1619684 (Refugee)

[2017] AATA 681

1619684 (Refugee) [2017] AATA 681 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619684

COUNTRY OF REFERENCE:                  China

MEMBER:David McCulloch

DATE:26 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 26 April 2017 at 3:17pm

CATCHWORDS
Refugee – Protection visa – Federal Court remittal – China – Religion – Falun Gong – Social group – Black child – Changes in family planning policy – Credibility issues

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R(1)(c), 424A, 438(1)(a), 499
Migration Regulations 1994, Schedule 2, r 1.12

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Cabal v MIMA [2001] FCA 1806

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559

MIMA v Lim (2001) 112 FCR 589

Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437.
SZGIZ v MIAC (2013) 212 FCR 235

Yao-Jing Li v MIMA (1997) 74 FCR 275

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] June 2014.

3. This review had previously been considered by the Tribunal, differently constituted, resulting in a decision dated 5 April 2016 (‘first Tribunal decision’) which upheld the delegate’s decision. By consent, [in] November 2016, the Federal Circuit Court remitted the matter to the Tribunal to re-determine according to law for reasons outlined further below.

4. The first and second named applicants appeared before the Tribunal on 11 April 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse dependent children.

10. For the purpose of this decision, the Tribunal accepts that the second named applicant is the spouse of the applicant and that the third named applicant is the dependent child of the applicant and they are therefore both members of the same family unit as the applicant.

11. 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. The Tribunal has before it DFAT Country Report – China, 3 March 2015 and DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015. Copies of both documents were provided to the applicants in the hearing.

12. The issue in this case is the credibility of the first named applicant and the second named applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and scope of review

13. The decision of the delegate, a copy of which has been provided by the applicants to the Tribunal, indicates as follows in relation to the first named applicant (‘the applicant’). The applicant arrived in Australia [in] July 2008. He arrived on a [temporary] visa that was valid until [date] August 2008.  He remained thereafter, until [date] February 2009, on a Bridging visa. The applicant was unlawful from that point until a further Bridging visa was granted [in] August 2011.  Based on other evidence, the second named applicant (‘the applicant wife’) arrived in Australia at the same time as the applicant.

14. The applicant lodged an initial claim for a Protection visa [in] August 2008. The applicant made claims of harm in his own right. The applicant wife was included the application on the basis of being a member of the same family unit as the applicant, without making claims of her own.

15. That application was refused by a delegate of the Minister [in] October 2008. The applicants did not attend the scheduled interview to discuss the claims. Review was sought by the Refugee Review Tribunal which upheld the refusal on 30 December 2008. The applicant and the applicant wife did not appear at the scheduled Tribunal hearing.

16. The claims were assessed based on the Refugees Convention criterion, prior to the implementation of the complementary protection criterion.

17. The third named applicant, (‘the applicant child’), made a separate application for a Protection visa [in] December 2011. Her application was refused by the delegate [in] May 2012. A review by the Refugee Review Tribunal affirmed the decision on 30 October 2012.

18. This application by the applicant child was considered under both the Refugees Convention criterion and the complementary protection criterion.

19. In relation to the applicant, the current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).

20. However, given that the applicant wife did not make her own claims for a Protection visa in the 2008 application, her claims are to be considered under both the Refugees Convention criterion and the complementary protection criterion. The Federal Circuit Court, in the remittal by consent, quashed the first Tribunal decision dated 5 April 2016 on the basis that the Tribunal erred in determining that the claims of the applicant wife were only to be considered under the complementary protection criterion.

21. As the applicant child has already had claims considered under both the Refugees Convention criterion and the complementary protection criterion, she is not eligible to have claims considered in her own right. She is in a position to be granted a Protection visa as a member of the same family unit if the applicant and/or the applicant wife meet relevant Protection visa criterion.

22. The applicant and the applicant wife have a second child, [name], born on [date] in [City 1, Australia], As [the second child] was born after the date of the delegate’s decision dated [in] June 2014 [the child] was not included in the primary application. Judicial authority indicates that a child born after the delegate’s decision will not be taken to be included in the parent’s visa application even if the child is born during the course of the review.[1]

    [1] MIMA v Lim (2001) 112 FCR 589; Cabal v MIMA [2001]FCA 1806 where the Court considered analogous situations regarding the addition of applicants during the review process.

    Initial claims as part of current application

23. The applicant provided a written statement to the Department as part of the current application. It provided as follows.

24. The applicant and the applicant wife came to Australia in July 2008. They were practitioners of Falun Gong who were persecuted, intimidated and discriminated against. Their land was taken away by the government. Since arrival in Australia they have continued to study and practice Falun Gong.

25. The local government in the applicant and applicant wife’s home town was imposing discriminating measures against family members of Falun Gong practitioners. Family members are regarded as second class citizens. Since their arrival in Australia, a countryman of the applicant and applicant wife was prosecuted by the government simply for keeping in touch with the applicant. This person was sympathetic to the applicant and applicant wife’s plight and began to practice Falun Gong. He indicated to the applicant and applicant wife that the local government was intimidating and monitoring family members of the applicants’. Each year they would be intimidated by the government, especially during festivals or political events.

26. In May 2013 the applicant and applicant wife emailed a friend a video of celebrations for Falun Gong day held worldwide. These videos were discovered by the police and the friend was detained. The police put pressure on this friend and he was told to tell the applicants that they must return to China and make a confession. If not, the applicants’ families would not be spared. As a result, the applicant and applicant wife’s parents went into hiding.  Their brothers and sisters indicated they would sever ties with the applicants. Police kept coercing them to call the applicant and applicant wife every week with threats if they did not. Since 2013 the situation in their home town has become worse and worse. Police have cut off the applicant’s Internet connection and have been tapping his phone.  This has caused the applicant to become afraid to call his family.

27. The applicants are at risk because they are unwilling to renounce their faith. Falun Gong has become an indispensable part of their life.

28. A further statement by the applicant appears on the Tribunal file. It indicates that the applicant wife connected with Falun Gong in 2007 when a friend introduced them to it. After noticing the good health of the friend they decided to try Falun Gong. The applicant wife suffered from a [disease]. The applicant found that his heath improved with the practice of Falun Gong. The applicant tried to introduce Falun Gong to friends.

29. From July 2007 village leaders knew that the applicant and the applicant wife were practitioners.  This resulted in an interview in which authorities said that Falun Gong was against the government and is evil. They asked the applicant and applicant wife to change their thoughts and beliefs and to quit Falun Gong. However, the applicant and applicant wife continued to practice. In December 2007, because of their Falun Gong practice, the applicant’s [property] was seized without compensation. They had no choice but to build their own home.

