1719041 (Refugee)

[2017] AATA 2146

1719041 (Refugee) [2017] AATA 2146 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719041

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:27 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 October 2017 at 6:00pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Falun gong practitioner – Lack of knowledge of Falun teachings – Credibility Issues

LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa [in] August 2017. In his application, the applicant stated the following:

   I would like to tell you my story and apply the protection visa here, I have been taken into the detention centre in [Australia], I am so scared to return to China, and in the last about two more years in Australia, I have escaped from the potential harm from my home country. I understand I did not apply the visa in the first place, however, my fear have been increased in my heart and the more I knew about the tough policy against the Falun gong practitioners in China, the more I felt scared.

   I started to know Falun Dafa around March 2015 my friend took me to the practice centre in city, she is very kind woman and I called her [name]. I was not in the good health condition that time, she told me I have to practice this Falun gong to improve my health, it is also about the truth of: zhen, shan, mei. I was a little bit confused, but I followed her to the practice centre. I have learned the four sections in the beginning and I started to practice, I felt much more different later, I felt my body is lighter and I got the strength. I also read several books about Falun gong. I was attracted by the content and I cannot stop reading.

   Day after day my body changed, my faith has been stronger I am a Falun gong practitioner, I am so proud of myself, I told my family about this, my family was so shocked and they told me Falun dafa is illegal in China, I will be taken to the organ harvesting if I return to China. They tried to persuade me to quit, but I will never quit my faith. I’ve learned so much from this.

   I had a huge argument with my family in China, they even want to cut off the relationship with me, I have done some research and I found the ugly truth of how the Chinese government treats the Falun gong practitioners in China, brutal and inhumanely.

3. The delegate refused to grant the visa and the applicant applied for review.

4. The review applicant appeared before the Tribunal on 10 October 2017 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant stated his representative had his English statement read back to him in Mandarin and it was correct and he did not want to change or add anything. The applicant stated he came to Australia in 2008 as a student and his visa expired [in] May 2015. When asked why he did not return after his visa expired [in] May 2015 he stated his father was a Falungong practitioner and had threatened his safety since 2014 and had lost his life in June 2016 as a result. The Tribunal put to him that if they had been harassing him since 2014 and he was afraid to return then why had he not applied for a protection visa earlier. The applicant stated at the beginning he did not know much about the protection visa. He also stated he did not have many friends and was afraid to ask.

6. The Tribunal asked why he had not stated in his written statement that his father lost his life because he was a Falungong practitioner. He stated he told his migration agent. The Tribunal put in that he had just indicated that he knew what was in his statement and that he had not wanted to add anything. He stated he never saw the English statement.

7. The Tribunal put to him that when he was detained in July 2017 and interviewed he did not state that he could not go back to China because he was a Falungong practitioner. He stated he was very nervous. The Tribunal also put to him that he did not state that his father had been arrested or passed away because he was a Falungong practitioner. The applicant stated the Department contacted him over the phone at that time. The Tribunal put to him that he had also said that he was willing to depart Australia but that it was better if he waited until next year. The applicant stated he was afraid the interpreter would tell whatever he said to the outside world.

8. The applicant stated that the main Falungong book was Zhuan Falun and stated it had more than 10 chapters.

9. The Tribunal put him that his statement did not say that his father died because he was a Falungong practitioner, the Department of Immigration’s written record of interview did not state he told them at interview [in] July 2017 that he was a Falungong practitioner. He stated he was afraid that the interpreter would tell the outside world so he did not tell the truth. The Tribunal also put in that he only applied for a protection visa after he was detained, he did not know how many chapters were in Zhuan Falun and these things may lead the Tribunal to not accept his claims. The Tribunal put to him that if his father had passed away because he was a Falungong practitioner and he was frightened the same thing would happen to him then it may find he would have applied for a protection visa at that stage especially given that he did not have a visa at that time. The applicant stated he did not know about the protection visa. When asked if he had been talking to other Falungong practitioners he agreed. The Tribunal asked why he hadn’t asked them given that it was no secret that the Chinese government dealt severely with Falungong practitioners.  He stated he was introverted and did not talk to them about the protection visa.

10. Following the hearing, the Tribunal wrote to the applicant as follows:

    In a written record of your interview with the Department [in] July 2017 it is recorded in writing that the following conversation occurred:

    Q. Are there any reasons why you cannot return to your home country?

    A. Yes, my dad passed away.

    Q. Can you elaborate why that means you can’t go back? Are you willing to depart Australia?

    A. Yes. Because according to our local tradition, I shouldn’t be allowed to go back until 3 years after my father’s death…

    If I do go back I may not be considered part of the family any more.

    Q. Still, are you willing to go back considering you don’t have a visa to stay in Australia?

    A. Yes but its better if I wait until next year

    This information is relevant because it may lead the Tribunal to find that you did not tell the Department you could not return to China because you were a Falun Gong practitioner or that your father died because he was a Falun Gong practitioner. If the Tribunal finds that you did not state that you were a Falun Gong practitioner when interviewed by the Department [in] July 2017, then, subject to your comments, it would conclude that you are not a witness of truth or that any of your protection visa claims have occurred.

11. The applicant responded as follows:

    I know Falun gong is treated as an illegal activity and banned in China, but it is legal in Australia. After I was caught, I was terribly scared when I knew I would be sent back to China.

    At that point my whole body was cold and shaking, I recalled my father’s death and it always tells me how terrible the Chinese government is and what did it do to the Falun gong practitioners. I don’t want to have the same fate as my father, I have to fight for my life.

    When I was questioned by the immigration officer at the police station, I was not brave to tell the facts because I was afraid that the immigration interpreter and the Chinese background police on the spot would disclose these facts to outsiders (when I was being questioned, the Chinese background police was just around me). I was not sure whether Chinese Secret Service agents were hidden nearby. After my father passed away, my fear was around me all the time, and I cannot get away from this. Hiding the fear in the bottom of my heart makes me nervous. I will not have tomorrow if I return to China.

    I answered the member about the tradition of family member’s death it is true but it is not my main reason not to return to China, I just said, there is kind of this tradition that also stopped me from going back in certain time. I missed my family a lot, but I want to be alive, I want to spread the real spiritual of Falun Dafa in the future, I want to follow my master and become his loyal member, I want to do many things that I did not have the chance to do.

    When I was asked about the consideration of going back, if I fight for myself to the end, if I do everything but I cannot change my life, if I do not have the visa in Australia, what can I do? Be honest I do not know what is the answer, I do not want to go back China, I do not know where is my home and my place, I said ‘yes but it’s better if I wait until next year’. Because I want to at least have a year for me to do what I have not done in the past before I face the death. Going back to China is the same as jumping into the fire. I want to have some time and let me finish something. I was a little bit negative in the hearing at this point, because I truly did not know my way out.

    At last I want to tell everyone that my father has sacrifices his life, but he is proud of me, I carried on his spiritual and hesitated his mind, I will continue being a Falungong practitioner in the rest of my life. Going back to China is definitely not an option and it is like suicide.

Country Information

1. According to Dr Benjamin Penny's talk, ' An Academic's Perspective' , given to the then Refugee Review Tribunal on 26 July 2006, he would look at a number of factors in order to know if a person was a genuine Falun Gong practitioner.

2. One of the factors includes knowing the main scripture of Falun Gong, Zhuan Falun including how many lectures are in it. Zhuan Falun is an edited transcription of Master Li’s lectures into chapters. The answer is nine.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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.

3. 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 themself 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).

4. 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.  

5. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that he will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. The applicant has stated in his written claims that he started to know about Falun Dafa around March 2015 and that he was attracted by the content and could not stop reading. He also stated that his father had died because he was a Falun Gong practitioner, however in a written record of interview between the applicant and the Department [in] July 2017 it is recorded in writing that his father had passed away and that according to their local tradition, he shouldn’t be allowed to go back until 3 years after his father’s death and that he was still willing to return but it was better if he could wait until next year.

4. The Tribunal finds that the applicant did not tell the Department at interview [in] July 2017 that he could not return to China because he was a Falun Gong practitioner or that his father died because he was a Falun Gong practitioner. While the applicant has stated at hearing that he was afraid that the interpreter would tell whatever he said to the outside world and subsequently stated that he was not sure whether Chinese Secret Service agents were hidden nearby, the Tribunal does not find that explanation credible. In the Tribunal’s view, if the applicant had been so afraid that the interpreter would report what he said to the Chinese authorities he would not have provided any of the information that he did in fact provide. The Tribunal also considers the applicant’s submission that he said it was better if he waited to go back to China until next year because he wanted at least one year before he faced death to be a clumsy attempt to reconcile his answer at departmental interview that he was willing to go back to China with his subsequent claim that he was not. In reaching these conclusions, the Tribunal has also taken into consideration that the applicant delayed in applying for a protection visa [in] August 2017 (which was after he was detained) even though his student visa ceased [in] May 2015. The Tribunal does not find this consistent with his alleged communication with other Falun gong practitioners or his alleged fear of returning to China because he was a Falun gong practitioner. Although the applicant has stated that he was introverted and did not talk to them about the protection visa, the Tribunal finds that the applicant's delay, even after he was unlawful and could have been potentially removed from Australia at any time is not consistent with his claims that he was communicating with other Falun gong practitioners or that he had a well-founded fear of persecution either because his father lost his life or because the applicant himself became a Falun gong practitioner. In reaching this conclusion, the Tribunal has noted that even though the applicant stated in his written statement that he could not stop reading about Falun Gong, he was unable to state how many chapters were in the main scripture of Falun Gong, Zhuan Falun and that according to Dr Benjamin Penny, that would be one of the factors that should be looked at in order to know if a person was genuine.

5. Given the applicant's lack of knowledge about Zhuan Falun, as well as the applicant’s delay in applying for protection and his answers when detained in July 2017, the Tribunal does not accept that the applicant is credible or that he is Falun gong practitioner, or that his father was a Falun gong practitioner or died as a result. In reaching this conclusion, the Tribunal has considered the letter from [a man] stating that the applicant was a Falun gong practitioner since the end of 2016, however given the Tribunal’s concerns, the Tribunal does not give that document sufficient weight to overcome those concerns.

6. Neither does the Tribunal accept that the applicant has had a huge fight with his family because of his alleged Falun gong practice. Given that the Tribunal does not accept that any of the events the applicant alleges occurred in China have occurred or that he is a Falun gong practitioner, or has attended any Falun gong activities in Australia, the Tribunal finds the applicant will not be perceived as a Falun gong practitioner or participate in Falun gong if he returns to China.

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees definition. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has rejected the entirety of the applicant's claims.

9. Accordingly, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, China, there is a real risk that the applicant will suffer significant harm.

10. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Angela Cranston
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.

…

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 them 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.

..

36Protection visas – criteria provided for by this Act

…

(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.

…