1704320 (Refugee)

[2021] AATA 592

1704320 (Refugee) [2021] AATA 592 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704320

COUNTRY OF REFERENCE:                   China

MEMBER:Lilly Mojsin

DATE:1 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 1 March 2021 at 9:00am

CATCHWORDS

REFUGEE – protection visa – China – religion – Falun Gong – friend detained, injured and monitored – no harm to applicant – credibility – inconsistent claims and evidence – low-level practice in China and Australia – basic understanding of principles and practices – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 424A, 424AA

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 March 2017 to refuse to grant the applicant a protection visa [PV] under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 22 September 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant suffered serious or significant harm when he resided in China and was able to return to China.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the application for review.

4. The Tribunal hearing was held by video on 26 November 2020 and 14 January 2021. 

   Practice Directions

5. The applicant was sent an Invitation to Attend a Hearing by letter of 2 November 2020.  the letter was sent to the applicant’s migration agent, [Mr A], in his capacity as the applicant’s representative. The applicant was requested to provide a written submission setting out all claims made and maintained by the applicant by 19 November 2020. The applicant was advised that the submission should be accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims.

6. The applicant was also directed in the letter, sent to [Mr A], to the Practice Direction COVID-19 Special Measure Practice Direction – Migration and Refugee Division[1] for further information and directions about the current procedures for the AAT.

   [1]

7. The letter also provided the following instruction:

   Please provide at least 7 days before the hearing all documents you intend to rely on to support your case. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then
   accompanied by a translation from a NAATI accredited translator.

8. The applicant responded, provided a Response to Hearing Invitation Form, indicating he would attend the hearing with his migration agent and providing telephone numbers for contacting the applicant and his adviser.

9. A further letter was sent to the applicant’s migration agent, [Mr A], in his capacity as the applicant’s representative, on 12 November 2020, providing identical information save for amending the mode of hearing from a telephone hearing to a Teams video hearing. The applicant did not respond.

10. No documents were provided by 19 November 2020.  The Tribunal proceeded to hear the application on 26 November 2020.  

11. The Tribunal held a second hearing on 14 January 2021.

    CRITERIA FOR A PROTECTION VISA

12. See Annexure A

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant, who is now [Age] years of age, arrived in Australia [in] December 2013 as the holder of [student] visa. On 16 May 2016 he applied for a UC 457 visa, withdrew his application on 9 September 2016 and then applied for a XA 866, the subject of this review.

14. The applicant’s passport was issued [in] 2008 in Jilin, valid to [2018]

15. In his PV application the applicant claimed that

    ·He was born in Yanji City, Jilin Province in China.

    ·After graduating high school, he first became aware of Falun Gong. His classmate, [Mr B] [also called [Alternative form of name] in this decision], began to inform him that Falun Gong was not what the Government portrayed.

    ·He secretly attended Falun Gong gatherings with [Mr B].

    ·While at university he began to know more about Falun Gong and became very interested.  His family, girlfriends and university friends all disagreed with his decision to be involved with Falun Gong and told him to stay away.

    ·He received a call one day that [Mr B] had been taken away by policemen and put in custody for a month by the PSB. His family were worried and tried to obtain information about him but could not and were not allowed to visit him. He was released after one month and went into hospital as he had been injured during his detention.

    ·[Mr B] informed the applicant that he was forced to attend study sessions and confess his crimes. He was also deprived of sleep and made to stand for hours at a time if he did not follow instruction. When [Mr B] was released from hospital, he was forced to continue to attend study sessions twice a week.

    ·This scared the applicant and he feared this could also happen to him if he took part in any Falun Gong gatherings.

    ·[Mr B] and his family were followed and their phones tapped by Government officers. His community judged him and he was also forced to make a list of Falun Gong  followers.

    ·The applicant became afraid and decided to travel to Australia.

    ·During this time, he became passionate about Falun Gong, as it teaches people how to improve their health and behave appropriately. He does not understand why the Chinese government is opposed to Falun Gong.

    ·One of his roommates saw a copy of Zhuan Falun in his room and asked if he wanted an introduction to a Falun Gong practitioner, [Mr C]. [Mr C] was an early disciple of Master Li who had his own viewpoints on Falun Gong. The applicant and [Mr C] shared common views on Falun Gong.

    ·[Mr C] encouraged him to learn the five exercises and with his help the applicant had master them in a short space of time. He felt his life had meaning because of Falun Gong.

    ·He received a phone call from his family who told him [Mr B] had been put in a mental institution as he had not given up Falun Gong.

    ·His mother informed him that the Chinese Government knew he was a Falun Gong practitioner and that he would be the next to be targeted if he returned to China.

    ·He was shocked and disheartened and decided not to return to China.

16. The applicant at Q 36 of his PV application, indicated that he was at university from September [year] to June [year] in Beijing and then from July 2009 to December 2013 he returned home to Yanji City, Jilin where he worked as [an Occupation 1].

