1716452 (Refugee)

[2019] AATA 4476

1716452 (Refugee) [2019] AATA 4476 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716452

COUNTRY OF REFERENCE:                  China

MEMBER:Rodger Shanahan

DATE:16 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2019 at 10:42am

CATCHWORDS

REFUGEE – protection visa – China – Falun Gong practitioner – credibility – inconsistent claims and evidence – no Falun Gong activity in Australia – no knowledge of principles and practices – delay in applying for protection – fear not well founded – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 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 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 July 2017 to refuse to grant the applicant a protection visa 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 27 July 2016.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

   Protection Visa Application

9. The applicant claimed that the Chinese government persecuted him because he was Falun Gong.  He had been [an Occupation 1] and suffered back pain and the doctor he went to introduced him to Falun Gong and he began practising from then.

10. The Chinese government banned Falun Gong in July 1999 and he was arrested in August and detained for year and his land confiscated and he lost his [Occupation 1] job as a consequence.  He was released in July 2000 and stayed home for 10 months before he bought a [vehicle] to help others transport goods.

11. In July 2008 a policeman came to his house, asked him about his living and working arrangements and hinted that he should pay him a bribe but the applicant pretended not to understand him.  He was then arrested, detained for four months and made to write an undertaking not to ever practise Falun Gong and he was released but police continued to come to his house to harass him.

12. He began working as [an Occupation 2] in July 2009 but he hurt himself and in order to get over the pain he began to practise Falun Gong again.  His [child] saw him and asked to practise with him and they often practised together at home as a result for an hour.  They thought they were being careful but his [child]’s teacher found his [child]’s Falun Gong note during a home visit, took it and told her [child] to stop going to school the next semester.

13. The next day the teacher asked him to lend 5000 RMB and if he refused they would tell the police.  Two weeks alter the teacher asked him for another 10,000 RMB which he gave her.  He knew the police would find out about their Falun Gong sooner or later so they applied for visas and left China as soon as they could. 

    AAT Hearing

14. The applicant claimed that if he returned to China the police would arrest him because he practised Falun Gong.  He had no other claims.  He had a lower back injury in 1996 and went to see a doctor.  He recovered slowly and later that year the doctor gave him a book on Falun Gong and said if he followed this it would improve his health.  He practised for around two years and in 1999 China cracked down on Falun Gong.

15. The police arrested him and detained him for a year.  The police had the records of this but he didn’t – he was never charged.  When he was released he had a shadow in his mind and so didn’t practise for a while.  He re-started in 2001 and found it very beneficial for him.  Asked if he practised in Australia he said that he hadn’t because he had been arrested again in China in 2001 for practising Falun Gong and detained for a month and beaten.  He had not been detained since then.

16. There was still a shadow in his mind which was why he didn’t practise it.  It was put to him that he had claimed that it was very beneficial for him so it was strange he didn’t practise it here.  He claimed he was still traumatised from the beating he received in 2001.  He secretly practised in China after 2001.  He was asked how it was that he didn’t practise in Australia because of this ‘shadow’ yet he was able to practice in China after the 2001 beating even though he also had the ‘shadow’. He claimed that he had this psychological shadow in Australia and was asked if he had any medical or psychological evidence to support this claim.  He did not.

17. He left China in 2013 because the police came in August and inquired whether he was still practising Falun Gong.  Asked why they came in 2013 if he hadn’t done anything since 2001, he claimed they hinted that they wanted a bribe.  He pretended not to understand and the police said they noticed he had been practising Falun Gong and threatened to arrest him, which is why he was fearful.

18. He and his [child] then came to Australia.  He brought his [child] to Australia to escape this situation.  Asked if he applied for protection straight away after they arrived here, he claimed that his [child] held a student visa.  It was put to him that this didn’t stop him from applying for protection.  He then said that he didn’t apply straight away and said it was in 2018 but it was put to him that he applied in 2016.

