1700131 (Refugee)

1700131 (Refugee) [2019] AATA 6900 (16 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1700131

COUNTRY OF REFERENCE: China
MEMBER:Rodger Shanahan
DATE:16 October 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 October 2019 at 11:56am

CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong practitioner – credibility concerns – knowledge of Falun Gong – information provided in relation to student visa cancellation – delay in applying for protection – renewal of Chinese passport – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 424
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependent.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 28 January 2016.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant came to Australia on a student visa in 2014 and applied for protection because his parents were Falun Gong practitioners. His family practiced it for half a day a week but he was never allowed to talk about it outside home. His class teacher came to their house to do a home visit in 2013 and accidentally found the Falun Gong practice notes the applicant had written. The teacher confiscated them and told him that he would be expelled next semester. He and his father became scared and so he applied for a student visa to come to Australia.
AAT Hearing
The applicant claimed that if he returned to China the police would arrest him because he was a Falun Gong practitioner. He had no other claims.
He was known as a Falun Gong practitioner in China because his tutor came to his home and found out he was Falun Gong – he couldn’t remember what year but it was in Junior High school. Asked how long before he came to Australia this occurred he said he couldn’t remember but when asked in general terms he said it was one or two months.
Asked how long he had practised Falun Gong he said he did it with his father and had done so for a few years in China. Asked if the authorities were aware, he claimed that they didn’t know but when his tutor found out he applied for a student visa.
He had kept a diary and the tutor found it. Asked how a tutor found and went through his personal diary at his home, he claimed he had written down some of his personal experiences. It was put to him that tutors didn’t normally go through personal diaries and was asked again how the tutor found out. He claimed that the tutor happened to look at it.
He was asked if he was claiming that his personal diary happened to be open at his writings about Falun Gong when the tutor arrived and he claimed it was something like this. It was put to him that this was very coincidental and he agreed it was coincidental.
Asked if he practised Falun Gong in Australia he said that he didn’t as he was too scared. He stated that he arrived in Australia in 2012 or 2013 (it was actually 2014). Asked if there was anything he could tell the Tribunal about Falun Gong he said it had been too long.
He agreed that he had been scared about being found out by the police when he left China. He was asked the status of his parents’ marriage and he said that they were married. It was put to him that he had said he was afraid when he came to Australia and was asked if he applied for protection. He said he was on a student visa and just studied. Asked if he completed the study, he said he did language training for six months but didn’t know if he had completed it. It was put to him that he was an adult and would know if he had completed a course or not, and he said that there was an exam that had to be taken and he hadn’t yet.
He was again asked if he had completed the course and agreed that he hadn’t. Asked why he didn’t complete the course he said iot was for personal reasons. Asked what he told the institution, he said he didn’t tell them anything, he just stopped going. He was asked what he did then and he claimed he just stayed at home. He was asked whether he worked and he said that he didn’t – asked again he confirmed that he never worked.
He applied for protection after his student visa was cancelled because he stopped attending classes. He didn’t apply for protection straight away – he thought it was a month later. He was told about s.424AA and it was put to him that when his student visa was cancelled he appealed the decision to the MRT. During this he was asked why he didn’t attend his study, he stated that it was because his parents were going through a divorce, and when asked what he was doing with his time he claimed he was working as a [Occupation 1] at a [business] for 2-3 hours a day for 2-3 days a week.
This was inconsistent with what he had told the Tribunal today regarding his parents’ marriage situation and about his work regime. This could lead the Tribunal to believe that he was being untruthful and could affect his credibility. He claimed that his previous appeal involved a lawyer and prepared the documents. It was put to him that he was asked and answered these questions orally. He claimed that lawyer told him to say this. He was asked if he said this knowing it to be untrue and he said again he was told to say this. It was put to him that there was an individual responsibility to tell the truth. He was asked again why he had told different things to different tribunals, and then he said he had no comment.
It was put to him that he didn’t know anything about Falun Gong and had no contact with them in Australia, had told different things to different Tribunals and didn’t apply for protection for nearly two years after arriving in Australia. His passport indicated that it had been renewed at the Chinese consulate in 2018 which didn’t appear to show he was reluctant to deal with the Chinese government. There was a concern that he was and never had been Falun Gong. He said he had no comment. He could provide no evidence that he was a Falun Gong member or that the Chinese government was interested in him.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] March 2014, and applied for protection on 28 January 2016. I have sighted a copy of his passport and accept that China is the applicant’s country of nationality.
The applicant is [an age] year old single male. He claimed that he feared being arrested because he was a Falun Gong practitioner.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his entire claim in order to be granted a protection visa.
Credibility
It is relevant in assessing the applicant’s claim that comments are made regarding the applicant’s credibility as a witness. He had previously unsuccessfully appealed the cancellation of his student visa for non-compliance. During his hearing in this matter he claimed both that his parents were going through a divorce and that he was working in a [business] for two to three days a week.
During his protection visa claim however, he claimed both that his parents were married and that after he stopped going to English classes he just stayed at home. He was asked directly whether he worked and he replied in the negative. I do not accept that his lawyer advised him to lie – there is no corroborative evidence nor has he given any indication that he has made, or plans to make a complaint against this person. Regardless, it is an individual obligation to be truthful and he willingly gave false evidence to one or both Tribunals. I give this significant weight when assessing the applicant’s credibility.
Falun Gong
I do not accept that the applicant is or ever has been a Falun Gong practitioner, or would seek to be one on return to China. He could give no information about Falun Gong practices, claiming that it had been too long since he had practised it. He had never practised it in Australia, claiming that he was too scared. This appears to be inconsistent with his alleged willingness to practise it in China (prior to the alleged discovery of the diary [see below]) where country information indicates that the movement has been banned since 1999.[1]
[1] DFAT Country Information Report – China, 3 October 2019.
His account regarding the ‘discovery’ of his Falun Gong background rests on a claim that his tutor entered his house and happened upon his diary which was opened at a page where he had written about his Falun Gong practises. This account appears to be so coincidental as to be implausible. I also note that, despite claiming that he left on a student visa while he was scared of being arrested by the authorities, he didn’t claim protection in Australia for nearly two years after arriving. This is not indicative of someone who fears serious harm in China, I do not accept that the delay was because he was on a student visa given that by his own admission he stopped going after six months. Hence, it is reasonable to believe that after he ceased attending study he would have sought out a protection visa given he stated that he had left China because he had been scared.
Because he has never been a Falun Gong practitioner it follows that he is of no interest to the Chinese authorities because of any real or perceived connection to it. Although he has claimed his parents practised it, this relies entirely on his oral testimony which I have found lacks credibility. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any 5J(1) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I have found that the applicant never was, is or would ever be perceived to be a Falun Gong practitioner, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
CONCLUDING PARAGRAPHS
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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6900

16 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice