1718021 (Refugee)

1718021 (Refugee) [2022] AATA 2216 (3 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Esther Yu (MARN: 9802211)
CASE NUMBER:  1718021
COUNTRY OF REFERENCE:                   China
MEMBER:Rachel Da Costa
DATE:3 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 03 May 2022 at 10:28am
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong practitioner – physical assault – detention – producing Falun Gong promotional materials – Falun Gong activities in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, 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 2 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 27 June 2016. The delegate refused to grant the visas on the basis that the applicant are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
The first applicant (the ‘applicant’), [name], is [an age] year-old man from China. The second applicant, [name], is the applicant’s wife. The third applicant, [name], is their son. According to their protection visa applications, the second and third applicants are included as members of the applicant’s family unit and have no claims of their own.
In his application for a protection visa, the applicant provided the following information. He was born in China in [year] in Zhaodong city, Heilongjiang province. He speaks, reads and writes Mandarin. In China, he has his father and [sibling]. His mother is deceased. From [year] to September 2001, he lived in Zhaodong city, Heilongjiang province. From October 2001 to the time he came to Australia, he lived in Shandong Yantai Economic & Technological Development Zone. He completed High School in [year]. From [year] to September 2004, he worked as [an occupation 1] in Heilongjiang. From September 2002 to May 2005, he worked as [an occupation 1] in Yantai. From July 2007 to May 2016, he managed a business he owned with his wife in Yantai.
In December 2014, he travelled to [Country 1] to build a travel history to be able to apply for a visa to [Country 2]. In August 2015, he travelled to [specified countries] and [Country 3] for the same reason. He visited Australia in November 2015. On 1 January 2015, he was refused a visa to [Country 2]. In February 2016, he travelled to [Country 3] to escape persecution. He last arrived in Australia [in] May 2016, as the holder of a Visitor visa and travelling on his People’s Republic of China passport issued [in] 2014.
Evidence before the Department
Protection visa application
The applicant’s claims for protection are contained in a statutory declaration attached to his protection visa application form, sworn on 16 June 2016. In that statutory declaration the applicant makes the following claims:
·     He started to practice Falun Gong in 1998. His parents also started practising Falun Gong in 1998.
·     Before Falun Gong was persecuted in China, the applicant’s family home was a practice place.
·     [In] April 1999, the applicant and his parents travelled to Beijing to petition the government. They were stopped by the police and taken back to Zhaodong. They were detained for [number] days and during that time were forced to write letters denouncing their beliefs. They were physically and mentally harmed.
·     [In] July 1999, the applicant and his parents petitioned at Heilongjiang Provincial Government and were arrested and detained for [number] days.
·     In February 2000, the house of the applicant’s family was under surveillance and they required police permission to leave. This was to stop them from petitioning in Beijing. This caused harm and psychological stress to his family members.
·     [In] September 2000, the applicant’s parents were detained for [number] days for attempting to petition in Beijing.
·     In January 2001, the Zhaodong 6.10 office announced that the applicant’s father was dismissed from his employment because of his practice of Falun Gong. This put the family under economic pressure.
·     [In] November 2002, the applicant’s parents were arrested when purchasing broadcasting equipment to promote Falun Dafa at [a named] market. His mother was released the next day and placed under house detention. His father was detained and had to work long days as a labourer and to write confession materials.
·     In 2008, the applicant was in charge of looking after the computer systems and network used by Falun Gong followers in his area. His father was in charge of maintaining the printers. The applicant and his father were involved in making CDs and printing truth-telling materials which they and other people dispatched around the area. Sometimes they came close to being caught.
·     In 2014, the applicant decided that he needed a way to escape China if he got into trouble. He wanted a visa for [Country 2]. A travel agent advised him to start building a travel record in his passport and so he started travelling overseas.
·     [In] May 2015, the applicant’s father wrote a criminal indictment to [prosecute Leader A]. The applicant did the same [in] July 2015.
·     [In] December 2015, panels with ‘[prosecute Leader A]’ appeared in many places around Yantai city. The applicant and his father printed these panels for Falun Gong groups to hang at night so people could see them in the daytime. Photos were taken of these panels and uploaded to [website 1] from the applicant’s home.
·     [In] January 2016, the police arrested the applicant’s father at their home. The police came looking for the applicant at his shop but he was not there. The police raided their home and took the computers, other hardware and printed materials relating to Falun gong.
·     The police took the applicant’s wife and son to the police station for questioning. They were later released. The applicant’s father was detained.
·     The applicant went into hiding because the police were monitoring his home. He travelled to [Country 3] but could not stay there so he returned to China and hid at his uncle’s home in [another city].
·     He arranged for him and his wife and son to travel to Australia for their freedom.
Additional documents provided with his protection visa application
The applicant provided the following additional documents in Chinese with an English translation in support of his application:
·     Statements of support from Falun Gong practitioners in Australia, [named].
·     A copy of the criminal complaints submitted by the applicant and his father requesting that [Leader A] be prosecuted for his persecution of Falun Gong practitioners in China.
·     A medical report relating to the applicant’s father, dated 24 October 2000.
·     Various documents from the Zhaodong city PSB relating to the applicant’s father, including his detention in September 2000 and November 2002, his expulsion from the Chinese Communist Party and his dismissal from employment.
·     Documents from the Zhaodong city PSB relating to the applicant’s mother and her detention in November 2002 and release into house detention.
·     Undated photographs of the applicant participating in Falun Gong activities in Australia, including holding flags and banners and performing exercises.
Additional documents provided prior to and at the interview
Prior to and at the interview with the delegate, the applicant provided a range of additional documents as follows:
·     Printouts of untranslated Chinese articles from [website 1] and [Organisation 1 in] Australia which appear to be about rallies and protests in support of Falun Gong in Sydney.
·     Printouts of articles in English from the [website 1] website in 2016, 2017 referring to rallies and protests by Falun Gong practitioners in Australia about the treatment of Falun Gong practitioners in China.
·     Printout of internet search results on the [website 1] website referring to the arrest and sentencing of [the applicant’s father].
·     Undated photographs of the applicant and others participating in Falun Gong rallies and protests and commemorations in Australia, such as the ‘18^th anniversary of the 25 April Peaceful Appeal’ and rallies with signs protesting against forced organ harvesting in China. The applicant can be seen in some of these photos holding banners. Some of the photographs are clearly taken in the Sydney CBD and some in Canberra near old and new Parliament House. In others it is not possible to identify the location.
The interview
On 6 July 2017, the applicant attended an interview with a delegate of the Department to discuss his protection visa application. In the interview the applicant responded to the delegate’s questions and provided additional information about his claims.
The delegate’s decision
On 2 August 2017, the delegate refused the applicant’s application for a protection visa. The delegate did not accept that the applicant was a genuine Falun Gong practitioner or that he suffered harm in China. The delegate did not consider that the applicant’s knowledge of Falun Gong was consistent with a person who claimed to have practised for many years and found that he was not a genuine Falun Gong practitioner. The delegate did not accept that the applicant sent a letter to [Court 1] in China complaining about the treatment of Falun Gong practitioners. The applicant stated that the reason he returned to China after his first visit to Australia is that the persecution at that time was not severe and he was trying to build a travel history to get a visa for [Country 2]. The delegate found that the applicant’s travel history did not support his claims to fear persecution.
The delegate considered the material provided by the applicant about his involvement in Falun Gong activities in Australia. The delegate did not accept that the applicant had developed a genuine interest in Falun Gong since arriving in Australia and was not satisfied that he had engaged in the activities depicted in the material for any reason other than creating claims and evidence for his protection visa application. The delegate was not satisfied that the applicant would be identified by the authorities in China on the basis of the photographs he provided. The delegate was not satisfied in relation to the applicant’s claims about his father and his father’s identity and claimed persecution and imprisonment. The delegate was not satisfied that the applicant, and therefore also his wife and son, is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 15 August 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
Additional statement provided by the applicant
On 24 November 2017, the applicant provided an undated further statement to the Tribunal in which he provides further detail about his claims and makes some new claims as follows:
·     After Falun Gong was made illegal in 1999, the applicant and his family lived in fear of being arrested and tortured. This caused them all great stress.
·     The applicant’s wife wanted to practice Falun Gong but she was afraid that if she got arrested nobody could take care of their son.
·     The applicant and his family had to move to a different house in a different district of Zhaodong city because the police wanted to reduce the number of Falun Gong practitioners in their area.
·     In March 2000, the applicant was detained and sent to an illegal jail and had to do a brainwashing class. He was assaulted during his detention.
·     [In] September 2000, the applicant and his parents were detained for [number] days for attempting to petition in Beijing. They were mistreated during their detention.
·     In 2001, because of the ongoing monitoring and harassment from police in Zhaodong, the family decided to secretly move away. [In] September 2001 they moved to Yantai.
·     In 2006, the applicant and a friend were almost caught by the police when they were installing electronic equipment at someone’s house.
·     After this incident, the applicant and his father established a station in their house to download and print materials from the [website 1] website and distribute materials to other practitioners for them to pass on. The applicant and his friends were nearly caught distributing materials a few times.
·     After his father’s arrest [in] January 2016, the applicant was able to flee to [Country 3] because his uncle had a friend who was able to check whether there was an arrest order against the applicant on the national public security website. He found there was not.
·     In [Country 3], he met some Falun Gong practitioners and they told him it was not safe to stay there because some Falun Gong students had been imprisoned and sent back to China. They gave him the contact details of a practitioner in Australia who could help him if he managed to make it there.
·     The applicant asked his wife to arrange their visas for Australia while he was in hiding at his uncle’s place.
Documents provided by the applicant to the Tribunal
Between the time of the applicant’s application for review and prior to the directions hearing, the applicant provided a large number of additional documents to the Tribunal in support of his claims:
·     Statutory declarations and statements of support in Chinese with English translations from Falun Gong practitioners in Sydney, [several named].
·     Undated photographs of the applicant and his wife and son participating in Falun Gong activities in Australia, including at the 2018 Australia Falun Dafa Experience Sharing Conference. In some photos, the applicant can be seen holding banners with slogans protesting against forced organ harvesting and the Chinese Communist Party. Some photos are identifiably taken in Sydney and others in Canberra. In others, the location is not identifiable.
·     Chinese notarial certificate and English translation attesting to the fact that [name] is the applicant’s father.
·     Letter dated 5 April 2018 from [Official A from] Falun Dafa Association of Australia Inc in support of the applicant’s protection visa application.
·     Letter dated 29 July 2019 from [Official B], [from] Falun Dafa Association of Australia Inc, in support of the applicant’s protection visa application and including a critique of aspects of the delegate’s decision.
·     Chinese documents and English translations dated in 2017 and 2018 relating to the arrest, detention, sentencing, imprisonment, fining and release from prison of the applicant’s father, [named], including the indictment and criminal verdict and reasons of [Court 2].
·     Printouts of articles in English, and what appears to be the Chinese version, from the [website 1] website in 2018 referring to rallies and protests by Falun Gong practitioners in Australia about the treatment of Falun Gong practitioners in China. The applicant is referred to by name in one of these articles and his photograph appears.
·     Documents that appear to be the English translation or version of articles from [website 1] providing a report about the arrest of the applicant’s father, [named] and the attempted arrest of the applicant in January 2016, explaining what happened, the type of persecution and who is responsible. These articles are part of a ‘[named]’ database.
·     Article from [website 1] dated [in] August 2017 about events in Yantai in 2016 which mention the arrest and imprisonment of the applicant’s father.
·     Letter from the China Tribunal (Independent Tribunal into Forced Organ Harvesting from Prisoners of Conscience in China) to the applicant’s father, [named], inviting him to attend [an event] in December 2018 as a witness, and an accompanying CD.
·     Copies of the original postal slips and English translation that accompanied the [complaint] against [Leader A] sent by the applicant and his father to [Court 1].
The directions hearing
On 28 May 2021, the Tribunal held a directions hearing with the applicant and his representative. The purpose of the directions hearing was to discuss the very large number of documents and other evidence the applicant had provided to the Department and Tribunal in support of his claims, and to ensure that the documents in the possession of the applicant and his representative, and the Tribunal, were the same and the Tribunal understood their relevance to the applicant’s claims.
At the directions hearing, the applicant provided additional documents relating to his father:
· Decision of the [refugee determination authority] of [Country 4] accepting that the applicant’s father is a refugee on the basis of his practice of Falun Gong.
· Documents relating to the applicant’s (unsuccessful) application for a [visa] in order to visit his terminally ill father in [Country 4].
Following the directions hearing, on 8 June 2021 the applicant’s representative wrote to the Tribunal summarising and reiterating the applicant’s claims for protection, referring to the documents he had provided in support of his application and referring to country information about the treatment of Falun Gong practitioners in China.
The substantive hearings
On 7 April 2022 and 26 April 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The delay in holding the substantive hearing in this matter, after the directions hearing took place, was due to various restrictions related to the Covid-19 pandemic and the need to have an in-person hearing in this matter.
In addition to the applicant, the Tribunal received oral evidence from the applicant’s wife (the second applicant), who gave evidence about the applicant’s Falun Gong practice in China and Australia, the harm he experienced in China, his travel history and why they sought protection in Australia.
The Tribunal also received oral evidence from the following witnesses (the ‘Falun Gong witnesses’):
·     [Witness A], a Falun Gong practitioner in Australia and the [role within the organisation], who gave evidence about the applicant’s Falun Gong practice in Australia. [Witness A] is an Australian citizen who has lived here since 1991 and began practising Falun Gong in 1997.
·     [Witness B], a Falun Gong practitioner in Australia, who gave evidence about the applicant’s Falun Gong practice in Australia, including the types of activities they are involved in together. [Witness B] is an Australian citizen who has lived here since 2012. She was a Falun Gong practitioner in China.
·     [Witness C], a Falun Gong practitioner in Australia, who is the applicant’s mentor in the Falun Gong group he belongs to, gave evidence about the applicant’s Falun Gong practice in Australia, including the types of activities he attends. [Witness C] is an Australian citizen who was also a Falun Gong practitioner in China.
·     [Official B], a Falun Gong practitioner in Australia who is [an official] of the Falun Dafa Association of Australia Inc, gave evidence about his role, the practice of Falun Gong in Australia and his knowledge of the applicant’s Falun Gong practice in Australia. [Official B] is an Australian citizen with a connection to the Falun Dafa Association that dates back over 20 years.

The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages, with the exception of the oral evidence from [Official B]. The applicants were represented in relation to the review and their representative attended the hearings. The Tribunal is grateful for the assistance provided by the representative in this matter.
The applicant’s wife and son confirmed in the Tribunal hearing that they have no claims of their own. The Tribunal accepts this.
Documents provided at the hearing
At the hearing on 26 April 2022, the applicant provided USB stick with three videos of news reports in Chinese (untranslated) on New Tang Dynasty television[1] showing Falun Gong practitioners in Sydney participating in recent commemorative events. The applicant is interviewed in one of the videos. The applicant also provided an article dated [in] April 2022 from the New Tang Dynasty Television website referring to celebrations in Sydney of the ‘23^rd anniversary of the ‘April 25’ peaceful petition’ which contains [reference deleted].
[1] According to Wikipedia, New Tang Dynasty Television is a multilingual American television broadcaster founded by followers of Falun Gong: (accessed 2 May 2022)
Nationality and identity
The applicants claim to be citizens of China and provided to the Department a copy of their Chinese passports. The delegate was satisfied that the applicants were using their own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of China. The Tribunal finds China is the applicant’s receiving country for the purpose of assessing his claims for protection.
