1718914 (Refugee)

1718914 (Refugee) [2021] AATA 3239 (7 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1718914

COUNTRY OF REFERENCE: China
MEMBER:Genevieve Hamilton
DATE:7 July 2021
PLACE OF DECISION: Melbourne
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 07 July 2021 at 12:28pm
CATCHWORDS
REFUGEE – protection visa – China – religion – imputed political opinion – Falun Gong – arrests of family member – torture – distributing Falun Gong material – court documents – Falun Gong practice in Australia – ongoing police monitoring – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 91S
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant was granted a student visa on 30 January 2014 in effect to 31 December 2015. She arrived in Australia [in] February 2014. The applicant applied for a protection visa on 3 June 2014 and the delegate refused to grant the visa on 1 August 2017.
The applicant appeared before the Tribunal on 7 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from witnesses proposed by the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
CLAIMS AND EVIDENCE
The protection visa application
In her protection visa application the applicant said she was born on [date] in Zhengzhou, Henan Province, China. She speaks, reads and writes Chinese, her religion is Falun Dafa, she is single, and is a Chinese citizen. She came to Australia as a student, arriving [in] February 2014. She travels on a Chinese passport issued [in] 2009. The applicant said her address in China up to January 2014 was “Zhengzhou City, Henan province’. She had [number] years of education culminating in a [qualification] from [a named university].
[Between specified years] she had clerical and cashier jobs. Otherwise she was unemployed. She had no difficulty obtaining a passport. She is in contact with her relatives in China (she has a mother and father no siblings). She has never been convicted of a crime nor is she the subject of any criminal investigation or charges.
The applicant said she had no assistance in completing the application form, nor was an interpreter used. The family composition form did not require her to complete her parents’ addresses. She described her mother as a family member and her father as a close relative. She said she would be providing a copy of an arrest warrant and letters.
In a statement (type written in English) in support of her application the applicant said her father was [an occupation] [at a named employer]. Her mother was [another occupation]. They used to live in the [employee residence]. On [a day in] September 1998 her mother started practising Falun Gong, then the whole family often practised and studied together. [Specified relatives] also practised Falun Gong. The applicant describes the benefits and popularity of Falun Gong at that time. Then in July 1999 she heard on the TV that it had been banned. This was the start of more than a decade of persecution to her family and others involved with Falun Gong. Her family was broken apart and her life was in crisis. Without her unshakable belief in Falun Gong she would not have endured.
In September 2000 her mother and aunty went to Beijing to protest against the vilification of Falun Gong. The applicant wanted to go too but her mother refused. Mother and aunty were stopped by police at the bus station on the way to Beijing. The police were asking travellers to criticise Falun Gong and Master Li, but Mother and aunt refused to do so, became argumentative and were arrested. Next morning a group of police brought her mother back and took away all her mother’s Falun Gong books and tapes. The applicant’s father was telling her mother off and the police were loudly questioning her. The applicant was very scared.
Mother and aunty were then detained, mother for 30 days. They were pressured by the police, employers and even their own family members to renounce the practice of Falun Gong. The applicant was traumatised, she kept asking where her mother was. Her father became watchful of her mother. The applicant became depressed and did not do well in her [exams]. But she and her mother did not waiver from their faith in Falun Gong. They distributed brochures and DVDs about the truth of Falun Gong and its persecution. The applicant also distributed materials to residential areas on her way to and from school.
The military asked her mother to move out of the [residence]. The applicant did not realise this was the start of her parents’ separation.
In 2002 the applicant’s mother was arrested on her way to work and detained at [a named] Detention Centre for [number] days from [between specified dates]. The applicant was left alone. She was scared and missed her mother, and her academic performance again declined. Her mother was dismissed from her employment and she and the applicant struggled financially, only surviving with the help of relatives. Eventually her mother got a retirement pension from [year].
Usually her mother did not answer the phone because it was bugged. But [one day in] November 2003 the applicant was late for school and the teacher called the home phone. Her mother answered the phone. The police found out she was there. When the applicant went home for a midday break there were people knocking at the door and yelling out to her mother to open it, and threatening to break in. The applicant ran to the school next door to hide her house key into her shoe. Then she returned. The door had been broken open, the police were gone and so was her mother. The applicant was very sad. She wrote a letter to the police complaining that her mother had never hurt anyone but was being taken away again and again.