30. For these reasons, the applicant and the applicant wife decided to leave China.

31. There have been variations and additions to the applicants’ claims over time in relation to Falun Gong issues.  Evidence has been provided as part of various proceedings in relation to Falun Gong activity in Australia.  Details are referred to in the various credibility findings below.

32. In the Tribunal hearing held on 5 November 2015, in respect of the first Tribunal decision, claims were made by virtue of the fact that the applicant and the applicant wife have two children and the implications of that, given family planning laws in China. It was indicated that they had not been given permission to give birth and that they would become a ‘black household’.  The Tribunal, in that hearing, made reference to information concerning family planning laws indicating, that in certain circumstances, permission may be given for a second child. The Tribunal indicated that, depending on a couple’s circumstances, a family may have to pay a social compensation fee for a second child. The Tribunal also made reference to the fact that there had been a relaxation in China recently allowing couples to have two children. The applicant indicated that they would not be given permission to have two children because of the association of he and his wife with Falun Gong.

    Independent information on Falun Gong

33. 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:

    Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Taoism, Buddhism, and qigong (a traditional Chinese exercise). Falun Gong practitioners say the movement has ancient origins, but it first appeared in its modern form in 1992, when group founder Li Hongzhi began teaching the exercises in Changchun, China. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and north-eastern China.

    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.

    Credible sources have told DFAT 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. However, punishments can vary according to location, the profile of the individual and local political circumstances.

    The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address “evil cults”. This group maintains an extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong), to eradicate Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as “transformation through re-education centres” to force practitioners to relinquish their faith. Since the general abolition of re-education through labour centres was announced in late 2013, Falun Gong practitioners have reportedly been sent to black gaols, sentenced to other forms of administrative punishment, or have been released after receiving propaganda training. According to Duihua’s Political Prisoner Database (PPDB), the number of Falun Gong prisoners known or believed to be in custody has nearly halved since 2009 and approximately 2,369 cases were documented for 2013. The United States Commission on International Religious Freedom stated there were 486 known Falun Gong practitioners serving prison sentences as at the end of 2013. According to Freedom House, the Chinese government launched a new, three-year crackdown against Falun Gong practitioners in 2013.

    Falun Gong practitioners who are sentenced to criminal punishment most commonly receive verdicts of three years’ imprisonment or less. Once in detention, Falun Gong practitioners are under pressure to denounce their faith in Falun Gong. Methods reportedly used against Falun Gong practitioners include sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings. Reports of psychological treatment used against practitioners have also been documented in international human rights reports. Reports of psychiatric experimentation and organ harvesting being imposed on Falun Gong practitioners in detention could not be independently verified.

    Leaders and regular followers tend to receive the same type of treatment in detention. Falun Gong practitioners who sign confessional statements early can possibly face better treatment in detention and can be permitted to return to their normal lives and jobs. Others who are persistent in defending their beliefs and who refuse to sign a statement can face worse treatment in detention. The lack of transparency into China’s prison and detention centres makes it difficult to verify these claims.

    On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs (such as cleaning toilets or subways). Discrimination of Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships. There have been cases where officials have targeted family members in order to pressure Falun Gong practitioners. Officials working within the government, members of the police force and workers within state-owned enterprises are commonly required to sign an acknowledgment clause stating they and their families are not Falun Gong members.

    Falun Gong practitioners who are committed to their faith and who were already known to authorities or who had overtly engaged in behaviour considered to be politically sensitive would likely find it very difficult to obtain a passport to leave China. DFAT has been told of some immigration agents in China who coach people about what to say in order to convince others that they practiced Falun Gong. DFAT was also told that some lawyers and other “people who wanted to make money” (particularly those located in transit countries with some training in immigration matters) had been discovered teaching people about Falun Gong practices in order to aid their clients’ claims for asylum. Falun Gong practitioners who denounce their faith in order to avoid punishment by Chinese authorities would likely be rejected from the Falun Gong community in China. However, this was not necessarily the case for those seeking to join the Falun Gong community overseas, where knowledge of their actions in China would not necessarily be well-known or easily disproved.

    Human rights lawyers who defend Falun Gong practitioners can be denied access to their clients in detention or court and can be subjected to adverse treatment by authorities (such as harassment, loss of legal licenses, pressure on family members and occasionally, violence). Unlike other organisations identified as “cults” by the Chinese government, practitioners of Falun Gong are not considered victims but rather as people operating in deliberate opposition to the Chinese government’s policies.

    DFAT assesses that Falun Gong practitioners, and the lawyers who defend them, can be at risk of official discrimination and violence. The Chinese government’s widespread propaganda campaign and security surveillance system have effectively discredited Falun Gong beliefs within mainstream Chinese society leading to potential societal discrimination in instances where Falun Gong’s secretive activities have been exposed. Societal violence against Falun Gong practitioners is generally low.[2]

    [2] DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015, paras. 0

    Hearing, credibility, findings and assessment

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.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.

2. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA  (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

3. The Tribunal is satisfied that the applicant and the applicant wife are citizens of China and accordingly their claims will be assessed against China.

4. In this decision, the Tribunal hearing held on 11 April 2017, with respect to the review on remittal, will be referred to as ‘the 2017 Tribunal hearing’. The Tribunal hearing held on 5 November 2015 with respect to the current review, leading to the first Tribunal decision which has been remitted, will be referred to as ‘the 2015 Tribunal hearing’. The Tribunal, as previously constituted as part of this review, leading to the decision that has been remitted, will be referred to as ‘the initial Tribunal’.  The Tribunal as currently constituted, considering the remitted review, will be referred to as ‘the current Tribunal’.  The 2011 Protection visa application process of the applicant child will be referred to as ‘the 2011 applicant child review’.

5. Following the 2015 Tribunal hearing, the initial Tribunal wrote to the applicants in accordance with the procedural requirements of s.424A of the Act. It noted evidence as part of the various Protection visa proceedings by the applicants over time as potentially adverse to the applicants’ claims. The applicants responded to the initial Tribunal to this information in writing. The current Tribunal, in advance of the 2017 Tribunal hearing, sent this same material to the applicants pursuant to the procedural requirements of s.424A indicating that the current Tribunal considered this information relevant for the same reasons as identified by the initial Tribunal, and that the information could be considered adverse for the same reasons as identified by the initial Tribunal. In the response provided by the applicants to the current Tribunal they maintained the responses provided to the initial Tribunal, and made additional comments. These various responses are detailed further below.

   Issues in China concerning Falun Gong activities

6. The Tribunal has numerous and some significant credibility concerns in relation to claims of Falun Gong practice by the applicant and the applicant wife in China, harm inflicted on them in China, harm inflicted on family members and other individuals as a result of the Falun Gong activities of the applicant and the applicant wife, harm inflicted on individuals in China as a result of the applicant and the applicant wife sending Falun Gong materials back to China from Australia, and claims that the applicant and applicant wife have been told that they must return to China.

