1705564 (Refugee)

1705564 (Refugee) [2021] AATA 1403 (13 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705564
COUNTRY OF REFERENCE:                   China
MEMBER:L. Symons
DATE:13 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 13 April 2021 at 12:05pm
CATCHWORDS
REFUGEE – protection visa – China – religion and imputed political opinion – Falun Gong – low-level practitioner in China – surveillance of family and sister’s intention to apply for permanent residence in third country – increased activity in Australia – weekly and major annual events – credibility – implausible, inconsistent, contradictory and unconvincing aspects of claims and evidence – initial activity to support application for protection – formed a genuine belief and commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), 65, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 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, arrived in Australia [in] June 2009 as the holder of a [Student] visa. This visa expired on 15 March 2011 and he thereafter remained in Australia as an unlawful non-citizen. On 24 April 2015, he was granted a Bridging visa in association with his application for a Protection visa. He was granted a further Bridging visa on 19 June 2015.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 24 April 2015. The delegate refused to grant the visa on 23 February 2017. He applied to the Tribunal on 23 March 2017 for a review of that decision.
The applicant appeared before the Tribunal on 12 November 2020 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 his registered migration agent, [Mr A], who attended the hearing.
The issues that arise on review are whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·At the beginning of 1999, he saw people gathering at [Venue 1] every evening and practising Falun Gong. He imitated the practitioners. After Falun Gong was banned, Falun Gong practitioners, including his family members, went underground and continued practising.
·Before coming to Australia, he read the book Zhuan Falun which had been banned. The Police subsequently confiscated this book. His parents and older sister kept on practising Falun Gong. His older sister was summoned by the security Police for enquiries. She was also punished by her school and almost suspended or dismissed. She went to [Country 1] to study there and dares not return to China.
·In 2009, he came to Australia to study and found Falun Gong activists here enjoying their freedom. His parents cautioned him not to contact Falun Gong as the Chinese Communist Party (CCP) had spies monitoring Falun Gong activities abroad. He learned from the newspaper that a diplomat named Chen Yonglin, who had defected from the Chinese Embassy in Australia, was such a person.
·His parents feared that he would cause trouble for his younger sister and they did not want her to follow her elder sister’s example and ruin her career. He did not participate in group practice sessions. Instead, he borrowed Falun Gong pamphlets and discs and followed the instructions.
·On Falun Gong Day in 2013, a telephone conversation between his parents and elder sister was tapped by the Security Police and his parents were taken away for enquiries. He found out a month later and was shocked that they were still under surveillance.
·In 2014, a fellow practitioner told him that he felt it was his duty to tell the truth. He persuaded him to learn classics, practice and “take to the street” to tell the truth with him. He later told him that his family members in China had troubles and the local government was trying to coerce his family members to force him back to confess his offences.
·On Qingming Festival 2015, his parents contacted him, told him the Police had been to their house, they were under surveillance and were not permitted to practice Falun Gong freely. His younger sister went overseas to study. His parents warned them not to return to China as they would have no future there.
·At the beginning of 2015, he participated in a demonstration against President Xi Jinping during his visit to Australia. The CCP hired crowd tried to hinder the Falun Gong demonstrators, damaged their posters, abused them and attacked them. The Australian Police thought they had over done it.
·He was involved in a press conference and event organised by Falun Gong at [Venue 2] [in] April 2015. A documentary on human organ harvesting was shown. He was disheartened and had no choice but to file an application for a Protection visa.
·As a Falun Gong practitioner, he has a bleak future if he returns to China and will face unforeseen dangers. It will be impossible for him to realise his religious faith and noble ideals.
The applicant filed with the Department a copy of the biodata page of his Chinese passport issued [in] 2008. He also provided to the Department a bundle of photographs depicting Falun Gong activities that he participated in, a ticket and agenda for the 2015 Australian Falun Dafa Conference and a disc in relation to a press conference on human organ harvesting.
The applicant attended an interview with the Department on 30 June 2016. During the interview, he reiterated and expanded on his written claims.
