1703879 (Refugee)

1703879 (Refugee) [2019] AATA 5492 (11 April 2019)
CaseNumber:            1703879
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703879
COUNTRY OF REFERENCE:                   China
MEMBER:Fiona Meagher
DATE:11 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2019 at 6:25pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – official and societal discrimination – inconsistent evidence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 92R
Migration Regulations (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 February 2017 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 22 August 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act, and accordingly does not meet the requirements of s.36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to the People’s Republic of China there is a real risk the applicant will suffer significant harm as required by s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 5 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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 issue in this case is whether the applicant meets the criteria set out in either s. 36(2)(a) or s. 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Documents before the Tribunal
The applicant provided a number of documents to the Tribunal including:
·Statutory declaration of the applicant’s sister;
·Statutory declaration of the applicant’s brother;
·Statutory declaration of the applicant’s brother;
·Statutory declaration of the applicant;
·Submission provided by the applicant’s registered migration agent; and
·Copy of the delegate’s decision provided with the application for review.
The Tribunal also had before it the department file including a statutory declaration made by the applicant, and correspondence from the applicant’s family to the applicant and to the Department including photographs of Falun Gong altar and protection cards claimed to belong to the applicant. The Tribunal notes that the documents before the Department are as summarised in the delegate’s decision.
The applicant’s migration history
The applicant’s migration history is set out in the delegate’s decision. She arrived in Australia on a subclass 600 visa [in] March 2014. On 3 July 2014 the applicant lodged a subclass 820/801 Partner visa which was refused on 2 December 2015. On 16 August 2016 the applicant lodged a further subclass 820/801 Partner visa application. On 22 August 2016 the applicant lodged a Protection visa application and was granted a Bridging visa E.
Country of reference
The applicant claims to be a citizen of the People’s Republic of China. The applicant provided a copy of her passport to the Department, confirming that she was born on [date] and is a citizen of the People’s Republic of China. Based on the applicant’s evidence to the Tribunal and her passport provided to the Department, the Tribunal finds that the applicant was born on [date] and that her nationality is Chinese. There is no evidence to suggest that she has a right to enter and reside, whether temporarily or permanently, in any other country.
The Tribunal finds that the applicant is a Chinese citizen and accordingly her protection claim will be assessed against the People’s Republic of China as the country of reference and as the “receiving country”.
The Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country, therefore the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3).
The applicant’s claims
The applicant’s claims were as follows:
·Why did you leave that country(s)? Provide specific details.
To see Australia and marry my partner – as I have no life in China and was living with my sister and was not able to afford the cost of living by myself. I had quit my job to come to Australia to marry my husband’s I am homeless and unemployed as it stands in China.
·What do you think will happen to you if you return to that country(s)?
I will have nowhere to live and will become homeless as my sister sold her house in China – otherwise I will have to share a bed with my mother – Because of my age I am considered unemployable – I also have become use to Australian values and ideals so I will most likely be rejected by society in general – I will suffer emotional and mental harm – and depression.
·Did you experience harm in that country(s)?
Yes.
·Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you).
Emotional harm – as I am use to Australian values and lifestyle. I am divorce and have been by myself for 12 years as divorce is frowned upon in China.
·Did you seek help within the country(s) after the harm?
No.
· Give reasons for why you did not try to seek help.
Until I came to Australia and learnt about human rights and values I did not understand what was happening.
· Did you move, or try to move, to another part of that country(s) to seek safety?
No.
·Give reasons for why you did not try to move to another part of the country(s).
China is the same throughout.
·Do you think you will be harmed or mistreated if you return to that country(s)?
Yes.
·Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you).
I will be unable to provide an income or a job to support myself due to my age – also I have different ideas and values since my time here in Australia and this will not be accepted.
·Do you think the authorities of that country(s) can and will protect you if you go back?
Yes.
·Give details as to which authorities you think would protect you.
But they will only offer limited support.
·Do you think you would be able to relocate within that country(s)?
No.
·Give details about why you are unable to relocate.
The policies are the same throughout China.
Departmental interview
Prior to the interview the applicant sent an unsigned statutory declaration to the Department setting out the difficulty she would experience if she were to return to China in relation to issues such as employment, housing and medical insurance. The applicant also claimed that she became aware of illegal dealings at her workplaces between 1992 and 2012. As well the applicant claimed that she had practised Falun Gong for 12 years whilst in China.
According to the delegate’s decision, at the interview with the Department the applicant said that she would not have lodged her Protection visa application if she had not missed the email requesting her to provide further documentation regarding her spouse visa application. The applicant was asked whether she had lodged her Protection visa because she had exhausted the other options available to her to stay in Australia. The applicant’s response was yes, and that her life was good after she married her husband and she could not live anymore if they were to be separated.
The delegate’s decision also set out the applicant’s understanding of Falun Gong practices and the extent to which, if at all, the applicant had experienced problems in China as a result of practising Falun Gong. The delegate found that the applicant had some knowledge of Falun Gong, and had in the past to some extent practised Falun Gong in China. The delegate found that the applicant had not experienced any problems in China arising out of her practice of Falun Gong.
The delegate found that the applicant does not genuinely practice Falun Gong in Australia. The delegate accepted that the applicant sometimes undertook the first two Falun Gong exercises as a form of exercise. The delegate found that the applicant’s practice of Falun Gong in Australia did not support a finding of her being a genuine Falun Gong practitioner nor a finding that she would practice Falun Gong in China if she were to be returned. The delegate also noted that the applicant had, in her Protection visa application form, stated that her religion was “nil”.
The delegate’s decision also notes that the applicant was asked about her fears arising out of her employment. The applicant claimed that she had worked for [Employer 1] who has connections with the police, now runs a big business and has undertaken illegal activities. The applicant claimed that her ex-employer keeps calling her to curse her. The applicant was asked why she did not include her employment at [Employer 1] on her Protection visa claim and her response was that she was afraid to put it down as it had a big impact on her life.
The applicant’s evidence – hearing 5 December 2017
The applicant told the Tribunal that her understanding of why her visa application was refused was because she “believe that the evidence she submitted had not been submitted”.
The Tribunal asked the applicant why she feared returning to China. She said that when she was in China she only received very limited information, whereas within Australia she is able to go on the Internet and undertake much detailed research.
The applicant told the Tribunal that Falun Gong had been in China for more than 20 years, and that it was only initially practised by retirees. She said that compared to those practitioners she is considered a younger practitioner. The applicant said that she had read that “they” take out the organs of people while they’re alive and that it was really bloody. The applicant said that the organs of old people are not very valuable and that she is concerned that her organs would be attractive to the organ buying and selling industry because of her youth. The applicant said that she knows that the military is involved in the practice of buying and selling organs although she did not know this in the past. The applicant said that for this reason she was very scared.
The applicant told the Tribunal that she came to Australia on a Visitor visa to be with her then boyfriend now husband. She said that she made an application for a Partner visa, but she missed the email from the Department requesting further information and accordingly her application was refused. She said that she also missed the time in which to lodge an appeal.
The Tribunal discussed the applicant’s visa history with her, and asked her why she did not raise the claims contained in her Protection visa for more than two years after she first arrived in Australia. The applicant told the Tribunal that when she came to Australia she had a legal valid visa.
The Tribunal asked the applicant when she started practising Falun Gong. She said that was after her divorce because she was “down” emotionally and physically. The applicant said that she was introduced to Falun Gong by a friend and that she practised it with a friend and her friend’s mother. The applicant said that her friend had discussed Falun Gong with her before her divorce, but at that stage she was not interested. The applicant informed the Tribunal that she observed that her friend’s mother’s physical health improved, and her friend’s management of stress and emotion improved as a result of following Falun Gong so she decided to follow it as well.
The applicant said that she practised at home initially every day when she had time. She said that she watched a DVD and read books describing the moves and talking about religion. The applicant said that the beliefs of Falun Gong included telling “people to do good things” and to act truthfully and out of goodness. The applicant said that her friend and her friend’s mother were both very good people.