19. Asked if there was anyone in Australia who could support a claim that he was Falun Gong.  Asked what he knew about Falun Gong, he said it could teach one to stay healthy.  Asked if there were different types of Falun Gong he said there wasn’t.  Asked if he knew the names of any Falun Gong publications he said it had been many years and he couldn’t remember.

20. He had no problems in getting a passport issued to leave China.  Asked what work he did in China, he claimed that he was [an Occupation 1] and had been for more than 10 years, from 1996 when he was an adult.  He had not been employed elsewhere.  It was put to him that the period since 1996 was more than 10 years and he said that he did other work; he drove [a] vehicle from 2008.

21. He was advised about s 424AA and it was put to him that in his visa application for Australia he had submitted a letter from [an employer] that claimed he had been working for them since July 2000 as [an Occupation 3].  Yet he had said he had been [an Occupation 1] since 1996 then drove a [vehicle] – this was inconsistent and there were concerns that he had provided a false document to the Australian authorities to obtain a visa which could go to the issue of his credibility.

22. He claimed that he entered the company in 2009 until he lodged the application to come to Australia.  Asked why it said that he worked from 2000 he claimed it should have said 2009.  It was put to him that he made no mention of being bribed by police officers – only that his [child]’s teacher asked for money. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The applicant arrived in Australia on a student guardian visa [in] March 2014, and applied for protection on 26 July 2016.  I have sighted a copy of his passport and accept that China is the applicant’s country of nationality. 

24. The applicant is a [age] year old married male.  He claimed that he feared being arrested because he was a Falun Gong practitioner.    

25. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

26. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his entire claim in order to be granted a protection visa.

    Falun Gong

27. I do not accept that the applicant is, or ever has been a Falun Gong practitioner or that he has been detained beaten or blackmailed by Chinese authorities or his son’s teacher because of it.  He could give no information about Falun Gong practices other than to say that it kept one healthy.  Nor could he recall the name of any books although there are some main texts or reference books[1] which it is reasonable to believe he would be familiar with if he had any connection to the practise. 

    [1] accessed 23 September 2019

28. I do not accept that he was unable to recall such information because it had been many years.  The information that the Tribunal sought to elicit was of the most basic kind for someone who claimed to have been a Falun Gong practitioner and it is reasonable to believe that he could have recalled some of this information if he actually had any connection with the practice, particularly given he could recall other incidents such as his dealings with the police from the same time period.

29. The ease with which he was able to get a passport is also inconsistent with country information that indicates that real practitioners who are known to authorities find it difficult to obtain a passport.[2]  Given he claimed to have been detained once for a year and another time for one or four months (he was inconsistent in his description of his time in detention) and beaten for his involvement, he would have been known to the authorities and so it appears to lack credibility that he would have been issued with a passport. 

    [2] DFAT Country Report – China, dated 21 December 2017 p 20.

30. He also has not practised since arriving in Australia five years ago which is not consistent with someone who is a true Falun Gong practitioner.  I do not believe that he failed to do so because of the trauma he experienced from a beating he received in 2001.  He did not provide any medical or psychological evidence that he suffered from trauma, and I do not accept that he would continue to practise Falun Gong in China in secret after receiving his alleged beating in 2001, yet not practise it in Australia because of trauma he suffered from the alleged beating.

31. I also note that he delayed applying for protection for over two years after arriving in Australia, which is not indicative of someone fearing serious harm back in China.  I do not accept that he delayed because his son was on a student visa given this was no impediment to his applying for protection.  I also note that the document he gave the Australian embassy as part of his visa application regarding his employment included a start date of his employment that was incorrect by nine years.  He gave no explanation as to why there was such a difference, but it would obviously be to the applicant’s advantage in gaining a visa to be considered to have worked at a location for nine years longer than they actually had.

32. Because he has never been a Falun Gong practitioner it follows that he is of no interest to the Chinese authorities because of any real or perceived connection to it.  Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any 5J(1) reason either now or in the reasonably foreseeable future.

    Complementary Protection

33. Because I do not accept that the applicant was, is or would ever be perceived to be a Falun Gong practitioner, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

34. Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

35. 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).

36. 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).

37. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

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

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

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

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …