1723008 (Refugee)

1723008 (Refugee) [2023] AATA 1071 (25 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1723008

COUNTRY OF REFERENCE: China
MEMBER:Alan McMurran
DATE:25 January 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2023 at 12:23pm

CATCHWORDS
REFUGEE – protection visa – China – religion – imputed political opinion – Falun Gong family member – detention – physical assault – political corruption – applicant was issued passports – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 427, 499
Migration Regulations 1994, Schedule 2
CASES
AJX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 16
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZSMQ v MIBP [2013] FCCA 1768
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 lodged 25 September 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], who claims to be a citizen of The People’s Republic of China, applied for the visa on 29 May 2017. The delegate found that there was no real chance that the applicant would suffer persecution, that the applicant did not face serious harm on return to China, and the applicant was not a refugee.
Accordingly, the delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
The relevant provisions and applicable criteria provided for by the Act, are extracted in the attachment to this decision.
Legislative framework - Refugee
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).
Well-founded fear and ‘real chance’ of persecution
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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.[1]
[1] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[2]
[2] FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
For the purposes of s 5J(4) of the Act, s 5J(5) provides that the following are instances of serious harm: (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.
A family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act. However, this is subject to s 5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard: (a) 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) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s 5J(1)(a) (race, religion, nationality, membership of a particular social group, or political opinion) will not have a well-founded fear of being persecuted within the meaning of s 5J.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.
Complementary protection – where not a refugee
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A) of the Act: s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.
These arise where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
·where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or
·where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3]
Relocation
[3] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180])
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC[4] and SZFDV v MIAC[5] which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant, and the impact upon that person of relocation within his or her country
[4] SZATV v MIAC (2007) 233 CLR 18;
[5] SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Issue
The issue in this case is whether the applicant is a refugee as defined by the Act and meets the criteria in section 36(2)(a), or otherwise meets the complimentary protection criteria in section 36(2)(aa), as outlined above.
Mandatory considerations
Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body (e.g. the AAT) having functions or powers under the Act, if the directions are about the performance of those functions, or the exercise of those powers. Sub-paragraph 2A of section 499 requires that a person or body must comply with a direction.
Ministerial Direction Number 84 of 24 June 2019, issued under s 499 of the Migration Act 1958, states that:
Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
Reports take into account relevant and credible open source reports, as well as information obtained on the ground.
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[6] (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background
[6] DFAT Country of Origin Information Reports (COI) prepared with Department of Home Affairs, Country of Origin Information Services Section (COISS).
Applicant’s summary – Application information
The applicant states that other than a trip to [Country 1] for about 1 week in May 2014, he has lived his entire life in China before coming to Australia.
He applied for a Business Visitor [visa] granted on 24 February 2017, which was valid until 8 June 2017, and arrived in Australia [in] March 2017. He applied for a Subclass XA 866 Protection visa on 29 May 2017.
The application was prepared for the applicant with the assistance of another person ([named], in Australia). The applicant claims as follows.
Claims
The applicant, [named] has certified that:
·He is [an age]-year-old citizen of the People’s Republic of China.
·He was born and raised in Hebei Province, in a village near Shijiazhuang City, and where both his parents reside.
·He was educated to [level], which he completed in [year].
·He married [wife’s name], a Chinese citizen, [in] October 2002 in Hebei Province and has no children.
·He was employed as a manger for a [company] in Hebei Province, Shijiazhuang City, from [specified year] to February 2017.
·He has no prior criminal record and is making his own claim for protection.
·His passport was issued from an office in Hebei and expires [in] 2023.
·He had another Chinese passport with a different number which had ‘expired’ at the time of application.
He has attached a Personal Statement made 13 April 2017 which states [unedited and as type-written]:
PERSONAL STATEMENT
My name is [name]; I arrived in Australia with my visitor visa in March 2017. I have to appeal to seek political asylum and apply for protection visa in Australia. The following information will state the reasons to apply for protection, it also state our family suffering and my personal experience in China.
In the last century year 90’s, in China since the economic reform and opening up which bring a lot of wealth, but on other hand due to government corruption, official corruption, people use the incomplete market economic law, officer-trader collusion, private embezzlement of state-owned enterprises and asset, which made a lot of people became billionaires. But the gap between rich and poor is continuous increase. From that on, the Chinese lost their spiritual belief, gave up their integrity, people, doing everything just of money. At that time Falun Gong’s three values— truth, compassion, and tolerance, just like a little sparks of fire can prairie fire. Falun Gong is the most concentrated and active area in my hometown at that time.
My father [named], he was bom [on date], he is an [occupation 1]. He is one of the Falun Gong representatives whom hand out their petition in the [date] “[location 1]” events. In December 1999 he was sentenced to five years labor camp and was released in 2004. He is also the person in charge of organizing the Falun Gong’s rehabilitation.
I was bom [on date]; I was just [an age] years old young boy in 1999 when Falun Gong was condemned to be the “illegal organization” and was unreasonably charged by Chinese government. In October 1999 it was grouped into the “evil religion”. At that time, I was learning how to running a business with our family friends in the big cities such as Beijing and Tianjin when my mother called me as my father was arrested, I went back home immediately. My father was sentenced to labor camp when I reached my home town.
Later the local polices group those children together whom their parents and family members are Falun Gong practitioners. They educated the children that the government has group Falun Gong into the “evil religion”, Falun Gong is dangerous to the society, and foreign reactionary forces by Falun Gong to undermine national security. At the end the polices required the children place righteousness above family loyalty, exposed parents alleged offences, at the same time, advised parents to start with a new slate and begin their life anew. After we completed materials the police will checked that and might let us go home.
At that time, some of our family friends and I were not satisfied with our parents were caught and we came forward and argued with the police. But immediately we were surrounding by the police, they beat and kick us, locked us separately into small room without window, they did not give us foods, and threatened us that we will be sentenced to labor camp. I was scared and cried, I thought that my life will be over if I was sentenced to labor camp. So I wrote so-called crime materials of my father under the police’s coercion.
After my father released from labor camp, my father and other victims have a wish all the time, they complained to the government that they suffered inhuman treatment in the labor camp and they required the government investigate and affix the responsibility for the harm. End up they suffered serious warning by the local police, the police worried that they will go aboard and seek representation and reject their passport application. My father and those victims stopped their complained because they knew that they will suffer arrested once they complain and visit the related government department.
In 2013, Since The Central Committee of the CPC Leader Xin Jin Ping took over the leadership, the situation has changed, we can obtain a passport to go overseas, there are some local government officers been sentenced due to corruption, which made my father and other victims see their future. But they still worried that if they went for Falun Gong’s rehabilitation, their families and children will get involved if it is not success, and they will be held responsible for the action. So my parent and other victims decide to send us go aboard, which made rehabilitation activities without worries, so that they can demand justice for those Falun Gong victims whom suffering oppression and injustice.
Although my father and other victims have some connection with some Falun Gong organization from overseas, but they decide to send some of the children to go aboard to find out the situation in overseas. In May 2014 I went to [Country 1] to found out the environment over there. But I found out that [Country 1] is not as good as what I expect.
After a deep investigation and suggestion from other Falun Gong members, my father decide to send me to Australia based on our status and the suggestion from Falun Gong organization from Australia, which made rehabilitation activities without worries, so that they can demand justice for those Falun Gong victims whom suffering oppression and injustice. But it is very difficult to obtain a visa to Australia. My father tried to asked lot of people to help me but it was unsuccessful. At the end one of the Falun Gong practitioner help me to obtain a tourist visa from Australia, I departed China in [March] 2017 and arrive Sydney [later in] March 2017.
Therefore, according to the reasons mentioned above, in order to avoid being prosecuted by Chinese government. I am here to looking for protection from Australia. I believe Australia government and Australians will respect personal beliefs and would like to provide our people a piece of peaceful territory.
[Name] 13/04/2017

The applicant states that he relies on his personal statement as his reasons for claiming protection. He states: “I have attached my personal statement with this form which state my situation in my home town”. The same answer was given to all questions (87-95) in the application form under the heading “Your reasons for claiming protection”. In support was the personal statement, a copy of his passport, photograph, and the application form.
The applicant himself makes no specific claim to be a Falun Gong member, declaring instead that he has ‘no religion’ [7] and ‘no ethnicity’. Rather, he claims that as a child of a Falun Gong member, he may be ‘prosecuted by Chinese government’.[8]
[7] Application answer at q 33
[8] See also his Personal statement: “But they still worried that if they went for Falun Gong’s rehabilitation, their families and children will get involved if it is not success” [ fourth last paragraph]
The applicant was invited to attend an interview with a Department officer on 25 August 2017. The applicant did not attend the interview. No reason was provided for his non-attendance.
Tribunal process
The applicant was notified by the Department on 28 August 2017 by post, with a copy of the decision, now under this merits’ review.
The applicant provided the Tribunal with a copy of the Department’s decision letter that he had received.
On 27 September 2017, the Tribunal acknowledged receipt of his application to the applicant’s provided email address. The accompanying letter provides a contact number for information and advises the applicant that he should inform the Tribunal of any change in contact details or personal information.
The Tribunal letter also invites him to consider providing material or written arguments he would like considered in support of his application. The letter attaches a brief explanation note in Mandarin advising the applicant that the letter is important and to call the Translating and Interpreting Service (TIS) on the provided number for any difficulties with translation.
The Tribunal did not receive any further communication from the applicant. The applicant was unrepresented throughout the Tribunal proceedings from the time of application up to the hearing.
On 3 January 2023, following constitution to a Member to undertake the review, the Tribunal sent the applicant an invitation by email to his nominated address, to appear for hearing on 24 January 2023. The invitation proposed a hearing remotely, where the applicant could join the hearing by computer with a video link, mobile app, or on a personal device.
The email was delivered to the nominated address and not returned as ‘undeliverable’. The applicant did not respond to the invitation. Attempts to contact the applicant on 16 January 2023 by telephone were unsuccessful and no response was made from the applicant or from any person on his behalf. The hearing invitation also provides contact information details for further information.
On the day of the hearing, 24 January 2023, the applicant did not appear. Attempts at the appointed time to contact the applicant by two Tribunal officers, on the applicant’s given mobile number, were unsuccessful. Relevant case notes on the day recorded by the case officers state firstly that the applicant’s mobile was answered by a person stating she did not know the applicant and hung up. At a second attempt, a person answered and said, “[The applicant’s name] is not home” and disconnected. The Tribunal has made no further attempts to contact the applicant.
The Tribunal has recorded and checked the contact details as provided by the applicant, and no updated information or change of contact details have been provided since lodgement.
The Tribunal’s invitation sets out what may happen where the applicant does not appear for a hearing. It informs the applicant the Tribunal may make a decision on review without taking any further action to enable the applicant to appear or may dismiss the application for non-appearance. A Fact Sheet accompanies the invitation to explain the hearing process.
Section 426A of the Act sets out what may happen on the failure of the applicant to appear before the Tribunal. Sub-section (1A) provides that the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Section 427(b) of the Act provides that the Tribunal may adjourn a review from time to time. The question of adjournment is discretionary and based upon the particular circumstances of the application (and the applicant) at the time, and any request made and reasons provided for an adjournment.
No Hearing
As the applicant has not appeared, and no information has been forthcoming from the applicant, and no request made to adjourn the process, and noting that a considerable time has elapsed since the application for review was lodged (25 September 2017), the Tribunal has determined to proceed with the review under s 426A(1A) without a hearing and make a decision on the available information.
The Tribunal also has had regard to section 2A of the Administrative Appeals Tribunal Act 1975, which provides that the Tribunal pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a refugee and meets the requirements of section 36(2)(a) or 36(2)(aa) of the Act. The review is in response to the Department decision made 28 August 2017.
The available information for the applicant’s refugee claim is as set out in his statement, above at paragraph 37. In summary, he makes the following claims:
·That he came to Australia seeking ‘political asylum’
·That the Chinese government is open to government and political corruption
·That China has created a social gap between rich and poor and lost its spiritual belief and integrity
·Falun Gong (formally Falun Dafa) is very active in the applicant’s hometown (Hebei Province, Shijiazhuang City) and where his family is located
·His father is an [occupation 1] and Falun Gong representative who was involved in the large demonstration and rally [in] April 1999 handing out a petition (the [date] [location 1] event)
·His father was arrested as a consequence and imprisoned in December 1999 and sent to a labour camp
·The applicant was [age] years-old at the time of the [date] [location 1] event, but not a home, and did not participate himself
·He argued with police because of his father’s treatment, however, and along with others who had also argued about treatment of relatives;
·The applicant was locked up, beaten, threatened with labour camp, and kicked, and forced to sign ‘crime materials ‘ against his father in order for him (the applicant) to be released
·After 5 years, his father was released in 2004 and returned home. His father complained about his treatment when released, but was threatened by local police, and refused a passport;
·His father stopped complaining so as not to be arrested again.
·His father is responsible for Falun Gong’s ‘rehabilitation’ but does not want to risk involving his family when he resumes Falun Gong activities
·In March 2013, following a change in leadership of the Chinese Communist Party when President Xi Jinping took control, some local officers in Hebei were sentenced for corruption, and it became possible to obtain passports;
·The applicant’s father was not encouraged by this and remained concerned that if he recommenced his Falun Gong activities his family would become involved and it was dangerous for them.
·His father along with others determined that it was better to send the children overseas where they might be safe, so he could continue to pursue justice for Falun Gong victims himself within China
·The applicant obtained a passport and went to [Country 1] in 2014 on a reconnaissance but was not satisfied with what he found there
·His father and others decided the safest place for their children (as family members) was Australia and after some difficulty, with the help of another Falun Gong practitioner, the applicant obtained his visa and left China in March 2017.
The applicant fears being prosecuted by the Chinese government if he returns and because of his father’s Falun Gong activity and his (the applicant’s) political opinion.
Tribunal did not conduct a hearing
As the applicant did not appear, no oral evidence was taken and nothing further was submitted in evidence by way of information and documentation.
As the applicant did not appear the Tribunal was unable to ask questions or receive oral submissions.
The Tribunal was unable to question the applicant as to:
·The applicant’s past history and political opinions
·His past associations with Falun Gong practitioners in China, or in Australia; when that had occurred, and relevant circumstances such as where and how he was associated and whether outside his immediate family (his father)
·His relationship with his father and his father’s Falun Gong activities
·The applicant’s history after his father’s arrest in 1999 and until his father’s release in 2004; and whether his father or anyone he was associated with was a Falun Gong practitioner from 2005 until 2013 and afterwards
·Why the applicant felt threatened if returned to anywhere in China, and why authorities would have any interest in him for his political opinions or Falun Gong associations, and why he could not relocate if that were the case
·Whether he had suffered any further ill treatment at the hand of local authorities at any time since 1999,after he was beaten for complaining, or received any threats himself concerning Falun Gong or for any other activity
·Whether and what contact, if any, the applicant had with Chinese authorities before 1999, and then from 1999 until 2004, and again after his father was released from 2005 until 2013; and then up until he departed China in March 2017, and if he was aware of any attempted contact since 2017
·His current family situation at home and whether his parents and/or his wife or any of his extended family or associates practice Falun Gong, the extent of any association they may have with Falun Gong, their political opinions, and what contact he has maintained with family and friends in China since departing
·Whether any of his associates or family had suffered any other persecution in China because of their religious and/or political opinions, and relevant particulars
·Why there was no other information available from possible witnesses who might support and corroborate his family’s and his own involvement or association with members of Falun Gong, or any other information which might independently support his claims
·What he thought might happen to him if he returns to his country of origin because of any political opinions he holds, and whether he has sought any assistance or advice or discussed the current situation
·What he has been doing in Australia since March 2017, and how he supports himself and what financial support he has received either from employment or others
·Whether he has had contact with any Falun Gong supporters in Australia and his awareness of current persecution of Falun Dafa in China; or for reason of shared political opinions he may hold in light of current events in China
·His current contact with his family or friends and others in China including his wife, and what information he has obtained, from whom and when, about his possible return to China and what might happen to him
These possible lines of inquiry and questions are not intended to be exhaustive and questions arising at hearing will vary depending upon responses made, and any further claims arising.
Findings
The Tribunal has no current information about these claims and is left only with the applicant’s personal statement. The only other supporting document is the applicant’s passport.
The Tribunal accepts that there is no issue with the applicant’s identity, as found by the Department, and where the identity evidence was found to be consistent with the applicant’s biometrics and his narrative.
Without further evidence, however, which might otherwise have become available from a hearing, the Tribunal can attach little if any weight to the applicant’s claims in his personal statement about persecution on account of his father’s religious beliefs and arising from his family’s association with the practice of Falun Gong, and his own political opinions. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Minister (or the Tribunal on review) does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[9].This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.
[9] Section 5AAA of the Act, inserted by item 1 of sch 1 to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) with effect from 14 April 2015
The applicant has chosen not to support independently his personal circumstances from other information such as witnesses who might have evidenced the events as they occurred in 1999, or from his family members, or from any submitted documentation as evidence of what has happened to his family in China. The Tribunal depends upon the applicant producing evidence and information on his own behalf and it is for the applicant himself to determine how he does that and what evidence he chooses to submit. The Tribunal is not obliged to make a case for him. It is well-established that the Tribunal is not required to make further inquiries in the absence of information, including evidence that could or ought to have been produced. As noted more recently by Perry J referencing another court opinion, “there was no general duty imposed on the Tribunal to make further inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ))”.[10]
[10] AJX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023]FCA 16 at [22]
Furthermore, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. The Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[11]
[11] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
In this instance, it is not known to what extent the applicant might have been able to provide additional supporting information, other than by oral submissions, and which were not made in the absence of a hearing.
The applicant has been in Australia since March 2017. It is reasonable to assume that in that time up until this decision, which has included some considerable delay since lodgment, and which can only be regretted, that the applicant has had a significant period within which he might have sought advice or obtained supporting information, either from contacts he has made in Australia or from family and connections in China. He could have explained his current situation to update and better inform the Tribunal, explained his political opinions as he views them, and his family’s association with Falun Gong through his farther. He could have sought more time if it was required to present information and argue his case. He has not done that.
On the available information the Tribunal finds on the objective facts that:
·The applicant is [an age]-year-old citizen of China from Hebei Province; he has no ethnicity or religion
·He is married, with no children and his family including his parents have remained in China and continue to live in Hebei Province
·He was educated in China to [level] and speaks and writes only Mandarin
·That he came to Australia on a visitor visa in the business stream in March 2017 and has lived here continuously onshore since that time
·He applied for a Protection visa on 29 May 2017
·At the time of decision, he remains on a Bridging visa with no conditions, pending the outcome of this review
DFAT country information report – Republic of China December 2021
In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal has also had regard to country information assessments prepared by the Department of Foreign Affairs and Trade with the assistance of COISS.
From the most recent DFAT country information report, referenced as ‘Report People’s Republic of China 22 December 2021’, the Tribunal has extracted relevantly the following assessments. The report takes into account a “general, rather than exhaustive country overview” and “based on DFAT’S on-the-ground knowledge and discussions with a range of sources in the People’s Republic of China and Australia.”[12]
[12] Purpose and Scope at ch 1; paragraph numbers refer to the extracted paragraphs from the report.
Illegal new religious movements (xie jiao)
3.25 Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.
3.53 Some new religious movements, known as xie jiao, are illegal in China. The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations.
3.54 Many xie jiao began as a formal expression of a syncretic mix of Buddhism, Daoism and Confucianism (‘three religions in one’) along with cultural practices, which from a Western perspective are sometimes difficult to separate from religious practices. Some later incorporated foreign religions into their mix of beliefs (especially Christianity and Islam, becoming ‘five religions in one’). Many of these beliefs obscure these backgrounds and adherents might not recognise their new religious movement as influenced by other religions.
3.55 There is a list of xie jiao but it can change quickly and is not available from official sources, making it difficult to determine at any time whether a particular religious movement is banned. Academics Utiraruto Otehode and Benjamin Penny give a list in a 2020 article but note some sects and new religious movements (at least those based on qigong, a breathing technique upon which Falun Gong is based, for example) may not be specifically banned but instead watched or categorised as ‘problematic’ or ‘harmful’.
3.56 One Chinese county government website from Shaanxi states that xie jiao often ‘disguise themselves’ or ‘pretend to be religions’ (such as Christianity or Buddhism) or a manifestation of science or ancient practices. Another city government website from Shantou in Guangdong says that xie jiao spread false teachings and heresy. The national government’s ‘anti xie jiao’ website has articles about various groups, a section to help people find missing relatives and a place to report xie jiao activity. Membership of such groups is illegal and the profile of a person who is a member is not relevant to the chances of arrest once detected; a low profile worshipper in a xie jiao is still subject to arrest.
Falun Gong
3.64 Falun Gong was established based on the practice of qigong, a generic term for a family of meditative breathing and stretching exercises with a long history in China. Qigong experienced a resurgence in popularity in the 1980s and 1990s, and Li Hongzhi (Master Li) founded Falun Gong in 1992 at the same time as other movements were founded. Falun Gong is the most well-known qigong group outside China, but many others exist and many of them are banned or monitored in China.
3.65 By performing exercises, following the moral teachings of the religion and reading and re-reading the sacred text Zhuan Falun, believers hope to ascend to a state of perfection or ‘cultivation’. Practitioners may not see Falun Gong as a religion, seeing it as a method for ‘cultivation’ or science. Unlike other qigong practices, Falun Gong has moral teachings (for example teaching against gay sex and abortion) and supernatural aspects. DFAT understands from sources that these beliefs exist, but do not form a core part of Falun Gong belief or practice. The Chinese Government and some former members claim the religion encourages isolation from families or refusal of medical treatment. Falun Gong denies these claims.
3.66 Falun Gong has been illegal since 1999 and the government actively searches for and prosecutes practitioners. Adherents can be imprisoned for between three and seven years. For this reason, members do not openly proselytise and there is no initiation ceremony. Conversely, repression of the religion has become a key part of its teaching and practice abroad. Practitioners, including in diaspora communities, may be involved in anti-Chinese Government activism.
3.67 DFAT understands that many adherents are still active in China, but it is not clear whether they are the same adherents from before the ban or new converts. The 2020 US Department of State International Religious Freedom Report estimates there are between 7 and 20 million Falun Gong practitioners in China, but this is hard to verify given that practice is often private, and the group is illegal and stigmatised.
3.68 Unlike some other xie jiao, Falun Gong is not secretive about its beliefs. Most Falun Gong beliefs are published on the organisation’s websites. Unlike some other new religious movements there are no ‘gradations’ of knowledge where one has to be admitted or inducted into knowledge after perhaps being a believer for a certain time or paying a fee. Core to Falun Gong beliefs is the reading and re-reading of the Zhuan Falun, the sacred text of the organisation that comprises a series of lectures made by Master Li. A source told DFAT that a thorough knowledge and constant re-reading of the Zhuan Falun is central to Falun Gong beliefs; one cannot be Falun Gong without that practice.
3.69 Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. They may be unable to find jobs after release from detention. Unlike other xie jiao, the government regards Falun Gong practitioners as political opponents rather than victims and treats them accordingly (see Political Opinion (actual or imputed)). They are likely to be monitored after release from detention.
3.70 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. Falun Gong practitioners are generally able to practise privately in their homes. DFAT is aware of claims by Falun Gong practitioners and their lawyers that they have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims. In May 2020, following the release of the China Tribunal’s report into organ harvesting, DFAT officials met with the Chair, Sir Geoffrey Nice QC, to further discuss the findings. DFAT continues to review the evidence and reports as they come to light.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.79 Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy the freedoms of: speech, the press, assembly, association, procession and demonstration. In practice a wideranging number of topics are considered sensitive and are censored, with those raising them liable to punishment. Sensitive issues include commentary on: political issues and events (including the policy direction of the CCP and nation and sensitive anniversaries); serious economic, health (including COVID-19 origins and the government’s handling of the outbreak); land rights and property or environmental issues; labour rights; religious or ethnic issues; or legitimacy of central authorities and the CCP. The sensitivity of topics can change quickly and it is impossible to make a comprehensive list of sensitive topics.
3.80 Criminal punishment can include a period of deprivation of ‘political rights’, which might include denial of freedoms such as expression or assembly. These deprivations in practice make it difficult to find employment, to travel, or to obtain a residence or accommodation. The families of political activists may also find their rights similarly circumscribed.
3.81 The implications of political opinion are wide-ranging in China and the following sections on activists and civil society, protesters, media and the social credit system provide further detail.
Groups of Interest
Activists and civil society
3.82 Civil society in China is restricted. CSOs and their activities must be registered by the government with local authorities. In practice, some CSOs, particularly large organisations, are required to work closely with the government and are quasi-government bodies. All NGOs must have a government sponsor to be registered. Foreign-linked CSOs (including those based in Hong Kong, Macau or Taiwan) are subject to particular scrutiny and may be unable to register or re-register. Few foreign CSOs exist in practice. If an organisation does have government support and its aims align with government priorities, it can be successful in achieving its aims or raising awareness (for example women’s and environmental NGOs) but it depends on the organisation and its goals, history and relationships.
3.83 People who advocate for human rights and their families are subject to surveillance, threats and detention. DFAT is aware of human rights activists who work in areas such as gender or labour rights who have been detained for their activism. Families of activists have been threatened with the loss of jobs if they speak out. Those who speak out about their treatment by authorities face further detention, limiting the number of available sources and information about the treatment of activists.
3.84 Some private criticism (for example among friends and family) of government is generally tolerated. If the criticism is more widely disseminated, for example on an online platform or deemed too inflammatory or in relation to a particularly sensitive subject, authorities might reprimand the individuals involved.