The Tribunal asked the applicant to describe the exercises. The applicant said that she followed the five-step method (Wubfa) and she was able to name the second, third, fourth and fifth movements and to some extent described them. When asked about the first movement the applicant said that she did not practice. The applicant said that she did not undertake all of the steps as it took too long.
The applicant said that she did not practice Falun Gong consistently between 2001 and meeting her husband because she heard that many people were arrested and that the police knocked on her door and asked her whether she practised Falun Gong. The applicant said that the manager of the building in which she lived asked her whether she practised Falun Gong. The applicant said that she she did not admit to the building manager or the police that she practised Falun Gong
The applicant told the Tribunal that she still practices Falun Gong in Australia. Initially she said she practised daily either in the morning or the evening for about 30 minutes to one hour.
When asked by the Tribunal why the applicant wrote “nil” for her religion on her Protection visa application she said that she was scared of being prosecuted for practising Falun Gong in China. She also said that she had never encountered a situation where she had to fill in what her religion was. Then the applicant said she remembered making an application for a Protection visa but cannot remember who wrote it. She said that her ability to fill out a form in English was not good and that she cannot remember who filled the form out but that it may have been her husband because all forms in the past have been filled out by him.
The Tribunal asked the applicant whether she had used an interpreter. She said she did not, notwithstanding that she had responded on the Protection visa application form that she had used an interpreter. The applicant confirmed to the Tribunal that she did not review the forms carefully.
The Tribunal put to the applicant that the form contained the following statements:
·You must answer all the following questions in your own words. You must provide all the details about why you are seeking protection and, wherever possible, you must provide documentation to support your claims.
·The information I have supplied or caused to be supplied with this Part C of the Form 866 is complete, correct and up-to-date in every detail.
The Tribunal asked the applicant, in light of those statements set out above why no mention was made of Falun Gong nor of her claims regarding her ex-employer in her application for a Protection visa. The applicant responded that she was afraid of putting those matters in her application for protection.
The Tribunal put to the applicant that it considered that her claims had evolved and developed over time. The applicant responded that “little by little things had added up”, but that she could not remember everything when she made the claims. The Tribunal asked her why she had been unable to remember Falun Gong and her concerns regarding her ex-employer when she made her claims. The applicant was reluctant to answer the question, but finally said that after being in Australia for a few years her “brain relaxed” and she was able to remember things.
The applicant told the Tribunal that she was educated at [an education provider] from which she received a certificate in [Subject 1]. She said that she did not work in any field related to those studies, but then undertook “self-study” in [Subject 2] and acquired accreditation in that field. The applicant said that she was [an occupation] up until about 1990 or 1992.

According to the applicant’s claim for Protection visa she worked for [Employer 2] between 1992 and 2012. In oral evidence she said she worked there for two years or perhaps a few years and when questioned by the Tribunal, explained that she had a “labour contract” for 20 years but actually only worked there for two years. The applicant said that [Employer 2] opened another company, as a result of the economic situation, and her supervisor asked her to go and work there. The applicant said that she was there for about two years until 1996, but because the company had no actual business it earned no income.
The applicant said that after that she worked in [a certain] department of [Employer 1], to which she was introduced by her ex-husband. The applicant said that she worked there between 1996 and 1998. The applicant said that whilst at [Employer 1] she saw “many illegal operations”. The applicant claimed that she was threatened in relation to the illegal operations. The Tribunal asked the applicant to expand upon what she meant by that claim. The applicant said that she was not allowed to pay the correct tax, and that she was told she was not allowed to talk about the business affairs of the company to anyone else. The applicant said that she has not talked about the business affairs to anyone else. She also said that nothing had happened to her since 1998.
The applicant went on to say that while at [Employer 1], every day the boss’ sister treated her and the other employees very badly, which caused her and the other employees a great deal of stress. When asked by the Tribunal why the applicant did not tell the Departmental delegate that, she said that she was too nervous to remember everything at interview.