The delegate was satisfied that the second and third applicants are members of the family unit of the applicant. Based on the delegate’s finding, and the evidence presented to the Tribunal by the applicant, the Tribunal is satisfied that the second applicant is the applicant’s wife and the third applicant is their son.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Analysis, reasons and findings
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant gave evidence that he completed his protection visa application form with the assistance of his lawyer. He wrote his statutory declaration and further statement himself with the assistance of his lawyer and they were translated for him into English. He told the Tribunal that all the information these documents contain is true and correct.
During the hearings, the Tribunal discussed with the applicant his family, employment, where he lived in China, his migration history, his knowledge of Falun Gong, his practice of Falun Gong in China and Australia, the problems he experienced in China and why he fears returning there. Overall, the Tribunal found the applicant to be a credible witness. While some of his oral evidence about certain matters, such as about the spiritual or philosophical side of Falun Gong and why he finds it beneficial, was not as detailed as the Tribunal might expect from a person who claims to have been practising and studying Falun Gong for many years, other aspects of the applicant’s evidence about activities he was involved with in China and Australia, and claimed events that took place were clear and detailed and delivered in a way that indicated to the Tribunal he was speaking truthfully from personal experience. His oral evidence about claimed events was consistent with his written submissions and was supported, where applicable, by the evidence from his wife (the second applicant), the other witnesses and documents he provided to the Tribunal. The Tribunal put concerns to the applicant about aspects of his evidence and was satisfied with his responses. While there are some minor inconsistencies between some of the applicant’s written submissions, the Tribunal is prepared to give him the benefit of the doubt in relation to these matters.
The Tribunal notes that the applicant clearly found giving oral evidence to the Tribunal to be a stressful and, at times, upsetting experience. A number of times during the hearings the applicant said that he felt nervous and that when he felt nervous he had great difficulty expressing himself. At times he appeared visibly stressed and several times during the hearing he broke down and had great difficulty composing himself. The Tribunal had to adjourn several times as a result. This also occurred during the directions hearing when the applicant was talking about the situation with his father. The Tribunal considers these expressions of emotion to have been genuine and accepts that this accounts in part for the brevity of some of the applicant’s responses on certain matters. This did not adversely affect the Tribunal’s overall assessment of the applicant’s credibility.
The Tribunal also found the applicant’s wife and the Falun Gong witnesses to be credible witnesses and their evidence supported the applicant’s claims.
The applicant’s claims of harm in China
Based on the applicant’s written and oral evidence to the Tribunal, which (where relevant) was supported by the evidence given by his wife, the Tribunal is prepared to accept the applicant’s claims about his practice of Falun Gong in China, the protests and activities he was involved in, the danger he faced and the harm he suffered from the authorities, as set out in his claims in paragraphs 6 and 13 above. In the hearing, the Tribunal questioned the applicant about a number of areas where it had some concerns about his claims and evidence, including the circumstances of his departure from China, and it is satisfied with his responses.
The Tribunal accepts that the applicant was a Falun Gong practitioner in China, that he was known to the authorities and that he suffered harm from the authorities as a result of his Falun Gong activities in China. The Tribunal accepts that he fled China due to his fear of persecution by the Chinese authorities as a result of being a Falun Gong practitioner. The Tribunal accepts that [name] was the applicant’s father and that he is now deceased.
The applicant’s practise of Falun Gong in Australia
In the letter from his representative dated 8 June 2021, the applicant submits that he has actively participated in all sorts of Falun Gong activities since he arrived in Australia [in] May 2016 and that he would have attracted the attention of the Chinese authorities because of his public and active role in the Falun Gong community. He submits that he believes he will be arrested and sentenced if he returns to China.