3.85 High-profile activists and critics are particularly targeted but DFAT is also aware of examples of low-profile but outspoken activists being targeted. Profiles of those who may be affected are difficult to predict accurately. DFAT assesses that high-profile activists are at high risk of official discrimination in the form of detention and imprisonment. The hidden nature of low-profile activists and reluctance to speak out make it difficult to assess the risk to day-to-day critics, but those who criticise the government on sensitive issues can come to the attention of authorities. Any discussion on social media is visible to authorities. A person that has been active in protests outside of mainland China (including Hong Kong) against the Chinese Government is likely to attract the attention of government, especially if they are high-profile, but interest in a lower-level protester is not impossible.

The Tribunal has also had regard to an assessment from the Immigration and Refugee Board of Canada[13] that states Falun Gong members who publicly proselytize or discuss the Nine Commentaries on the Communist Party will attract the attention of Chinese authorities… and “particularly individuals involved in protest and media activities”. The report quotes an Assistant professor and Senior lecturer who also state that Falun Gong members , along with other banned groups and religions are likely to be detained upon arrival when returning to the country, and that individuals who are more obviously engaged in activities abroad are more likely to face retribution upon return. The assessment adds that it is difficult to determine a "clear cut cause and effect’ in terms of punishment.
[13] cisr.gc.ca per – per Assistant professor and Senior lecturer 29 Sep 2022 and 3 Oct 2022
According to a Freedom House report[14], Chinese state campaigns focused on Falun Gong practitioners abroad are steered by the "6-10 Office, an extra legal security agency tasked with suppressing banned religious groups," as well as by the MPS (Ministry of Public Security), although "local officials from various regions are also involved in monitoring Falun Gong exiles from their provinces".
[14] Freedom House Feb. 2021, 16
The Department of Home Affairs answered the following question via a COISS response on 7 March 2019, concerning a Q&A on Hebei Province, and the security situation, and relevantly, the Falun Gong situation at the time[15].
[15] Department of Home Affairs COISS 2019, Q&A Report CI180716115106703, 7 March (Hebei province, Political situation, Security situation, Falun Gong, Yiguandao, Local Church, Land protests, Corruption, Family planning)
Question: Are there current reports on Falun Gong in Hebei province and the attitudes or treatment by the authorities?
-In some locales, repression has eased over the past five years, even though a national ban against Falun Gong remains in place.
-The 2018 US Congressional Executive Commission on China report briefly notes the case of a Falun Gong practitioner ‘Bian Lichao of Tangshan municipality, Hebei, who is serving a 12-year prison sentence.’[16]
[16] 'Congressional-Executive Commission on China Annual Report 2018', Congressional Executive Commission on China, US Government Publishing Office, 10 October 2018, p.35, CIS7B839419791
-The report provides the following information on the treatment of Falun Gong more generally:
As in previous years, authorities continued to detain Falun Gong practitioners and subject them to harsh treatment. Due to government suppression, it is difficult to determine the number of Falun Gong practitioners in China. Authorities commonly prosecute Falun Gong practitioners under Article 300 of the PRC Criminal Law; the U.S.-based NGO Dui Hua Foundation noted that Falun Gong practitioners made up the majority of the 800 people convicted under the provision in cases from 2017 available in judicial databases. Human rights organizations and Falun Gong practitioners documented coercive and violent practices against practitioners during custody, including physical violence, forced drug administration, sleep deprivation, and other forms of torture. In December 2017, the Epoch Times, a U.S.- based news organization affiliated with Falun Gong, reported 29 confirmed deaths of Falun Gong practitioners in 2017 due to abuse by officials. Several international organizations expressed concern over reports that numerous organ transplants in China have used the organs of detained prisoners, including Falun Gong practitioners. Medical professionals and international advocacy organizations disputed Chinese health officials’ claims that organ procurement systems have been reformed in compliance with international standards, citing ethical concerns about organ sourcing raised by short wait times for organ transplants and discrepancies in data on organ transplants.
-In 2010 a 45 year old Falun Gong practitioner in Hebei province died in custody nine days after she was detained by police to attend a ‘transformation through education’ session at an old munitions factory guesthouse.[17]
[17] ‘The Learning Curve: How Communist Party Officials are Applying Lessons from Prior “Transformation” Campaigns to Repression in Xinjiang', Sarah Cook, Jamestown Foundation, 01 February 2019, p.2
-According to Minghui, a Falun Gong-affiliated source cited by the US State Government, during 2017 ‘42 practitioners died in custody or following release from prison due to injuries sustained while in custody.’[18] In 2019, Minghui reported that ‘4,848 Falun Gong practitioners were arrested and 4,127 were harassed’ during 2018.[19] Minghui also reported that Falun Gong practitioners in Hebei became targets in a government campaign intended to combat criminal gangs and that ‘Hebei Province had as many harassment cases in 2018 as the rest of China combined.’
[18] 'International Religious Freedom Report for 2017 - China (Includes Tibet, Hong Kong and Macau)', United States of America (USA): Department of State also State Department, 29 May 2018, p.10, OGD95BE927626
[19] ‘Minghui Report: Nearly 9,000 Falun Gong Practitioners Arrested or Harassed in 2018 for Their Faith’, Minghui, 24 January 2019, 20190228164728
Sources affiliated to Falun Gong have reported on recent instances of ill-treatment of Falun Gong practitioners in Hebei province:
·On 12 February 2019, Minghui reported that police arrested a couple, both 60 years old, in Lulong County for distributing calendars with Falun Gong content.