The Tribunal asked the applicant about being asked by her boss to accompany him to [Country], as is referred to in the delegate’s decision. The applicant told the Tribunal that the delegate had misunderstood her, and that she had been asked by a [colleague] to accompany him to [Country]. The applicant went on to say that the [colleague] told her that [Employer 1] was run by really bad people, and that if “something happened” they would prosecute her, and the other staff. The Tribunal asked the applicant whether in fact she had suffered any harm during or since working at [Employer 1]. The Tribunal notes that the applicant stated that she left [Employer 1] in 1998. The applicant told the Tribunal that whilst at the [company] she suffered verbal harm by way of threats. When asked what those threats constituted, the applicant responded that she was told she needed to be careful and not tell anyone else the company’s secrets.
The applicant said that after 1998 she was unemployed, notwithstanding she was still on a labour contract with [Employer 2].
The Tribunal put to the applicant that it had concerns as to whether she had a well-founded fear of being persecuted arising from her employment at [Employer 1], given the period of time which had elapsed since that employment, and the fact that during her employment she had suffered only verbal threats. The applicant’s response was that whilst this might not cause fear to others it causes great fear to her, even though she did not remember to put it in her claim form.
The applicant said that after her period of employment she did some casual temporary work as an [Occupation 1] up until 2014 by which time she had met her husband. She said that she did not remember that job when she filled in her claim form. The applicant said that during that time she lived with her [sister] and cared for her in order to make ends meet.
The Tribunal put to the applicant that she could return to China and work as an [Occupation 1] given that she had worked there in that capacity as recently as 2014. The applicant’s response was that she would need to update accreditation by acquiring her certificate again which in turn would require her to sit for an exam. The applicant said that [Occupation 1] had evolved and that the exam would now be too difficult for her.
The applicant told the Tribunal about her family in China. She said that she had [a] brother in China married with one [child], and that her [second] sister was divorced and lived together with her [child] and their [age]-year-old mother. The applicant said that she had a [sister] as well who lives in [Country]. The applicant said that she was unable to live with her [brother] – his family would not let her. The applicant said that she could not live with her mother because she was too old and might need someone to look after her. The applicant said that the house in which her mother lived was too small as her [second] sister and [child] live there as well. The applicant went on to say that her [second] sister had suffered discrimination as a result of being divorced and that people in China generally looked down upon her. Also her mother had been depressed for many years.
The applicant said that her mother also suffered depression as a result of her own divorce, and that her mother is finally happy now that she has remarried. The applicant said that when her father passed away she could not even close his eyes on his deathbed because she was still single and not married.
The Tribunal asked the applicant why she could not return to China and rely on her husband whilst she applied for another Partner visa. The applicant’s response was that the relationship is genuine but that her husband cannot support her in China as he is on [government assistance]. The applicant said that despite her husband’s lengthy work history he did not have savings or superannuation such that he could support her.
The Tribunal rang the applicant’s [brother]. He told the Tribunal that he thought the hearing was something to do with marriage – “it’s a very sensitive issue”. He went on to say that his understanding was that there were “some issues that are sensitive because his [sister] was in China and then she went to Australia”.
The Tribunal asked [her brother] what he meant by sensitive issues. He said that it was “something to do with Falun Gong”. He went on to say that his sister will be affected by persecution because she was a practitioner of Falun Gong in China. The Tribunal asked [her brother] how long his sister had practiced Falun Gong and he responded that he was unsure. [The brother] said that after he married he lived in a different part of the city from his sister. He went on to say that she did not practice Falun Gong before he married which was in 1994. [The brother] said that he knew his sister practiced Falun Gong as he often visited his mother, as did his sister (the applicant).
The Tribunal asked [the brother] whether there were any other reasons why his sister would fear returning to China. [The brother] reiterated that it was an “sensitive issue”. He said that as a Falun Gong practitioner he sister would be prosecuted. He also said that in terms of economics, it is difficult for his sister to work in China because of her age, and that in fact she no longer has a certificate for [Occupation 1].
