1603787 (Refugee)

[2016] AATA 4382

1603787 (Refugee) [2016] AATA 4382 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603787

COUNTRY OF REFERENCE:                  China

MEMBER:Lilly Mojsin

DATE:1 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 01 September 2016 at 4:22pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] September 2014. The Tribunal, differently constituted, affirmed the decision of the Department on 22 December 2015. The applicant appealed that decision and [in] March 2016 the Federal Magistrates Court [reference number] ordered, by consent, that the matter be reconsidered. .

3. The applicant appeared before the Tribunal on 17 August 2016 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

6. See Annexure ‘A’.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has before it the Department's file relating to the applicant.

8. In his PVA the applicant claims that he is a Falun Gong practitioner, who was persecuted by the authorities in China. He was arrested and jailed. He was detained several times. In order to avoid being jailed and detained he left China. He stated that he would provide a statement later.

9. By statement submitted [in] August 2014 to the Department and by Statutory Declaration to the Tribunal declared on 2 November 2015, the applicant stated as follows:

   ·In [year] he graduated from high school and worked in his father's [business].

   ·In October 1996 he had dinner with his father's client, [Mr A], who said that he is a Falun Gong practitioner. He had been very ill before, he was dying and went to see many different doctors but no one could help him. One traditional Chinese doctor suggested he practice Falun Gong. After he practiced it, he recovered gradually.  He gave him a book called Falun Gong. He told him to practice according to that book. After he practiced it, his health improved gradually.

   ·The applicant could not fall asleep at night before he practiced Falun Gong. After he practiced he fell asleep easily at night and looked healthier according to his parents.

   ·There was a park close to his home. He went there to practice in the morning every day and practiced for 1 or 2 hours each time. He gathered 7 or 8 people in their practicing group. Some of them were the same age and some of them were older.

   ·Since mid 1999 Chinese government's media such as TV, radio and newspaper said that Falun Gong is a cult and Falun Gong practitioners do bad things. Other Falun Gong practitioners and the applicant did not understand the reason because Falun Gong is all about "truthfulness, compassion and forbearance." The applicant  discussed the government propaganda with other Falun Gong practitioners.

   ·They decided to protest in front of [County 1’s] government building. In July 1999 government officially banned Falun Gong practicing. [Mr A] was arrested. The applicant discussed with others how to save [Mr A].

   ·On a morning of early August more than 10 police came to their practicing site while they were practicing. They have guns. All [of] them were arrested. They drove them to [County 1] police station, Police asked them about Falun Gong after they arrived at the police station. They told police the truth of Falun Gong that Falun Gong teaches people to be kind and do good things. The Police said they were illegal by practicing Falun Gong. Police asked them to sign a declaration to promise not to practice Falun Gong anymore. Some people got scared so they signed. They were released within 2 months. Other 2 practitioners and the applicant did not sign it. The applicant was detained for 1 year and 4 months. The other two were detained for 6 months.

   ·After the applicant was released, his parents told him the government forced them to shut down their business because of him. He stayed home for 8 months and then went to Beijing to look for a job. He worked in [a company] as an [occupation].

   ·In September 2002 his parents called him and told him to go back to home and report to the police station because police went to their place. He also had to attend a "class". They would come to Beijing to arrest him if he did not go because they even knew his workplace and his address in Beijing. He had to go to [County 1] police station and they took him to [County 1] Detention Centre. He was  detained for 2 months. After he was released he could not go back to Beijing because his workplace fired him.

   ·In June 2003 he went to Shenzhen where he ran a small business.

   ·In August 2005 police went to his parents' place again to look for him. He did not go to [County 1] police station to report. One night In July 2008 when he just finished dinner, 2 [County 1] police showed up in front of him. Police took him back to [County 1]. He was detained for almost 4 months. He was released at the end of October.

   ·In November 2008 he opened a [different business] in [City 1], which is very close to his hometown. In mid September 2010 two police came at noon when he was about to have dinner. They took him to [County 1] police station and he was arrested for 2 months that time. Police arrested him regularly and it was really hard for him to survive. He had to leave China to have some peace. He stayed home for one month. Then he went to [City 2] to sell [products].

   ·[County 1] belongs to [City 2]. The applicant tried to apply for a passport, but the Police gave him trouble. They did not accept his application.

   ·In September 2012 two police came to his home again. They wanted his parents to contact him. They wanted him to go to the police station again. His [product] business went well at that time and he could not afford to close his business, so he told his parents to give those two police [an amount] CNY each to avoid being arrested.

   ·In June 2013 one police officer from [City 2] police station came to his [business] to buy [products]. He did not buy the best quality but he sent him the best ones he had. That police officer, [Officer B], was very happy. [Officer B] asked him to stay and have dinner with him. He asked him if he can help him with anything. He told him he needed to apply for a passport. [Officer B] said he could help him. In [2013] his passport was granted. He gave [amount] CNY to [Officer B]. He asked him to help him prepare documents for a visa. [In] December 2013 the applicant left China.

   ·He believes the government will persecute him when he returns to China.

10. At the Tribunal hearing held on 17 August 2016 the Tribunal informed the applicant about  s.499 Ministerial Direction. The applicant acknowledged that he understood the interpreter. He said that that he was born on [date] in [City 2], Hunan, China. The applicant is married, he married in 2004 in [County 1], Hunan. He has one child [born] on [date] and [another child] was born on [date]. His family lives in [City 1], his wife supports herself. He works in Australia as [occupation]. He worked as [an occupation] in China occasionally. He learned on the job in China as he also worked [with products].  He had a shop and his own business in China.

11. He came to Australia because after 2 or 3 years the police came to his home and detained him. It was in August 1999 that he was detained for 16 months. He was detained again in 2002 for 2 months, again in 2008 for a month. In 2010 he was detained for 2 months.  He obtained a passport in 2012 or 2013.

12. The applicant provided his passport to the Tribunal and I discussed with him its issue [in] 2013. As his passport has an endorsement on stating that it replaces a previous passport that he had lost, when asked when his first passport was issued, he responded someone got it for him. When put that his current passport is a replacement passport he said it is the 1^st passport he got. By himself he could not get a passport issued, he asked a leader from PSB to get him the passport.

13. When asked how he got the passport, he said that he paid a PSB officer, he gave him some money and he got him the passport. When asked if he had good business in China he said he never knows when will be detained over there.

14. It was put to the applicant that according to the Passport Law of the People's Republic of China (2006), ordinary passport applicants are required to apply in person to the Entry-Exit Control Department of the Ministry of Public Security or their designated bureaus where their hukou is registered. Applicants must provide their resident identification card, resident household registration book, recent photos and other materials related to the reasons for their application. Approved applications are generally issued passport within 15 to 30 days. If a passport application is refused, reasons for the refusal must be provided in writing and the applicant is to be informed of their right to apply for administrative reconsideration or to file an administrative lawsuit.   The applicant responded that is not the case in China, the law is not followed. For those who live in his small town usually the procedure is go to the police station and if the police officer does not like you, they may refuse to give you the form, and then with the form he will need to take it to [County 1] and then to [City 2]. It was put to him again he had to go in person. He said he was not able to go through the procedures himself.

15. He confirmed that he left China without any problems with [Airline 1] from Changsha Hunan to [Country 1].  When put that he was of no interest to the Chinese authorities when he left, he responded that the officials who checked him were not officers from the PSB but were from the army. When put to the applicant that sophisticated technology is used and there is surveillance by immigration and security agents at China's major airports, Changsha Hunan being the 5^th or so largest and that Chinese authorities keep electronic policing records on a database called the Golden Shield. The database holds records for criminal information, criminal fugitive information and passport information. The Golden Shield is linked to local security databases nationally and a citizen's records can still be accessed by police officers outside their local area. It is through these public security offices, or police departments, that citizens must apply to obtain a passport. If a citizen's Golden Shield record shows that they have been issued an arrest warrant, are a defendant in a criminal case or are a criminal suspect, they may be prevented from obtaining a passport.

