1702492 (Refugee)
[2021] AATA 2512
•9 June 2021
1702492 (Refugee) [2021] AATA 2512 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1702492
COUNTRY OF REFERENCE: China
MEMBER:Frank Russo
DATE:9 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the second-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 9 June 2021 at 12:40pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – membership and activities in China – harassment by police and official persecution – workplace discrimination and pressure to cease activities – signed petition against former president – multiple visits to Australia without incident or applying for protection – increasing activities in Australia – member of family unit – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 dependants.
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 20 January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 23 February 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the primary applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to China, there is a real risk that she will suffer significant harm, and whether the secondary applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) and who holds a protection visa.
The applicants provided with their application for review, a copy of the decision of the delegate and notice of this decision from the Department. In addition, the applicants have provided a number of additional documents which were not before the delegate, as follows:
a.On 20 February 2018 the applicants provided a submission of documents, which included 33 attachments, including the applicant’s passport, articles from the minghui.org website as well as certified English translations, a letter from [Mr A], [Office bearer] of [an Organisation], affidavits of [B] and [C], statements from the applicant’s husband, the second-named applicant, from [Ms D], the applicant’s daughter, and from [Ms E], as well as multiple photographs showing the applicant participating in Falun Gong community activities in Australia;
b.A copy of the Falun Gong publication Compassion from May 2019;
c.On 1 May 2020 the applicants provided statutory declarations from [Ms F], [G], [Ms H], [Ms E] and two documents containing 26 photographs of truth clarification activities conducted in Sydney and Canberra;
d.On 11 March 2021, the applicants provided a response to the hearing invitation, which attached a witness list, copies of statutory declarations already provided, a list of links to articles which feature the applicant participating in Falun Gong activities, translation of an article from the Minghui website and a list of her Falun Gong activities in Australia; and
e.On 12 March 2021, the applicants provided a submission dated 12 March 2021, accompanied by a statutory declaration from the primary applicant.
In addition, the Tribunal notes the following documents on the Department’s file, which it has also considered: statements from [Ms I], [Ms J] and a 2017 statement from the applicant’s daughter, as well as a copy of the marriage certificate of the applicants, together with a certified English translation.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
The applicants provided copies of their Chinese passports to the Department and copies of the primary applicant’s passport to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicants are who they claim to be, that they are nationals of China, which is also their receiving country.
The primary applicant claimed at the hearing that she did not have a right to enter and reside in any third country. There is no evidence to suggest that she nor the secondary applicant may have a right to enter or reside in any third country. On the basis of the information before the Tribunal, I accept this and find that the applicants do not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The primary applicant (the applicant) is a [Age 1]-year-old Chinese national from Shandong Province. The second-named applicant is the applicant’s husband, a [Age 2]-year-old Chinese national.
In their visa application forms the second-named applicant confirmed that he is not making any claims to protection of his own.
In a statement attached to her visa application, the applicant makes the following claims:
a.That she started to practice Falun Gong in 1998 after being introduced to it by a friend. Before she practiced Falun Gong she suffered from [Medical conditions] and that she went to many medical centres, but nothing helped. She claims that she read Zhuan Falun and practiced the five exercises everyday, and that after one month her health improved and she recovered from her chronic illnesses;
b.In response to orders from Jiang Zemin, the former head of the Chinese Communist Party (CCP) in 1999 Falun Gong was persecuted. The applicant felt scared and suppressed and almost gave up practicing Falun Gong;
c.As a practitioner of Falun Gong she sometimes went out to clarify the facts about Falun Gong and told people about the benefits of practicing Falun Gong, despite such activities being prohibited and suppressed by the CCP. Chinese police officers track those who participate in truth clarification activities and monitor telephone calls, and that many Falun Gong practitioners that she knows have been illegally arrested, detained and sentences;
d.The applicant’s statement contains the following statement: ‘In about ten days, there are 23 female Falun Gong practitioners were illegally detained in No.3 Detention Centre of Jinan City.’ The statement then contains a link to an article on and states ‘I was one of them.’;
e.The applicant states that in July 2015 she filed a criminal complaint against Jiang Zemin to China’s highest court for initiating the persecution of Falun Gong. She states that she used her real name, address, copy of her ‘identity’ and fingerprint. She provided a ‘serial number’ for her complaint, which she submitted to the Minghui website;
f.In October and November 2015 the applicant was harassed by local police officers who broke into her house twice because she had sued Jiang Zemin;
g.On 12 January 2016, six police officers broke into her home and searched it. They took a video of her and confiscated her Falun Gong books, a CD and other literature. They told her they had been spying on her for a week. When she refused to be taken to the police station, the police officers twisted her arms, lifted her in the air and dragged her to the police station. They tried to force the applicant to do a blood test and to sign a document which slandered Falun Gong. They intended to detain her for 10 days. The applicant claims that she clarified the facts about Falun Gong to the police officers. She was released after being detained at the police station for 8 hours without anything to eat or drink. Before she was released, the police told her that they have the right to arrest her at any time; and
h.She fears the threat of imprisonment and fears for her safety because if her practice of Falun Gong and has come to Australia to seek protection and to exercise freedom of belief.
Departmental interview and delegate’s decision
The delegate’s reasons for decision record that the applicant attended a Protection visa interview on 9 January 2016 (the Tribunal notes that this is a typographic error and the interview was in January 2017). The delegate’s decision record indicates that at the interview the applicant did not provide claims additional to her written statement.
The delegate found that the applicant is a national of China and accepted that in accordance with s.5J(1)(a) of the Act, the applicant fears persecution on the basis of her religion and her imputed political opinion. The delegate did not accept the applicant’s claims that she is a Falun Gong practitioner, that she was harassed by the local police or that she was arrested and detained by local police, or that she left China because she feared for her life and safety.
At the interview, the applicant claimed that she is a retiree who worked at a [Workplace] as [an Occupation]. The delegate considered that the applicant’s responses to question about the background, readings, ideologies and practices of Falun Gong were answered consistently with the country information. She stated that her work knew that she was a practitioner of Falun Gong, but following the 1999 crackdown on Falun Gong, her work instructed her to stop practicing and she unwillingly agreed to this. She claimed that she did so because she was scared and the persecution by Jiang Zemin almost made her give up the practice of Falun Gong. The delegate had concerns regarding the applicant’s credibility regarding her claim that she is a Falun Gong practitioner when she willingly denied being one.