In the Tribunal hearing, the applicant was asked about his practice of Falun Gong in Australia. The Tribunal noted that the applicant had provided a large number of photographs and news articles about his involvement in Falun Gong in Australia and about Falun Gong activities in Australia more generally. The Tribunal asked the applicant how soon after arriving in Australia he made contact with Falun Gong practitioners here. The applicant said he made contact the night he arrived. He said he had been given details for a contact in Sydney by a Falun Gong practitioner he met in [Country 3]. The Tribunal notes that this is consistent with his written statement from November 2017. The Tribunal asked him about his practise in Australia. The applicant gave evidence that every day he does his own practice, on Tuesdays he attends small group learning and on Saturdays he attends big group learning. He also sends text messages to random mobile telephone numbers in China to tell people about the persecution of Falun Gong practitioners in China. He attends all the big commemorative events for Falun Gong such as on 25 April and 13 May, as well as handing out brochures in train stations and obtaining signatures from people in support of ending the persecution of Falun Gong practitioners in China. He has protested [at a location] in Sydney, including most recently [in] April 2022, when he was involved in holding up protest banners to let the Australian government know that Falun Gong is being persecuted in China.
The Tribunal asked the applicant whether he would continue to practice Falun Gong if he returned to China. He said that he would because it is what he looks for in his life. It can make people genuinely improve and be complete and he won’t give it up. He said he would continue to tell the truth and let more people know that Falun Gong is persecuted in China.
In the Tribunal hearing, [Witness A] gave evidence that he met the applicant in May 2016 and that since that time, the applicant has been a regular participant in group learning and practice and that he attends almost all the big Falun Gong events and protests. He said the applicant continued to participate online during restrictions relating to the Covid-19 pandemic. [Witness A] gave evidence that as a long-term Falun Gong practitioner he can tell whether someone is a genuine practitioner through their participation and behaviour and he is only supporting the applicant by giving evidence because he believes the applicant is a genuine Falun Gong practitioner.
In the Tribunal hearing, [Witness B] gave evidence that she has known the applicant since 2016 and they promote and practice Falun Gong together in the same learning group. They meet twice a week for study and on weekends they distribute newspapers and flyers and hold banners and talk to people. She has participated in Falun Gong activities with the applicant in Canberra. She gave evidence that as a long-term practitioner she can tell whether someone is a genuine Falun Gong practitioner. She thinks the applicant is genuine.
In the Tribunal hearing, [Witness C] gave evidence that he met the applicant and his family very soon after they arrived in Australia and he took them to a large group gathering. He said the applicant has been a regular participant in Falun Gong activities since that time, including weekly learning, participating in protests and gatherings to mark important days and other activities. He said that as a long-term practitioner and someone who has spent a lot of time with the applicant, he can tell if a person is a genuine Falun Gong practitioner or whether they are just trying to use it as a way to get residence in Australia. He believes the applicant is genuine.
In the Tribunal hearing, [Official B] gave evidence that he has been aware of the applicant’s participation in Falun Gong activities going back four or five years and that the applicant has attended learning meetings and other functions and events, such as rallies and anniversaries commemorating significant Falun Gong events in China. [Official B] gave evidence that he only provides evidence or letters of support for Falun Gong practitioners who are applying for protection in circumstances where he is satisfied about their genuineness and where they are backed up by other experienced practitioners who know them well. He said he is often sceptical of people’s claims but in the applicant’s case, he has met him and talked to him and is happy to support him. He also gave evidence that at Falun Gong events, there are often Chinese people taking photos of the practitioners and the applicant often volunteers to hold banners and the like because his English is not good.
The Tribunal accepts the evidence of the Falun Gong witnesses about the applicant’s practise of Falun Gong in Australia.
Having considered all the claims and evidence provided by the applicant and his witnesses, the Tribunal finds that he is a genuine Falun Gong practitioner in Australia. The Tribunal accepts that the applicant has been practising Falun Gong in Australia since he arrived in 2016 and that he has been regularly and consistently involved in a range of Falun Gong activities both privately and publicly in Sydney and other parts of Australia, including Canberra, since his arrival. The Tribunal accepts that over the years, the applicant has been involved in various public activities, including attending protests and rallies in Sydney and Canberra where he has held banners with slogans critical of the Chinese government and its treatment of Falun Gong practitioners, and that the applicant’s name and photograph have appeared in online articles and news reports by Falun Gong-related media organisations showing him participating in Falun Gong activities in Australia as recently as April 2022. The Tribunal also accepts that he would continue to practice Falun Gong if he returned to China in the reasonably foreseeable future.