16. When put again that he was not person of interest when he left China, he responded that it is not like the national police they are chasing after him. It is the local police, not police from another area.  When asked why the local police were interested in him he responded that he was not important but he practices Falun Gong and they do not like you.

17. He said that he started to practice Falun Gong in 1996 because his father’s friend practiced. He learned from this person called [Mr A] who gave him a book and taught him basic movements.  He practiced around their home as there was a small wood nearby and he and [Mr A] went to the wood. [Mr A] only taught him for several days.   He went back to his area and sometime later taught him again. He followed the instructions in his home. He only practiced with [Mr A]. At a later stage with some other friends he practiced at end of 1996. They practiced in the woods as the air is very fresh in the morning.  He practiced until the 1^st time he was detained.  He practiced with a number of different groups of people.  They joined the group because of him as he was the first one to practice in their area. He is an experienced practitioner. He was the teacher of this group.  He told his friends.  He taught 2 friends and they helped him teach the other people. They were not in an organisation, just treating it as a sport.

18. The applicant was detained in August for 16 months because in 1999 the government was cracking down on Falun Gong. When he was taken away he was asked to sign an undertaking to give up and he refused. He was practicing in the woods with the same people, several police officers came and they were told it is now illegal and go with me. They put them in police van and drove away. After they arrived at police station they registered their names. He became aware the government banned Falun Gong when it was reported on television. When asked why he continued to practice when he knew it was banned he said because he felt it is not as bad a thing as was said on television. He believed it is a personal thing and it did not affect the society. He practiced almost every day.

19. There were [number] people who were detained that day. He individually named all [the] people and said that he was included in those [number] persons. Two were detained for 6 months and [the others] signed and went into a study group.

20. When asked if he was taken before a court he said he did not go before a court. They gave no reason when he was released.

21. He did not continue to practice in public after his detention, he just did some exercises in his own home.  He lived in Beijing for a year.  He did not practice in Beijing. Then the police detained him again.  He was at work when he received a call someone was looking for him and 2 police officers came into his workplace. He does not know how they found him. They took him back to Hunan by train.  He was told he is a Falun Gong practitioner.  In their area there is a place especially for Falun Gong practitioners. He was taken to that place and asked to write a reflection letter, it took more than 20 days. He was detained for 2 months. 

22. The applicant stayed at home for 6 months and then went to Shenzhen. After he was detained the first time he rarely practised except at home. He stopped all together when he lived in Beijing. He has not practised in public in Australia. He has given up practising Falun Gong.  He said that if he returned to China he would not practice Falun Gong.

23. In 2008 they found him again, he was still required to register residency in China. In 2008 he was doing [work] and works with [products] and behind him was a market so that when he was communicating with customer on line 2 police officers came and wanted to take him away. It was in the morning almost noon. He called his wife to bring his stuff. They took him by train again – 2 police officers. He was detained for almost 4 months.  They did not tell him why they were detaining him it was because he belonged to an evil cult [Falun Gong].

24. In 2010 he opened a [different business] when he doing business in the morning the police turned up in the shop and they took him away for 2 months. They took him by car.

25. His father was put in prison for 4 years in 1988. His father made an appeal. When put that nothing else happened to his father and his claimed detentions were not due to his father, he said it was correct nothing else happened to his father.

26. It was put to the applicant that it implausible that he was not a leader nor a practitioner and yet the authorities were pursuing him for practising Falun Gong.  He responded that his understanding is that he should not have practised in the beginning and the label is with him. In China the police operate like this, some people go to Beijing for petitioning. Put independent evidence does not support his claims that Chinese continue to pursue former practitioners. He disagreed saying what is reported in media is different from reality.