·In February 2019 Minghui reported that police searched the homes of 15 Falun Gong practitioners and confiscated personal belongings ‘including computers, printers, MP3 players, Falun Gong books, and informational pamphlets.
·In February 2019 Minghui reported that ‘273 Falun Gong practitioners in 14 districts of Tangshan City were harassed by officers from a number of different police stations in 2018.’20 Most incidents occurred during May, June and July 2018.
·In January 2019 Minghui reported that a Falun Gong practitioner, Yang Jinxia, was sentenced to four years imprisonment and a 5,000 yuan fine for ‘telling local residents about Falun Gong at a farmers’ market at Daifu Village on May 27, 2017.’
·In January 2019 Clear Harmony reported that a 64 year old Falun Gong practitioner from Qinhuangdao City, Ma Guilan, died suddenly while in detention. Ms Ma was arrested for talking to people about Falun Gong in July 2018.
·In January 2019 Minghui reported that a resident of Li County, Wang Xianghui, was sentenced to 21 months in prison after he was arrested for ‘writing letters to top government officials seeking financial compensation for the ordeal his family suffered in the past decade, as well as demanding information disclosure about the 610 Office.’ Mr Wang had previously been in prison for 11 years for practicing Falun Gong.
·In December 2018 Minghui reported that a 64 year old woman, Kong Xianglian, was sentenced to two years prison for handing out calendars that had messages about Falun Gong.
·In September 2018 Minghui reported that a couple, Wang Zhiqin and Cao Yachun, from Luannan County were accused of distributing Falun Gong materials and were tried in the Luannan County Court.
·In July and August 2018, Minghui reported that authorities in Laishui County conducted a ‘knocking on doors’ exercise in continuation of a nationwide campaign started in 2017. More than 200 Falun Gong practitioners were questioned.
·In July 2018 Minghui reported that police had arrested Ding Yuming from Huailai County for writing ‘Falun Dafa is good’ on a post at the Beijing Bridge. The police identified him from surveillance camera footage. They later searched his home and workplace and he was detained for a week.
In summary, the Tribunal finds the available country information, which carries some weight, and in a generalised context and without referencing all the above, assesses the following:
·That the major religions practised in China are Buddhism, Taoism, Islam, Catholicism and Protestantism.
·Falun Gong is not a recognised religion and was banned in 1999 as a threat to the State, and an ‘evil cult’.
·While the Constitution and 2018 relaxation reforms allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups – still face intensifying official persecution and repression, which has continued since 2018.
·DFAT assesses that Falun Gong practitioners in particular, 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. Members can generally practice discreetly however in their homes.
·Those members with a higher profile and who are effectively activists face a high risk of official persecution and repression.
·The Chinese government is intent where possible to eradicate Falun Gong activities of any public nature, and with varying degrees of punishment from residential detention through to imprisonment and physical deprivation and torture.
·High profile political activists as well as critics of the Chinese Communist Party and the government may be targeted and monitored and may come to the attention of authorities through their activities and may be at high risk of detention and imprisonment
The Tribunal concludes from this country information, in summary, that where it is established on the evidence and findings that the applicant is a political activist or ‘day-to-day’ critic of the government, or a member of Falun Gong, or associate of those who practice the faith, or that he is himself active in the practice of the religion and is likely to be drawn to the attention of Chinese authorities on returning to Hebei Province, or in fact anywhere in China where he might attempt to live and continue to express his political opinions or practice his faith, he is likely to be subject to persecution, meaning arbitrary arrest and detention.
The country information does not specifically identify that family members of known Falun Gong practitioners may suffer the same fate and persecution as members themselves, though it is likely that family members may be pressured to report on others.
Department Policy – Guidelines – Procedural Instruction[20]
[20] 15 November 2022
The Department’s Procedural instruction, in the interests of consistency in approach, guides all Protection visa decision makers assessing whether a person seeking protection in Australia, will engage Australia’s protection obligations because the person is a refugee in accordance with the provisions in the Act. The Tribunal, where relevant, must have regard to such guidelines, but is not bound to follow them where to do so might lead to an inconsistency with the Act or Regulations.
This is an application which relies upon a perceived threat of persecution by the applicant, based on his political opinion as a critic of the government because of his family association through his father’s religious belief as a Falun Gong practitioner and proselytizer. The applicant’s criticism of the government relates directly to his association as a family member of a Falun Gong practitioner, and for no other given reason, and arises because the religion conflicts with State authority and regulation, prohibited as an ‘evil cult’.
As referred to in the guidelines, there must be a ‘real chance’ of persecution following from these claims, and serious harm, in the applicant’s home region, and which chance is not far-fetched or remote, and which is a real chance of an event (likely detention and imprisonment) occurring in the future, and with a reasonable degree of likelihood.[21]
[21] DOHA Refugee Law Guidelines at 3.12.1(p.57 of 140)
The guidelines provide an illustration of where a chance of persecution might be remote, where for example, the practise of Falun Gong was found to be fundamentally private, and that practitioners (such as the applicant’s father and the applicant himself, were that the case) would not then have a real chance of persecution, because their actions would not likely come to the attention of authorities.
In this case, evidence of the applicant’s association with his father and/or other practitioners is therefore regarded as fundamentally important, as where his father may practise with discretion and in private, according to the guidelines, it puts the applicant at significantly less risk from the State.[22]
[22] Guidelines at 3.6.5 (p 24 of 140)
It is likely in the absence of evidence of any practice of the religion, that in accordance with the guidelines, the applicant would be at a very low risk of persecution in the foreseeable future on account of what had happened more than 20 years ago.
Where there is no evidence as to the applicant’s association with Falun Gong, and whether his father continues to practise at all, whether privately or more publicly, and what association the applicant may have with anyone else associated with the faith, the Tribunal can place very little weight upon statements by the applicant where he contends he will be persecuted.
In this instance, the Tribunal has considered the guidelines, but found nothing in the context of this case and the available information that might require the Tribunal not to be guided by them.
Summary
This is a case with very limited evidence.
No explanation has been provided by the applicant for making no further submissions since lodgement with the Department in 2017, or for failing to attend when invited with two opportunities[23] to present evidence and argument. The courts have held that where there is a paucity of available information and evidence, it is difficult for a decision-maker to reach a desirable level of satisfaction that a claimed fear is in fact ‘well-founded’.[24]
[23] DOHA invitation for 25 August 2017 and AAT invitation for 24 January 2023
[24] See e.g. SZSMQ v MIBP [2013] FCCA 1768 at[42]-[44]
The evidence from the applicant is limited to his personal statement as to his fear of persecution, and to the application, which sets out his personal details concerning his family background and his experience up to September 2017.
Due to the very limited nature of that information, which is otherwise unsupported or corroborated, and where there is nothing other than the applicant’s declared statements with his application upon which he contends that he will be persecuted, the Tribunal attributes no weight to those statements and finds the following on the available information:
·The applicant does not contend and there is no evidence the applicant is himself a current Falun Gong practitioner, or has any continued association with Falun Gong members either through his father or others, either in Australia or in China
·The Tribunal attaches no weight to the contention that the applicant was arrested in 1999 and beaten for complaining of his father’s arrest and imprisonment; there is insufficient detail such as a date, time and place and how this occurred and who else might have been involved and/or who witnessed the events, what and where it happened, and no particulars provided which might support the contention;
·the information about his treatment is generalised, does not include information about what ‘crime materials’ he wrote for police, some detail of which he might be expected to remember, and is not personalised so as to be persuasive that it might in fact have actually occurred as stated, and is more of a generalised description of what was happening to some people in China at the time, but not to the applicant personally;
·The Tribunal therefore does not accept the applicant’s statement about his treatment by police, on a single occasion, in 1999, or that he has a well-founded fear of persecution based on that incident and his father’s (then) Falun Dafa faith, or for his being a government critic because people generally were not able to practise a prohibited religion or faith, and given that there is no evidence of any claimed interest in the applicant by Chinese authorities after the period between October and December 1999, until his departure for Australia in 2017
·The lack of interest by Chinese authorities in the applicant is reinforced by his statement that he obtained at least two passports[25], and left the country freely in 2014, and then again in 2017;
·the applicant was not a high profile citizen or government critic, with any history of complaining, or religious practice and proselytization, and his fear of persecution in the foreseeable future relies only on his historical association as a family member more than 20 years ago in 1999 with his father as a Falun Gong practitioner, and further as contended, that he came to the attention of police for complaining about his father’s treatment.
·What occurred in 1999, means it is unlikely the applicant would be of any interest to Chinese authorities in the foreseeable future, anywhere in China that he might now choose to live, whether in his home region, Hebei, or anywhere else, and as a consequence of events in 1999 involving his father, and which have not been updated to illustrate any further activity or developments in the past 23 years.
·There is no evidence of any current Falun Gong activity by the applicant’s father since 1999, and since his father’s release from prison in 2004
·The applicant came to Australia on a Tourist visa applied for and granted on 24 February 2017 in the Business stream, seeking employment and work opportunities
·There is no evidence of any political activity by the applicant since arriving in Australia, notwithstanding he has freedom of expression, nor any evidence of any association with Falun Dafa as an illegal organisation in China and which might prevent him from returning to live anywhere in China, as well as his hometown
·The applicant did not immediately apply for protection upon his arrival [in] March 2017 but waited until his visitor visa was about to expire on 8 June 2017; no reason for delaying his application until then has been submitted. This is so, where it is contended that his purpose in coming to Australia was for ‘safety’ and to avoid being prosecuted. Those contentions in the applicant’s personal statement are rejected.
·The Tribunal concludes therefore from all of the above that the applicant is not a refugee and brought the Protection visa application on 29 May 2017 to prolong his stay in Australia and for no other reason.
[25] See application answer at q.58
Conclusion on the application under merits’ review
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
Complimentary protection where not a refugee
For the reasons expressed above, the Tribunal has found that the applicant does not have a well-founded fear of persecution anywhere in China, whether in his home province or anywhere else he may choose to relocate and is not a person of interest to Chinese authorities. The Tribunal has found that there is no evidence presented or available to suggest that the applicant cannot return safely to his country of origin and his home.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alan McMurran
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.
…

[2023] AATA 1071

25 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Natural Justice

Jurisdiction