. During his interview with the delegate he claimed for the first time that he had been physically abused while in detention in 1999 and that he had been involved in distributing Falun Gong brochures between 1999 and 2000. He claimed that on one occasion he had been caught doing this and had been warned to stop. When asked for details during the delegate’s interview he said that someone had snatched the brochures. In written submissions provided following the interview he again stated that he ceased distributing in 2000 and claimed that he had been taken to the police station and given a warning. At the hearing he said that he had continued to distribute Falun Gong brochures in his local area until 2009.

3. The applicant claims that he failed to include all of his claims in his initial statement because he was not aware of the level of detail required and because he believed that he could add additional information during his interview with the delegate. I do not accept this explanation. Being physically abused, being involved in distributing brochures after being detained and receiving a second warning from police regarding his involvement in Falun Gong are not mere details but significant claims and it is not plausible that the applicant would have failed to mention them when discussing his case with the registered migration agent who assisted him to prepare his statement. I find that these claims were not mentioned in his initial statement because they are not true and were concocted during his interview with the delegate in order to enhance his claim for protection.

4. In reaching this conclusion I acknowledge that it is now many years since the applicant’s claimed detention and that it is not uncommon for applicants to be confused or to forget details of past occurrences. However, the applicant has never claimed that he had forgotten these incidents. He claims that he consciously decided not to mention them until later in the process. I find this claim implausible and do not accept his explanation.

5. I also note that the applicant’s evidence regarding being physically abused and being receiving a second warning in 2000 during his interview with the delegate was confused and unconvincing.  After claiming he had been hit and punched while in detention at the beginning of the interview he initially failed to repeat this claim when asked for details of his detention later in the hearing. When the delegate pointed this out he said that he had not thought it necessary to mention it as he had spoken about it earlier in the interview. I do not accept this explanation.  When asked if anything happened while he was in detention he said that he had only been given a warning. I believe that the applicant failed to mention that he had been physically abused because this did not occur and he had forgotten his earlier claim. Similarly, after claiming that he received a second warning from police in 2000 he later said he had only had problems with the authorities in China once.

6. I am not satisfied that that applicant practised Falun Gong at any time prior to leaving China. In reaching this conclusion I acknowledge that the fact that an applicant has embellished some aspects of his case does not mean that he is not generally truthful or that other parts of his evidence should necessarily be rejected as lacking credibility. However, the problems with the applicant’s evidence were more serious than mere embellishment and despite being advised of concerns regarding his credibility by both the delegate and myself he continued to insist that his claims were true.  I do not accept that he had any involvement with Falun Gong in China or that he had any problems with the Chinese authorities or anyone else as a result of any association with or support for Falun Gong.

   The applicant’s involvement with Falun Gong in Australia

   Discussion of claims and evidence

7. In his initial written submission provided in October 2013 the applicant said that he had continued to practise Falun Gong after arriving in Australia and had been in contact with the local Falun Gong community in [City 1]. He had also become more aware of the persecution faced by Falun Gong practitioners in China.  In support of his application he provided a number of pictures of himself practising Falun Gong, handing out leaflets in the street and holding banners protesting the Chinese government’s actions against Falun Gong.

8. On 16 February 2015, the day before his interview with the delegate, the applicant provided two photographs of himself in [City 2], a photograph of himself with a group of Falun Gong practitioners in a park, a photograph of himself under a Falun Dafa banner dated 2014 and photographs of tickets to [specified] events in [City 1] in 2014 and 2015 organised by [Organisation 1]. At the interview he provided a copy of an untranslated article from [a] website which includes a picture of his wife and daughter apparently participating in the [specified] event. He did not claim that he was identified or even mentioned in the article, but said that he had been involved in organising the event.

9. During his interview with the delegate the applicant said that he currently practised Falun Gong for at least an hour in the morning and added that at night he would meditate and study the writing of the Master. When asked exactly what he did he said that there were five exercises. The delegate asked him to demonstrate exercise five.  The delegate noted that the applicant had demonstrated exercise five while sitting on his chair. He gave a name for the exercise in Chinese, but the interpreter was unable to provide a translation. Pictures of this exercise show the practitioner sitting cross legged.

10. The applicant was asked about his involvement with the Falun Gong community in Australia. He said that he had participated in street promotions of Falun Gong, studied on Friday nights and also attended conferences in 2014 and 2015 in [City 2] and [City 1]. He said that he generally practised Falun Gong privately because he had to go to work and could not join others to practise, but also claimed to belong to a [group]. He said that the group met in [a venue] in [Suburb 1] and [Suburb 2] every Friday night. When asked if the group was a Buddhist or Falun Gong group he said that they were Falun Gong and they met to read the Falun Gong books and discuss the practice of Falun Gong.

11. When asked, he was able to name the main book used by Falun Gong practitioners as Zhuan Falun and appears to have been able to draw the Falun Gong symbol.  He said that Falun Gong writings mainly spoke about how God existed in different worlds and different spaces and said that if people did good things they could obtain rewards and if they did bad things they would be punished. He was aware that the Falun wheel is turned clockwise to absorb positive energy and anti-clockwise to release energy.

12. At the beginning of the hearing I asked the applicant if he had been aware of the possibility of seeking protection in Australia prior to his arrival. He said that he had been aware that he could seek protection before leaving China and had always intended to seek protection because of his claimed involvement with Falun Gong. I observed that the he did not appear to have experienced any problems because of his involvement in Falun Gong for some 13 years before his arrival in Australia and asked why he had felt the need to come to Australia to seek protection in 2013. He said about a year before leaving China he and his wife had also experienced problems with family planning officials. When asked why he had waited for three months before lodging application he said that he had not been aware of the procedures involved in lodging an application and had taken time to locate a lawyer and lodge an application.

13. When asked about his involvement in Falun Gong in Australia the applicant said that he often went to other people’s houses to study Falun Gong and on the weekend he joined a large group to study, practise and hand out brochures. He also said that in the last few years he had been working as [an Occupation 1] [in] [City 1] and he would pass on information about Falun Gong to members of these groups.

14. I asked the applicant to tell me about his activities as a Falun Gong member during the month prior to the hearing. He failed to provide a coherent response.

15. I asked the applicant if he belonged to any Falun Gong groups in Australia. He said that he belonged to a group called [Organisation 2]. I asked if he belonged to any Falun Gong groups. He said that the Falun Gong group in [City 1] was called [Organisation 2]. I asked him about the activities carried out by this group. He said that Falun Gong practitioners were required to do three main things: study the law, practise Falun Gong and tell people the truth. However, because it had been Chinese Spring Festival during the last month he had not had much involvement in Falun Gong studies. I asked again what the group [Organisation 2] did. He said that the group organised people to come to lessons to study the Master’s lessons and other activities including promoting [specified] performance activities, but did not claim that he had been involved in organising these activities. I asked if he belonged to any other formal Falun Gong groups in Australia. He said that the Falun Gong community was very loose and that they did not have any formal groups. 

16. I asked the applicant to tell me about the Falun Gong books he had read and his knowledge of the group’s beliefs. He said that he had studied the book called Zhuan Falun written by Li Hong Zhi and other speeches by Li Hong Zhi. He said that Falun Gong practitioners did exercises while listening to music. There are five exercises that convert the truth, goodness and tolerance of the universe into human beings. He appeared to know the names of the exercises, but the interpreter had difficulty translating this information. He had some knowledge of the significance of the wheel which is central to Falun Gong belief and practice.  When asked to demonstrate the second exercise he appeared to have some knowledge of the movements involved, but did not execute them with confidence or complete the exercise.

17. At the end of the hearing the applicant indicated that he wanted to do the exercise again because he had done it too quickly the first time. I told him that would not be necessary. At the end of the exercise the applicant attempted to demonstrate another exercise. I told him that would not be necessary. I advised him that I accepted that he had some knowledge of Falun Gong and the exercises done by practitioners, but I also noted that it was possible to acquire this knowledge and ability from books and advised him that I would be looking closely at all of his claims before deciding which I accepted and making a decision on his case.

18. I asked the applicant if he practised Falun Gong in public in Australia. He said that he practised in [a specified venue] about every two or three weeks, but mostly he practised in his own home or at the homes of other practitioners. He named two or three people with whom he practised and said that two of them were related to his sister-in-law. He said that he had learned of the existence of the Falun Gong group in [City 1] through these people. When asked which group he was referring to he said that he was not referring to a particular group, but Falun Gong followers in general.

19. I asked the applicant how he promoted Falun Gong in Australia. He said that after he arrived in Australia he had distributed leaflets and [specified] newspapers in [various places]. He said that he last distributed papers about three weeks ago. He said that he had obtained copies of the [newspapers] from  [Organisation 2] during Saturday meetings of the group held at [a venue] or from other practitioners. He said that the leader of the Falun Gong in [City 1] was a man called [Mr A]. He said that it was a big group and they were not very close.