27. When asked about other people who were arrested with him in 1999 he said 2 friends were detained for 6 months. On that day [number] people were practising Falun Gong, including himself.  It was put that he had stated the other [number] signed and went into study group for 2 months but he had told the department in hi PVA that all [number] people were detained and not [number]. He responded that he may have been mistaken or forgot. It was further put to him that he had provided all names of people who were detained on that day and there were [number], he was the [number]^th. He said sometimes they came and did not attend whole group. He had given names to the Tribunal of people who usually practice. 

28. It was also put to the applicant that he had stated earlier that at the time he was in Beijing, at work, he received a call someone was looking for him and 2 police officers came to his work place and took him away whereas told the department his parents called him and he went back to his home. He responded that he did not attend any department interview. It was put to him that he had also made those same claims to the Tribunal by statutory declaration. He did not respond when asked if he had a comment.

29. When put the implausibility of Chinese authorities continuing to harass persons who do not practice Falun Gong and are able to depart China legally from an international airport, he said a lot of Falun Gong practitioners left China. He is not sure if he will suffer persecution if he returned and it is better, he is now not sure if they will arrest him if he returned. When he was coming over [to Australia] at that time he was 100% sure they would arrest him.

30. In June 2013 one police officer from [City 2] city police station came to his [business] to buy [products]. He did not buy the best quality but he sent him the best one he had. That police officer, [Officer B], was very happy. [Officer B] asked him to stay and have dinner with him. He asked him if he can help him with anything. He told him he needed to apply for a passport. [Officer B] said he could help him. In [2013] his passport was granted. He gave [amount] rmb to [Officer B]. He asked him to help him prepare documents for a visa. [In] December 2013 the applicant left China.

31. It was put to that applicant that Falun Gong practitioners are generally able to practice privately in their homes relatively free from interference by authorities. However, Falun Gong members regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours. Generally speaking, the possession of banned materials (books, CDs, or information about Falun Gong) would likely attract a fine or short-term period of administrative detention.  It was also put he lived in other places other than where he claimed to have practiced. There is no reason for him to be pursued from 2000 onwards. He responded that he agrees there was no reason.

    REASONS AND FINDINGS

32. On the basis of his PRC passport, I accept that the applicant is a national of the PRC and is not a national or citizen of any other country or has a right to enter and reside in any country other than PRC. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that PRC is the applicant's “receiving country” for the purposes of s.36(2)(aa).

33. The applicant claims that he was a Falun Gong practitioner in 1999, who was detained on a number of occasions from 1999 and as a consequence of the harm suffered came to Australia.

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

2. According to Epoch Times[1]in July 1999 police announced on loud speakers that it was “illegal” to practice Falun Gong and started arresting adherents in mass. Chinese lawyers regularly point out there is no law in China that bans the practice. One explanation for the persecution is that the Communist Party perceived the spiritual group—which follows the tenets of truthfulness, compassion and tolerance—as a threat to its atheistic ideology. According to Chinese state statistics in 1999, the number of Falun Gong practitioners exceeded that of Party members (numbering 65 million). Those who had taken up the practice included members of the security forces and the military and high-level CCP leaders. There are allegations of forced organ harvesting of Falun Gong practitioners vilifying Falun Gong and its founder, Li Hongzhi[2], detailed by Minghui.org, a U.S.-based Falun Gong information website, and also claims that the Communist Party drafted the entire society into the ranks of the persecutors, creating an environment in which practitioners had no rights and no security. They could be attacked with impunity by anyone for any reason.

   [1]

   [2]

3. The DFAT Thematic Report: Unregistered religious organisations and other groups in the People's Republic of China 3 March 2015 provides the following information in relation to Falun Gong:

   “3.23 Falun Gong reportedly remains active throughout China, but most prominently in Shandong and north-eastern China.