7. Firstly, there are inconsistencies in evidence as to when the applicant and the applicant wife commenced their Falun Gong practice in China.

8. As noted in the first Tribunal decision, originally in their 2008 application it was claimed that the applicant and the applicant wife both started Falun Gong practice in 2007 and a few months later, in July 2007, they were warned by village officials to cease their practice, but they continued until December 2007. In the 2011 applicant child review it was claimed that the applicant and the applicant wife commenced Falun Gong practice in July 2007 and were discovered by village officials in July 2007. In the 2015 Tribunal hearing the applicant stated that the applicant wife had already been a Falun Gong practitioner in 2006 when they first moved in together and that he learnt the practice from her in July 2007.  In contrast, the applicant wife stated at that hearing that she commenced practice in July 2007 having learnt the practice from videos and materials.

9. In response to s.424A letters, sent by both the initial Tribunal and the current Tribunal, setting out this information, and noting the inconsistencies, it was responded that the applicant and the applicant wife got to know each other in 2006. During this period, there were many events related to Falun Gong and it is difficult to remember all of the details. One thing is clear, that they practised Falun Gong together in July 2007. The applicant wife followed other people in practising Falun Gong in 2006. At that time, her understanding of Falun Gong was limited. It was not until the end of 2007 that she became more familiar. From 2006, they talked about Falun Gong occasionally and would practice some basic poses. They did not consider they were practising formally at that time. That is why it is hard to tell exactly when they started practising. They indicate that the formal practice should be from 2007. When the applicant wife obtained ‘Dharma’ in 2007, she started teaching the applicant Falun Gong.

10. The Tribunal does acknowledge the potential for confusion as to the precise timing and dates of events that occurred many years ago. However, the Tribunal would expect that the development of a spiritual belief, which is claimed to have become central to the lives of the applicant and the applicant wife, would be relatively clear in their minds. The various inconsistencies in the evidence as to the genesis of Falun Gong practice causes the Tribunal some credibility concerns. These concerns are buttressed by the more significant credibility concerns outlined below.

11. Secondly, evidence by the applicant that he had no idea how the applicant wife came to be involved in Falun Gong practice, and that they have not discussed the issue, is not plausible. In addition, such a claim is inconsistent with the explanation provided in relation to the first issue above.

12. The first Tribunal decision indicates the applicant stating at the 2015 Tribunal hearing he had no idea how the applicant wife came to be involved in Falun Gong practice and they had never discussed the issue. The Tribunal agrees with the assessment in the first Tribunal decision that this is implausible given that they had been living as husband and wife since 2006 and the claimed significance of Falun Gong to their lives and that it is central to their claims for protection. It is also inconsistent with the explanation provided in relation to the first issue above, where it is indicated by the applicant that the applicant wife followed other people into Falun Gong in 2006, and this is when she commenced her practice. Given that this is the year in which they were living together as man and wife, the Tribunal considers that the applicant ought to have responded to this effect in the 2015 Tribunal hearing rather than indicating that he had no idea as to how his wife came to be involved in Falun Gong.

13. These concerns of the Tribunal were put to the applicant in the 2017 Tribunal hearing. In response, he indicated that the events happened many years ago, and it is difficult to recollect. The Tribunal does not consider that this explains why the applicant would have told the Tribunal in 2015 that he had never discussed the issue of his wife’s involvement in Falun Gong rather than saying that he did not remember, if that was the case. The Tribunal maintains its view of the implausibility of the applicant not having some awareness as to his wife becoming involved in Falun Gong in 2006, if they were living together at the time.

14. Thirdly, there are inconsistencies in various claims by the applicant and the applicant wife as to being detained in China due to their Falun Gong activities.

15. The first Tribunal decision refers to the delegate interview relating to the 2011 applicant child review in which the applicant wife claimed she had been detained for a period of three days one month after commencement of their Falun Gong practice, that their land was confiscated in the latter part of 2007, and they were arrested towards the end of 2007. At the hearing related to the 2011 applicant child review, the applicant wife stated she had been arrested and beaten in September 2007 and only mentioned the July 2007 arrest when prompted by the Tribunal. At that hearing, quite significantly, the applicant husband stated that he had been arrested in January 2008 and that the applicant wife had never been arrested.

16. In the 2015 Tribunal hearing the applicant claimed that he had been arrested in mid-August 2007 and January 2008 whereas the applicant wife stated that she had been arrested in July 2007 and in September 2007. She also claimed that she had been captured and released a few times.

17. The applicant and the applicant husband made no claims of detention in their original statement in the 2008 application.

18. In response to s.424A letters seeking response to this information and its inconsistencies, it is indicated that there may be translation problems. It is indicated that the applicant wife was arrested in 2007. This referred to a call from the village leaders for education programs and brainwashing sessions. She was slapped on the face. This arrest was by the Village Commission, not the police. The applicant says that he was jailed in August 2007 and beaten up and injured at the end of January and early February 2008. He was then admitted to hospital.

19. The Tribunal is not satisfied that these explanations explain the inconsistencies, most particularly the earlier evidence of the applicant that his wife was never detained, which is a stark and damaging claim, in light of other claims to the contrary. The Tribunal, in the absence of evidence of translating errors, is not prepared to accept that inconsistencies are a product of translating errors. The Tribunal also considers that it is telling that there is no mention of detention in the original 2008 statement as part of the first Protection visa application.

20. Fourthly, no mention was made by the applicant in the 2015 Tribunal hearing of the confiscation of their land. This is despite an exhaustive exploration by the Tribunal with the applicant the harm that he faced in China due to their Falun Gong activities. The Tribunal specifically asked the applicant whether, apart from incidents he had already mentioned in the hearing, which did not include a claim of land being taken, whether there were any other issues in China to make him concerned about his safety. The applicant responded that he was worried for his children, that they may become orphans or captured. He made no mention of land being compulsorily acquired.

21. This is a key claim made in the written claims for protection.

22. This issue was put to the applicant in the 2017 Tribunal hearing.  In response, the applicant indicated that he made this claim in writing and that perhaps he did not remember everything.

23. Family land being compulsorily acquired would be a very significant event. The Tribunal is inclined to consider that, if this event did happen, the applicant would have referred to it in the 2015 Tribunal hearing, given that the Tribunal specifically asked if the applicant had articulated all key issues of concern relating to Falun Gong practice.  His failure to mention land being compulsorily taken is undermining as to the truth of this claim.

24. Fifthly, there is inconsistent evidence concerning claims of sending Falun Gong materials to China from Australia. The first Tribunal decision outlines the various evidence provided on this issue:

    In the written claims accompanying their current protection visa application the applicants stated that after they arrived in Australia they kept in contact with a fellow Falun Gong practitioner in China. In May 2013 they sent him a video of Falun Gong celebrations in different countries through the internet and the police discovered the videos and their friend was detained. Their friend was pressured to try and force the applicants to return to China. At the hearing the applicants were adamant that the materials they sent back to China were sent in October 2011 and not in May 2013. The applicant husband stated he had been in contact with villagers from his home village in October 2011, had sent them Falun Gong materials but had not been in contact with anyone in China since 2011. The applicant wife stated that they sent materials to a friend in 2011 and as a result he was detained and mistreated. He telephoned her and told her not to send any further materials.

    In the earlier statement accompanying [the applicant child’s] 2011 application the applicant wife stated in her written claims and at the interview that the applicants had sent Falun Gong materials to China before [date] October 2011. At the hearing of [the applicant child’s] application the applicant wife stated she had sent materials back to China before October 2009.

    At the Tribunal hearing the applicant husband only mentioned his claim that the applicants feared harm in China because they had sent Falun Gong materials back to China after being reminded by the Tribunal of this written claim. At the hearing neither the applicant husband nor wife gave any further detail about the nature of the material.

    When they were invited to comment on or respond to the conflict in the evidence, the applicants stated that after carefully thinking about the issue they remembered that they had thought about sending some material to China in 2013 but had soon realised that such material would not get through the restrictions placed on the internet by the Chinese government. They thought the translator may not have understood them or took the wrong message when the translation was made. They claimed that in 2009 they had sent two photographs of themselves practising Falun Gong to a friend in China and they had sent the Falun Gong [video] in October 2011. They claimed that the video sent in October 2011 was discovered by authorities and the information was enough to accuse the applicants of committing the crime of Falun Gong practice.

25. The extract above contains the applicants’ response to s.424A letter putting this information by the initial Tribunal. In the s.424A letter sent by the current Tribunal the applicants maintained the responses previously provided.

26. The Tribunal agrees with the assessment in the first Tribunal decision that these explanations set out in the extract above do not adequately explain the inconsistencies. There is a clear written claim that materials were sent in 2013 which created difficulties for the recipient. That is an entirely different claim from the applicant indicating that he and his wife were thinking of sending materials back at that point in time. The Tribunal is not satisfied, in the absence of any evidence, that there are translating issues that explain the inconsistencies. The Tribunal is of the view that the inconsistencies are a product of the lack of truth of these claims by the applicant and the applicant wife.

27. In response to s.424A letters making overall reference to the many inconsistencies between the evidence of the applicant and the applicant wife and that could cause the Tribunal to consider that the applicant and applicant wife have not been truthful, it is indicated that answers to questions may not have been consistent but that memories of past events have faded.

28. The cumulative impact of these five credibility concerns are significantly damaging to the credibility of the applicant and the applicant wife. The Tribunal acknowledges some potential for confusion as to precise dates and the sequence of events due to the passage of time. The Tribunal has made some allowance for this. However, a number of the inconsistencies are glaring, such as the applicant claiming at one point that the applicant wife had never been arrested, contrary to claims elsewhere. The explanation for the inconsistency in claims of sending materials back to China in May 2013 leading to the detention of a friend in China was entirely unconvincing to the Tribunal. The failure of the applicant to make any mention of land compensation in the 2015 hearing, despite being asked if there were any other issues of concern in China, is telling as to the credibility of that claim. There are a number of other inconsistencies. The Tribunal is not satisfied that the cumulative effect of the various credibility issues are explained by the passage of time or understandable confusion in accurately remembering the exact sequence of events.

29. Credibility concerns are reinforced by the concerns identified in relation to claims of Falun Gong practice by the applicant and applicant wife in Australia, as outlined further below.

30. The Tribunal is not satisfied as to the applicants’ substantive claims as to difficulties in China relating to Falun Gong activities. The Tribunal is not satisfied that the applicant and the applicant wife were Falun Gong practitioners in China. The Tribunal is not satisfied that the applicant and the applicant wife were harassed or detained by authorities as a result of Falun Gong activities. The Tribunal is not satisfied that the applicant or the applicant wife had their property compulsorily acquired as a result of Falun Gong activity. The Tribunal is not satisfied that the applicants sent any Falun Gong materials back to China from Australia that has created difficulties for individuals in China or for the families of the applicant and the applicant wife. The Tribunal is not satisfied that individuals or family in China have told the applicant and the applicant wife that they must return to China and make a confession, and that the families would be harmed if they did not. The Tribunal is not satisfied that the applicants’ families have had to go into hiding. The Tribunal is not satisfied that the Internet connections of the applicant or the applicant wife have been cut off by the Chinese authorities or that phones have been tapped by Chinese authorities.

31. Given these findings, in relation to the applicant wife, the Tribunal is not satisfied that she faces a real chance of serious harm as a result of any Falun Gong activities by her or the applicant in China or due to them sending Falun Gong materials to China from Australia and authorities becoming aware of that, whereby creating a risk for the applicants, or on the basis of authorities using family or friends to coerce the applicants back to China, and threatening harm to those individuals in China if the applicants do not return.

32. The Tribunal is also not satisfied in relation to the applicant or the applicant wife that there is a real risk that they face significant harm for any of the reasons identified in the preceding paragraph.

    Practice Falun Gong in Australia

33. The Tribunal notes the following information contained in the first Tribunal decision. It indicates that, in the interview with the delegate held [in] April 2012 as part of the 2011 applicant child review, the applicant wife stated that she and the applicant had been practising Falun Gong in Australia for about one year, but had not been to any meetings or groups in Australia.  In the Tribunal hearing with respect to the 2011 applicant child review, the applicant wife stated that she and the applicant had been attending a study group since July 2012. She had handed out pamphlets for a group about six months before the hearing (which was held on 26 October 2012). The applicant wife did not know what group it was, she just offered to help in handing out pamphlets. The applicant indicated that he and the applicant wife had practised Falun Gong at home and they joined a practice group at the end of 2011. When the applicant wife’s evidence was put to him he agreed that they had joined a group in July 2012. When it was put to him that the couple had only joined the practice group after the delegate refused the application of the applicant child, he stated that, even though they returned to [City 1] at the beginning of 2012, it was difficult for them to find a practice group and this was the reason for the delay.

1. In the 2015 Tribunal hearing the applicant claimed that he and the applicant wife had arrived in [City 1] [in] July 2008 and within a week or two moved to [town], where they lived for about two years. They then went to [City 2] where they lived until they came to [City 1] in early 2012, for a short period, but returned to [City 2], and have lived there ever since. The applicant wife gave similar evidence as to where they had lived in Australia. The applicant stated that they had attended Falun Gong activities from time to time in [City 1] but have not told people about their Falun Gong practice. He indicated that photographs provided by the applicants were taken in [City 1] on occasional visits. Both the applicant and the applicant wife gave evidence that they went to different sites in [City 1] and helped with handing out pamphlets from time to time. They were not members of a regular practice group.

2. The initial Tribunal had put this information to the applicants in accordance with the procedural requirements of s.424A. It noted that the evidence of the applicant and the applicant wife was significantly inconsistent in terms of Falun Gong activities in Australia. It indicated that the Tribunal may consider that their evidence was untruthful about the level of Falun Gong activity in Australia. The initial Tribunal may consider that the conduct of handing out pamphlets or joining practice sites was limited and took place on a few occasions at different sites. It may form the view that conduct was only undertaken for the purpose of producing photographic evidence to the Tribunal. This may lead the Tribunal to the conclusion that the couple were not publicly known or ever identified as Falun Gong practitioners in Australia.

3. This same information was put to the applicants pursuant to the procedural requirements of s.424A by the current Tribunal. The applicants maintained the responses provided to the original s.424A information and provided additional information and photographs concerning Falun Gong activities.

4. In the response to the initial Tribunal, it is claimed that the applicant and the applicant wife practiced Falun Gong for more than one year but still could not find the Falun Gong organisation. It is indicated they lived on the outskirts of [City 1] with no other Chinese people around. They had no income and expenses were high. As a result, they just practised at home. Practising at home was not because they wanted to be secret. The applicants claimed that they could not provide the name of the practice group because Falun Gong is not organised in a way to facilitate this. No names are given to practice groups. It is not true that the applicant and the applicant wife only joined Falun Gong after the rejection of the Protection visa application of the applicant child. Even before they participated in various Falun Gong activities in [suburb] and [suburb] because a practice station in [Suburb 1] moved away and they found a new practice station. It is claimed that the reason they have been practising Falun Gong is not for the purpose of collecting evidence. The applicant and the applicant wife have been conscious for their safety and never publicly claimed that they are Falun Gong practitioners. They did not let others know their the true names. They just silently joined practice groups.

5. Further information in relation to Falun Gong activities in Australia was provided in response to the s.424A letter by the current Tribunal. Photographs are provided of claimed Falun Gong activities by the applicant and the applicant wife in 2016 and 2017. There are photographs which are indicated to be in front of the Chinese consulate in [suburb] in March 2017. A photograph is provided from a group practice of Falun Gong in [Suburb 2] in 2016. Two photographs are provided of Falun Gong activities in [suburb] in 2016. A photograph is provided in 2017 at [shopping mall] [Suburb 1] of Falun Gong activities. A photograph is provided of the applicant wife with a person who is claimed to be a fellow practitioner of Falun Gong. A photograph is provided from 2017 of the applicant wife involved in practice at a home with a fellow practitioner in [town]. A photograph is provided of the applicant and his [child] practising Falun Gong at home. Tickets and photographs are provided concerning a performance of the ‘Shen Yun performance propaganda’ presented by Falun Gong [in] 2017. Some further photographs of Falun Gong were provided on the day of the 2017 Tribunal hearing, but without descriptions.

6. In the written response to the current Tribunal it is indicated that, since the last Tribunal review, the applicant and the applicant wife had been insisting on studying and practising Falun Gong. They travel from [City 2] to [City 1] to undertake activities. The applicant wife obtains information from a fellow practitioner in [City 1] about activities. The applicant wife visited a Falun Gong demonstration outside the Chinese consulate. The applicant had less opportunity to participate than the applicant wife because of his need to support the family. Nevertheless, he and the applicant’s wife distributed pamphlets in [suburb]. They enrolled in a Falun Gong study house in [town], which was relatively near to them. They study every Wednesday. The applicant wife attends Falun Gong study in [Suburb 2] every Friday and on every Sunday she takes part in activities at [Suburb 1] [shopping mall]. The applicant and the applicant wife take turns in household activities to facilitate their respective Falun Gong activities. The applicant and applicant wife recently attended and promoted a Falun Gong [event]. Once when promoting this [event] to a group of Chinese tourists, the applicant wife was verbally insulted and threatened. One of the group took a photograph of her claiming they would report her for spreading propaganda about Falun Gong. It is claimed that the applicant and the applicant wife will not be allowed to return to China.

7. Whilst the applicant and applicant wife had wished to participate in a demonstration in relation to the visit of the Chinese Premier to Australia in March 2017, logistical problems prevented the applicant attending. However, the applicant wife took part in an activity as part of that visit in [Suburb 2].

8. Following the 2017 Tribunal hearing the applicant provided further information to the Tribunal indicating that during 2013 and 2014 he had been making donations for the treatment of tuberous sclerosis disease. This is in accord with the Falun Gong principles of truthfulness compassion and forbearance.

9. In the 2017 Tribunal hearing both the applicant and the applicant wife gave evidence that they had started to occasionally attend public Falun Gong the events in [City 1] soon after they moved to [City 2] from [town] in around 2009. The applicant indicated that they would attend about once a month. Both indicated that, when they moved to [City 1] in early 2012, for about a year or a year and a half, they continued their public Falun Gong activities in [City 1] immediately on arrival in [City 1].

10. The Tribunal noted to both the applicant and the applicant wife that this evidence was inconsistent with the fact that the applicant wife told the delegate of the Minister in the interview that took place [in] April 2012 (as part of the 2011 applicant child review) that she and the applicant had not been to any meetings or groups in Australia prior to that point in time. The Tribunal noted that it was inconsistent with evidence given in the 2015 Tribunal hearing by the applicant that he and his wife had not attended public activities in [City 1] when they moved there in early 2012 because it was difficult to find a practice group, and that there was a delay in public Falun Gong activity. The Tribunal noted that claims that the applicant and the applicant wife had been previously attending public Falun Gong activities in [City 1] was inconsistent with a claim that they would not be able to find a practice group given claimed previous activities.  In the 2017 Tribunal hearing their evidence was that they were previously participating in public activities in [City 1].

11. In response, the applicant said that it had been a long time and he can only remember the situation vaguely. He said that they did not attend events often. The applicant’s representative submitted that there was a misunderstanding in evidence because of the fact that there was only irregular attendance at Falun Gong events during this period. In written comments provided following the hearing, it was indicated that the attendance between 2009 and 2012 at Falun Gong events was irregular. It is claimed that there was a misunderstanding in relation to any evidence that suggested they were not participating in events before 2012.