17. The applicant attended a Department interview on 1 March 2017. Details are provided in the Department decision, attached to the review application. The applicant additionally advised the Department that:

    §he had paid an ‘agent’, [Mr D], $5 000 AUD to assist him in the completion of his PV. He sent the ‘agent’ his personal details in order to fill the form out and dictated his written claims orally for the agent to transcribe. The agent then sent his application back to him. [Mr D] was an authoritative individual. Despite internet monitoring, he was not worried as [Mr D] had completed these applications many times before.

    §He accessed the internet site from his personal computer at home rather than on a public computer as China has a very large population, therefore not everyone can be monitored by the authorities.

    §he first met [Mr B] in 2010 as they were co-workers, but later stated he met [Mr B] working in a part-time job while studying at university.

    §his family and friends were unaware of his Falun gong practise but later stated people may have realised that his mood changed and thus assumed that he was practising Falun Gong, but that he had no idea how they knew he was practising.

    §[Mr B] was arrested in 2012

    §[Mr B] did not provide him with any information about his time in detention and he could not recall details and that he wanted to forget what had occurred  but later said [Mr B] had informed him of what happened but the applicant cannot recall what was said to him at the  time because he was preoccupied by fears and worries for his own safety and was trying to think of a way to escape.

    §he had received a threatening phone call before leaving China.

    §he practised Falun Gong in 2012 [arrived 2013]

    §he did not have a copy of Zhuan Falun in Australia

18. At the commencement of the hearing held on 26 November 2020, the applicant said that there was nothing that he wished to change or amend in his application. The applicant confirmed that all statements in the application he had made were true.

19. The applicant was advised that in accordance with Ministerial Direction No.84, the Tribunal is required to take account of DFAT Thematic Report China 2019 to the extent that it is relevant to the decision under consideration.

20. The applicant was born in Jilin, Yaneian. He is single and his parents are alive in China.  He is an only child. The applicant said that he completed university in Beijing and obtained a degree in [Subject 1] graduating in 2009. He returned to Jilin and worked in the management of [job task 1]. His job involved the management of the [job task 1]. It was a long time ago and he forgot the details, the job is a, it was as a [job task 2]. Kind of like [job task 2]. It was put that it had nothing to do with the [job task 1] but as a [job task 2]. He said that it is something like [job task 2] and sometimes at night he needs to be there [for a job-related reason]. Asked to explain what he did during the day he said that he worked for the leaders, like [job task 3], ie he would [detail of job task 3]. Asked if it was a clerical position he said “yes”.

21. In Australia he studied English first, then he enrolled at [a] University. He studied for one year.  He did not finish his [Subject 2] qualifications because of finances.

22. He is working in Australia, working for [Employer 1] and he does international trade for [Employer 1]. [Details deleted]. 

23. Asked why he does not want to return to China, the applicant said that he practices Falun Gong and his friend made some problems so he is scared if he went back to China, he might experience persecution. He does not know what might happen.

24. Asked what happened to him when he lived in China, he said that nothing happened to him and he already practiced Falun Gong in China and he also practices here. When his visa was close to expiry, his friend made problems there so he found a friend to apply for a refugee visa. His parents helped him to find an agent to help him with the application and he was not familiar as to how to apply for a visa. [Mr D] helped him. He is a registered migration agent. He cannot remember where he is located and that person was found by his parents. Asked him how he signed the form, he said that for the signatures for the document he sent it through by email. He spoke to him via QQ, a software developed by a 10c company. It was put that his agent did not sign the application form. He responded that at the time the agent sent him a scanned document, he signed them and scanned them. Asked how he knew he was a registered migration agent, he said this company was introduced by his parents and he believed his parents. Asked how they found this company he said that the company posted ads on the internet and they recommended this to him. The person was located in China. He said the migration agent in China would apply and they could come here. It was put if the person was sending documents to him in Australia from China then the Chinese authorities would have become aware he was claiming to be a Falun Gong practitioner in China. He responded that in China there are 1.4 billion people and the Chinese authorities are unable to survey what every person is doing on the internet. I put that internet censorship in China is highly sophisticated. He did not agree it was possible in 2013 and the internet was not that advanced. I put that the Great Firewall of China project involved with the Golden Shield Project[2], was a massive surveillance and censorship system. I put that just using the words Falun Gong in a document would attract attention by the authorities. He said that [Mr D] was not arrested.

    [2]

25. Asked when he first practised Falun Gong, he said that he does not remember, 7 years have passed and he has been in Australia. He cannot remember some things because of his age. Since he came here, because of issues relating to his job and his life, he cannot remember quite clearly. He can only remember it was before 2012. Asked if it was in Jilin or Beijing, he said probably it was in Jilin. He practised Falun Gong secretly by himself at home, if you practise on the street you would be arrested. He was [age range] and it was in 2011 in Jilin.

26. Asked why he started to practice Falun Gong, he said that at that time his friend called [Mr B] told him about the benefits. It can help one feel relaxed and free and give energy for new day. He only practiced secretly, at home, by himself and he does not know if others were on site or not. He practised many times, secretly by himself. It is good for the health and practice often gives good benefits. If practised only once it would not have a good effect. He practised in the dining room and bedroom. It was his own property, he lived with his parents and he would practise in his bedroom but his parents knew he was practising.