Then the applicant noticed a rope tied to the security bar on a window, the other end was in the school yard three storeys down. She hoped her mother had escaped. A few days later her mother called her to say that she had indeed used the rope to escape, but injured herself in the fall. She took a taxi to grandma’s house, but grandma was afraid to shelter her so she went to a fellow Falun Gong practitioner’s house. A week later she could walk. After this the applicant and her mother could not back to the apartment, so they moved in with grandma.
In June 2004 her parents divorced, at the initiation of her father, [details deleted].
In September 2008 there was a big crackdown on Falun Gong because of the Olympics. On [a day in] September someone persistently knocked on the door for a whole day. [The next day] the police came back and knocked again, but then they broke in and found the applicant and her mother at home. The police yelled out her mother’s name. With great strength the applicant moved all the furniture to block the door to their room. She started crying and asked them why they were taking her mother away again. The police broke in by force, more than 10 of them. They separated the applicant and her mother into separate rooms under watch. They searched the house and took away the applicant’s computer and printer. The applicant and her mother were taken to [a named] Police Station, [in a named] district. They were locked into two separate rooms on different floors and watched all night. The applicant was unable to sleep. Next day people from the National Security Bureau came to see her; they showed her the letter she had written to the police, and an earlier written reflection on practising Falun Gong. She was told she would remain in detention but due to her youth and her studies they decided to let her go, but told her not to tell anyone about the detention of her mother. She had a record and they would arrest her next time if she did not behave. The applicant was followed on the way home. She wondered if she should escape by jumping from the building like her mother did. A week later she saw her mother at the detention centre. Her mother was injured, she had been interrogated and assaulted. Later she was tried. She was not allowed to have a lawyer. She was sentenced to [a term] in prison at [Prison 1] in [a named] City ([between specified dates]).
The applicant lived alone, she changed the broken door and slept with a knife under her pillow. But she still continued practising Falun Gong. She bought a printer and printed brochures about the truth of Falun Gong and distributed them at night. She and her mother wrote letters to each other during the [period] her mother was in prison.
The applicant said if she had been identified as a Falun Gong practitioner she would not have been able to get a passport. She had been lucky to escape China but if she had to return she would have to choose between giving up her belief in Falun Gong and losing her freedom. Her mother was released [number] years ago but still was not able to get one. She is still under a reporting obligation to the local police.
A household registration certificate issued in the name of her mother [in] 2009 states that her address was [Address 1]. Her marital status is “married”. On a different page it says that she moved to [Address 2], [in] May 2008, and this address was registered [later in] September 2011. The same address is given for the applicant as an included member of the household. The applicant was registered at the address [earlier in] 2009. At the hearing the applicant clarified that the hukou is erroneous because they actually moved from [Address 2] (father’s address) to [Address 1].
There is a document purporting to be according to its certified translation a list of Falun Gong related items confiscated from the applicant’s father (not mother) [in] May 2002, by [the local] National Security Bureau. The address from which the items were confiscated is not specified.
There is also a document purporting, according to its translation, to be a Bailout Approval Form in relation to the applicant’s mother, it states that her period of detention was [between dates in] May [and June] 2002 but it is dated [in July], states that she was detained for disturbing the order of social administration, that her detention is overdue and in accordance from 610 office she can be handed back to her work unit for further education. (The applicant later explained that the length of detention was falsified because it was not lawful to hold her mother for so long).
There is a document purporting to be a legal representation agreement between the applicant’s mother’s sister and a law firm in the applicant’s mother’s case of Sabotaging Law Enforcement by using Heretical Religion, at the cost of [amount]RMB, with a certified translation. There is another law firm agreement with the same date ([in] November 2008) with a cost of [amount]RMB with slightly different wording. The law firm seal is on the documents but no signature of the firm’s partners.
A document purporting, according to its translation, to be a detention notice addressed to the applicant’s mother’s family members, is dated [in] September 2008. It says that the applicant’s mother is being held at [a named] detention centre suspected of sabotaging law enforcement by using heretical religion. It purports to be under the seal of the [named] Branch of Zhengzhang PSB. There is no signature of the person in charge of the case.