The Tribunal asked [the brother] about the “sensitive issue” to which he kept referring. His response was that he was concerned his phone was being tapped. He said that his wife had been put in prison because she was a practitioner of Falun Gong. [The brother] said that nothing like that it happened to his sister, although he knew that the police had looked for her and found her. He said the police had not done anything to his sister.
The Tribunal put its concerns to the applicant. They included that she had written “nil” in response to question 33 regarding religion on her Partner visa application form, that she had been able to identify only two Falun Gong exercises in her interview with the Department, that her knowledge regarding Falun Gong now was superficial, that her only concerns regarding Falun Gong in China were that she had been asked questions by the building manager and police, and that nothing had come of them, that she did not practice Falun Gong in Australia, rather used a couple of the exercises sporadically for exercise, that her claimed fears in relation to her ex-employer amounted to verbal threats not to disclose anything that happened in the business, which claim threats were made now many years ago, and in respect of which nothing had followed, and that her claims generally lacked detail and were inconsistent.
The Tribunal put further claims to the applicant. The Tribunal told the applicant that was concerned that she had applied for a Protection visa as she was unsuccessful in obtaining her Partner visa. The Tribunal told the applicant that the level of engagement with Falun Gong claimed now is not consistent with her failure to mention it in her claim for protection. The Tribunal also told the applicant that it had difficulty with her claims that she could not use her qualifications as an [Occupation 1] in China now, nor could she rely on the assistance of her husband whilst waiting for a Partner visa application to be processed. The Tribunal said that overwhelmingly it had concerns that had the applicant generally had fears arising from her practice of Falun Gong, and with respect to her former employer she would have included them in her application for protection.
The applicant’s response to the Tribunal’s concerns was that she did not fill out the form for herself, and she was therefore unaware of the details contained therein. The applicant went on to say that because her English was not good at the time she “made mistakes dealing with matters”.
The Tribunal asked the applicant’s representative whether he had any submissions he wished to make. The applicant’s representative submitted that in his observation the applicant and her brother were “petrified”. He submitted that he had never seen anyone in any country as frightened as the applicant’s brother had been during his phone call with the Tribunal. The applicant’s representative further submitted that the applicant cannot “seem to let herself go in a safe forum”. The applicant’s representative submitted that that was because the applicant thinks that the practice of Falun Gong will “go against her”, and that she is very frightened that she will go to prison and have her organs harvested as a result of her practice of Falun Gong.
The applicant’s representative asked that the Tribunal give him until 19 December 2017 to make submissions, and the Tribunal acquiesced to his request.
The Tribunal has also taken into consideration the statutory declarations provided by the applicant’s siblings. The Tribunal notes that the applicant’s brother’s statutory declaration states that he and his wife have been Falun Gong practitioners since 1997. It goes on to state that his wife was in imprisoned for 11 days, and he had to pay for her release. It also states that he cannot practice Falun Gong as he works for the government, and that whilst his wife still practices Falun Gong they cannot tell anyone due to security problems and possible persecution. He concludes that they are very lucky that his wife is still alive. The applicant’s [second] sister’s statutory declaration states that she worries about her [sister] when she lives in China and practices Falun Gong. It states that many people get into much trouble. It concludes by saying that the police will not come for now she is living in Australia. The statutory declaration of the applicant’s other sister states that her sister started practising Falun Gong after she divorced her husband. She states that Falun Gong was recommended to her sister by family friends and relatives. She goes on to state that people who practice Falun Gong have been detained by police and held in jail. The applicant’s sister concludes that when her sister went to Australia with her new husband the family was happy and that she has freedom in Australia.
Also before the Tribunal was a statutory declaration made by the applicant dated

31 August 2017. Its contents are set out below:
1. I was born in China, on [date] and I am presently [age] years old.
2. I arrived in Australia [in] April 2014 on a Tourist visa.
3. I became married to [Mr A] (“my Husband”) [in] June 2014.
4. I lodged an Application for a Partner visa Application on 3 July 2014 and this was refused on 2 December 2015.
5 I then lodged an Application for Protection visa on 22 August 2016.
6. I MAKE this Statutory Declaration in support of my Application for Review by the AAT, to refuse my application for Protection. The decision to refuse my application was made by a Delegate on 13 September 2013.
7. I practice Falun Gong in China. It is illegal to practice Falun Gong in China and any person practicing Falun Gong may be arrested at any time.
8. I commenced practicing Falun Gong about 16 years ago, after the divorce from my first husband, as it was really a stressful time for me.
9. I DECLARE that there are some aspects of the decision of the Delegate that are not correct.
10. I have experienced problems in China on account of my practicing Falun Gong.
11. I say that when I answered Question 33 on the Application Form by stating Nil, I was frightened of putting down Falun Gong as my religion, as I have always been frightened of the authorities in China and persecution because of my practicing Falun Gong.
12. I still practice Falun Gong at my home in Australia and I was practicing Falun Gong in China, although Chinese law forbids it.
13. When I was in China living in Zhengzhou, I had a lady who was a `Building Leader’, who asked many times whether I practice Falun Gong and I always answered `No’.
14. Even though I said `No’, the Police would come knocking at the door many times.
15. I would never admit to anyone in China that I practice Falun Gong, although some people knew.
16. I do not admit to my friends in Australia that I practice Falun Gong, as I am too frightened of persecution from the Chinese Police.
17. My brother’s wife [went] to jail twice for practicing Falun Gong, one week in Tiananmen Square in Beijing and then two or three weeks in Zhengzhou.
18. When [my brother’s wife] was imprisoned in Zhengzhou for two or three weeks, she was pregnant and my brother paid money to have her released.
19. My girlfriend’s mother [when] to jail three or four times both in Zhengzhou and Beijing. My girlfriend’s mother is elderly and is approximately [age] years of age.
20. My mother’s girlfriend. [She] is over [age] years of age and she also was imprisoned in Zhengzhou for practicing Falun Gong.
21. The Government or the Police have not done anything to me but I am frightened to go back to China and practice Falun Gong as the Police may arrest me and put me in jail.
22. There is no one to protect me in China if I were to be practicing Falun Gong, as it is illegal and there are strict penalties for practicing Falun Gong.
23. I am scared of the Police taking me and putting me in jail, as practitioners of Falun Gong who are put in jail have their body parts harvested and parts are sold on the `black market’ such as eyes and other organs.
24. If I was to be put in jail then no one can save me and it would make trouble for my brother whose job is in Government and also a problem for my family.
25. I would urgently request that the Member remit the decision back to the Department if Immigration and Border Protection for further consideration according to law and that the visa be ultimately granted.
The Tribunal also had written submissions dated 15 September 2017 from the applicant’s representative which stated as follows (footnotes omitted):
INTRODUCTION
Please now find attached the following documentation:
•    Statutory Declaration of [the brother] both in Chinese Mandarin and English, dated
14 August 2017;
•    Statutory Declaration of [named person] both in Chinese Mandarin and English , dated 12 August 2017;
•    Statutory Declaration of [named person], dated 14 August 2017
•    Statutory Declaration of [the applicant] dated 31 August 2017.
HISTORY
The Applicant and her husband, [Mr A] (DoB [date]) lodged an Application for a UK Partner (Temporary) and BS Partner (Residence) visa on 3 July 2014 and the Application was refused on or about 2 December 2015.

The Applicant lodged a further and invalid Subclass 820/80 I Partner visa Application on 16 August 2016.
On 22 August 2016, the Applicant lodged a Protection visa (Subclass 686) (Class XA) visa and this was refused on 16 February 2017.
The Applicant now seeks review of the refusal decision in the Administrative Appeals Tribunal (AAT).
The Applicant's Claims
The Applicant practices Falun Gong, which is a religion that is banned in China by the Government. When the Applicant completed her application form, she answered question 33, "What is your religion?" by answering 'Nil'. The Applicant maintains that she was too frightened to put this down, as she has been persecuted by the Government previously for this. The Applicant maintains that she became a Falun Gong practitioner in 2002/2003 after becoming divorced from her first husband. Her friend was a practitioner and introduced her to Falun Gong and she now practices Falun Gong at her home in Australia.