27. Asked if anyone else found out about his Falun Gong practise, he said that [Mr B] only. He does not know about other people. [Mr B] introduced it to him but he does not know if other people knew. Asked if the only thing he did about Falun Gong practice in China was to practice on his own in his own bedroom he said that sometimes he practised in other places but it is always in a private place. Asked where these were, he said that one of his relative’s homes when they are still sleeping, he would practise secretly, as the best time to practice is in the morning. Asked in these homes where he practised, he said that it was in the bedroom and occasionally in the loungeroom. It was always on his own and in the morning.  

28. Asked why he came to Australia, he said that in Australia it would not interfere with Falun Gong practice in street or among groups of people. Australia is a safe country and that is why he came to Australia. At the beginning he came here to study and whilst he studied, he also practised. But because of his study he practised Falun Gong rarely. Asked if he still practises, he said that because of his study he practised rarely. He lived alone and did not have much effort. He has not practised for a long time.

29. Asked when the last time he practised Falun Gong he said there is no last time, only practise when he has time as he has to make a living.

30. Asked if he has practised Falun Gong in public in Australia, he said yes. Asked where, he said he practised in [Suburb], but he has not been for a long time. There were some pictures taken where he was practising. It is an area in [a location], it was an area in the park. It is a place inside the [location] so there are many rooms to class rooms to rent. So they rented a room. He last practised from July to August 2018 and because of his job and the pandemic he did not attend the gathering activities. Asked if he practised from 2013-18, he said he practised in other places. Asked where he said he did not practise in other places after 2018, he practised only at his home when he has time.

31. Asked why he would practise Falun Gong in China publicly when he returns if he does not practise in Australia despite being able to do so. He said he is afraid to receive the persecution in China as if he practices in public place in China he would be arrested. Put that he has never practised in public in China. He said that he did not dare if he did, he would be arrested earlier.

32. Other than practising in his bedroom he was asked if he was involved in any other Falun Gong activities in China he said very rarely. At the time his level of danger was low. Asked what other activities rarely was undertaken by him he said that gathering activities were secret in China for Falun Gong. Asked what other activities he did in China as a Falun Gong practitioner other than practising Falun Gong in a lounge room or a bedroom. He said no very rarely. As what he did not do often that was very rarely, he said that he just attended a very small activity inside the house so that others did not know he was gathering. In China it is quite sensitive. He was explained he has not explained what he personally did in China other than practising in his bedroom/lounge. He said that he tried to introduce his friends to Falun Gong and his friends refused.

33. Asked if he read Zhuan Falun, he said that he just read a little bit, very rarely. He cannot remember much. He practised from 2011 and read the book just little.

34. When asked whether he knows how many lectures or speeches there are in Zhuan Falun, the applicant correctly stated 9.  He said that he started reading Zhuan Falun but he cannot remember it.

35. Asked for verse that is spoken to the first exercise: he said “Qian Zhuang Fo Shou”. the interpreter was not able to translates the words, so the applicant was asked to explain. He responded that it is just a way to exercise and put the palms together and put hands downwards. I put to him that he is unable to recite the first verse when doing the exercise. He said he just watched a video to see how they practice and he follows the video. Asked if he could remember what to say for an exercise he has been practising since 2011. He said he cannot because it was a long time ago and he did not practise quite frequently.

36. I explained to the applicant that according to the Falun Dafa Organisation[3], verses are recited once only, in Chinese, right before each exercise. Each exercise has its own specific verse that is recited out loud or just listened to on the exercise tape. For the first exercise the translation of the verse is “the mind and body join together, move or become still according to the energy mechanisms, as tall as heaven and incomparably noble, the thousand-armed Buddha stands upright”. It was put to him that if he listened to recited this since 2011, he would be able to remember something and it was implausible he could not remember anything.

    [3]

37. It was put to the applicant that nothing happened to him when he was in China, he said if something happened to him, he could not come here. He came because of the problem. I asked him what else he did, he said he spoke to friends. He said he did not talk publicly in China as if arrested they would not let him go overseas. If he goes back, he might receive serious harm and die.

38. I explained I must be satisfied that his of Falun Gong in Australia was otherwise than for the purpose of strengthening his claims to be a refugee and I am required to disregard this conduct in my assessment of his well-founded fear of persecution. I explained that I had concerns about the credibility of his evidence, and I may find that he had only practiced Falun Gong in order to obtain the visa sought.  It was put that the fact he had not otherwise engaged with the community in Australia, when he was presented with the opportunity to practice, caused me to have some concerns with the genuineness of his actions.

1. I informed the applicant that I would put to him information, pursuant to s.424AA of the Act that would, subject to anything else he might say, form reason or part of the reason for affirming the decision under review. I advised the applicant that he did not have to comment or respond immediately and he could seek additional time to do so, including after the hearing. 

   §I put to the applicant that he had advised the Department at interview that he had received a threatening phone call before leaving China and he told the Tribunal nothing happened to him in China before he left. I advised the applicant if I relied on the information, I may find that it undermined his credibility and would lead me to conclude that his claims were not genuine. If this was the case, I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.