12. The applicant wife gave evidence in the 2017 Tribunal hearing that on one occasion a Chinese tourist had taken a photograph of her as she was handing out pamphlets. The tourist criticised the applicant wife for her activities. The tourist asked the applicant wife her name. The applicant wife gave her name. She says that she did this because she had nothing to be afraid of. She referred to a concern of photograph of her being distributed in China.

13. The Tribunal in the 2017 Tribunal hearing noted to the applicant and the applicant wife many credibility concerns put to them in relation to their claims. The Tribunal indicated that it was inclined to accept that the applicant and the applicant wife had been involved in Falun Gong activities over the last few years. However, in light of the many credibility concerns, the Tribunal could form the view that that public involvement in Falun Gong over the past few years had been designed to found a claim for a Protection visa rather than demonstrating a genuine commitment to Falun Gong.

14. The applicant wife responded that Falun Gong has been their faith and that they had been attending activities since they arrived in Australia. However there were limitations due to where they lived, their children, and financial pressures.

15. The applicant’s representative made submissions as to the risk of Chinese spies in Australia knowing about the Falun Gong activities of the applicant and the applicant wife. Written comments provided following the hearing indicate a fear of photographs of the applicant and the applicant wife being taken during their participation in various Falun Gong events and that this creates a risk to them in China as a result of being identified.

16. The Tribunal considers this evidence concerning Falun Gong activity in Australia.

17. The Tribunal does not consider that the applicants have been truthful in relation to the history of their Falun Gong activities while in Australia. In the 2017 Tribunal hearing, both the applicant and applicant wife claimed that they had been practising Falun Gong at home since their arrival in Australia. That is inconsistent with evidence given by the applicant wife to the delegate in relation to the 2011 applicant child review in which she said that she and the applicant had been practising Falun Gong in Australia for about a year but had not been to any meetings or groups in Australia.

18. That claim that they had not been to any meetings or groups in Australia at that point in time is inconsistent with the evidence of both the applicant and applicant wife in the 2017 Tribunal hearing that they had started attending public events in [City 1] occasionally when they moved to [City 2] around 2009. The Tribunal does acknowledge that in response to the s.424A letter sent by the initial Tribunal it was indicated that they had participated in public activities prior to the rejection of the Protection visa application of the applicant child. Nevertheless, that is inconsistent with what the applicant wife told the delegate as part of that review.

19. Further, in the Tribunal hearing held in October 2012 with respect to the 2011 applicant child review, the applicant husband told the Tribunal that they had started attending practice groups at the end of 2011, in contrast to the evidence of the applicant wife that they started such practice in July 2012. It was only when the evidence of the applicant wife was put to the applicant that he said that the applicant wife was correct and that thier practice started in July 2012.

20. The evidence of the applicant in the 2015 Tribunal hearing that they were not able to find any practice groups in [City 1] when they moved there in early 2012 is inconsistent with evidence in the 2017 Tribunal hearing that they were attending public events in [City 1] approximately monthly from 2009, and that they maintained attendance at public events immediately on moving to [City 1] in 2012.

21. It was indicated in the 2017 Tribunal hearing that it has been some time and the applicant and the applicant wife can only remember the situation vaguely.  It has been submitted that any evidence by the applicant and the applicant wife that they did not attend public events from 2009 is a misunderstanding.

22. The Tribunal is not satisfied that the applicant and applicant wife would be confused as to whether they started attending Falun Gong events publicly in 2009 or mid-2012. The Tribunal is not satisfied that this would explain why the applicant in 2012 claimed that they had joined a practice group at a time six months earlier than claimed by the applicant wife, in the context of the applicant giving that evidence within the same year as the claimed attendance at a practice group. The Tribunal is not satisfied that there would be confusion as to whether practice at home started immediately on arrival in Australia, or a year before April 2012, according to evidence given by the applicant wife at that point in time.

23. The Tribunal is not satisfied that these multiple inconsistencies could be the product of understandable confusion or a misunderstanding.

24. The Tribunal does not consider that the inconsistencies are explicable due to financial impediments of the applicant and applicant wife or their distance from [City 1] preventing them fully involving themselves in Falun Gong activities.

25. In assessing the credibility of the applicant’s claims as to Falun Gong activity in Australia, the Tribunal has also taken into account credibility concerns identified in relation to claimed difficulties in China as a result of Falun Gong activity.

26. Based on the evidence as part of the 2011 applicant child review, the Tribunal accepts that the applicant and applicant wife educated themselves about the basics of Falun Gong in around 2012.  The Tribunal is prepared to accept that there was some public involvement by the applicant and the applicant wife from around that point in time. Based on the photographic evidence (including provided to the initial Tribunal), the Tribunal accepts that there have been a range of public Falun Gong activities by the applicants in 2015- 2017, including handing out pamphlets, attending study group, sitting outside the Chinese Consulate in [City 1] on one occasion, and attending a Falun Gong related cultural event.

27. However, the various inconsistencies demonstrate to the Tribunal that the applicant and the applicant wife have been untruthful as to significant parts of their claims as to Falun Gong activity in Australia. The Tribunal is not satisfied that the applicant and applicant wife practiced Falun Gong at home from the time that they arrived in Australia. As indicated, the Tribunal considers that the applicant and applicant wife educated themselves about Falun Gong in around the 2012. The Tribunal is of the view that they did this as a means of supporting the 2011 applicant child review, rather than because they genuinely believed in Falun Gong.

28. The Tribunal considers that all Falun Gong activity since that time has been for the purpose of supporting the 2011 applicant child review and the current application rather than demonstrating a genuine belief. This conclusion is reached taking into account the myriad of inconsistencies in evidence, both in relation to Falun Gong activity in Australia, and in relation to Falun Gong activity and the risk of harm in China. The Tribunal considers that the evidence demonstrates an opportunistic intent on the part of the applicant and the applicant wife.

29. Given the Tribunal’s view that the rationale for Falun Gong activity has been to enhance the claims for Protection visas, rather than demonstrating a genuine belief, the Tribunal is not satisfied that the applicant or the applicant wife are adherents of Falun Gong or would wish to practice on return to China.

30. The independent evidence outlined in this decision does indicate that public involvement in Falun Gong in China can result in difficulties and harm from authorities. However, given that the Tribunal does not consider that the applicant and the applicant wife are genuine Falun Gong adherents, it does not consider that they will seek to publicly or privately practice Falun Gong in China.

31. The Tribunal is therefore not satisfied that there is a real chance of the applicant or the applicant wife facing serious or significant harm as a result of publicly (or privately) practising Falun Gong in China.

32. It has been submitted that there are Chinese spies in Australia with the implication that they may have identified the applicant and the applicant wife participating in Falun Gong activity and this will lead to a risk to them on return to China. The Tribunal accepts that there is evidence of Chinese in Australia acting as informants to the Chinese government.[3] However, there is no evidence before the Tribunal that would suggest a real chance of serious or significant harm to an individual merely based on being identified undertaking Falun Gong activity in Australia, and who had no intention to practice either publicly or privately in China.