Following the interview, the applicant provided the Department with another bundle of photographs, a pamphlet for the Global Radio Network, a letter of support from [Ms B] dated 8 July 2016 and a statement from him.
In her statement, [Ms B] stated that she met the applicant in April 2015 at [Venue 2] when they were [both] at a Falun Gong event. She stated that the applicant told her he lived in [Suburb 1], was a Falun Gong practitioner and inquired about Falun Gong activities as he wished to attend them when he had the time to do so. She listed a number of activities that the applicant thereafter participated in. She stated that the applicant was dedicated to promoting Falun Gong, telling people the truth and disclosing the persecution of Falun Gong practitioners by the CCP.
In his statement, the applicant provided information about his older sister’s immigration status in [Country 1] and reiterated aspects of the evidence he gave during his interview. He also made a new claim that he participated in a radio programme [named] held by the Falun Gong organization at the beginning of July 2016 and shared what he had learned about Falun Gong with the audience.
The Department refused the application for a Protection visa on 23 February 2017 as the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
The applicant filed with the Tribunal a copy of the Department’s Decision Record dated 23 February 2017. He has also filed with the Tribunal photographs depicting Falun Gong activities that he participated in during 2016, 2017, 2018, 2019 and 2020, a letter of support from [Alias of Ms B] (who is also known as [Ms B]) dated 27 October 2020, a letter of support from [Ms C] dated 17 November 2020 and a letter of support from [Mr D] dated 17 November 2020.
The Tribunal received post-hearing submissions dated 16 November 2020 from the applicant’s migration agent. In his submissions, he reiterated the applicant’s claims, referred to country information on China and the law and concluded that the applicant has provided sufficient evidence to demonstrate his genuine belief.
Country of reference
The applicant claims to be a citizen of China and has provided a copy of the biodata page of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the country of reference for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.
Third country protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Assessment of claims
The applicant gave evidence that two of his friends assisted him to prepare his application for a Protection visa. He provided them with the information which was true and correct. He was satisfied that his visa application is accurate and complete. When asked whether there had been any changes in his circumstances since he filed his visa application, he responded that he participated in more truth telling activities and more big group studies.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in China, his family’s involvement with Falun Gong, his practice of Falun Gong in China and in Australia and why he fears returning to China. The Tribunal found some aspects of his evidence to be inconsistent, contradictory, implausible and unconvincing and his behavior to be inconsistent with his claims. The Tribunal finds that his claims in relation to his family being Falun Gong practitioners and his practice of Falun Gong in China to be lacking in credibility for the following reasons:
First, the applicant claims that he was a Falun Gong practitioner in China. In his visa application, he claimed that at the beginning of 1999 he saw people gathering at [Venue 1] every evening to practise Falun Gong and he imitated the practitioners. He claimed that after Falun Gong was banned in China (in 1999) Falun Gong practitioners, including his family members, went underground and continued practising. He claimed that he read the book Zhuan Falun which had been banned and the Police subsequently confiscated the book. He claimed that his parents and older sister kept on practising Falun Gong.
During the hearing, the applicant gave evidence that he read Zhuan Falun in 1999. He was [age] years old in 1999. It is implausible that, at that age, he would have been out watching Falun Gong practitioners every evening and imitating them. It is also implausible that, as a [age] year old, he would have the interest or the understanding to read Zhuan Falun.
During the hearing, the applicant referred to his family members or his parents and older sister practising Falun Gong after it was banned but not to himself doing so. He has filed with the Tribunal a copy of the Department’s Decision Record which indicates that during his interview with the Department the delegate raised this as an issue. He responded that the omission of his name must have been a translating error. The Tribunal does not accept that it is a translating error as it is implausible that his name would have been left out in two separate sentences that refer to his family members or his parents and older sister. These issues raise concerns about his claims to have been a Falun Gong practitioner in China.
Second, in his visa application, the applicant claimed that his older sister was summoned by the Security Police for enquiries, was punished by her school and almost suspended or dismissed (because of her involvement with Falun Gong). He claimed that she went to [Country 1] to study there and dares not return to China. He claimed that his younger sister also subsequently went overseas to study.
The applicant claimed in his visa application that on Falun Gong Day in 2013, a telephone conversation between his parents and older sister was tapped by the Security Police and his parents were taken away for enquiries. During the hearing, he stated that they were talking about the contents of the book Zhuan Falun. In view of his claims that his parents and older sister were known Falun Gong practitioners, the Chinese authorities had been to his family home and confiscated the book Zhuan Falun, his sister had been summoned by the Security Police and they were of adverse interest to the Chinese authorities, it is implausible that his older sister would have telephoned his parents from [Country 1] and discussed the contents of the book Zhuan Falun with them thereby putting them at risk of harm from the Chinese authorities.
Third, in his visa application, the applicant also claimed that during the Qingming Festival in 2015 his parents contacted him, told him the Police had been to their house, they were under surveillance and were not permitted to practice Falun Gong freely. He claimed that his parents warned them not to return to China as they would have no future there. It is implausible that his parents would have told him in 2015 that they were not able to practise Falun Gong freely because they were under surveillance when they had not been able to do so since 1999 when it was banned. His own evidence is that they were practising in secret thereafter.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record which indicates that during his interview with the Department he stated that in 2004 his older sister was reported for bringing (Falun Gong related) books to school and got into trouble with her school. She went to [Country 1] as a student in 2008 and his younger sister went to [Country 1] as a student in 2011. He stated that his older sister has returned to China a few times. During the hearing, he stated that she was last in China about 2 years ago (2018). This was after her claimed telephone conversation with her parents was tapped by the Security Police in 2013.
The applicant has made no claims that his older sister had any problems exiting or entering China during her visits to China. Her voluntary return to China on several occasions is not consistent with his claim that she dares not return to China. It is also not consistent with his claim that his parents warned them (him and his two siblings) not to return to China.
The applicant gave evidence to the Tribunal that his younger sister has returned to China and now lives there. This is also not consistent with his claims that his parents warned them (him and his two siblings) not to return to China.
These issues raise concerns in relation to the credibility of the applicant’s claims that his parents and older sister were/are Falun Gong practitioners and are of adverse interest to the Chinese authorities.
Fourth, in his visa application, the applicant claimed that he came to Australia in 2009 to study and found Falun Gong activists here enjoying their freedom. He claimed that his parents cautioned him not to contact Falun Gong as the CCP had spies monitoring Falun Gong activities abroad. He claimed that his parents feared that he would cause trouble for his younger sister and they did not want her to follow her older sister’s example and ruin her career. He claimed that he did not participate in group practice sessions and, instead, he borrowed Falun Gong pamphlets and discs and followed the instructions.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record which indicates that during his interview with the Department he stated that when he came to Australia, he studied and practised Falun Gong at home in 2010 and then in a park between 2011 and 2012. He did not commence practising Falun Gong when he arrived in Australia because his younger sister was in China at the time. There were Chinese spies in Australia and if they found out that he was practising Falun Gong in Australia it could have impacted on her.
During the hearing, the applicant gave evidence that, at the beginning, he practised Falun Gong at home. In 2010, he purchased a copy of Zhuan Falun from a co-practitioner and studied at home. When asked how he could have purchased the book from a co-practitioner in 2010 if he was practising on his own at home at that time, he responded that he started practising in the park in mid-2010, met co-practitioners and purchased the book from one of them.

When asked what made him change his mind (in relation to him not practising in public because of the safety of his younger sister in China), the applicant responded that his younger sister went overseas to study in around 2011. After that he started practising in the park. When the Tribunal reminded him of his earlier evidence that he started practising in the park in 2010 and his younger sister did not go overseas until 2011, he responded that he was practising in parks around his home and not in large groups. He is practising in large groups now.
The Tribunal asked the applicant whether he had any concerns for his younger sister now. He responded that he thinks keeping his faith is important and telling the truth can save people. The reason he was concerned about practising in public was because his younger sister intended going overseas. Right now she intends applying for permanent residence in [Country 1] and will be safe. When the Tribunal reminded him of his earlier evidence that his younger sister lives in China, he responded that his mother has cancer and his younger sister has returned home to look after her.