   He chose not to respond and to respond in writing after the hearing.

   §I put to the applicant that he had told the Department at interview that he had accessed the internet site from his personal computer at home. I explained that he had told the Tribunal that he did not state he accessed this site at home when asked if he had taken part in any Falun Gong activities. He responded “you did not ask me. You only asked me where I practised Falun Gong”. I advised the applicant if I relied on the information, I may find that it undermined his credibility and would lead me to conclude that his claims were not genuine. If this was the case, I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.

   He said he would respond after the hearing.

   §I put to the applicant that he stated to the Tribunal his family were aware he practised Falun Gong. He advised Department at interview that his family and friends were not aware of his Falun Gong practise and also advised the Tribunal he spoke to his friends about Falun Gong practise. It was explained this is inconsistenat and if relied upon lead the Tribunal to conclude his claims are not genuine If this was the case, I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.

   He said he would respond after the hearing

   §I put that he had stated in his PVA that his room mate in Australia brought a copy of Zhuan Falun to their room and started to speak to him about Falun Gong. At Department interview he said he does not have copy of Zhuan Falun in Australia. I advised the applicant if I relied on the information, I may find that it undermined his credibility and would lead me to conclude that his claims were not genuine. If this was the case, I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.

   He said he would respond after the hearing

2. Asked what he fears about returning to China he said that he only has one life and he does not know what he will face in the future.

3. The applicant responded, post hearing, as follows:

   §The issue of threatening telephone call:

   The Tribunal successfully established an ask-and-answer model during the hearing. The applicant never expected that he was thought to answer something by not answering something (he was thought to have a credibility issue because he said during the hearing that there was nothing that had happened to him before he left China while he mentioned that there was a threatening telephone call from the authority previously at the Immigration stage).

   1. The tribunal could have just directly asked the issue of the threatening telephone call if it was interested. It is a bit trick playing to judge an applicant’s creditability by the question he fails to answer.
   2. But if the tribunal insists to use this approach, it should first of all do two things: one is to tell the applicant that it will judge his credibility by seeing whether his answers are consistent with his previous answers and the second is to set up a unified definition to some of the words to be used.
   3. The word “happen” needs to be defined before it is used to judge an applicant’s credibility. The question “what happened to you before you left China?” was repeatedly asked to the applicant as he didn’t fully understand it. His answer was always “I would have died already and not been able to come to Australia if something that had happened to me” (roughly to the effect of his words). So obviously the word “happen” to him is something like serious harms and the threatening telephone call was not serious.
   4. There is no credibility issue here

   §The issue of Minghui Website

   5. This issue again involves a unified definition of the word “activity”. Should visiting a Falungong website be defined as attending a falungong activity? Obviously different people would have different understanding. I can’t see any credibility issue here either.

   §Whether his practice of Falungong was known to other people

   6. What does “other people” mean and does it include family members? It should not be used to test his credibility before its definition is defined beforehand.

   §The issue of the book Zhuanfalun:

   7. The applicant clearly indicated during the hearing that he didn’t practice the Falungong very much nor did he read much information about it after he arrived in Australia.
   8. It is over four years since he was last interviewed by immigration, which may involve a memory issue.
   9. It is far-fetching to conclude that he is not credible just because he didn’t mention the book during the hearing.

   §The issue of [Mr. D]:

   10. One thing is quite certain that the applicant didn’t prepare the application himself and he had to rely on somebody else to do it for him.
   11. If this is the case, it doesn’t matter that he engaged [Mr. D] or [Mr B] or whether they were in China or in Australia. It makes no difference to his application.
   12. Why did he tell a lie on this issue and what was his motivation?
   13. So it is very likely that it is true that he engaged [Mr. D] in China to help him to prepare his application.
   14. I think that Chinese government is only able to monitor the commercial website and targeted people. If [Mr. D]’s help to [the applicant] was just a one-off behavior, it is quite possible that his email could reach [the applicant] in Australia.

   §The issue of [Mr. B]:

   15. Subjectively speaking, [Mr. B]’s function in this application was to prove that The Chinese authority oppressed Falungong.
   16. Does this need to prove? Actually No. It is well known by international communities that this is the case. There are countless reports of it in all types of media.
   17. Did the applicant need to make up a [Mr B] to prove that it was true? No, he didn’t. So it is very likely that he did know a [Mr B] who was persecuted by the Chinese authorities.

   [The applicant] doesn’t have a lot of knowledge in Australia immigration system and obviously did not know the definition of a registered migration agent. He was quite slow in understanding questions during the hearing. He frankly admitted that he didn’t have much Falungong knowledge and didn’t attend many Falungong activities in Australia. To the contrary of the Tribunal’s view, I think he is quite honest.

4. In a statutory declaration to the Tribunal the applicant stated:

   • I did practise Falungong before I left China
   • There were people who knew my Falungong practice, such as my families and [Mr. B], who taught me how to practise Falungong and other Falungong practitioners who practised it together with me.
   • The Chinese authorities ban Falungong and persecute Falungong practitioners
   • It is 7 years since I last left China, the Chinese authorities may have had knowledge of my Falungong practice before I left China through my families or [Mr. B] or whatever channels. There is possibility that I will be persecuted because of it. What is more, they usually pay much attention to people who come back from abroad.
   • I attended some falungong activities in the beginning of my arrival in Australia and I don't know whether this has attracted any attention from the Chinese officials in Sydney.
   • In general, I have fears that I would be persecuted because of my Falungong activities in China and Australia upon return to China

5. At the Tribunal hearing held on 14 January 2021 I put to the applicant that he had told the Department in his PVA that his mother informed him that the Chinese Government knew he was a Falun Gong practitioner and that he would be the next if he returned to China whilst at hearing T1 the applicant, when asked what would happen to him when he returned to China said that he did not know.  When this inconsistency was put to him, at T2 hearing, he responded that if he went back to China, he does not know what will happen to him, he is still worried and afraid.

6. I explained to the applicant he has claimed at T1 hearing that he did not apply for a PV until nearing the expiry of his student visa because his friend made problems there, so he found a friend to apply for a refugee visa. I asked the applicant to clarify which friend made problems, when and where. He responded that in 2016 when his visa was to expire his parents called and said a friend called [Mr B] was arrested and they found [Mr D] who helped him to apply for a visa. Put when he left China, he had no fear of harm in China. He responded that at that time he planned to go back and he said the government might make an investigation against him and he might mention the applicant.

7. I asked when he accessed the minhui website, a dangerous activity in China, due to China’s Golden Shield program, and was able to depart China.  He said he visited the website when he was in China.

8. I explained to the applicant that in 2003, China set up its Golden Shield programme, to channel Internet traffic and aid monitoring and filtering content. GFW (Great Firewall of China) was built in 1999 and is operated by CNCERT/CC (National Computer Network Emergency Response Technical Team/Coordination Center of China), controlled by MIIT (Ministry of Industry and Information Technology). Because most ISPs are state-owned and also controlled by MIIT, CNCERT/CC can deploy the censorship systems in the backbones of all ISPs without any obstacles. GFW has been deployed near the gateways of all Chinese domestic ISPs. With DPI (deep packet inspection) technology, GFW wiretaps all international links and inspects the traffic to detect any sensitive keywords going through the gateway.

9. He responded that for the authority even if they have firewalls, they cannot monitor every person. Some visited but nothing happened. He is not sure if they monitored other people and he only used website infrequently. Put that international links and inspects the traffic to detect any sensitive keywords going through the gateway and this indicates all use of Falun Gong is monitored yet he was able to leave China without any problems. He said he did not visit the website frequently. He is not sure if they monitored him and they had not started before he left.

10. I put that in his PV application he said that ‘[Mr B] was arrested and detained, applicant became afraid and decided to travel to Australia’. He informed the Tribunal that he received information from his parents in 2016 the [Mr B] had been arrested and detained. He responded it happened a long time ago and it was on 22^nd he was arrested twice. Put to him he has not advised the Tribunal or the Department that [Mr B] was arrested twice. He responded that after he made the application, he told the agent orally and the agent helped him to put in statement and also some of the key information was missing. I put that he did not mention about the 2^nd arrest in the statutory declaration provided to the Tribunal before the hearing, T2. He responded that the Tribunal did not ask him these kinds of questions and he did not remember about that, he forgot this information.

11. I told the applicant that at hearing T1 he stated that he had graduated from [university] with a degree in [Subject 1] in 2009. A certificate provided to the Department, with his Student visa application stated that the applicant had obtained a degree in [Subject 2] in 2009. He responded that probably when he studied [Subject 1], he also studied other majors [Subject 2] and with [Subject 1].  

12. I told the applicant that he told the Tribunal at T1 hearing that he worked in Jilin, after returning from studying in Beijing in the management of the [job task 1] and as a [job task 2] whilst also during [job task 3]. His student visa application indicated that he worked as [an Occupation 2] in China. He said because he did many jobs in China, he could just remember those ones he worked for a long time. His explanation for this inconsistency in his employment in China.

13. Put to him he was creating his claims in order to obtain the visa and provided false information to the Department. He said because he was afraid to be persecuted, he had no other choice. When he came, he did not know how to apply for a protection visa and no matter where he practised Falun Gong no one cared about that.

14. Post hearing the following s.424A letter was sent to the applicant:

    In your student visa application, you provided to the Department copy of a degree of Bachelor of [Subject 2] with major in [Major] in 2009. You also advised the Department that you worked as [an Occupation 2] in China.

    You told the Tribunal at a Tribunal hearing you had graduated from [University] in [year] with a degree in [Subject 1]. You advised the Tribunal that you worked in the management of [job task 1] and as a [job task 2] whilst also during [job task 3] duties. This information is relevant to the review because it is inconsistent.

    If we rely on this information in making our decision, we may find that it undermines your credibility and would lead us to conclude that your claims were not genuine. If this was the case, the Tribunal would have no other option but to find that you did not meet the definition of a refugee or the complementary protection criterion and would affirm the decision under review.