20. I asked the applicant about his interactions with members of the [groups] he worked with. He said that he worked for different [companies] in [City 1] and he generally spent two or three days with each group. He claimed that he passed on information about the benefits of Falun Gong, the persecution faced by Falun Gong practitioners and the freedom that existed in Australia to members of the groups. He also told them the truth about what happened in 1989 in Tiananmen Square, and other human rights abuses. I asked if any of the [members] he spoke to had complained about him promoting Falun Gong or talking about human rights in China. He said that there had been some complaints, but he had used very clever ways to promote Falun Gong and talk about other issues. I advised him that I found it difficult to accept that he would have engaged in these activities while working as [an Occupation 1] [and] observed that it appeared unlikely that he would have continued to be employed as [an Occupation 1] if he engaged in such activities.  He said that he had only provided directions to give the [members] some understanding of Falun Gong and he did not do speak about Falun Gong to all of his groups. He said sometimes members of the group would argue with him. At the end of the hearing after I advised the applicant that I had difficulty accepting a number of his claims, he said that there was an old man in one of his [groups] who got very angry with him and said he would report the applicant on return to China.

21. I noted that while the applicant’s evidence was somewhat confused it appeared that he mostly practised Falun Gong privately in Australia. I also noted that it appeared that he had practised privately in China for about 13 years without experiencing problems and asked why he would not be able to practise in this way if he returned to China. He said that because of his work and because he did not have residency he had not participated much in public activities, but claimed that the authorities were aware of his activities.

22. The applicant said that he had not told his parents or family members the real reason for his absence. Because of his prolonged absence from China he had missed a number of important family events in his home town and people had questioned his parents about his absence. His parents told them he was in Australia and had applied for protection because he practised Falun Gong.

23. I noted that it was not uncommon for Chinese people to spend extended periods in Australia to work or for other uncontroversial reasons and observed that it seemed unlikely that his parents would have told people he had applied for protection in Australia. I also noted that this claim appeared to be at odds with the statement that he had not told his parents the real reason he had remained in Australia. The applicant said that he had never said that he had not told his family he had applied for protection. I noted that he had told me he had not told them the real reason for his absence from Australia (the recording confirms that he did make this statement) and added that even if I had misunderstood his earlier evidence I still had great difficulty accepting that his parents would have told anyone he had applied for protection because he practised Falun Gong. He said that he had been absent for a long time and it was difficult for his parents to find an explanation for his absence.

24. The applicant maintained that he was telling the truth and said that the police had been speaking to his father over the past few years and had told him that he (the applicant) should report to them when he returned to China. This made his father angry and he had responded by saying that the applicant had not broken any laws and there was no reason why he should report to the authorities if he returned to China. The police told his father that the applicant would be charged with betraying his country if he returned to China because he had criticised the Communist Party. When asked to clarify this claim he said that he would be charged because he had continued to practise Falun Gong in Australia.

25. The applicant said that the police had told his father that if did not report to them when he returned to China he would be arrested at the airport. I advised him that while I was aware that Falun Gong practitioners were sometimes detained in China I was unaware of any evidence which suggested that someone who had occasionally practised Falun Gong in Australia would be arrested at the airport.  He said he had found his own way to practise Falun Gong in Australia and the authorities were not necessarily targeting people who practised in public. He said that he believed that he would be targeted because he had spoken to [specified] groups about Falun Gong.

26. The applicant claimed that he had gone to the Chinese Embassy to find out what would happen when his passport expired in a year.  He was asked what kind of visa he had applied for in Australia and he told them that he had applied for a protection visa because he was a Falun Gong practitioner and they told him they would therefore not renew his passport. I advised him that I found it extremely difficult to accept that he would have gone to the Chinese Embassy a year before his passport expired to enquire about renewing it or that he would have told them that he had applied for protection in Australia because he practised Falun Gong. He said that he had been required to show the officials his visa documents so he showed them the letter acknowledging receipt of his protection visa application. I noted that he held a bridging visa. He said that he was asked how he had obtained a bridging visa. I observed that he could have said he had applied for some other kind of visa and again advised him that I found it extremely difficult to accept this claim. He said that as a Falun Gong practitioner he was obliged to tell the truth. He added that this was the reason he also told his parents he had applied for protection in Australia.

    Findings of fact

27. For the reasons set out below while I acknowledge that the applicant has participated in some Falun Gong activities while in Australia and has demonstrated some knowledge of the beliefs and practices of the group, I do not accept that he is or ever was a genuine follower of the group.