The applicant’s evidence in relation to when he started practising Falun Gong in Australia in public and why he delayed doing so is full of inconsistencies and contradictions. His explanation that he delayed doing so to protect his younger sister is not consistent with his evidence that he started practising in a park in mid-2010 when his sister was still in China at that time and did not leave until 2011. Further, his sister has returned to China and is living there now. He has not claimed to have stopped his Falun Gong activities in order to protect her particularly as she wants to apply for permanent residence in [Country 1], leave China and return to [Country 1].
The applicant’s evidence in relation to when he started practising Falun Gong in Australia in public is not consistent with his claim that his parents cautioned him not to contact Falun Gong as the CCP had spies monitoring Falun Gong activities abroad. Further, he made no claims in his visa application in relation to practising Falun Gong in a park or participating in any Falun Gong related activities until shortly before he filed his application for a Protection visa in April 2015.
The Tribunal asked the applicant whether he had any evidence that he practised Falun Gong in Australia between 2009 and 2015. He responded that he has photographs taken in 2015 to prove that he participated in Falun Gong activities but prior to that he does not.
The Tribunal raised as an issue with the applicant the many inconsistencies in his evidence and its concerns about the credibility of some of his claims. He responded that when he attended the interview (with the Department) the questions were asked “in a fast manner” and he was quite nervous at the time. This response does not explain the many problems between the evidence in his visa application and his evidence to the Tribunal and within his evidence to the Tribunal.
The Tribunal raised as an issue with the applicant its doubts that he had anything to do with Falun Gong in China or in Australia prior to 2015. He responded that he was worried about information exposure in China and is worried about spies in Australia. When the Tribunal pointed out to him that he has claimed to have participated in public activities in Australia, he responded that he was referring to the period after he came to Australia. Later a co-practitioner told him that truth telling was important to them. In the beginning, he was also afraid to attend those activities but was persuaded to do so. His response does not alleviate the Tribunal’s concerns.
Fifth, the Tribunal asked the applicant a number of questions about the teachings and practise of Falun Gong. He was able to demonstrate an understanding of these matters. However, the depth of his knowledge was not consistent with his claims that he was a Falun Gong practitioner in China, has been practising Falun Gong since his arrival in Australia in 2009, read Zhuan Falun in China in 1999, purchased a copy of Zhuan Falun in Australia in 2010 and has been studying it since then. When the Tribunal raised this as an issue with him, he responded that in 1999 he only had “a little read of the book” and it was then banned. He did not have access to the book and only had access to some written material. This response does not alleviate the Tribunal’s concerns.
Sixth, the applicant’s conduct has not been consistent with his claims. The records of the Department indicate that he arrived in Australia [in] June 2009 on a Student visa. His Student visa expired on 15 March 2011and he thereafter became an unlawful non-citizen. He remained in Australia as an unlawful citizen from 16 March 2011 until 24 April 2015 when he applied for a Protection visa. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that, despite his claims that his family members had problems in China because of Falun Gong and his parents told him not to return to China, he put himself in a situation where he could have been deported to China at any time during the 4 year period that he was living in Australia unlawfully.
The Tribunal informed the applicant that it would expect that if he was at risk of harm in China he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. However, he applied for a Protection visa almost 6 years after he came to Australia. The Tribunal noted that his delay in applying for a Protection visa raised concerns about his credibility and the veracity of his claims.
The applicant responded that when he came to Australia he intended staying here through studying and did not know about Protection visas. When the Tribunal pointed out that he did not study after 2010, he responded that he was young, in difficulty and did not have the information. When the Tribunal pointed out that that was why he should have gone to a migration agent to get the information, he responded that he did not know about it. He only became aware of Protection visas in 2014 when his co-practitioner told him about it.
The applicant’s response does not alleviate the Tribunal’s concerns. The Tribunal would expect that if he was practising Falun Gong with other Falun Gong practitioners since 2010, as he claims, then he would have found out from them about Protection visas in 2010. He would also have had access to The Epoch Times, a Falun Gong newspaper, where he could have seen advertisements by Mandarin speaking migration agents. Further, he offered no explanation for why he waited until 24 April 2015 to apply for a Protection visa if he became aware of Protection visas in 2014.
In view of the above, the Tribunal is not satisfied that the applicant was a Falun Gong practitioner prior to 2015.
The Tribunal discussed with the applicant his practise of Falun Gong since 2015. He stated that he joined a study group in [Suburb 1] to learn the teachings and practise the exercises as a group. They had a “counsellor” who taught them. He attended large group study sessions on Saturdays at [Venue 3]. He also attended large group practice sessions in Belmore (Park) where all the Falun Gong practitioners in Sydney are invited to gather together to practise. He has held up banners and handed out pamphlets. He has also attended other anti-persecution activities held on 20 July every year. He attended every year from 2015 to 2019 (but not in 2020 due to the Covid pandemic). He also attended the annual Australia Falun Dafa Conference. In 2020, it was held online.
The applicant gave evidence that every year around 24 April Falun Gong practitioners gather in front of the Chinese Consulate and practice the Falun Gong exercises, hold up banners and call on the Chinese government to release Falun Gong practitioners detained in China. He has participated in these activities and many other activities including World Falun Dafa day where they usually gather at Town Hall or Circular Quay, practise the exercises and have “truth telling” activities. He has also participated in practise sessions and truth telling activities in Martin Place and Hyde Park. On Saturdays they also go to Broadway and hold up banners and have truth telling activities. His activities were restricted during the Covid pandemic.
The applicant gave evidence that when he first came to Australia, he felt lost and sometimes felt devastated and in pain. He felt no sense of security or belonging. Through the study of Falun Gong and doing the exercises he could avoid being overwhelmed by fear and worry about his future. He became calm and peaceful. He learnt that the important thing about practising Falun Gong is to get rid of the persistent heart, wanting one thing persistently and not letting go. He believes that if he keeps his faith he will have a bright future. He hopes he can enjoy the free environment in Australia and can practise and do the exercises freely. He is willing to make a contribution to this country. He does not need benefits from the government. He feels content when he has enough money to cover his expenses. He will keep his faith and continue to practise Falun Gong if he has to return to China.
The Tribunal has considered the letters of support provided by the applicant to the Department and the Tribunal. [Ms A] stated that he joined a study group in [Suburb 1] in April 2015 and attended once a week until June 2019. They also went together to [Venue 3] every Saturday to practise with a big group. In addition, he participated in Falun Gong related activities such as truth telling in Belmore Park in the city, a parade from Hyde Park to China Town, a 20 July commemoration during the day followed by a candlelight commemoration in Martin Place in the evening and the Australia Dafa Conference organised by the Buddhist Society every year. [In] October 2020, he joined an online event. She stated that she believes he is a genuine Falun Gong practitioner and faces the possibility of being persecuted if he returns to China.
[Ms C] stated that she met the applicant in 2016 at the study group in [Suburb 1]. They attended the [Suburb 1] study group every Thursday and a larger study group at [Venue 3] every Saturday. They attended the annual conference, Worldwide Falun Dafa Day on 13 May and the commemoration on 20 July followed by the candlelight vigil. She believes that the real purpose of the applicant’s practise of Falun Gong is to achieve the ultimate goal of cultivating perfection. He is firm in his belief and insists on doing what a Dafa practitioner should do. If he returns to China, the consequences for him would be “critically unimaginable” and he is likely to become a victim of organ harvesting.
[Mr D] stated that he met the applicant in 2015 at the study group in [Suburb 1]. On Saturdays he used to drive him and other Falun Gong practitioners to a larger study group at [Venue 3]. The applicant was always serious about studying and practising the Dafa. They took part in many group exercises at Belmore Park in the city. They participated in activities to expose the truth about the CCP’s persecution of Falun Gong practitioners. Between 2015 and 2019 they participated in the annual World Falun Dafa Day activities. including the annual 20 July commemorations, group practise sessions at Martin Place in the mornings and candlelight vigils in the afternoons. He has driven him to the annual Australian Falun Dafa Conference.
[Mr D] stated that the applicant has volunteered to participate in demonstrations and protests in front of the Chinese Consulate organised several times a year. He has overcome his fear and held firm his faith and courage. He is constantly improving himself to make sure he is purified and spiritually elevated. He believes that he is a genuine and faithful practitioner of the Dafa. He will not be able to practise Falun Gong if he returns to China and is likely to face persecution from the CCP.
The Tribunal has considered the Sound of Hope Global Radio Network pamphlet provided by the applicant to the Department and the photographs he provided to the Department and the Tribunal. The applicant gave evidence that he took some of the photographs and others were taken by co-practitioners. The photographs depict the applicant and various groups of people at different Falun Gong activities including practising the exercises, holding up banners, gathering outside the Sydney Town Hall, near Circular Quay, at Hyde Park, at Broadway, at a candlelight commemoration in Martin Place, at Sydney University, in front of Parliament House in Canberra, in front of the Chinese Consulate and what appears to be conference settings. The notes beside some of them indicate that some of the photographs were taken at events [in] April, [May], [July], [October] and the Conferences.
The Tribunal has had regard to the written submissions dated 16 November 2020 from the applicant’s migration agent.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal does not accept the applicant’s claims in relation to his family members being Falun Gong practitioners. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept his claims that he was a Falun Gong practitioner in China and that he practised Falun Gong in Australia in private between 2009 and 2014. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal is of the view that he fabricated these claims to enhance his prospects of obtaining a Protection visa.
The Tribunal accepts that the applicant started attending a small study and practise group in [Suburb 1] once a week in April 2015 and a larger study and practise group at [Venue 3] once a week on Saturdays. The Tribunal is of the view that he initially did so to create the profile of a refugee and to support his application for a Protection visa filed on 24 April 2015. The Tribunal accepts that he gradually started attending more public Falun Gong related activities such as “truth telling” activities, protests and events to commemorate special dates in the Falun Gong calendar. The Tribunal is of the view that he continued to be involved in these activities because it also gave him companionship, support and a social network among his countrymen and countrywomen.
The Tribunal is of the view that the extent of the applicant’s involvement in Falun Gong related activities and the length of time he has been involved in these activities may be indicative of him having, at some point, formed a genuine belief and commitment to that belief. The Tribunal also found his evidence in relation to the impact of the practise of Falun Gong on him to be persuasive. The Tribunal has placed weight on the evidence given by the three witnesses. The Tribunal is therefore prepared to give him the benefit of the doubt and accept that he is now a genuine Falun Gong practitioner. The Tribunal accepts that he is committed to continue his practise of Falun Gong if he returns to China now or in the foreseeable future.
Country information
Research conducted by the Research Directorate at the Immigration and Refugee Board of Canada on the monitoring of Chinese citizens who practice Falun Gong outside China and the consequences upon return to China indicates, in part, the following:
In correspondence with the Research Directorate, the Director of the Australian Centre on China in the World at Australia National University, whose research interests include religious and spiritual movements in China such as Falun Gong and who provided information after consulting with his own contacts who are long-term practitioners, indicated that "Chinese citizens and Australian citizens (particularly those who were previously Chinese citizens) who are Falun Gong practitioners are certainly monitored [in Australia], especially if they are at all active in Falun Gong activities" (Director 22 Sept. 2016). In correspondence with the Research Directorate, a representative of Friends of Falun Gong USA (FoFG USA), a US-based NGO created in 2000 whose "mission is to support the freedom of belief of persons who practice Falun Gong" (FoFG USA n.d.), noted that "[t]here are pro-communist people in the [Chinese] community openly warning practitioners that their names are on a list" (ibid. 22 Sept. 2016).
In correspondence with the Research Directorate, a representative of the Falun Dafa Association of Canada (FDAC) stated that "we do not expect [that the Chinese authorities'] policy of monitoring practitioners has changed" and that the authorities continue to use the same tactics as previously employed (FDAC 27 Sept. 2016). For further information on the monitoring of Falun Gong practitioners outside China from 2008 to 2012, including in Canada, refer to CHN104187 of October 2012.
According to the Director, one of the methods used by Chinese authorities is "photographing practitioners who protest outside the embassy or consulates" (Director 22 Sept. 2016). The same source added that "[p]ractitioners are also certain that members of the Chinese community report to the embassy about their activities" and that "some practitioners believe that the Chinese government plants people in Falun Gong groups to report on them and to create internal division" (ibid.). As an example, the Director brought forward an instance in which a practitioner told him "that his wife, who is not a practitioner, was even approached by the Chinese security authorities to report on his activities when she was in China to visit her family" (ibid.). The same source also provided an example in which a non-practitioner couple were warned by the Chinese embassy to stay away from their best friends, a couple who practiced Falun Gong (ibid.). According to the FoFG USA representative, Falun Gong practitioners are under surveillance outside of China, notably "[i]f there is a public Falun Gong/Dafa event (protest, parade, practice, celebration, etc.)" (FoFG USA 22 Sept. 2016). The same source indicated that [p]ractitioners' family members living in China get visits from public security. Family members have reported[ly] been told that they are aware of their family members' activities in the country [where] they currently are residing. (ibid.) …
According to the Director, practitioners believe that Chinese authorities are able to check whether someone is known or suspected of practicing Falun Gong/Dafa and "[b]ecause of this, they recommend to their fellows that they do not try returning to China" (Director 22 Sept. 2016). The same source, citing information gathered from his personal contacts, stated that Falun Gong practitioners abroad would not try to return to China "as they would expect to be arrested as they cross the border"(ibid.). Likewise the FoFG USA representative stated that "practitioners have been advised not to return to China due to safety and security concerns" (FoFG USA 22 Sept. 2016). The Lecturer noted that "those known to be practitioners and [who] have practiced on the mainland are in violation of the law, and many will have police records. This [is] cross-checked during the visa issuance process just as in any other country" (Lecturer 17 Sept. 2016).
According to the FDAC representative, "we don't know the details of how the database works but it's pretty clear that some such system for keeping tabs on who is known to practice Falun Gong exists, though it may have occasional loopholes" (FDAC 27 Sept. 2016). The same source added that [p]ractitioners generally do not return to China due to the persecution that is ongoing. Those who have citizenship in other countries could be coerced or threatened, to spy on Falun Gong […]. Others could be detained and their families pressured for them to stop the practice. (ibid.)[1]
[1] Canada: Immigration and Refugee Board of Canada, China: Monitoring of Chinese citizens who practice Falun Gong (Falun Dafa) outside of China; consequences upon return to China (2013-September 2016), 19 October 2016, CHN105635.E, available at: 13 April 2021]

DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.[2]
[2] DFAT Country Information Report on China, 3 October 2019.
In view of the above, the Tribunal is satisfied that there is a real chance that the applicant is or will be of adverse interest to the Chinese authorities because of Falun Gong related activities he has engaged in in Australia, particularly in relation to participating in protests outside the Chinese Consulate in Sydney, if he returns to China now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submissions and in view of the findings and country information above, the Tribunal is satisfied that the applicant fears being persecuted for reason of his religion and that there is a real chance that he would be persecuted for reason of his religion if he returns to China now or in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of China.
The Tribunal finds that the persecution will be directed at the applicant for the essential and significant reason of his religion, that the persecution involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill treatment of him and a threat to his life or liberty.
Given that the Chinese State is the agent of persecution, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Chinese State and the Chinese State is not willing and able to offer such protection. Therefore, the Tribunal finds that effective protection measures are not available to the applicant in China.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in China as a modification would require him to alter his religious beliefs or conceal his true religious beliefs or cease to be involved in the practice of his faith. Accordingly, the Tribunal finds that he has a well-founded fear of persecution for reason of his religion in China.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he is a refugee as defined in s.5H(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Given these findings, the Tribunal has not considered the applicant’s claims and the submissions under the complementary protection criterion.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
L. Symons
Member

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

[2021] AATA 1403

13 April 2021

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