The applicant stated at the interview that she practiced her religion in secret in China, so she did not encounter any trouble up until 2015. She added that she secretly distributed Falun Gong promotional material during this period. The delegate considered that the applicant’s claims that she approached strangers on the street and promoted Falun Gong openly were inconsistent with her claim that she had to hide her practice. The applicant gave evidence that she got into trouble once when she tried to convert a taxi driver, who said he would report her to the authorities. She described another incident where she attempted to convert a police assistant from a supermarket.
The delegate found the applicant’s stated experience of being a Falun Gong practitioner and her attempts to promote it ‘in secret’ to be exaggerated and lacking persuasiveness.
The delegate put to the applicant that she had travelled between China and Australia multiple times and asked why she had not made her Protection claims earlier. The applicant stated that she wanted to save more people in China by teaching them the truth. She stated that the situation was now too dangerous to stay in China because of the petition she had signed against Jiang Zemin.
The applicant confirmed at the interview that she had never experienced any trouble at the Chinese borders. She claimed that she was visited by four police officers in October 2015, after returning from Australia, and a second visit from one police officer in November 2015. She stated that the police officer wanted to clarify whether she still intended to sue Jiang Zemin. She stated that she attempted to convert the police officer. The delegate found this claim implausible and also found it implausible that it took the police three visits to arrest her, and upon her refusal to sign an agreement to give up Falun Gong, they simply released her. The delegate therefore did not accept that the applicant was targeted by the Chinese police or that they had visited her house three times, or that she was arrested or detained.
The applicant stated that she started to participate in the Falun Gong community in Australia in February 2016. The delegate noted that the Protection visa application was lodged on 23 February 2016 and the applicant has been visiting Australia since 2009. The applicant stated she did not participate in Falun Gong community earlier because she was under time pressures during her visits to Australia, and spent most of her time with her daughter.
The delegate did not accept that the applicant had signed a complaint letter against Jiang in 2015, or that this act alone would have caused her to become a target of Chinese authorities. The delegate considered this finding was supported by the applicant’s ability to travel between China and Australia after she petitioned against Jiang.
Evidence at the hearing regarding preparation and contents of application
At the hearing the applicant gave evidence that she remembered making the Protection visa application, and that at the time she did not have a migration agent. She told the Tribunal that she wrote her statement herself, which was then translated by her daughter. She confirmed that the contents of the form are true and correct and had been read back to her by her daughter. She confirmed that she did not wish to make any changes to the application form or add to the claims which she had made.
Evidence regarding the applicant’s background
The applicant gave evidence that she lived at an address in Jinan City, Shandong Province from 2005 until January 2016, when she last arrived in Australia. She gave evidence that in addition to her husband, who is the second-named applicant, she has a daughter who has lived in Australia since December 2007, and who holds a [visa]. The applicant confirmed that she first arrived in Australia in 2009 and travelled to Australia five times between 2009 and 2016, each time holding a Visitor visa. She confirmed that she visited Australia in August 2015, following which she returned to China in October 2015. She most recently arrived in Australia in February 2016 and has since then not departed Australia. She arrived in Australia by plane, travelling with her own passport, and departed China from Shanghai.
Applicant’s claims for protection
The applicant confirmed in her evidence that she was not raised with any religion and that she first identified as a practitioner of Falun Gong in 1998. She gave evidence of four illnesses that she suffered, which were consistent with those set out in her written claims. She stated that she saw Western and traditional Chinese doctors and took a lot of medication to treat these illnesses, but they did not improve. She stated that a friend suggested she try Falun Dafa and took her to a place where practitioners gathered, where the group leader gave her a copy of Zhuan Falun. She gave evidence of her daily practice of the exercises and the strengthening of her faith, and that after one month most of her symptoms had disappeared, and after 6 months they had all disappeared. She stated she has not had to take any medication in the subsequent 23 years. She referred to Hingzhi Li as her Master, and stated that he had given her a second life.
The applicant was able to speak knowledgeably about the beliefs and practices of Falun Gong, including the universal values, the need to cultivate temperament and disregard attachments.
When asked why she considers herself to be a practitioner of Falun Gong, the applicant responded that she benefitted from Dafa, followed the three principles, does the exercises and tells the truth about the lies of the CCP. She spoke about how she tries to build her virtue. She stated that she needs to be kind and honest and explained that her understanding of forbearance is that if you have a conflict with others, you have to look for the problem inside yourself and forgive others. She stated that as a practitioner she reads Zhuan Falun and does the five sets of exercises. She stated that the fifth exercise is very similar to meditation and involves placing your legs in a position which she found very hard, however she had to follow her master’s instructions and used rope to bind her leg so she could achieve this position. She stated that with the second exercise there are different timeframes, but she forces herself to do the hour-long exercise. She stated that truth clarification is also an essential part of being a practitioner of Falun Gong, and that if you don’t do this and instead stay home and only do the exercises, you are not a real practitioner.
The applicant gave evidence that prior to the 1999 crackdown of Falun Gong by the Chinese government, she would participate in organised activities in parks and rural areas to promote Falun Gong. After 1999 she attended secret meetings with other practitioners. She stated that her faith gave her a duty to go outside and tell other people about Falun Gong and about the persecution of other practitioners. When asked how she did this, she stated that pamphlets were prepared by practitioners who were college teachers, and in the pamphlets they spoke about Falun Dafa and its benefits and how it is persecuted by the CCP.
The applicant gave evidence that she started to attend different study groups of the Falun Gong community in Australia in 2016. She does exercises with other practitioners in the park and she attends large events which mark particular occasions. She said she has attended events in places such as [Suburbs 1-3] and Martin Place. She gave evidence that she has participated in truth clarification activities in Australia, including attending tourist attractions, where the focus is on telling the truth to Chinese tourists, as well as a peaceful protest at [a Venue] in Sydney. The applicant stated that because of her activities in Australia she believes that her identity is known to the Chinese government, which has stopped her retirement pension.
The applicant claimed that there are many Chinese spies in Australia, and that when she undertook truth clarification activities, such as at the front of the [Venue] in Sydney, strangers took photographs. She stated that she is unsure about some of the Chinese tour groups and considers that some look like groups of Chinese government officials, and they had also taken photographs of her. She stated that there are many security cameras out the front of the [Venue], where in 2017 she was assigned a spot to petition the government.
As to her reasons for fearing returning to China, the applicant stated that she participated in a petition to make Jiang Zemin legally responsible for his persecution of Falun Gong. She stated that she used her real name in the petition and following this she was detained by the police and her name is on a police blacklist. She stated that she will definitely be arrested and jailed. She stated that in addition her truth clarification activities in Australia may be a source for harm if she returns to China. She sated that the CCP has many spies in Australia, who will provide her information to Chinese authorities.
The applicant explained that she signed the petition against Jiang Zemin using a template which was available on the Minghui website. She stated that she believes that across China 200,000 practitioners of Falun Gong and their family members signed the petition. She stated that she posted her petition by courier to the highest court in Beijing, that she did not receive any response to the petition, but local police officers knew of her signing the petition. Later in the hearing the Tribunal questioned why the applicant had registered her petition with the Minghui website. She responded that she thought the website wants to collect information about how many people in China have lodged petitions. She stated it was to put a record on the website and for the website to collect the information.
As for incidents which occurred in China, the applicant stated that [in] October 2015, four police officers came to her house and asked whether she wanted to bring an action against Jiang Zemin. On a second occasion one police officer came to her house in November 2015 and gave her a warning and again asked if she still wanted to bring an action against Jiang Zemin. Six police officers came to her home [in] January 2016. They told the applicant and her husband not to move, while the police officers searched her possessions. They took about 20 books and some DVDs. The applicant gave evidence that she said to the police officers that she was a good person who was cultivating herself in accordance with the three principles, and that by doing so she was saving on medical expenses. The applicant refused to go to the police station and was forcibly grabbed by four officers and taken to [a] police station, otherwise known as [a] District Station. She stated that she was questioned at the police station, but she responded that she had not broken any laws. The officers asked her why she wanted to sue Jiang Zemin. She stated that the officers showed her a document containing lies about the master and Falun Gong and asked her to stop practicing Falun Gong. They tried to take her blood sample. She stated that the mistreatment she received included being dragged away, being pushed in the shoulder, forcing her to sign a document, not allowing her to go to the toilet and continually referring to her beliefs as a cult, such as by saying that members had burnt themselves in Tiananmen Square.
The Tribunal questioned the applicant as to why she was released from detention after only 8 hours. She stated that she thinks there were two reasons, the first of which was she told the officers the truth about Falun Dafa and they did not have any evidence that she was undertaking truth clarification activities in public. The applicant stated that the target of the police officers was not ‘normal practitioners’ who practice Falun Gong by themselves, but those who go out and tell the truth in public, and those who have connections with other practitioners. She stated that the books she possessed were evidence that she was a Falun Gong practitioners, but she was only reading these books at home.
The applicant confirmed that the first two visits by police to her house did not involve anything other than questioning. She confirmed that no other incidents occurred in China other than the three she had given evidence of. She confirmed that on the third occasion when she was detained, no charges were laid.
The applicant stated that when she was released after being detained for 8 hours, the police told her they would be watching her activities to see if she was sending out flyers or communicating with other practitioners. She stated there are security cameras in her residential complex, so they could monitor her.
The Tribunal questioned the applicant whether there were any times when she was nearly reported to police because she attempted to convert others in China. The applicant stated there was a time involving a taxi driver, where she tried to do truth clarification. The taxi driver said he would report her, but after she explained the truth about the government’s persecution of practitioners, organ harvesting and torture, the taxi driver understood and decided not to report her. Another occasion involved a police assistant or a security guard whom the applicant met in a supermarket.
The Tribunal put to the applicant the concerns raised by the delegate in the delegate’s reasons for decision, particularly regarding the plausibility of her claims, including whether it was plausible that she would seek to convert a police assistant, whether it would take police officer three visits to her home before arresting her, despite being aware that she was a practitioner of Falun Gong, whether she had willingly denied being a practitioner of Falun Gong at her workplace, despite such behaviour being consistent with the principle of truthfulness, and whether she had signed a petition against Jiang Zemin.
The applicant responded that her workplace knew she was a practitioner of Falun Gong and she did not deny this. Following the crackdown against Falun Gong in 1999, she received notice from a more senior level within her workplace to give up Falun Gong. She stated that she experienced this discrimination from colleagues and family and that it reminded her of the Cultural Revolution. She stated that her father was persecuted during the Cultural Revolution and was weak and then passed away. She stated that she knew a lot of people who were persecuted in the Cultural Revolution and she was very scared and did not have the courage to continue. She told the Tribunal that at the time she said that she would give up Falun Gong, but she did not want to do so, and she regarded it as a kind of ‘mental persecution’. She stated that it put pressure on her mental health as Falun Gong offered a lot to her.
As to why she was only detained by police on their third visit to her home, the applicant responded that maybe on the first occasion the police were just wanting to confirm her identity and then monitor her to obtain evidence of Falun Gong activities. She stated that the second occasion was a warning. She claimed that 200,000 people signed the same petition against Jiang Zemin in China, and so there would be difficulties in arresting that number of people. She stated that on the second occasion the police may have been planning.
The Tribunal questioned the applicant regarding the number of people that were arrested at the same time as her. The applicant stated that she had seen a report on a website that indicated over 200 had been arrested. She stated that she knew of five, including herself, and all of them had signed the petition in the Longdong area. The Tribunal questioned the applicant regarding an ambiguous statement in the written statement which accompanied her Protection visa application, which stated that ‘In about ten days, there are 23 Falun Gong practitioners were illegally detained in No.3 Detention Centre of Jinan City’. Her statement goes on to say that this was reported on the Minghui website [in] January 2016, provides a link and then states ‘I was one of them.’ The Tribunal questioned whether in this statement the applicant was claiming that she was arrested in Jinan City and taken to the No.3 Detention Centre. The applicant responded that she was not one of the people who was referred to as arrested in this article and that she has never been to the No.3 Detention Centre. She stated that it may have been a mistranslation. The Tribunal understood that in this statement the applicant was claiming that she was detained in a similar fashion, although separately from the persons mentioned in the article. The Tribunal makes no adverse findings regarding the ambiguity of this statement within the applicant’s written statement, and notes the application was prepared by the applicant’s daughter, who is not a migration agent or a certified English translator.
The Tribunal put to the applicant that she started her practice within the Falun Gong community in Sydney in February 2016 and that her Protection visa application was made on 23 February 2016, which may suggest that she has participated in Falun Gong community activities in Australia to strengthen her claims to protection. The applicant responded that at the Departmental interview the interviewing officer did not ask her whether she had participated in any Falun Gong activities in Australia prior to 2016 or whether she had disclosed her identity as a Falun Gong practitioner prior to that date. She stated that she did not engage in community activities for the purpose of her Protection visa application, but because she wanted to engage in truth-telling activities.
As to what Falun Gong community participation she had engaged in prior to 2016, the applicant stated that the first time she came to Australia in 2009, her daughter took her to Chinatown and she saw there was a stand where someone was undertaking truth clarification. She stated that she talked to the Falun Gong prcatitioners, told them that she is a faithful practitioner and told them that her four chronic diseases had disappeared miraculously and that her temperament had improved as a result of her following the exercises. She also collected materials from them about truth clarification and that in 2013 and 2015 she attended a study group in [Suburb 1].
The Tribunal questioned the applicant about her claim that she was placed on a blacklist, and if this was the case, how she was able to depart China in January 2016 without incident. The applicant stated that in January 2016 only the local police knew about the petition she has lodged against Jiang Zemin. The Tribunal questioned why the local police and not national police would be aware of it or take action, when the petition she claimed to have signed was against one of the heads of the CCP and former President of China. The applicant responded it was because more than 200,000 people had signed petitions, and given this volume, they were sent back to the local governments to deal with. The applicant considered that after the visit to her home the police may not have had sufficient time to send the information to the authorities at the airport. She stated that at the time it was Chinese New Year and this may have affected the times for sending the information to the airport. She stated that there are a lot of Falun Gong practitioners who successfully leave China from an airport. She obtained her Chinese passport in 2009, and at the time the government did not know that she was a practitioner of Falun Gong.
The Tribunal put to the applicant the delay in applying for protection, and noted she has travelled to Australia several times since 2009, but did not make her claim for protection until 2016. The applicant responded that it was because she was careful with any truth clarification activities that she undertook because of the dangers associated with it, and that the police did not know about her activities until she lodged the petition in July 2015.
Corroborative evidence
The applicant provided a witness list comprising seven witnesses, namely [Mr A], the [Office bearer] of [an Organisation], [Ms K], the Falun Gong Coordinator for [Suburban area], [G], the Coordinator of [Project] in Australia, which was described as a Falun Gong truth clarification project, [H], who was described as the Coordinator of ‘Special project’, a Falun Gong truth clarification project, and [Ms F] and [Ms E], who were described as fellow practitioners.
The applicant indicated that none of the witnesses were available to provide evidence in-person, as that day they were attending a Falun Gong conference in the city, however they were all available to be contacted by telephone. The applicant indicated that [Mr A] was only available by telephone until 11:00am on the day of the hearing, which required the Tribunal to take evidence from him prior to hearing the evidence of the applicant.
[Mr A] gave evidence that he is the [Office bearer] of the [Organisation] and that he has known the applicant and her daughter at least prior to July 2017. He stated that Fa study meetings can involve a couple of hundred people, and so he does not know all participants, but he was aware of the applicant. He stated that the Falun Gong community has not had as many in-person gatherings during the COVID-19 pandemic, however the applicant had attended large gatherings such as one a Circular Quay and another marking 20 years of persecution, and he was familiar with the applicant and her daughter at these events. He stated that that he regards the applicant to be a genuine practitioner and in making such assessments he relies on the assistance of leaders within the regions, who come to know who the real practitioners are. He stated that he interviewed the applicant and her daughter and he finds all of her testimony reasonable.
[Mr A]’s letter of 21 July 2017, a copy of which was provided to the Tribunal, also contains a ‘submission’ which addresses many of the concerns raised in the delegate’s reasons for decision. The letter states that the applicant regularly participates in Falun Dafa practice and activities in Sydney, and that as a Falun Gong practitioner she has a well-founded fear of persecution if forced to return to China. The letter advises that the [Organisation] has honorary capacity and limited resources, and therefore does not write support letters for all Falun Gong practitioners. It states that the [Organisation] often relies upon the testimony from trusted veteran practitioners. It states that such veteran practitioners in [Suburb 1] know the applicant well and support her. The letter expresses concerns with the delegate’s decision and states that there were several contentious issues raised by the delegate to support the adverse findings against the applicant. The Tribunal has considered the ‘submissions’ made in the attached document, and notes in particular the description of the changes to provisions of China’s Supreme People’s Court in May 2015, which now enshrine citizens’ right to sue, which the submission explains resulted in a flood of lawsuits against Jiang Zemin, as complaints could not be automatically rejected as they previously were. The submission states that it is well known within the Falun Gong community in China and around the world that Falun Gong practitioners have been targeted by authorities in China following the lodgement of legal complaints against Jiang Zemin. It provides a number of examples and links to the Minghui website, including accounts of 300 Falun Gong practitioners arrested in Liaoning Province, with 29 sentences to prison for terms between 6 months to 12 years. It states that in Shandong Province, where the applicant is from, six members of the same extended family were arrested in Dezhou City because of filing complaints against Jiang Zemin.
The Tribunal accepts that [Mr A] knows of the applicant as a Falun Gong practitioner in Australia, and as his letter states, there are other veteran Falun Gong practitioners who have also attested to her practice and activities as a Falun Gong practitioner in Australia.