Documents submitted by the applicant in support of his claims
The Tribunal has considered the very large volume of documents submitted by the applicant in support of his claims referred to above and accepts that they are genuine.
Do the applicants meet the refugee criterion?
In the letter from his representative dated 8 June 2021, the applicant submits that because he has actively participated in all sorts of Falun Gong activities since he arrived in Australia, he would have attracted the attention of the Chinese authorities and he believes he will be arrested and sentenced if he returns to China. In the Tribunal hearing, the applicant stated that he fears returning to China because of his Falun Gong activities in Australia and China and that his information has been passed to China already.
Country information indicates that Falun Gong has been illegal in China since 1999 and the Chinese government actively searches for and prosecutes practitioners, who can be imprisoned for up to seven years. Falun Gong practitioners in diaspora communities may be involved in anti-Chinese government activism and the government regards Falun Gong practitioners as political opponents rather than victims and treats them accordingly.[2] The Department of Foreign Affairs and Trade (DFAT) assesses that Falun Gong practitioners in China, if exposed, are at high risk of official discrimination and moderate risk of societal discrimination.[3]
[2] DFAT Country Information Report China, 22 December 2021, 3.66
[3] DFAT Country Information Report China, 22 December 2021, 3.66, 3.69, 3.70
There are credible reports of human rights abuses of Falun Gong practitioners in detention in China by the authorities, including claims of torture, psychiatric experimentation and organ harvesting,[4] although DFAT notes it is unable to verify these claims.[5] There are reports that after release from detention practitioners are likely to be subject to monitoring, they may be unable to find jobs and there are reports of harassment by the authorities.[6]
[4] CHN200328.E China: Treatment of Falun Gong practitioners by society and state authorities, including treatment and monitoring outside of China and treatment upon return, Immigration and Refugee Board of Canada (14 October 2020) (accessed 29 April 2022) (‘IRB Report CHN200328.E’); (accessed 29 April 2022); (accessed 29 April 2022); United States Department of State 2020 Report on International Religious Freedom: China (accessed 29 April 2022)
[5] DFAT Country Information Report China, 22 December 2021, 3.70
[6] DFAT Country Information Report China, 22 December 2021, 3.69; United States Department of State 2020 Report on International Religious Freedom: China (accessed 29 April 2022)
Country information indicates that Chinese authorities are likely to be aware of the behaviour of Chinese asylum seekers while they are outside China and that monitoring of dissident groups, including Falun Gong practitioners, is a key role and policy objective of Chinese consular staff around the world.[7] Country information suggests that a Chinese citizen who is a known Falun Gong practitioner and returned to China may be subject to arrest, detention and, in some cases, forced disappearance.[8]
[7] DFAT Country Information Report China, 22 December 2021, 5.28; IRB Report CHN200328.E
[8] IRB Report CHN200328.E
As set out in paragraph 47 above, the Tribunal accepts that the applicant is a genuine Falun Gong practitioner and that since arriving in Australia in 2016 he has been consistently and publicly involved in many activities promoting Falun Gong, including protesting in Sydney and Canberra against the Chinese government’s treatment of Falun Gong practitioners and he has appeared and been named in media reports connected with Falun Gong. Country information suggests that due to his public activities in Australia as a Falun Gong practitioner, Chinese authorities are likely to be aware of his behaviour.

Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of his religion and there is a real chance that he would be persecuted for reason of his religion if he returned to China in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of China.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his religion, it 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 the applicant and a threat to his liberty.
Given it is the Chinese State that is the agent of persecution in this case, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Chinese State and that the Chinese State is not willing and able to offer such protection. On this basis, 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 because 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 the applicant 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, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s wife and son are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Rachel Da Costa
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.
…

[2022] AATA 2216

3 May 2022

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