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

4. I accept that it is difficult to prove membership of Falun Gong. I do not accept that the applicant was perceived to be or was a member, practitioner or follower of Falun Gong as I not accept that the applicant is a witness of truth. Some claims he made regarding his detention in China to the Department were not consistent with claims he made at the Tribunal hearing. Some claims he made were implausible. I am satisfied that the applicant is not a witness of truth who has created his claims in order to obtain the visa sought.

5. Firstly, the applicant advised the Tribunal that when he was arrested in 1999 and detained for 16 months, he and [number] friends were detained ie [number] persons. He told the Department in a statutory declaration in support of his PVA, also submitted to the Tribunal, that there were only [number] detained. His response to this inconsistency when put was that he was confused. As he was asked at the Tribunal hearing to provide the names of each person, and he provided [number] names in addition to his own name, I reject his claim that he was confused or that he provided the names of persons in his Falun Gong exercise group.

6. Secondly, the applicant did not provide consistent information regarding what happened to [other] persons in the group detained in 1999. He stated in his PVA that other than himself and [number] others, who were detained for 6 months, the other [persons] signed a declaration and were released within 2 months whereas at the Tribunal hearing he said that the other [different number] persons signed a declaration, went into a study group and they were not detained.

7. Thirdly, the applicant told the Tribunal that when he lived in Beijing, 2 policemen came from his home town, to his workplace in Beijing and escorted him back home by train. Beijing is some [number] hours travel overland from [County 1][3]. In his PVA he stated that his parents had contacted him and advised him to return to his home town, to the [County 1] County Police, as the police required him to report to them.

   [3] [Information deleted].

8. Fourthly, the applicant claims that he was of such interest to the local Chinese authorities in [County 1], that they sent police to Beijing to escort him back to [County 1]. They continued to be interested in him and pursued him from 2000 despite his not practising Falun Gong in public at any time after 1999 and despite him not practising in his own home whilst living in Beijing. His explanation for this ongoing interest in him is that he should not have practised in the beginning and the [Falun Gong] label remains with him. In China the police operate like this, some people go to Beijing for petitioning and what is reported in media is different from reality.

9. I accept that in China media reports can vary from reality and whilst Chinese law provides for the right to petition the government for resolution of grievances, citizens who travelled to Beijing to petition the central government were frequently subjected to arbitrary detention and harsh treatment by police[4]. Further, independent information [US State Department Reports Human Rights Practices 2015][5] states that family members of activists, dissidents, Falun Gong practitioners, journalists, unregistered religious figures, and former political prisoners were targeted for arbitrary arrest, detention, and harassment.

   [4] US State Department Report 2015

   [5]

10. I am of the view that the applicant’s claims of on-going detentions is implausible. The applicant does not claim to have practised Falun Gong in public after 1999, he does not claim to have been a practitioner after 1999, nor does he claim to have practised regularly at home since living in Beijing. He does not claim to have any family members who are practitioners. I do not have any independent information before me to suggest that persons who practised Falun Gong in public, at the time of the 1999 crackdown when thousands were arrested and detained, who has ceased to practise in public or at home, continue to suffer from on-going detentions from either the local police or the regional police. I am of the view that were this the situation it would be known to independent sources, such as US State Department, Amnesty International and DFAT.

11. Fifthly, the applicant claimed that he was able to leave China without any problems. The applicant left from Changsha via [Airline 1] to [Country 1].  When put to the applicant that the police authorities check persons at exit the applicant responded that it was the army only who patrolled the airport. I note that Changsha Datuopu Airport/AFB  (also called Changsha City) is the second airport serving Changsha and mainly used for military purpose[6].  The applicant said he travelled from Changsha to [Country 1] with [Airline 1] airlines. [Airline 1] flies from Changsha Huanghua International airport to [Country 1] International airport[7], and Changsha International airport is currently among the busiest airports in China. The new terminal 2 is the 5th largest airport terminal in mainland China[8].  I reject his claim that the military patrolled the airport when he departed Changsha and I find he departed from Changsha Huanghua International airport.

    [6]

    [7] [Information deleted].

    [8]

12. I accept a 2010 RRT Research response[9]  that the Chinese Exit and Entry authorities maintained alert lists of persons of interest. Chinese police are in charge of exit and entry administration, in all ports of entry including international airports where there are police units in charge of examination and they can connect to the system[10].

    [9]  CHN37863, 13 December 2010

    [10] CHN103133.E Immigration and Refugee Board Canada

13. The independent evidence was put to the applicant that sophisticated technology is used and there is surveillance by immigration and security agents at China's major airports. Chinese authorities keep electronic policing records on a database called the Golden Shield. The database holds records for criminal information, criminal fugitive information and passport information. The Golden Shield is linked to local security databases nationally and a citizen's records can still be accessed by police officers outside their local area. All police departments at the county level or above can access Golden Shield, most departments below county level and police officers stationed at ports of entry such as international airports can also access the system[11].  As the applicant departed China from Changsha International Airport I prefer the independent evidence. I am satisfied that his passport was checked, as detailed, in independent evidence herein. I am satisfied when he departed he had no problems leaving as he was not of interest to the Chinese authorities.

    [11] CHN103133.E Immigration and Refugee Board Canada

14. I have considered his evidence that it is not the national police that are chasing him, it is the local police because he practiced Falun Gong and they do not like him. I accept that there is a pattern of retribution that is almost always seen against people who show any kind support for Falun Gong practitioners[12], but I do not accept as plausible that a person who claims to have practised Falun Gong in 1999, and who did not practise in public after 1999 and did not practice privately, who makes no claim of any involvement with other Falun Gong practitioners after 1999, would be pursued by the local police for over 13 years especially as he did not always live in his local area but also lived to Beijing, Shenzhen, [City 1] and [City 2].

    [12]

15. Furthermore, it is through public security offices, or police departments, that citizens must apply to obtain a passport. If a citizen's Golden Shield record shows that they have been issued an arrest warrant, are a defendant in a criminal case or are a criminal suspect, they may be prevented from obtaining a passport. According to the Passport Law of the People's Republic of China (2006)[13], ordinary passport applicants are required to apply in person to the Entry-Exit Control Department of the Ministry of Public Security or their designated bureaus where their hukou is registered. Applicants must provide their resident identification card, resident household registration book, recent photos and other materials related to the reasons for their application. Approved applications are generally issued passport within 15 to 30 days. The applicant claims that he could not himself get a passport but was assisted by a PSB officer. When put to him that he had to go personally to apply for a passport he said he was not able to go through the procedures himself. In China, the law is not followed, those who live in his small town like himself go to the police station and if the police officer does not like a person, they may refuse to give the form, and then the form is taken to [County 1]. I reject his explanation. I prefer to rely on the independent evidence stating that a person must go personally to obtain a passport. I find that the applicant obtained his passport himself.

    [13]

16. The applicant’s passport has a notification on it that it is a replacement passport. At the Tribunal hearing the applicant said it was not a replacement. I reject his claim that he did not replace his passport, I prefer to rely on the notification on his passport that it was a replacement passport. I am of the view that the applicant did not acknowledge the loss of a previous passport and re-issue of a new passport in order to provide consistency with his claims that he obtained his passport in [2013] after paying a bribe to a PSB officer. Therefore I am satisfied that as the applicant has himself obtained a passport and replacement of his passport, I do not accept the applicant had to arrange a passport with the assistance of a grateful PSB officer due to having a perceived adverse political/religious profile, as claimed.

17. As the applicant obtained a passport and a replacement passport himself, and as Chinese Exit and Entry authorities maintained an alert lists of persons of interest and persons of adverse interest to the Chinese authorities are not able to obtain a valid passport[14] I do not accept that were the applicant of the profile claimed, ie a Falun Gong practitioner who has been detained on at least 3 occasions and was detained in 1999-2000 by Chinese authorities for 16 months that he remained of interest to those authorities or that he would be able to legally depart China via an airport where passports are checked against the database. 

    [14]  CHN37863, 13 December 2010

18. As for his claim that other Falun Gong practitioners have been able to exit China, I accept that there have been exits from China by Falun Gong practitioners, but I have no information about the circumstances of those persons. The applicant has explained that it was only the local police who were interested in him. I reject his claim. I do not accept as plausible that the local police would travel to Beijing, some [number] hours away, in order to detain him. I prefer to rely on the independent evidence that indicates that Chinese authorities keep electronic policing records on a database called the Golden Shield and the database holds records for criminal information, criminal fugitive information and passport information. The Golden Shield is linked to local security databases nationally and a citizen's records can still be accessed by police officers outside their local area.

19. As I do not accept that the applicant is a witness of truth, I do not accept that in October, [Mr A], a Falun Gong practitioner, gave him a book called Falun Gong and told him to practice according to that book and after he practiced it, his health improved gradually. I do not accept that he went to a park or a wood close to his home to practice in the morning every day and practiced for 1 or 2 hours each time and gathered [number] or [number] people in his practising group. I also do not accept that the applicant discussed the government propaganda with other Falun Gong practitioners, that they decided to protest in front of [County 1’s] government building or that in July 1999 [Mr A] was arrested and the applicant discussed with others how to save [Mr A]. I do not accept that in August 1999 police came to their practicing site and persons with him were arrested or detained, that the government forced his parents to shut down their business or that in September 2002 he was  detained for 2 months and fired by his employer, that in August 2005 police went to his parents' place again to look for him, in July 2008 he was detained for almost 4 months, in mid September 2010 he was arrested for 2 months or that in September 2012 two police came to his home and his parents paid the police to avoid him being arrested.

20. I have considered the applicant’s claim that his father was put in prison for 4 years in 1988 and appealed. As nothing else happened to his father and the applicant did not claim this detention involved him in any way and nothing else happened to his father, and as I do not accept that the applicant is a witness of truth, I do not accept that his father was imprisoned as claimed.

21. I have considered all of the applicant’s evidence singularly and cumulatively. I do not accept the applicant is a witness of truth. Therefore I am not satisfied that the applicant was perceived to be or was a Falun Gong follower, practitioner, sympathiser, teacher or activist. I also do not accept that the applicant was involved in any Falun Gong activity in China or that he was detained.  I am satisfied that the applicant had no adverse religious or political profile in China prior to departing for Australia. I am satisfied the applicant did not flee China fearing harm but came to Australia as the holder of a visitor visa.

22. I am required to consider the situation if there is a real chance the applicant would suffer serious harm in the future if he were to return to China. As I do not accept that the applicant was involved in any Falun Gong activity in China or that he was detained and as I am satisfied that the applicant had no adverse religious or political profile in China and as the applicant has not practised Falun Gong in Australia and as he has stated that if he returned to China he would not practice Falun Gong, I am not satisfied that the applicant is at risk of serious harm in China, on his return to China.

23. 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).

    Complementary protection

24. I have rejected the all the applicant’s claims. I have rejected his claims that he practiced Falun Gong in China or was detained in China. I do not accept that the applicant will undertake any Falun Gong activities when he returns to China, as he is not a genuine Falun Gong practitioner and he agrees that he will not practise Falun Gong on his return. I do not accept that the applicant had an adverse political profile in China or an adverse imputed political profile or that the will be imputed with an adverse profile on his return to China.

25. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely China, that there is a real risk he will suffer significant harm. I do not accept on the evidence before me, therefore, 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. Accordingly, the I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    CONCLUSIONS

26. 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).

27. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).]

    DECISION

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

    Lilly Mojsin
    Member

    
    

    Annexure A

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

2. 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).

3. 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.

4. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

6. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

7. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

8. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

9. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

10. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

11. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

12. 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’).

13. ‘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.

14. 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

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