15. The applicant responded to s.424A letter as follows by attaching the following documents:

    1. Certificate of graduation - vocational level and English translation that applicant studied 2.5-year program in [Subject 1] at [a School] dated [January] 2004
    2. Transcript of vocational training course and English translation from Beijing [College] dated [9.]2019 certifying that all enrolled in 2003 MAJORED IN [Subject 1].
    3. Certificate of graduation and English translation stating the applicant studied degree in [Subject 1] from September 2003 to July 2005 at Beijing [College]
    4. Termination of employment for position [job task 2] from [1.]2014 – [12.]14 at [Employer 2]

    The following is the explanatory notes of the above courses:
    The applicant advises that he engaged an education agent to prepare his student visa application and has no idea of the degree document provided in his student visa application. He admits that his education documents provided in two applications are inconsistent. But he didn't provide the degree documents himself and he also didn’t understand why the agent provided a document that didn't belong to him while his genuine education documents might be sufficient for him to apply for a student visa. The resignation application form shows that he was a [job task 2], which can also be verified from his employer. So he did study [Subject 1] and worked a [job task 2] as he said during the tribunal hearing. He feels sorry for the inconsistent information but what he told the tribunal was virtually true.

    1. Both courses are for [Subject 1], but at different levels
    2. The two courses were a little bit overlapping by a few months. I am advised that the applicant managed to do it by distant course.
    3. There is an error in the date of birth in one of the certificates.
    4. Both courses can be verified by Australian authorized education qualification verification institute in China

    REASONS AND FINDINGS

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

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

18. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim

19. I have before me the Department's file relating to the applicant. A copy of the delegate’s written decision record was submitted to the Tribunal by the applicant with his review application.

20. The applicant claims that he practices Falun Gong in China prior to his arrival in Australia and that he does not know what will happen to him on his return to China, because he is a Falun Gong practitioner.

21. According to Epoch Times[4] in July 1999 police announced on loud speakers that it was “illegal” to practice Falun Gong and started arresting adherents in mass. Chinese lawyers regularly point out there is no law in China that bans the practice. One explanation for the persecution is that the Communist Party perceived the spiritual group—which follows the tenets of truthfulness, compassion and tolerance—as a threat to its atheistic ideology. According to Chinese state statistics in 1999, the number of Falun Gong practitioners exceeded that of Party members (numbering 65 million). Those who had taken up the practice included members of the security forces and the military and high-level CCP leaders. There are allegations of forced organ harvesting of Falun Gong practitioners vilifying Falun Gong and its founder, Li Hongzhi[5], detailed by Minghui.org, a U.S.-based Falun Gong information website, and also claims that the Communist Party drafted the entire society into the ranks of the persecutors, creating an environment in which practitioners had no rights and no security. They could be attacked with impunity by anyone for any reason.

    [4]

    [5]

22. DFAT Thematic Report[6] provides the following information in relation to Falun Gong:

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

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

    [6] Unregistered religious organisations and other groups in the People's Republic of China 3 March 2015

1. Further, other independent information states that family members of activists, dissidents, Falun Gong practitioners, journalists, unregistered religious figures, and former political prisoners were targeted for arbitrary arrest, detention, and harassment. The applicant does not claim to be the family member of activists, dissidents, Falun Gong practitioners, journalists, unregistered religious figures, or former political prisoners.

2. Credible sources have told DFAT that Falun Gong practitioners are generally able to practice privately in their homes relatively free from interference by authorities. However, Falun Gong members regularly face widespread official and societal discrimination if they become known to authorities, colleagues or neighbours. Generally speaking, the possession of banned materials (books, CDs, or information about Falun Gong) would likely attract a fine or short-term period of administrative detention. However, punishments can vary according to location, the profile of the individual and local political circumstances.

3. Information located indicates that the Chinese authorities utilise sophisticated surveillance systems that enable the authorities to monitor, track and detain dissidents. Research also indicates that airport security officials have access to surveillance systems and have used them to prevent dissidents from departing the country.

4. I accept that it is difficult to prove membership of Falun Gong and I accept that Falun Gong supporters/activists/practitioners who actively engage in Falun Gong perceived activities in China would be detained and punished. I do not accept that the applicant was perceived to be or was a member, supporter, practitioner or follower of Falun Gong in China, as I do not accept that the applicant is a witness of truth. There were inconsistencies in his evidence and he was evasive when giving his evidence to the Tribunal.

5. I have considered the applicant’s claim that he cannot remember some things because of his age and that since he came here, because of issues relating to his job and his life, he cannot remember quite clearly.  He also claims that because he was interviewed over 4 years ago this may involve memory issues. Whilst I accept that refugee claimants may not be able to recall every detail after a long period of time, I do not accept that a person who does not have an illness associated with a medical condition, would not be able to explain basic details of his claim. For example, at the commencement of the hearing he stated that he initially came to Australia to study and he rarely practised because of studies and he has not practised for a long time. Later in the hearing, when I asked when he last practised Falun Gong, he said there is no last time, only practise when I have time to make a living.

6. The applicant has not provided any medical evidence to support his memory issues. I am of the view his claim of memory problems because of his age [or] issues relating to his job and his life, or period of 4 years elapsing since his interview is a late invention, made to overcome inconsistencies in his evidence.