The Falun Gong Religion
Falun Gong Religion was first taught by Mr Li Hong Zhi, the practice's Master. It is a fairly new religion having been first taught publically in North-East China in 1992 and in July 1999 the religion was banned by the Communist Party, who declared Falun Gong a "heretical organisation" that threatened social stability.
Falun Gong is an advanced practice of Buddhist School Self Cultivation. According to Wikipedia, practice of Falun Gong consists of two features:
•    Performance of the exercises and the refinement of one's xinxing (moral character, temperament);
•    The concept of "xinxing" encompasses the transformation of virtue (a white form of matter) and karma (a black form of matter).
There are five exercises that a practitioner must undertake, consisting of four standing exercises and one sitting exercise. These are as follows:
1. "Buddha stretching a thousand arms" intended to facilitate the free flow of energy through the body and open up the meridians;
2."Falun Standing Stance" involves holding four static poses - each of which resembles a wheel - for an extended period;
3." Penetrating the Cosmic Extremes" involves three sets of movements which aim to enable the expulsion of bad energy;
4."Falun Cosmic Orbit" seek to circulate energy freely throughout the body;
5."Reinforcing Supernatural Powers" maintained as long as possible, performed in the seated lotus position.
The main book Falun Gong is Zhuan Falun, which was published in 1995 and divided into nine lectures by the Master Li Hong Zhi.
The main symbol of the practice is the Falun (Dharma Wheel) and the connotation is that this wheel is to represent the universe and has emblems consisting of one large and four small swastika symbols.
PERSECUTION OF FALUN GONG
Falun Gong was banned by the Ministry of Civil Affairs on 22 July 1999.
The Master namely Li Hong Zhi has had his name publicly discredited by the Government, stating that Li Hong Zhi has falsified his own background and that he has propagated heretical ideas and fallacies and that he has sought to control the minds of the practitioners of Falun Gong and that he has infringed on other people's rights and seriously disrupted the social order and has used Falun Gong to amass dirty money and committed economic crimes of tax evasion and money laundering.

There have been televised court cases of high ranking officials being sent to jail.
Some nasty practices in relation to Falun Gong have been conducted by the Government and this is why the Applicant fears persecution. In an article of the Online Guardian sets out the story of a single mother who was with her 16 year old son, where the authorities took the mother and left the son on his own and took the mother to a detention centre where they kept her for 40 days without access to a lawyer and made her renounce her beliefs.
Wikipedia has a separate entry in relation to the persecution of Falun Gong. In this article, under headings it lists as re-education, torture and abuse in custody, extra judicial killing and organ harvesting, to name but a few.
The Applicant is very concerned in relation to organ harvesting and is very frightened that she may have to return to China, where she would be placed in prison because of her adherence to Falun Gong and her organs would then be harvested. The Applicant states that she may be put in jail and have her body parts harvested and where the parts are sold on the black market.
In the AAT case of 1103611, the applicant in that case had provided assistance to a work colleague who was practicing Falun Gong and had let her stay at his house whilst his wife and son were in Australia studying. The applicant then went to Australia to visit his wife and son and was advised by a work colleague in China that the Police had issued a subpoena to him.

The applicant then claimed protection in Australia and was successful with this claim, after the matter was remitted back to the Department of Immigration for further consideration according to law from the Tribunal. The Tribunal Member accepted the applicant's evidence and also took evidence from the applicant's wife, which was also accepted.
The applicant considered the independent Country Information and the background to Falun Gong. The Member also considered China's monitoring of internet use. The Member also considering harbouring criminals and Falun Gong practitioners; associates of Falun Gong.

The Member also stated in her decision that there were a number of reliable reports that the Chinese Government harasses and intimidates lawyers who defend Falun Dafa clients.
The Tribunal held that the applicant and his wife's evidence was credible and that the applicant's fear of harm was well-founded.