A further document purports to be, according to its certified translation, an arrest notice in relation to the applicant’s mother for the crime of sabotaging law enforcement by using heretical religion, and says that she is detained at the [named] detention centre. It purports to be under the seal of the [named] Branch of Zhengzhang PSB. It is addressed to the mother’s family members. There is no signature of the person in charge of the case. It is dated [in] September 2008.
Another document purports to be according to its certified translation a Release Certificate relating to the applicant’s mother, stating that she was being released from [Prison 1] having completed a sentence of [period]. It is dated [in] September 2011. In this document the applicant’s mother’s address is given as [Address 1 variant in] Zhengzhou City.
Another document is a directive by the Shandong Provincial PSB to local branches in the Province to crackdown on organisations including the remnants of Falun Gong.
There are two translations of minghui articles referring to the applicant and her mother. In one it is stated that her mother was sentenced to [a loner term].
The applicant submitted the Statutory Declaration of [Aunt A] in support of the application. [Aunt A] recounts her own experience of leaving China after becoming a Falun Gong practitioner. She “knew” the applicant and her family in China, they are all Falun Gong practitioners. She was arrested with the applicant’s mother when they tried to go to Beijing to petition for and end to the persecution of Falun Gong (the applicant wanted to go with them but her father wouldn’t allow it). After coming to Australia, [Aunt A] kept in contact with the applicant and her parents. She was aware that the parents divorced and the applicant’s mother lost her job due to refusing to give up Falun Gong. She refers to the incident where the mother jumped from a three story building to escape the police. In September 2008 the applicant’s mother was arrested while the applicant was at college, they were both taken to the police station and the applicant’s mother was sentenced to prison and the applicant threatened. In 2010 [Aunt A] encouraged the applicant to study abroad but she didn’t want to leave while her mother was in prison.

The applicant also submitted the Statutory Declaration of [Friend A], who says she came to Australia in 2006 as a refugee who had been persecuted for practising Falun Gong. She took the applicant and her mother in when the applicant’s grandmother was reluctant to do so because of the risks of harbouring FG practitioners. They often travelled locally together to spread Falun Gong truth clarification materials, and the applicant helped create these.
The Statutory declaration of [Friend B] states that she knows that applicant from studying Fa at [a named location] and the at the declarant’s house, and the applicant has also participated in many anti-persecution activities.
The Statutory declaration of [Friend C] states that saying that she was one of the Falun gong practitioners the applicant lived with on arrival in Australia. Their photos have been taken by spies.
There is also the Statutory declaration of [Friend D], stating that the applicant was involved in many Falun Gong activities and went with her to the protest [in Canberra] in 2014; there were Chinese government spies there.
The applicant was interviewed by the Delegate on 28 July 2016. A 20 August 2016 email from the applicant comments on issues that arose during her interview. Relevantly, she addresses the reason the household registration contains the date 2009 (their previous registration document had been confiscated by the police, so the applicant applied for a new one for herself and her mother but her mother was only registered at the address after she was released from prison). Regarding the issue of her address as described in her student visa application, the applicant said it was completed by an agent and could contain errors, but she recalled completing a Family Member Form which should show her parents at different addresses. The applicant said [Friend E] is her translator and also [a leader] of the local Falun Dafa association.
The applicant wrote a letter stating that she had worked for Epoch Times in [a section], and still volunteered to deliver the paper in [a location]. In a 16 September 2016 email the applicant refers to Falun Gong activities has attended in Melbourne, reported on Minghui, and photos of herself at various protests and anniversaries.
On 5 October 2016 the applicant wrote to the Case Officer enclosing letters exchanged between herself and her mother while her mother was, as she claimed, in prison. She also wrote a longer letter with the same date, talking about her family background and her mother.
In a further email dated 24 March 2017 the applicant wrote, among other things, that it was important for her to tell the truth otherwise she will not be able to go to heaven (as conceived in Falun Gong). In further emails dated 26 March 2017 and 26 April 2017, the applicant again emphasises that she is telling the truth and reiterates her claims.
There is an uncertified translation of the document purporting to be a reissue of the applicant’s parents divorce certificate. It states that the divorce was registered [in] Jun 2004, the divorce certificate was lost and is therefore re-issued [in] Jun 2015. It is accompanied by a notarisation.