28. As noted above the applicant has provided a number of photographs of himself practising Falun Gong and attending protests organised by Falun Gong in the period of less than three months between his arrival in Australia and lodgement of his protection visa application.  As discussed above, I do not accept that he practised Falun Gong prior to leaving China. Furthermore, according to his evidence at the hearing he was aware of the possibility of applying for protection in Australia and intended to do so before leaving China. In these circumstances and in the absence of any other explanation for his sudden interest in Falun Gong I find that he attended Falun Gong activities during this period purely in order to obtain evidence to for his protection visa application.

29. In addition, when asked for details of his more recent involvement with the group he failed to give a clear, straightforward account of his activities. He indicated at different times that he practised daily and participated in group activities regularly, but also stated that he mostly practised in private or with a small group of friends and said that he had not been very active recently because of work and because it was Spring Festival. When asked if he belonged to any Falun Gong groups he said that he was a member of a group called [Organisation 2], but also stated that there were no formal Falun Gong groups in Australia. I have been unable to locate any evidence of the existence of a group called [Organisation 2]. More significantly, despite apparently attending two events organised by [Organisation 1] and claiming to have been involved in organising one of these events, he failed to mention the association when asked about his involvement with any Falun Gong groups in Australia. In these circumstances, while I accept that he may have attended [some specified] performances in 2013 and 2014, I do not accept that he played any role in organising these events. While I would not necessarily have rejected his claims entirely because of this, I find it a further indication that he is not a credible witness.

1. Finally, even if I accept that the applicant was a follower of Falun Gong (which I do not), I do not accept that he spoke to [a specified group] in [City 1] about Falun Gong, that his parents disclosed that he had applied for protection as a practitioner of Falun Gong to people in his home town, and that he himself had told officials at the Chinese Embassy that he had applied for protection in Australia as a Falun Gong practitioner.

2. I found the applicant’s evidence regarding his interactions with members of the [groups] he was hired to lead unpersuasive. I find it most unlikely that [companies] would have continued to employ him to work with [the specified groups] if there had been complaints about him using his job to promote Falun Gong or to criticise the Chinese government. Furthermore, his evidence about these activities was vague and unconvincing.  He initially indicated that he had spoken to most or all members of these groups about Falun Gong and other developments in China, but when I expressed doubt about this claim said that he had not spoken to everyone and had done so in a clever way rather than directly. I do not accept that the applicant used his job as [an Occupation 1] to promote Falun Gong or to criticise the Chinese government. I find that these claims were also concocted to support his application for protection.

3. I find the claim that the applicant’s family told people in his home town, including the local police, that he had applied for protection in Australia because he practised Falun Gong far-fetched and implausible. It may be that friends and neighbours may have commented on his absence from family weddings or funerals, but his parents could easily have provided a benign explanation for his absence, for example that he was working in Australia. I note that this claim was made at the end of the hearing after I indicated that I had concerns about his claims and suggested that he could perhaps practise Falun Gong in private in China. I believe that he concocted this claim at hearing in an attempt to overcome my concerns and convince me he was at risk of harm in China.

4. I also find the claim that the applicant approached the Chinese Embassy a year before his passport was due to expire to find out what he needed to do when it eventually expired, and that when he was asked about his reasons for staying in Australia he told them he was a Falun Gong practitioner, far-fetched and implausible. I do not believe that someone who had applied for protection in Australia because he was fearful of the Chinese authorities would decide to seek information from Chinese officials on what he would need to do when his passport expired a year later. Nor do I accept that such a person would tell those officials that he had applied for protection because he was a Falun Gong practitioner. I find this to be yet another example of the applicant concocting claims to support his application for protection in Australia.

5. After considering all of the relevant evidence I find that the applicant is not a credible or a truthful witness and I do not accept that the applicant is or ever was a genuine follower of Falun Gong.

6. In reaching this conclusion I have taken account of the fact that the applicant has some knowledge of the practices and beliefs of the group. However, I note that while he was able to demonstrate one of the Falun Gong exercises reasonably well during the hearing, he did not complete all the movements and did not appear to have the confidence or ease which would be expected of someone who had practised these exercises on a regular basis for many years. In any event, as pointed out at the hearing, it is possible for anyone to acquire this knowledge using the group’s publications. In light of my findings regarding the credibility of other aspects of the applicant’s evidence I find that he acquired this knowledge not out of interest in or commitment to Falun Gong, but in order to support his claim for protection.

7. On the evidence before me and in light of the applicant’s overall lack of credibility and willingness to concoct claims, I am not satisfied that he has done more than attend a small number of Falun Gong events, mostly during the 10 weeks he was in Australia, in order to have his picture taken so that he could provide evidence to support his application. I am also not satisfied that he has had any involvement with Falun Gong since 2014 when he appears to have attended two cultural events organised by [Organisation 1].