The applicant provided the following statements and affidavits in support of her claims, in addition to those previously provided to the Department:
a.Affidavit of [B], who claims to be a practitioner of Falun Gong residing in [Country]. The affidavit states that between July 1998 and July 2000 the applicant attended Falun Gong activities, including group study and group exercises, and that she insisted on continuing to practice Falun Gong after persecution from the Communist Party;
b.Statement of [C], who claims to have been a Falun Gong practitioner since 2011. [C] claims to have met the applicant in the [Suburb 1] Fa study group in the middle of 2013, and that the applicant attended very often in 2015 and has attended every Friday night F study since 2016 and helped to clarify the truth in 2016 and 2017;
c.Statement of [Ms E], claiming she met the applicant in mid-2013 in the [Suburb 1] study group;
d.Statement from the applicant’s daughter, [Ms D], claiming that her mother asked her in 1998 to watch the Falun Gong lectures by Master Li, and that the applicant was practicing it at the time and encouraged her in 2009 to practice Falun Gong consistently;
e.Statement from the second-named applicant, the applicant’s husband, stating that the applicant started practicing Falun Gong in 1998;
f.Statutory declaration from [Ms F], who claims that she first met the applicant in Chinatown in October 2009 while she was distributing truth clarification flyers, and that the applicant told her that she practiced Falun Gong in China and asked her to contact the applicant’s daughter, who had migrated to Australia as a skilled migrant;
g.Statutory declaration of [G], who states that the applicant joined the [Project] in April 2016 and undertakes truth clarification activities with officials in China; and
h.[Ms H], who claims she got to know the applicant at the [Project] in April 2016, which involves truth clarification with officials in China, and that she often met her in Fa study on Saturdays an that the applicant has conducted truth clarification activities almost every day.
Having heard the applicant’s evidence and the evidence of [Mr A], as well as having considered the numerous documents provided in support of the applicant’s Falun Gong activities in Australia, including photographs and documents from websites and each of the above statements and statutory declarations, the Tribunal considered it did not need to hear the evidence of the other witnesses, particularly regarding the applicant’s Falun Gong activities in Australia.
Submissions of the applicant’s representative
The applicant’s representative submitted that the blacklist which the applicant claims she was placed on could be the local blacklist for watching her regarding her participation in any Falun Gong activities outside her home. She submitted that such a list would be with the local PSB and not a national list. She submitted this is why the applicant was only detained for 8 hours, as the police would have considered the applicant’s age and that she only practices her beliefs in her own home.
The applicant’s representative submitted that when the applicant sent the petition regarding Jiang Zemin, 200,000 others also did so, and that at the time Falun Gong may have misunderstood the opportunity which arose from a change in the law which allowed citizens to launch such complaints, and wrongly thought that it was a time when they could act. She submitted that while the Department did not accept that the applicant had made the petition, the information published on the Minghui website can demonstrate it. She submitted that the applicant also had a similar matter published on the Minghui website in 2011. She submitted that the authorities would then take some time in deciding how to respond.
She submitted that the applicant has provided supporting evidence of participation in the Falun Gong community as early as 2009. She stated that the applicant has provided a support letter from [Ms E], who first met the applicant in 2013, and a letter from [Ms F], who first met the applicant in 2009.
Assessment of claims
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him 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 her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal found that overall the applicant’s evidence at the hearing was consistent with the account given in her statement accompanying her visa application, as well as with her testimony at the Departmental interview and the accounts which have been published on the Minghui website. Overall the Tribunal finds the applicant to be a truthful witness, and that certain of her accounts are corroborated by witness statements. Despite this, the country information raises some potential concerns regarding the plausibility of some of the applicant’s claims, and the Tribunal has some concerns that the applicant may have exaggerated some of her accounts.
The applicant claims that she first became a practitioner of Falun Gong in 1998, and that the practice of the five exercises resulted in the resolution of four medical conditions which until then she had difficulty in resolving with both Western and traditional Chinese medicine. The applicant’s account in her evidence was consistent with that contained in her written statement. The applicant also gave evidence of how prior to the crackdown of Falun Gong by the Communist Party in 1999, Falun Gong could be practiced openly in China.
The Tribunal also notes that at the hearing the applicant gave a description of the practices and beliefs of Falun Gong practitioners, most of which was unprompted, although it did not have the qualities of a prepared speech, but of someone speaking about information with which they were intimately familiar. The applicant was able to give evidence about the principles of Falun Gong, as well as literature such as Zhuan Falun, and give details of the exercises in a credible manner. The Tribunal also notes that the decision of the delegate acknowledges that at the Departmental interview, the applicant was able to answer questions about the background, readings, ideologies and practices of Falun Gong, and these were answered consistently with the country information. The Tribunal considers the applicant gave a credible account of her beliefs and practices as a practitioner of Falun Gong.
The Tribunal notes that the delegate had concerns with the applicant’s claim that her workplace knew she was a practitioner of Falun Gong and in 1999 instructed her to stop practicing her faith. The delegate raised concerns with the credibility of the applicant’s claim that she is a Falun Gong practitioner when she ‘willingly denied’ being one, which is against the first principle of Falun Gong practice, which is ‘truthfulness’. The delegate considered that the applicant’s act of denying being a practitioner is inconsistent with her claim to be a devoted follower of Falun Gong principles.
The Tribunal notes however that the delegate’s reasons for decision record that the applicant unwillingly agreed to stop the practice of her faith when instructed to do so by her workplace, given it was a threat to her job. The Tribunal also put the above concerns to the applicant, who stated that her workplace knew she was a practitioner of Falun Gong and she never denied that this was the case. She stated that she feared discrimination as she had lived through the Cultural Revolution, and gave evidence of her father having passed away after being persecuted. She explained that she was scared at the time and said that she would give up Falun Gong, but did not want to do so.
The Tribunal has considered the applicant’s response and the account of her testimony summarised in the delegate’s reasons and is satisfied that the applicant did not deny or lie about her practice of Falun Gong to her workplace. The Tribunal has also had regard to the written submissions from her representative and that attached to the letter from [Mr A], which point out that not all persons respond to situations such as this with courage, particularly given the events associated with the 10 June 1999 crackdown against Falun Gong and the creation of the 6-10 office, which was charged with the task of eradicating Falun Gong activities. The Tribunal notes the applicant had been practicing Falun Gong for only approximately one year at the time of this crackdown, and given the severity of the crackdown and the applicant’s professional role as [an Occupation], and her account of fear based on past experience of persecution of an immediate family member, it is prepared to accept her explanation. The Tribunal does not consider the applicant’s renunciation of her Falun Gong faith after June 1999 demonstrates that she was not a genuine convert to Falun Gong in 1998. Rather, the Tribunal accepts that the applicant gave up any public demonstration of her faith as a result of her desire to avoid discrimination and that she did so unwillingly.
The Tribunal notes the difficulty in assessing when the applicant became a practitioner of Falun Gong, given the difficulties in providing independent supporting evidence in the current circumstances, however the Tribunal notes the following evidence which supports the applicant’s claim to have converted to Falun Gong in 1998:
a.The applicant provided a copy of a certified English translation of an article search of the Minghui website, which contains an article regarding 173 people declaring their intention to resume practicing Falun Gong. The text of the article states ‘I hereby solemnly declare that everything I have done and said that did not comply with the standards of the Fa is null and void. I will work hard to make up for the harm I caused to Dafa and firmly cultivate Dafa to the end.’ This quote is attributed to ‘[the applicant]’ and the translation records that it is dated ‘April 2011’. The Tribunal notes however that in the original Chinese version of this article, the date of publication is listed in Hindu-Arabic numerals as ‘2011-05-12’. The Tribunal notes that the article was published in 2011, and therefore gives support to the applicant’s claim that she was a practitioner of Falun Gong prior to her most recent arrival in Australia in February 2016;
b.The affidavit of [B] attests that the applicant attended Falun Gong activities, including group study and group exercises, between July 1998 and July 2000, and that she insisted on continuing to practice Falun Gong after persecution of Falun Gong by the Communist Party;
c.The statutory declaration of [Ms F] attests that she first met the applicant in Chinatown in Sydney in October 2009 when distributing truth clarification flyers. [Ms F] attests that the applicant told her that she was a practitioner of Falun Gong in China and asked [Ms F] to contact the applicant’s daughter, who had migrated to Australia as a skilled worker; and
d.The statements of the applicant’s husband and daughter also state that the applicant commenced her practice of Falun Gong in 1998.
The Tribunal considers that there is sufficient corroborative evidence that the applicant commenced her practice of Falun Gong prior to February 2016, when she became actively involved with the Falun Gong community in Sydney. The Tribunal also notes the history of persecution of Falun Gong from July 1999, and therefore accepts that if the applicant was a genuine practitioner of Falun Gong on her first visit to Australia in 2009, it is entirely plausible that she converted to this faith prior to the crackdown in July 1999, prior to which Falun Dafa could be practiced in public. Such a finding is also supported by the applicant’s ability to enunciate the principles and practices of Falun Gong in a detailed and advanced manner, which the Tribunal considers is consistent with someone who has been a genuine practitioner of Falun Gong for a number of years. The Tribunal therefore accepts that the applicant was a convert to Falun Gong in 1998.
The Tribunal does not make any adverse findings in relation to the applicant’s decision to stop practicing Falun Gong soon after July 1999, as it notes this decision was in response to the persecution of Falun Gong.
The applicant claims that after this she continued to practice Falun Gong, although she did so privately in her own home. The Tribunal accepts this evidence and notes the country evidence supports such a claim, which notes that Falun Gong practitioners are generally able to practice privately in their homes.
The Tribunal however notes some potential concerns regarding the applicant’s evidence of her activities in converting others and of truth clarification in China, as well as her account of being detained by local police after three visits to her house. While the applicant’s evidence regarding these matters was overall consistent with her previous statements, these aspects of her evidence are not supported by the independent country information and the Tribunal therefore has some concerns regarding the plausibility of these claims.
The applicant claims that despite the persecution of Falun Gong from July 1999, she continued to attend secret meetings with other practitioners and she had a duty to ‘go outside’ and tell the truth and save other people. She states that she did this by sending out pamphlets. She stated that if she did go out to tell the truth, she was very careful because of the dangers. The applicant also gave evidence of two attempts at truth clarification which almost resulted in her being reported, one involving a taxi driver, and the other involving a police assistant or security guard. The Tribunal finds the applicant’s accounts in her evidence and at the Departmental interview of these two incidents were consistent. The Tribunal however has some doubts, based on the country information, that the applicant engaged in such proselytising, albeit ‘carefully’. The country information indicates that Falun Gong members do not openly proselytise in mainland China, and that practitioners identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong. While the Tribunal recognises the generality of such a statement from the country information, and accepts that it may not account for diversity of individual practice, the Tribunal does not find it particularly plausible that the applicant would seek to convert individuals whom she has met in a supermarket, particularly one holding some level of authority, given the risks and dangers that such activity would involve. The Tribunal also notes that in general the applicant’s account of how she practiced her faith indicated a risk-averse approach, which is consistent with someone who renounced her faith to her employer. The Tribunal therefore has some concerns with the applicant’s accounts of how she attempted to convert complete strangers in China, and finds such claims may be exaggerated.
The Tribunal also has some concerns with the applicant’s account of the three visits to her house by police officers, and her detention for eight hours on the third occasion. Although the applicant was overall consistent in her accounts of these incidents, the details of her detention are again not supported by the independent country information. The country information indicates that a typical Falun Gong case involves a period of initial investigation, followed by a suspect having their personal belongings confiscated and being placed in custody for three to six months, followed by a trial and sentencing. It states that correctional officers pressure Falun Gong practitioners to denounce their faith and detainees may receive better treatment if they sign confessional statements. The Tribunal has concern with the applicant’s account that the police visited her home on two occasions in 2015, but did little other than issue her with warnings and ask her whether she wanted to bring a legal action against Jiang Zemin.
The Tribunal also has concern that on the third occasion the police confiscated Falun Gong literature, including 20 books and some DVDs, and yet the applicant claims she was detained for only eight hours. The Tribunal also notes that in one of the accounts published on the Minghui website (published on 7 March 2017), the applicant claims she was told to sign a statement denouncing Falun Gong, but she refused to do so. The applicant also claims that the police officers attempted to take a blood sample from her for the purpose of organ harvesting, however she was able to resist them.
The Tribunal does not consider the applicant’s account of her detention to be supported by the process of detention which is set out in the country information. The Tribunal also has concerns with the applicant’s claims that she was released after 8 hours, despite not agreeing to sign a statement renouncing Falun Gong. The applicant claims that she was most likely released because she continued to clarify the truth about Falun Gong with the police officers, and because she was an ‘old lady’ who just practiced Falun Gong in her own home, and there was no evidence that she had communication with other Falun Gong members. The Tribunal notes there is no support for these claims in the country information, including no information to suggest that elderly practitioners of Falun Gong receive more favourable treatment than younger practitioners, and nothing to suggest that authorities such as the police would be more lenient towards detainees who attempt to clarify the truth. Rather, the country information indicates that Falun Gong members are regarded as political opponents by the Chinese government, and they are treated accordingly, and that more favourable treatment is given to detainees who sign denunciation statements. Therefore, while the Tribunal is prepared to accept that the applicant may have been questioned on occasion by police at her home, it is not satisfied that the applicant was detained for eight hours in January 2016 or that she was released after truth clarifying to the police and after refusing to sign a renunciation statement.
The applicant claims that prior to her lodging a complaint with the Supreme Court and Supreme Procuratorate against Jiang Zemin in July 2015, she was not known to the authorities in China as a Falun Gong practitioner. The applicant claims that she used her real name and address in the complaint. She claims that as a result of this she is on a blacklist created by local police, and she believes if she returns to China she will be arrested and imprisoned. The applicant stated that she did not keep a copy of the complaint and no copy of the original complaint has been made available to the Tribunal. As proof of her action in filing the petition against Jiang Zemin, the applicant provided the Tribunal with a copy of an ‘article’ on the Minghui website, publishing the details of the applicant’s complaint. A non-certified English translation has been provided to the Tribunal, which states that the date of the complaint was 25 July 2015, and which was published on the website on 4 January 2017.
The applicant was unable to provide definitive evidence as to what happened to her complaint, as she did not receive a response to it. She stated that she did not know whether it arrived at the court because she used her phone number for communication with the courier, but then became scared and no longer used that number anymore. She then claimed that her complaint was sent to the local office, which is why she was questioned by the local police.
The Tribunal does not consider the published copy of the applicant’s complaint against Jiang Zemin on the Minghui website to be definitive evidence that the applicant in fact sent the complaint in July 2015, as it was published 18 months after the complaint is said to have been made. The Tribunal also notes that while the information published on the Minghui website indicates that the applicant provided her name, age, place of work and occupation in the complaint, very little information has been included about the complaint, and there is no specific reference to the applicant being a practitioner of Falun Gong. The uncertified translation includes the following text.
After the practice illness and fitness effect have been remarkable; outstanding performance in the work unit being commonly recognized.
The Tribunal has some concerns about whether the text used in this complaint, as translated, would identify the applicant as a practitioner of Falun Dafa, though it notes that this may be an error in the translation of the text, as result of it being provided by a non-certified translator. However, the Tribunal also notes the publication of the information on the Minghui website, which is a website supporting and promoting the activities of Falun Gong, and therefore provides a context to the applicant’s unnamed ‘practice’, being the practice of Falun Gong.
The applicant claims that a number of others were arrested or detained by the police in China as a result of signing similar petitions. The Tribunal has also considered the submission of [Mr A], which sets out other examples of arrests and detentions. This includes more than 300 practitioners in Liaoning who were arrested for suing Jiang Zemin, with 29 sentenced to between 6 months to 12 years imprisonment, six members of the same family arrested in Dezhou City, Shandong, a woman in Henan province who was detained for 16 days, and the arrest of more than 90 practitioners on Jinyun County, Zhejiang Province. Based on this information, the Tribunal considers that if the applicant’s complaint did in fact reach the authorities in China, and given her other evidence which includes evidence of her being a genuine practitioner of Falun Gong, there would be a real risk that the applicant would be identified as a Falun Gong supporter. In light of the supporting accounts of other arrests and detentions, I consider the risk to be more than remote. Irrespective of whether the applicant did in fact send the petition in July 2015 and whether it was received by authorities, the Tribunal considers the information has now been published in a website which is available to authorities in China, and which may bring her to their attention.
The Tribunal considers that the applicant’s ability to depart China without incident through a major airport, using her own passport, may support a finding that she was not a person of interest to Chinese authorities at the time of her most recent departure in January 2016. However, the Tribunal considers that it does not need to make a definitive finding in this regard, given the findings which follow, which indicate that the applicant’s activities in Australia may result in her becoming a person of interest.
As noted above, the Tribunal accepts that the applicant was a practitioner of Falun Gong prior to her latest arrival in Australia in February 2016. The Tribunal accepts that the applicant is an active member of the Falun Gong community, and has been so since February 2016, and accepts that she is considered to be a genuine practitioner by veteran practitioners within the Sydney Falun Gong community. The Tribunal notes the concern of the delegate that the applicant first began to actively participate in activities of the Falun Gong community in Australia in February 2016, and must consider whether the applicant engaged in such activities for the sole purpose of strengthening her claims for refugee status. The timing of the applicant’s engagement with the local Falun Gong community raised concerns for the delegate, given her Protection visa application was lodged on 23 February 2016.
Having heard the evidence as a whole, and having considered the supporting documents provided, the Tribunal does not find that the applicant has engaged in Falun Gong activities in Australia solely for the purpose of her protection claims. The Tribunal accepts that the applicant was a practitioner of Falun Gong in China, although her activities were heavily curtailed as a result of the persecution of this group. The depth of the applicant’s knowledge of Falun Gong principles, beliefs and practices, as demonstrated in her oral evidence, suggest that her beliefs are genuine. The regularity and commitment to the practice of Falun Gong also suggest that she is a genuine practitioner. The applicant’s activities in Australia include weekly truth clarification in tourist spots, truth clarification through an online project of the [Organisation], weekly Falun Gong exercises and Fa study with a group in [Suburb 1], weekly Fa study with a group in [Suburb 4], as well as a lengthy list of other activities she has participated in across Sydney, with events such as rallies or vigils being attended on an almost monthly basis. The applicant’s presence at such events is corroborated by the numerous photographs which she has provided of her participation at these events.
The Tribunal has also taken into account the affidavits and statements in support of the applicant from a number of practitioners of Falun Gong, as well as persons with senior roles within the [Organisation]. In particular, the Tribunal notes the letter and evidence of [Mr A].
Having heard her evidence, the Tribunal does not consider that the applicant has engaged in these activities merely to strengthen her claims to protection, but considers that she was an existing practitioner of Falun Gong in China, although she was unable to exercise her religious faith and practice freely. The Tribunal makes no adverse findings regarding the applicant’s failure to actively and regularly engage with the Falun Gong community in Sydney on her visits to Australia prior to February 2016. The applicant arrived in Australia on three occasions prior to 2016, in 2011, 2013 and 2015, primarily for the purpose of visiting her daughter, who resided in Sydney. There is new evidence from [Ms F] that that she first met the applicant at a truth clarification activity in 2009, and from [Ms E] and [C], that the applicant attended a Fa study group in [Suburb 1] in 2013. The Tribunal notes this evidence was not previously put to the delegate.
In these circumstances, the Tribunal is satisfied that the applicant is a genuine Falun Gong practitioner who has participated in many public Falun Gong activities, including protests and truth telling activities, including protests at the [Venue] in Sydney, and that her photograph and footage of her participating in such protests have been published in [Newspaper] and in footage published by [Television station].
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is satisfied that if the applicant returns to China now or in the foreseeable future she faces a real chance of persecution for reasons of her Falun Gong beliefs and for reasons of her participation in truth clarification activities and public protests in Australia, including protests against the CCP.
The latest DFAT country report notes in relation to Falun Gong:
Falun Gong
3.96 Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism, and Qigong (traditional breathing and meditation). Freedom House estimates seven to 20 million people currently practice Falun Gong in China. Falun Gong practitioners claim the movement has ancient origins, but it first appeared in its modern form in 1992, when founder Li Hongzhi began teaching the exercises in Changchun, Jilin province. Unlike other religions, Falun Gong focuses on private exercises and meditation.
3.97 The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. 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’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating 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. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and northeastern China, although Falun Gong’s illegal status makes this difficult to verify.
3.98 Since the abolition of re-education through labour centres in late 2013, Falun Gong practitioners have reportedly been subjected to residential detention, criminal and other forms of administrative punishment (see Arbitrary Arrest and Detention), or have been released after receiving propaganda training. Freedom House states it independently verified 933 cases between 1 January 2013 and 1 June 2016 of Falun Gong adherents receiving prison sentences of up to 12 years for their beliefs.
3.99 Falun Gong members do not openly proselytise in mainland China, although the movement is active in Hong Kong (where it remains legal) and abroad. Falun Gong practitioners identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong. Falun Gong practitioners are generally able to practise privately in their homes. Once known to authorities, colleagues or neighbours, however, Falun Gong members face widespread official and societal discrimination.
3.100 Lawyers representing Falun Gong practitioners claim a typical Falun Gong case involves: a period of initial investigation; the suspect having their personal belongings confiscated and being placed in custody for three to six months; trial by court; and then sentencing. Arrested Falun Gong practitioners (leaders and followers alike) commonly receive sentences of three to seven years’ imprisonment. Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. Falun Gong practitioners and their lawyers claim that judges and lawyers are actively discouraged from taking on Falun Gong cases, and that Falun Gong practitioners have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims.
3.101 On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs. Discrimination against Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships. Government officials, members of the police force and employees of state-owned enterprises are commonly required to sign a statement that they and their families are not Falun Gong members. A widespread and sustained government communications campaign against Falun Gong has effectively discredited it within mainstream Chinese society.
3.102 Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly (see Political Opinion (actual or imputed)). Lawyers who defend Falun Gong practitioners are frequently denied access to their clients in detention or court, and are subjected to adverse treatment and physical and electronic surveillance by authorities (see Human Rights Defenders (including Lawyers)).
3.103 Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport. Sources report some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.
3.104 DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.
The country information indicates, and the Tribunal accepts, that the applicant may be regarded as a political opponent of the Chinese government and the CCP and would face a real chance of serious harm if she returned to China now or in the foreseeable future.
The Tribunal has accepted that the applicant has participated in numerous public protest activities in Australia and has exposed herself in public as a Falun Gong practitioner. The Tribunal accepts that the Chinese authorities are likely to be aware of the behaviour of Chinese asylum seekers while they are outside of China, especially persons such as the applicant who have openly engaged in Falun Gong activities, including peaceful petitions out the front of the [Venue] in Sydney, and other events where evidence of her participation has been published in newspapers or screened on television programs. The available country information indicates that the Chinese government perceives Falun Gong to be harmful to the interests of the government, and that Falun Gong practitioners are imputed with a political opinion against the ruling government, they are arrested and detained and subjected to re-education and force is used to make them recant or change their beliefs.
In view of the above, the Tribunal is satisfied that there is a real chance that the applicant is or will be of adverse interest to Chinese authorities because of Falun Gong related activities she has engaged in in Australia, if she returns to China now or in the reasonably foreseeable future.
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submissions, and in view of the findings and country information above, the Tribunal is satisfied that the applicant fears being persecuted for reason of her religion and that there is a real chance that she would be persecuted for reason of her religion if she returns to China now or in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of China.
The Tribunal finds that the persecution will be directed at the applicant for the essential and significant reason of her religion, that the persecution involves serious harm to her and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill treatment of, and a threat to her life or liberty.
Given the Chinese State is the agent of the persecution, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the State. Therefore, the Tribunal finds that effective protection measures are not available to the applicant in China.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in China, as a modification would require her to alter her religious beliefs or conceal her true religious beliefs or cease to be involved in the practice of her faith. The Tribunal also notes the applicant’s evidence of the impact which such an approach had on her after July 1999, where she described the forced concealment of the practice of her faith as a kind of mental persecution. Accordingly, the Tribunal finds that she has a well-founded fear of persecution for reason of her religion in China.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
100. Given these findings, the Tribunal has not considered the applicant’s claims and the submissions under the complementary protection criterion.
Conclusion
101. For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
102. The Tribunal is not satisfied that the second-named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second-named applicant is the applicant’s husband and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the second-named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(i) and the remaining criteria for the visa are met.
DECISION
103. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the second-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Frank Russo
MemberATTACHMENT - 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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Natural Justice
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Remedies
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