Document examination of the various official documents relating to the applicant’s mother’s dealings with the police proved inconclusive.
The Student visa application
The Delegate had access to the applicant’s student visa application which was delivered to the Tribunal with the Department’s file: in it the applicant said her address was [Address 3]. The applicant’s Bachelor Degree certificate states that she has a [specified degree] dated [date]. The applicant supplied separate bank account statements in name of her mother and father totalling over 500000 RMB. The applicant supplied a certificate of English Study in Mandarin and English, from [a named] School, stating that she had studied English from April to September 2013. The applicant submitted a handwritten employer reference stating that the applicant had been working as a cashier at [Employer 1] from March 2012 to March 2013. It is dated [in] January 2014. The applicant’s parents signed a joint declaration stating that they would fully financially support her studies. They said their residential address was [Address 3 in] Zhengzhou City.
With her student visa application the applicant submitted both her parents hukous. Her father: marital status married. [Address 2]. He moved there on 29 September 1993, and the Registration is dated [in] May 2008 (again, the applicant explained at the hearing that the record is out of sequence, her father lived at that address prior to his move). The applicant’s mother’s registration, including the applicant, is as described before.
The applicant’s study plan was to take a 15 week English language program and then a 1.5 [specified course and university]. She said that after graduation from [her named Chinese] University she set up an online [business] in Hangzhou in May 2010. But after a while she found the pressure hard and her parents wanted her to return to their sides, so she went back Zhengzhou in November 2011. She got a job at the [specified employer] and then became captivated by the idea of becoming [an occupation 1]. She had considered studying in China but the content was superficial, post grad entrance exam only held annually, and a [further degree] in China takes 3 years to complete.
The Protection Review application
The applicant submitted a copy of the decision record with her review application. She also submitted further photos of herself engaged in various public Falun Gong activities. She made a written statement addressing issues in the Delegate’s decision including the following:
·She gave the education agent her address, she and her parents did not notice the error in their joint statement saying they lived at the same address. They were divorced and this was not an issue for her student visa application as they would both support her financially. She recalls filling out a Family Member Form and completing her father’s separate address and their correct marital status.
·That some of the documents were copies: she did not know their provenance they were given to her and her mother many years ago. Her translator would not translate documents for her if he thought she was dishonest.
·She and her mother were arrested [in] September 2008. Her mother was “tried” for up to 3 days, day and night, the applicant was held for over 28 hours and interrogated. If she was a liar there would not be time inconsistencies.
·The address on the release certificate is her mother’s registered address. Her mother owned that house. But they didn’t live there after 2004-5, they lived with her grandmother.
·Regarding the minghui article, the court wanted to sentence her mother to more than [term] but her uncle found a lawyer.
·She needed a new household registration document in 2009 because she was going to apply for a passport.
·She didn’t distribute Falun Gong materials while she lived in Hangzhou.
·Regarding her ability to obtain a passport, the applicant said that most Falun Gong refugees have come to Australia by plane, so they do get passports, but not if they are like her mother and been sentenced to gaol.
·Regarding her knowledge of Falun Gong, she was nervous during the interview, Zhuan Falun is the most important book and none of the others are nearly as important; she could have discussed the spiritual teachings in more depth but thought the case officer might not have understood.
The applicant submitted originals of some items referred to in the Departmental file. (Although as she acknowledged some documents that she thought to be original were in fact copies). She submitted her parents’ original divorce certificate. There is small packet of photos, one is of the applicant standing in front of a Buddhist statue with her hands together, on the back is a sticky note with a handwritten caption “A falun was shot in front of my lower abdomen in the year of 2005”. Two are of the applicant and her mother holding what is captioned “the birthday cake we bought for master”.
The applicant also submitted five original letters from her mother. The Tribunal had these letters translated, including the envelopes. They are dated from September 2009 through to March 2011. They are enclosed in company issued envelopes with business information printed on the back concerning [a] Factory, which is said to be the nominated factory for [specified products]. The applicant claimed, and the Tribunal has identified that [this] Factory is indeed a women’s prison. In her letters the applicants mother adopts a positive tone as one would in writing to their daughter so as not to worry her, and writes about her daily routine, visiting restrictions, items she needs or does not need brought to her (“we are not allowed to wear clothes from home”). There is one minor reference to being a ”practitioner/cultivator” but not of Falun Gong specifically. There are references to the applicant obtaining a passport and a replacement hukou. Cadres are described and humane. They read her incoming mail and then let her keep it. She sleeps in a bunk room for 20 people, all ages. There are between one and two hundred people in her zone. They share two large bathrooms according to a roster. She will be given a phone card. All the letters are addressed to the [Address 3] except one during the period when the applicant was living in Hangzhou. One letter includes a separate page addressed to her mother (i.e. the applicant’s grandmother), acknowledging causing her grief.
The applicant submitted the following further materials:
·A petition signed by about 35 Falun Gong practitioners in Melbourne supporting her application.
·A statutory declaration of [Leader A]. She states that she petitioned in Tiananmen Square in July 2000 and her activity was published on both minghui and the Epoch Times. She was also with a group of practitioners who were “stopped in [Town 1]” on the way to an activity as published in the [named newspaper]. The applicant was one of her housemates and they participate in group activities together and also study their faith at home.
·Online report links about [Leader A].
·A statutory declaration of [Friend F] who works for Epoch Times, stating that the applicant was [a worker] there, and has been present at all the Falun major annual Falun Dafa events.
·A letter from [Friend E], [a leader] of the [specified] Branch of the Falun Dafa [Association], attesting to the applicant’s active involvement in public events including protest activity, and the risk she would face on return to China.
·A minghui article about the Falun Gong team at [an event] in [Town 2], with photos of the applicant.
·A copy of a handwritten declaration (with a certified translation), in which the applicant’s mother states that she has lost her hukou and needs to apply for a replacement. It is dated 28 August 2009. It is not addressed to anyone in particular.
A new item of evidence supplied by the applicant just before the hearing is, according to its certified translation, a [Court 1] Verdict in relation to the applicant’s mother. It is issued by [Agency 1 in] Zhengzhou City. It identifies her residential address ([Address 3]) and registered address ([Address 1] as before). It is dated [in] June 2009. It is stamped but unsigned and purports to be issued by a judge and two “people’s jurors” and the clerk of the court. It concludes that the defendant committed the crime of using a cult organisation to obstruct the implementation of the law, and is sentenced to [a term] fixed term imprisonment, starting from the date of her detention on[a day in] September 2008. She has confessed to her crime and is therefore granted leniency i.e. the minimum sentence required by section 1 Article 300 of the Criminal Law. Among the named parties in the case are the applicant (as a witness), and the defendant’s “defence counsel” [Aunt B], who argued for leniency. Various items of physical evidence are referred to, which may be summarised as Falun Gong materials found at the defendant’s home.
The applicant claimed she had left the original of this document with the Tribunal’s reception desk. However she did not do so as it is not the policy of the Tribunal to accept original documents across the desk. It was copied and returned to her.
Country information
The DFAT China Report for 2019 includes the following information:
Falun Gong
3.96 Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism, and Qigong (traditional breathing and meditation). Freedom House estimates seven to 20 million people currently practice Falun Gong in China. Falun Gong practitioners claim the movement has ancient origins, but it first appeared in its modern form in 1992, when founder Li Hongzhi began teaching the exercises in Changchun, Jilin province. Unlike other religions, Falun Gong focuses on private exercises and meditation.
3.97 The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address ‘evil cults’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as ‘transformation through re-education centres’ to force practitioners to relinquish their faith. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and northeastern China, although Falun Gong’s illegal status makes this difficult to verify.
3.98 Since the abolition of re-education through labour centres in late 2013, Falun Gong practitioners have reportedly been subjected to residential detention, criminal and other forms of administrative punishment (see Arbitrary Arrest and Detention), or have been released after receiving propaganda training. Freedom House states it independently verified 933 cases between 1 January 2013 and 1 June 2016 of Falun Gong adherents receiving prison sentences of up to 12 years for their beliefs.
3.99 Falun Gong members do not openly proselytise in mainland China, although the movement is active in Hong Kong (where it remains legal) and abroad. Falun Gong practitioners identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong. Falun Gong practitioners are generally able to practise privately in their homes. Once known to authorities, colleagues or neighbours, however, Falun Gong members face widespread official and societal discrimination.
3.100 Lawyers representing Falun Gong practitioners claim a typical Falun Gong case involves: a period of initial investigation; the suspect having their personal belongings confiscated and being placed in custody for three to six months; trial by court; and then sentencing. Arrested Falun Gong practitioners (leaders and followers alike) commonly receive sentences of three to seven years’ imprisonment. Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. Falun Gong practitioners and their lawyers claim that judges and lawyers are actively discouraged from taking on Falun Gong cases, and that Falun Gong practitioners have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims.
3.101 On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs. Discrimination against Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships. Government officials, members of the police force and employees of state-owned enterprises are commonly required to sign a statement that they and their families are not Falun Gong members. A widespread and sustained government communications campaign against Falun Gong has effectively discredited it within mainstream Chinese society.
3.102 Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly (see Political Opinion (actual or imputed)). Lawyers who defend Falun Gong practitioners are frequently denied access to their clients in detention or court, and are subjected to adverse treatment and physical and electronic surveillance by authorities (see Human Rights Defenders (including Lawyers)).
3.103 Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport. Sources report some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.
3.104 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.
4.17 Falun Gong practitioners have reported mistreatment in custody including sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings (see Falun Gong). International human rights reporting continues to document use of psychological pressure against Falun Gong practitioners.
FINDINGS AND REASONS
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law 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.
Based on the information on the Department’s file, the Tribunal finds that the applicant is a Chinese national.
Credibility concerns arose at the protection visa interview concerning the applicant’s address history, and her parents’ marital status, partly due to the content of her student visa application. These were, with some difficulty, clarified at the hearing. The parents’ hukous are inaccurate insofar as the sequence of their addresses are recorded out of order, and their divorce is not recorded. Also from about 2004/5 the applicant and her mother lived at her grandmother’s house [at Address 3] and this is not her registered address. The student visa application implies that her parents live together at that address. But it is telling that in her protection visa application the applicant described her father as a “close relative” rather than a family member. She also supplied what appears to be a genuine original divorce certificate re-issued [in] Jun 2015. The Tribunal accepts that the applicant’s parents are in fact divorced and have not lived together since their separation and that she has been honest as to her address history.
The Delegate doubted that the applicant’s mother changed her hukou address while she was detained (in 2009). The applicant explained that she herself had to obtain a new hukou, and noted that her mother was added to that address in 2011 when she was released from prison.
Also relevant to her credibility is that the applicant applied for a student visa although her study plan was unrealistic, given that she had no background in [occupation 1] and minimal study in English. The applicant may not have realised that though, as she was advised by an education agent. Moreover, her evidence both at interview and at hearing was that she did intend to attempt her studies, even though she had an alternative migration intention to do with her claim for protection and therefore was arguably not a genuine temporary entrant. On balance, the Tribunal considers this matter peripheral to the applicant’s protection claims.

Not all of the official documents in support of the applicant’s protection case are genuine. Specifically, the list of items confiscated by police from her father’s house in May 2002, and the agreements between [Aunt B] and a firm of lawyers in relation to the applicant’s mother’s case in 2008, have all been dated in the same handwriting. Therefore, although the documents are original, they have been manufactured to support her case.
The applicant requested that her original documents and photographs be examined for verification of their age. However, that is not relevant because if they were manufactured this could have occurred at any time. As noted by the Tribunal in the hearing, the applicant’s aunt ([Aunt A], who does not refer to this relationship in her statutory declaration), features in her claims and she migrated to Australia almost two decades ago.
The provision of false documents counts against the applicant’s credibility, and naturally raises doubts about the other documents.
The Tribunal accepts that the applicant is a true practitioner of Falun Gong. Contrary to the Delegate’s assessment, the applicant’s evidence at interview was current and comprehensive as to the practices involved in Falun Gong and its spiritual tenets. She was similarly confident and accurate in her evidence at hearing. The Tribunal accepts that the applicant began practising Falun Gong in 1998 shortly after her mother did. At the hearing she stated quite definitely that the date her mother started practising was [a day in] September 1998 and volunteered that they remember the date easily because it is a very special day for them. They use it in passwords.