   Does the applicant have a well-founded fear of persecution for a Convention reason?

8. As discussed above, I do not accept that the Chinese authorities had any continuing interest in the applicant or his wife in relation to the circumstances of the birth of their daughter after her birth was registered. Furthermore, after considering all of the relevant evidence, I am not satisfied that there is a real chance that the applicant would face serious harm on return to China for any reason related to the birth of his daughter or the operation of China’s family planning laws.

9. When asked by the delegate what future harm he feared as a result of the birth of his daughter or the operation of family planning regulations in China, the applicant said that he feared that his wife would be forced to undergo a tubal ligation. As noted above, I do not accept that the applicant or his wife were of continuing interest to China’s family planning officials after they obtained registration for their daughter and in any event, as noted by the delegate, the harm feared relates to the applicant’s wife (from whom he is now separated), not the applicant himself.  When asked about his fears on returning to China at the hearing the applicant said that he feared he would be denied the possibility of having another child if he remarried. This is mere speculation about what may happen at some at some time in the future and on the evidence before me I am not satisfied that there is a real chance that the applicant will be denied the right to have further children in future for any reason which might give rise to a claim for protection.

10. On the evidence currently before me, I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons in the Refugees Convention or that there is a real risk that he will experience significant harm on return to China because of the birth of his daughter or the operation of China’s family planning laws.  

11. As also discussed above, I do not accept that the applicant practised Falun Gong in China or that he is or ever was a genuine follower of Falun Gong. It follows that I am not satisfied that there is a real chance that he will face serious harm on return to China as a result of his participation in Falun Gong activities in China or that he will practise or attempt to practise Falun Gong if he returns to China or that he will be denied the right to practise or follow his chosen religion or beliefs if he returns to China.

12. As noted above, I accept that the applicant has attended some public Falun Gong events and protests since arriving in Australia. However, I find that he did so for the sole purpose of advancing his claim for protection in Australia. Section 91R(3) requires that such conduct should not be taken into account when assessing whether the applicant meets the definition of a refugee and I have therefore disregarded the applicant’s participation in Falun Gong activities in Australia when assessing his claims.

13. After considering the applicant’s claims individually and cumulatively I am not satisfied that there is a real chance that he will suffer serious harm for a Convention reason within the reasonably foreseeable future if he returns to China. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons contained in the Convention.

    Does the applicant meet the complementary protection criteria?

14. The applicant’s claims for complementary protection are the same as those put forward in relation to their claims against the Convention.

15. For the reasons set out above, I do not accept that the applicant was of adverse interest to the Chinese authorities for any reason associated with the birth of his daughter or the operation of China’s family planning laws at the time of his departure from China. Nor is there any credible evidence before me which suggests that he would be of adverse interest to the Chinese authorities or that there is a real risk that he would suffer significant harm if he returns to China because of the birth of his daughter or the operation of these laws. As noted above, the harm he claims to fear either related to his wife or was based on nothing more than speculation.

16. As discussed above, I do not accept that the applicant is a genuine follower of Falun Gong and find that he had no association with Falun Gong in China and participated in Falun Gong activities in Australia solely for the purpose of strengthening his claim for protection. I therefore do not accept that he will practise or have any involvement with Falun Gong if he returns to China. And for the reasons set out above I do not accept that his parents have told the authorities in his home town that he has applied for protection in Australia on the grounds that he is a Falun Gong practitioner or that the applicant himself has revealed this information to officials at the Chinese Embassy in Australia.

17. As discussed above, the applicant has attended a small number of Falun Gong events and activities while in Australia. However, as discussed above, I find that his engagement with Falun Gong was solely for the purpose of obtaining photographs to support his claim for protection in Australia. Furthermore these activities occurred mostly in the first 10 weeks or so of his time in Australia, after which he appeared to have attended two or three events over the next year before his involvement ceased entirely some four years ago. While I acknowledge that the Chinese government monitors the activities of Chinese citizens in Australia, including Falun Gong practitioners, I do not accept that there is more than a remote chance that these activities would have resulted in the applicant being identified as someone of continuing adverse interest to the Chinese authorities.  

18. On the evidence before me I am not satisfied that there is a real risk that the applicant will suffer significant harm if he returns to China because of his association with Falun Gong in Australia or for any other reason.

19. After considering these claims individually and cumulatively I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the China, there is a real risk that the will suffer significant harm.

    CONCLUSIONS

20. 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).

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

22. 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 criteria in s.36(2).

    DECISION

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

    Roslyn Smidt
    Member