    [3] Chen, Yonglin 2005, ‘Testimony of Chen Yonglin at the United States Congress Committee on International Relations hearing “Falun Gong And China’s Continuing War

33. In 2006, DFAT advised that the treatment, upon return to China, of Falun Gong practitioners is influenced by their profile and willingness to renounce their beliefs.[4] In April 2011, April 2009, February 2008 and March 2007 DFAT advised that this advice remained current.[5] According to the advice from September 2006:

    [4] DIAC Country Information Service 2006, Country Information Report No. 06/53 -  China: Return of Failed Asylum Seekers (sourced from DFAT advice of 14 September 2006), 15 September <CISNET China CX161676);

    [5] DIAC Country Information Service 2011, Country Information Report No.11/15 – CHN11513 Falun Gong Update (sourced from DFAT advice of 6 April 2011), 8 April <CISNET China CX262422>; DIAC Country Information Service 2009, Country Information Report No. 09-35 – Update on Failed Asylum Seekers (sourced from DFAT advice of 16 April 2009), 16 April <CISNET China CX224438>; DIAC Country Information Service 2008, Country Information Report No. 08/8 – Review of Information on Falun Gong (sourced from DFAT advice of 12 February 2008), 12 February 2008 <CISNET China CX193304>; DIAC Country Information Service 2007, Country Information Report No. CHN8980 – China: Publication of Client Details (sourced from DFAT advice of 22 March 2007), 22 March <CISNET China CX174138>

    Falun Gong followers who are obvious in their practice, who seek to spread information or otherwise promote Falun Gong are likely to be detained and, particularly if they refused to announce the practice, placed in detention – usually in Re-education Through Labour facilities (administrative detention). The period of detention could be weeks or years, depending both on practitioners’ past actions and their willingness to repudiate their actions and recount their beliefs. Falun Gong followers who practice privately and do not make beliefs known are less likely to face repercussions. [6]

    [6] DIAC Country Information Service 2006, Country Information Report No. 06/53 -  China: Return of Failed Asylum Seekers (sourced from DFAT advice of 14 September 2006), 15 September <CISNET China CX161676)

100.   The Tribunal considers that it is those who have a genuine desire to practice Falun Gong in public or to spread Falun Gong in China who face a real chance of serious or significant harm. The Tribunal does not consider that the applicant or applicant wife fall into these categories even if there were knowledge of their involvement in Australia.

101.   The applicant wife has given evidence that a tourist berated her for her Falun Gong beliefs and took her photograph and said that she would report the applicant wife to Chinese authorities. The applicant wife said that this person asked her her name and that she gave her name. The Tribunal indicated to the applicant wife that it found that hard to accept that she would disclose her identity to this person. The applicant wife said that she was proud of her Falun Gong involvement with the implication that she was happy to identify herself. Later, the applicant’s representative indicated that the applicant wife, in fact, gave only her Anglicised Christian name, which was not the name on her passport.

102.   The Tribunal has credibility concerns with this evidence of the applicant wife. Her direct evidence to the Tribunal was that she disclosed her identity to this person with the implication that it increased the risk of harm to her. This suggested to the Tribunal that she was saying that she provided her full name. The applicant’s representative sought to ameliorate the Tribunal’s credibility concerns that the applicant wife would do this by indicating that she only provided her Anglicised Christian name which would not have identified her. On that basis, the Tribunal is not satisfied that the applicant wife was identified by a Chinese tourist which would lead to a real chance of her facing serious significant harm. The Tribunal considers that the claim that a photograph taken of her would be distributed to Chinese authorities is speculative and remote and that there is no real chance of serious or significant harm to the applicant on this basis. In any event, as indicated, the Tribunal is of the view that the concern of Chinese authorities is directed towards those who publicly practice Falun Gong in China or spread Falun Gong in China. The Tribunal has found that the applicant and the applicant wife do not fall within these categories.

103.   Given these findings, in relation to the applicant wife, the Tribunal is not satisfied that she faces a real chance of serious harm as a result of her Falun Gong activity in Australia, or as a result of any intention to practice Falun Gong in China.

104.   Given these findings, in relation to the applicant and the applicant wife, the Tribunal is not satisfied that they face a real risk of significant harm as a result of their Falun Gong activity in Australia, or as a result of any intention to practice Falun Gong in China.

105.   The applicant and applicant wife have claimed that they would be refused entry to China. There is no independent evidence before the Tribunal that would substantiate such a claim, based on Falun Gong activities or otherwise. It is also contrary to claims by the applicant and applicant wife that their families in China are being coerced to have the applicants return to China.  The Tribunal is not satisfied that the applicant wife faces a real chance of serious harm as a result of not being allowed entry into China. The Tribunal is not satisfied that the applicant or the applicant wife are at a real risk of significant harm as a result of not being allowed to enter China.

Family planning issues

106.   The Tribunal notes the following independent information as outlined in the first Tribunal decision of relevance relating to family planning laws in China and its potential impact on the applicants, and the youngest child, who is not part of this application. In the 2017 Tribunal hearing, the Tribunal went through this information again with the applicant and the applicant wife.

The Tribunal discussed Chinese family planning policy which allowed married couples to have one child and that a second child was permissible in certain circumstances. Up until 2016, a compensation fee could be levied if the couple had a second child and departed from family planning policy. Even if a social compensation fee was payable the Tribunal noted that it was linked to annual income and could be paid by instalments. Further the Chinese government had recently announced it had relaxed its family planning policy and would allow all couples to have two children from 2016. The applicant wife stated she was concerned that her youngest child was born before the change in policy had been announced and that she may not be able to access household registration for the child.

The latest DFAT Country Report on China (3 March 2015) notes:

3.45 Nation-wide family planning policies have been implemented in China since the late 1970s. China's Population and Family Planning Law came into force on 1 September 2002. The State encourages late marriage and childbearing and generally promotes one child per couple, although exceptions to the "one child" policy have been permitted in situations where: both spouses are only children; the first child has a disability; both spouses are members of ethnic minorities; or, for rural residents, the first born child is a girl. In November 2013, the Chinese government announced an adjustment to the family planning policy to allow couples to have a second child if either parent is an only child. At the time of writing, Hainan, Shandong, Heilongjiang, Fujian, Jilin, Jiangsu, Guangdong, Hubei, Gansu, Sichuan, Shanghai, Beijing, Tianjin, Anhui and Zhejiang had amended their regulations to reflect the change.

The latest US Department of State report on human rights practices in China noted that the requirement for birth permits had been eliminated by the National Population and Family Planning Commission which is the agency responsible for family planning policies.