The Tribunal asked the applicant about the photo of herself standing in front of a Buddhist statue with her hands together, with the handwritten caption “A falun was shot in front of my lower abdomen in the year of 2005”. This photo has been digitally enhanced with an image of the Falun, in front of the applicant’s abdomen. The Tribunal does not believe that this is a genuine photograph, however the applicant’s demeanour and response to the photo when it was discussed indicated that she believes it to be a true representation of the Falun appearing from another dimension, and that she finds it very meaningful.
The Tribunal does not accept that the applicant’s mother and aunt [Aunt A] were detained on the way to Beijing to protest about the banning of Falun Gong in 2000, as there is insufficient credible evidence to support this claim.
The Tribunal accepts that the applicant’s mother was detained as claimed in 2002. The Tribunal accepts that the 2002 bailout form is genuine. It is an old photocopy but there is nothing obviously manufactured about it or its contents. Although it does not specify that the offence relates to Falun Gong (or indeed to any banned cult), but merely to disturbing the social order, the reference to the 610 office is suggestive of an investigation related to Falun Gong. Although the document states that the period of detention was [between dates in] May [and June] 2002 but it is dated [in July], the applicant explained that this was because the length of detention was unlawful. Further, the fact that the applicant’s mother had been so detained was referred to in the [Court 1] Verdict discussed below.
The Tribunal does not accept that the applicant’s mother escaped from the police in November 2003. Aspects of the claim are fanciful and not credible. At the hearing the Tribunal queried the account that somehow the applicant’s mother picking up the phone led the police to her. They could have come at any time, and did not need to wait for her to pick up the phone. The applicant said Falun Gong practitioners had scattered all over the place, they needed to make sure she was home. The Tribunal queried how her mother escaped three stories with a rope from an open window, injured herself, was able to call a taxi and get away without the police noticing her. The applicant insisted that her account was true, saying that if she and her mother lie, they will die a terrible death, and will be hit by a car as soon as they walk out the door. However, the Tribunal is required to assess the evidence as a whole and is not bound to accept that a person is telling the truth just because their religion forbids then to lie. The Tribunal asked the applicant why her mother waited a week to call her. The applicant said she did not know. The Tribunal does not consider it credible that her mother would disappear for a week and not contact her. To the extent that the witnesses and declarants [Friend A] and [Aunt A] testified to having been involved in this event, the Tribunal does not accept their evidence. The Tribunal therefore does not accept that the applicant wrote to the police complaining after the event, about her mother’s treatment.
The Tribunal therefore carefully considered the claim, and the veracity of the documents concerning the applicant’s mother’s criminal case in 2008/9.
Again, the claim appears to be embellished with the applicant moving all the house furniture to try to block the police from entering. The applicant said that much more dramatic things happen in China, which is not like Australia. But the fictional tone of this claim is the same in any country. The applicant and her mother could not possibly have expected to successfully maintain a siege. The Tribunal is not satisfied that the applicant was even present, as she would have no need to add this implausible element if she had been there. At the Tribunal hearing the applicant was quite evasive as to whether she was or was not boarding at university at this time. Due to her embellishment of this incident the Tribunal does not accept that the applicant wrote an article on Falun Gong which was identified by the authorities in this 2008 incident (referred to in paragraph 27), and the applicant has not produced any evidence supporting this claim.
The applicant said at the Tribunal hearing that she obtained the [Court 1] Verdict in her mother’s case after her protection application was refused by the Department, and then waited until the hearing was scheduled to have it translated. This course of action is plausible. The Tribunal accepts that the [Court 1] Verdict is genuine despite that the Tribunal has not had the opportunity to inspect the original and without readily being able to confirm that the form of the document is consistent or otherwise with any known country information about such Court Verdicts at the district level. The Tribunal notes that the detention, arrest, pre-trial detention and sentencing appear to be consistent with the country information cited above. The Tribunal was concerned that the document appeared to be crafted to establish protection claims for the various witnesses referred to therein, including the applicant, but there is no evidence to confirm such a doubt.
At the Tribunal hearing the applicant said her Mum’s sister [Aunt B] got the contract with the lawyers, but because Falun Gong practitioners can’t have legal representation they didn’t turn up, so the aunt was named as “Defence Counsel” in the proceedings. The witnesses referred to in the verdict didn’t actually give evidence in Court – their testimony was taken when they were questioned by police, so she wasn’t summonsed. The applicant went to court though, her mother spoke with great dignity. The Tribunal is satisfied that the applicant was questioned in relation to her mother’s Falun Gong activity.
The Tribunal gives little weight to the reports about the applicant and her mother on minghui.net. Minghui accepts reports without verifying them and can therefore be used to support unfounded claims. Therefore the fact that a person is referred to on minghui does not, by itself, bring them to the adverse attention of the Chinese authorities.
However, the applicant’s mother’s letters to the applicant from prison were strongly supportive of the claim that her mother was indeed imprisoned, both in their content and tone, and consistent with DFAT description of prison conditions for women. Together with the Court Verdict they satisfy the Tribunal that the applicant’s mother was sentenced to a term of imprisonment due to distributing Falun Gong materials.
Having made the foregoing finding the Tribunal also accepts that the following documents are genuine: the 2008 detention notice and arrest notice: they are old photocopies but not obviously fraudulent, and the 2011 release certificate which is original and appears to be genuine.
The Tribunal does not accept that the applicant was an active proponent of Falun Gong in China. As discussed above, the applicant has embellished aspects of her mother’s history to put herself in the picture of her mother’s story and to suggest that the authorities had evidence against her. The reality is that for six years between 2008 and 2014 she was of no apparent interest to the authorities and was able to get a passport and leave China without interference. Discussing this at the interview the applicant said on the one hand that she continued to do a lot of clarifying the truth in China, distributing CDs and pamphlets. But she also said that she lived alone and didn’t do much and that was why she was able to leave.
The applicant repeated at various stages during her case that her mother is not able to obtain a passport, and that she struggled with the decision to leave China herself, and then apply for protection, because of the consequences of this regarding indefinite separation from her mother with whom she is very close. This suggested she had no definite fear of persecution when she left China, which is consistent with her stated hope that studying [occupation 1] would provide a migration pathway, which turned out to be unsound.
Based on the photographic and witness evidence the applicant has been strongly engaged in public practice of Falun Gong in Australia, and visibly present at related events including annual calendar events, and protests such as [one specified] in Canberra. She stated in a letter after the Tribunal hearing that she had, like other participants, been identified and harassed at that protest. The Tribunal considers this entirely plausible. Her behaviour is consistent with that of a profound believer in Falun Gong for whom involvement in Falun Gong is of major importance in her life. The Tribunal is satisfied that the applicant has not engaged in this conduct for the purpose of strengthening her refugee claims (s 91R(3)).
Country information is consistent with the applicant’s claim that her mother is still under police monitoring (although their stated financial struggles are exaggerated, considering her mother’s bank account submitted with the student visa applicant). Considering her mother’s profile, her own profound commitment to Falun Gong, her activities in Australia, and the country information cited above, the Tribunal is satisfied that there is more than a remote chance that the applicant would be identified as a Falun Gong practitioner on return to China and be subjected to residential detention, criminal and other forms of administrative punishment, significant economic and social discrimination, and be forced to renounce her faith in order to avoid physical harm, in the reasonably foreseeable future. The Tribunal therefore finds that the applicant faces a ‘real chance’ of being seriously harmed within the meaning of s.91R(1).
The essential reason for this harm is her religion and imputed political opinion, and it involves systematic and discriminatory conduct. The Chinese ban on cults is discriminatory in both its terms and its application against particular faiths and practices, backed up by policies of social vilification. Although the Chinese government represents the ban on cults as being for a legitimate social good, the Tribunal does not accept that this is the case. Its purpose is mainly to deter forms of worship that reify the authority of religious leaders at the expense of that of the CCP.
In this case the agent of persecution is the Chinese State, and there is no state protection for Falun Gong practitioners. The banning of Falun Gong is a national policy and although it may be applied with different degrees of force from place to place and from time to time, it is not possible to eliminate the real chance of serious harm by relocating within China. Nor does the applicant have a right to enter and reside in a third country under s 36(3) of the Act.
The applicant has a well-founded fear of persecution within the meaning of the Refugees Convention.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Genevieve Hamilton
Member

[2021] AATA 3239

7 July 2021

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