Country Information

Dr Benjamin Penney, Australian academic specialising in religious and spiritual movements in modern and contemporary China stated, in a presentation given to the Tribunal on

26 July 2006 entitled “An Academics Perspective” stated that he would look at a number of factors in order to establish whether a person is a genuine Falun Gong practitioner. Those factors include knowledge of the five exercises, the main Scripture of Falun Gong, Zhuan Falun, and how many chapters it contains.
According to the Department of Foreign Affairs and Trade (DFAT) Country Information Report on the People’s Republic of China 21 December 2017, Falun Gong practitioners are at a high risk of official discrimination and a moderate risk of societal discrimination.
Delay in making protection visa application
Delay in seeking a Protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT &Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). Even a three month delay in lodging a Protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution (see Subramanium v MIMA (1998) VG310 of 1997).
In this case the applicant arrived in Australia [in] March 2014 and did not make an application for a Protection visa until nearly two and a half years later, namely on

22 August 2016, after she had twice been refused an application for a Partner visa. The Tribunal accepts that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However in this case, the Tribunal does not accept that the delay in making the application for protection was because the applicant was too scared to do so at the time, nor that she did not remember her fears until her ‘brain had relaxed’. The Tribunal does not accept that a person who genuinely fears that there is a real chance of persecution in her home country would delay in making an application for a Protection visa. Given that the applicant made two applications for a Partner visa before making an application for a Protection visa, the Tribunal considers that the applicant applied for a Protection visa as a means of staying in Australia and not because she has a well-founded fear of persecution in China.
Findings
The Tribunal finds that the applicant:
·Is a citizen of China born on [date].
·Has family including her mother [and siblings] who live in China.
·Was married and divorced in China.
·Has remarried an Australian citizen.
·Has some familiarity with some aspects of Falun Gong, and has practised to some extent in the past.
·Has worked in China for [Employer 2].
Taking into consideration the applicant’s evidence that she practised Falun Gong in China since her divorce and experienced no problems, other than being questioned by the manager of her building and the police, the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of religion. The Tribunal considers that had she been a target of the authorities she would have struggled to obtain a passport and depart China, however she was able to do so in 2014.
In Chan v MIEA (1989) 169 CLR 379 the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear. (See also MIEA vWu Shan Liang (1996) 185 CLR 259.)
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns to China.
However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA (ibid) Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
In MIEA v Guo (1997) 191 CLR 559 the Court stated that:
‘Conjecture or surmise has no part to play in determining whether a fear is well founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
In the circumstances the Tribunal does not consider that the applicant has a well-founded fear of persecution for reasons of religion. In particular, the Tribunal does not consider the objective basis of the applicant’s claim has been made out. The applicant, despite her claims with respect to fear arising out of her claimed practice of Falun Gong and as a result of working for her former employer was allowed to leave China. While in China she was questioned, with respect to Falun Gong twice – by her building manager and the police, and was not harmed or detained. With respect to the claims arising out of the applicant’s former employment, the applicant, on her own evidence, left that employment some considerable time prior to leaving China, and was not treated adversely during that time. With respect to the claim that the applicant would experience difficulty finding employment in China, the Tribunal considers the applicant has qualifications, which even if they require updating may be relied upon. She also has family in China and her husband in Australia all of whom can assist in supporting her. The Tribunal further finds that none of the matters raised in the applicant’s written claims for protection in her Protection visa application constitute serious harm as contemplated under the requirements of s 36(2)(a), such as a treat to the person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
With respect to the applicant’s claims regarding fear of her former employer, the Tribunal notes that the applicant did not provide any independent evidence of her employment with [Employer 1]. Nor did she mention employment with [Employer 1] on her application for a Protection visa. It follows that she also did not mention that she feared harm as a result of employment with [Employer 1] on her application for a Protection visa.
In all the circumstances, and taking into account all of the evidence referred to above, Tribunal finds that there is no real chance of the applicant will face serious harm in the event she is returned to China.
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.
Fiona Meagher
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.
…
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 s.s 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 s. 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 them 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: S. 5G may be relevant for determining family relationships for the purposes of this s..
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.
..
36Protection visas – criteria provided for by this Act
…
(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 5492

11 April 2019

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