7. I am satisfied that the applicant has created his claims of practising Falun Gong in order to obtain the visa sought.

8. Firstly, in his PV application, the applicant claimed that he secretly attended Falun Gong gatherings with [Mr B] [also referred to as [Alternative form of name], his classmate. When he was at university, his family, girlfriends and university friends all disagreed with his decision to be involved with Falun Gong and told him to stay away.  At the Tribunal hearing, T1, I put to the applicant, pursuant to s.424AA, that he

   stated to the Tribunal his family were aware he practised Falun Gong. He advised Department at interview that his family and friends were not aware of his Falun Gong practise and he also advised the Tribunal he spoke to his friends about Falun Gong practise. It was explained this is inconsistent and if relied upon may lead the Tribunal to conclude his claims are not genuine

9. His s.424AA response, in writing, stated:

   Whether his practice of Falungong was known to other people. What does “other people” mean and does it include family members? It should not be used to test his credibility before its definition is defined beforehand.

10. I am satisfied that the applicant’s evidence in regard to the awareness of his family and friends of his claimed practise of Falun Gong was inconsistent. The applicant has provided no reason for this inconsistency. As for requiring a definition of the words “other people” neither the applicant nor his migration agent requested such an explanation at the hearing. His adviser was present during the hearing and made no comment or request for clarification at any time during the hearing.

11. Secondly, the applicant told the Department in his PV that his mother informed him that the Chinese Government knew he was a Falun Gong practitioner and that he would be next if he returned to China. At T1 hearing the applicant, when asked what would happen to him when he returned to China said that he did not know.  When this inconsistency was put to him, at T2 hearing, he responded that if he went back to China, he does not know what will happen to him, he is still worried and afraid.  I am not satisfied that the applicant explained the inconsistency.

12. Thirdly, the applicant advised the Department in his PV that ‘[Mr B] was arrested and detained. He told the Tribunal at hearing that “it was on 22^nd, he was arrested twice”. When put to him he did not advise the Tribunal or the Department that [Mr B] was arrested twice, he responded that after he made the application, he told the agent orally and the agent helped him to put in a statement and also some of the key information was missing. I then put that he did not mention these 2 arrests in the statutory declaration provided to the Tribunal before the T2 hearing. He responded that the Tribunal did not ask him these kinds of questions and he did not remember about that, he forgot this information.  I reject his explanation, the applicant had two opportunities to make the claim about the number of arrests of [Mr B] prior to T2 hearing. He did not do so. I am satisfied that the applicant created the claim of a 2^nd arrest in order to enhance his claims for the visa sought.

13. Fourthly, I accept that the applicant has some basic knowledge about Falun Gong exercises and basic knowledge about Zhuan Falun, a pivotal text on Falun Gong beliefs. According to the Falun Dafa Organisation[7], verses are recited once only, in Chinese, right before each exercise. Each exercise has its own specific verse that is recited out loud or just listened to on the exercise tape.  For the first exercise the translation of the verse is “The Mind and Body Join Together, Move or Become Still According to the Energy Mechanisms, As Tall as Heaven and Incomparably Noble, The Thousand-Armed Buddha Stands Upright”.

    [7]

14. The applicant was asked to recite or explain the verse to the first exercise. He said it is just a way to exercise and put the palms together and put hands downwards. He claimed he did not recite, merely watching on video. He could not remember what to say because it was a long time ago and he did not practise quite frequently. I am not persuaded by his explanation. His knowledge was basic and not of the level that would be expected of a person who claims to have practised Falun Gong since 2011, both in China and in Australia, albeit not frequently. I am of the view that he would have been at least able to elucidate the concept of mind and body joining together and the thousand-armed Buddha standing upright. I am satisfied that the applicant did not watch video whilst practising Falun Gong exercises or that he practised Falun Gong exercises.

15. Fifthly, I put to the applicant, pursuant to s.424AA, that he had advised the Department at interview that he had received a threatening phone call before leaving China and he told the Tribunal nothing happened to him in China before he left. The applicant responded stating that he never expected that he was thought to answer something by not answering something. I reject his explanation. At the beginning of the hearing I asked the applicant what happened to him when he lived in China, he said that “nothing happened” to him. Prior to putting questions to him pursuant to s.424AA, I asked the applicant to confirm that nothing had happened to him China. He responded that “if something happened to me, I could not come here”.  I do not accept that the applicant was tricked, as claimed. The applicant answered the question explaining what happened to him. As for his claim that a unified definition of the word “happen” needed to be given by the Tribunal, the applicant did not at any time during the hearing seek to clarify what the word “happened” meant.  His adviser was present during the hearing and made no comment or request for clarification at any time during the hearing.

16. Further, I reject his explanation that the word “happen” means to the applicant “something like serious harms and the threatening telephone call was not serious”. I am of the view that anyone receiving threatening calls would consider them to be serious, especially as the applicant claims that he fears returning to China and one integer of his claim was receiving threatening calls. I am of the view had the applicant received a threatening call before he left China, he would have referred to such a call at the Tribunal hearing, if such calls had been made. I find that the applicant’s evidence is inconsistent and that he did not receive any threatening phone calls when he left China.

17. Sixthly, the internet site is a website dedicated to reporting on the Falun Gong aka Falun Dafa community worldwide. The focus of Minghui[8] is reports from China. Minghui also serves as a central communication hub for Falun Gong practitioners around the world to share insights and ideas, expose the persecution faced inside China, and comment on its ramifications. It is the primary site read by Falun Gong practitioners. It states that it is also watched closely by Chinese regime officials.

    [8]

18. By s.424AA, I put to the applicant that at the Department interview he said that he had accessed the internet site from his personal computer at home but when asked if he had taken part in any other Falun Gong activities he did not state he accessed this site at home. He interjected before I could explain why I relied on the information saying “you did not ask me. You only asked me where I practised Falun Gong”. By written response the applicant stated that the issue involved a unified definition of the word “activity” and implied that visiting a Falun Gong website is not defined as attending a Falun Gong activity, therefore the applicant had a different understanding. I reject his explanation. As stated previously, at no time during the hearing did the applicant or his migration adviser seek clarification. Further the applicant responded to the question stating he was not asked and he was only asked where he practised Falun Gong.

19. I asked the applicant during the hearing

    “Other than practising in your bedroom and the lounge room are there any other activities you were involved in that relate to Falun Gong in China?”  He said “very rarely. At that time my level of danger is low”

    I asked the applicant “what other activities at that time did you do?”. He said “those kinds of gathering activities were secret in China and you would not know where they take place. Two friends can talk and practise together”

    I asked “what did you do in China as a Falun Gong practitioner besides practising in a bedroom or loungeroom”. He said “no very rarely”.

    I asked again “what did you not do often and was done very rarely”. He said “I just attended a very small activity inside the house so others did not know”.

    I said “you have not told me what you did other than practise in a bedroom or a lounge room”. The applicant responded “I did try to introduce my friends to practise Falun Gong and my friends refused”.

    I asked “is that all you did in China”, he said “yes”.

20. I reject his explanation that he was not asked and he was only asked where he practised Falun Gong. I gave the applicant the opportunity to explain a number of times what he did in China as a Falun Gong practitioner and he did not refer to, nor suggest, any internet involvement, rather he claimed to have read books.

21. In 2003, China set up its Golden Shield programme, to channel Internet traffic and aid monitoring and filtering content. GFW (Great Firewall of China) was built in 1999 and is operated by CNCERT/CC (National Computer Network Emergency Response Technical Team/Coordination Center of China), controlled by MIIT (Ministry of Industry and Information Technology). Because most ISPs are state-owned and also controlled by MIIT, CNCERT/CC can deploy the censorship systems in the backbones of all ISPs without any obstacles. GFW has been deployed near the gateways of all Chinese domestic ISPs. With DPI (deep packet inspection) technology, GFW wiretaps all international links and inspects the traffic to detect any sensitive keywords going through the gateway.

22. I am of the view that it is implausible that the applicant would been involved in accessing the minhui website, a dangerous activity in China, due to China’s Golden Shield program, and after doing so was able to depart China.  

23. I am satisfied the applicant is not a witness of truth. Therefore I do not accept that the applicant attended Falun Gong gatherings with [Mr B], that he was afraid when [Mr B] was required to make a list of Falun Gong followers, that [Mr C] encouraged him to learn the 5 exercises, that he practised Falun Gong when in China or that he was interested in Falun Gong in China. As I do not accept he was interested in or practised Falun Gong in China, I do not accept he received threatening phone calls before leaving China.

24. The applicant claimed that he practised Falun Gong in Australia. He claimed at hearing that there were pictures taken of him practising but he did not provide any pictures to the Tribunal. His evidence of when he practised in Australia was vague and unconvincing. As the applicant is not a witness of truth, I also do not accept that he practised Falun Gong in Australia.

25. I have considered all the applicant’s evidence singularly and cumulatively. I am satisfied therefore that the applicant had no adverse religious or political profile in China prior to departing for Australia, as the holder of a [Student] visa. I am satisfied the applicant did not flee China fearing harm.

26. I am required to consider the situation if there is a real chance the applicant would suffer serious harm within a reasonably forseeable future if he were to return to China. As the applicant has not practised Falun Gong in Australia or China, and as I am satisfied the applicant is not a witness of truth, I am satisfied that the applicant will not practise Falun Gong on his return to China.

27. As I do not accept that the applicant was involved in any Falun Gong activity in China or perceived to have been a Falun Gong practitioner or supporter in China and as I am satisfied that the applicant had no adverse religious or political profile in China, I am not satisfied that the applicant is at risk of serious harm on his return to China.

28. For the reasons given above, I find remote the chance that the applicant will suffer serious harm in China for any reason. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

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

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

    CONCLUSIONS

31. 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).

32. 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).

33. 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.

34. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Lilly Mojsin
    Member

    Annexure A

    CRITERIA FOR A PROTECTION VISA

36. 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.

37. 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.

38. 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).

39. 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.

100.   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

101.   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.

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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