The standard penalty for family planning violations is a fine, often referred to as a social compensation fee. Specific guidelines on the collection of social compensation fees are described in the Measures for Administration of Collection of Social Maintenance Fees. As specified in Article 3 of this law, citizens who ‘bear children out of line’ with family planning law must pay social compensation fees which are determined according to whether offenders are urban or rural residents. The fines for urban and rural residents are based on ‘the urban residents’ [average] annual per capita disposable income’ and the ‘rural residents’ [average] annual per capita net income’, respectively.[7] Under national law, offenders have 30 days to pay via lump sum after being served notice by local authorities. Those unable to pay in a lump sum have 30 days to apply for approval to pay in instalments ‘to the family planning administrative department of the people’s government at the county level’.[8]

[7] Measures for Administration of Collection of Social Maintenance Fees (China), promulgated 2 August 2002 (effective 1 September 2002), National People’s Congress of the People’s Republic of China < Measures for Administration of Collection of Social Maintenance Fees (China), art 6A, Promulgated 2 August 2002, (Effective 1 September 2002), National People’s Congress of the People’s Republic of China <

Recent country information indicates that family planning policy has been progressively relaxed over the past few years. One exception to the “one child policy” included permission in some rural locations for a second child where the first child was a daughter.

Current advice from the Department of Foreign Affairs[9] discusses the situation in Fujian as well as the national approach and notes;

[9] Country information Report CI160219094800679; 2016 China: Country Information Request: Fujian registration of children and out of plan births.

2...The term 'one-child policy' is a misnomer, given the number of formal and informal exceptions to the policy and its highly flexible interpretation.  Foreign citizens are excluded from the policy, as are "overseas Chinese", subject to certain conditions.  The precise application of the policy to any individual case is subject to individual official discretion at the local level.  Individuals are encouraged to contact their local Family Planning Commission office, in person or by phone, to find out how the relevant regulations will be interpreted in their case, including the actual amount of any fee levied.

3.   Recent changes to national policy have followed a liberalising trend, as demographic pressures (including an aging population, a declining workforce and unbalanced sex ratios) look set to affect future economic growth.  Many provinces, including Fujian, already implemented a 'one and a half child' policy in effect, where couples whose first child was a daughter could try later for a son.  This was particularly the case in rural regions…

4.   On 27 December 2015, the National People's Congress amended the national Population and Family Planning policy to permit all couples to have two children, with effect from 1 January 2016…..

Further it has been reported by Chinese and international media that the Chinese government has recently announced a major policy change to the household registration system (hukou) which would allow millions of unregistered citizens, many of them children born in violation of the one child policy to obtain documents vital to secure education and health services long denied to them.[10] In December 2015 Xinhua reported that a high level reform meeting stated that China will provide unregistered citizens with household registration permits or hukou.[11]

[10] ‘China promises rights to citizens born in violation of one-child policy’ 2015, Guardian, 10 December

[11] Unregistered citizens to get household permits, 2015, 10 December, Xinhua

107.   As indicated to the applicant and the applicant wife in the 2017 Tribunal hearing, the applicant child, as the first child, would clearly be entitled to be registered, and would not be a ‘black child’, which is the colloquial expression for unregistered children. The younger child, who is not part of this application, would also be entitled to be registered given recent changes in China which allow registration even where a social compensation fee has not been paid. These issues are not strictly relevant to this application because the younger child is not included in the application and the applicant child is not in a position to make claims on [his/her] own behalf.

108.   As far as the payment of a social compensation fee, this could be paid in instalments and is linked to average income. As indicated in the hearing, a fee or a fine for this purpose would not fall within any definition of significant harm for the purpose of the complementary protection criterion.

109. As further indicated, in relation to the applicant wife, and the Refugees Convention criterion, the payment of the fee is a product of complying with China’s family planning laws and regulations. The harm in this case is as a result of a law of general application which the Tribunal considers is appropriate and adapted to achieving a legitimate national objective of controlling population growth. The Tribunal is not satisfied there is evidence before it that the laws as applied to the applicant wife will be done so in a discriminatory manner. The harm therefore, for the purposes of the Refugees Convention criterion, does not satisfy the requirement in s. 91R(1)(c) of the Act requiring discriminatory conduct. Therefore, any social compensation fee payable by the applicant wife does not meet the Refugees Convention criterion.

110. For those reasons, in relation to the applicant wife, the Tribunal is not satisfied that any such fine would involve discriminatory conduct and therefore does not satisfy s.91R(1)(c) of the Act as a requirement of persecution for the purpose of the Refugees Convention criterion.

111.   In relation to the applicant and the applicant wife, the social compensation fee is linked to average income and can be paid in instalments. The Tribunal has no evidence before it that the fines are so exorbitant that they would fall within any definition of significant harm, such as cruel or inhuman treatment or punishment or degrading treatment or punishment.

112.   The Tribunal is not satisfied that any fine that the applicant and the applicant wife may need to pay for breaching family planning laws in China would constitute significant harm for the purpose of the complementary protection criterion.

113.   A claim has been made that the applicant and applicant wife would not be given permission to have two children because of their involvement with Falun Gong. There is no independent evidence before the Tribunal to indicate any link between family planning laws and involvement in Falun Gong. The Tribunal is not satisfied that there would be any connection between claimed Falun Gong activities of the applicant and the applicant wife and family planning laws.

Non-disclosure certificate

114. On the Departmental file relating to the application is a Certificate and Notification pursuant to the s.438(1)(a) indicating that that provision applies to certain documents on the file as that disclosure would be contrary to the public interest because they are internal working documents and business affairs. The Tribunal is not satisfied that the claim of internal working documents and business affairs justifies public interest immunity and therefore it considers that the Certificate and Notification is not valid. In any event, the documents are of no relevance to the claims.

Conclusions

115.   In relation to the applicant wife, the Tribunal is not satisfied that there is a well-founded fear that she would be persecuted for a Refugees Convention reason for any of the reasons claimed, or for any other reasons.

116.   In relation to the applicant and the applicant wife, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant and the applicant wife being removed from Australia to China, there is a real risk that they will suffer significant harm for any of the reasons claimed, or for any other reasons.

117. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

118.   The Tribunal affirms the decision not to grant the applicants Protection visas.

David McCulloch
Member

3.23-3.32

On Human Rights”‘, 21 July, pp.34-43 ‘Chinese defector details spy claims’ 2005, Australian Broadcasting Corporation Lateline
Programme, 20 June

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Citations

1619684 (Refugee) [2017] AATA 681

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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AMA15 v MIBP [2015] FCA 1424

AMA15 v MIBP [2015] FCA 1424

Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512

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