1726026 (Refugee)

[2021] AATA 3657

1726026 (Refugee) [2021] AATA 3657 (25 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1726026

COUNTRY OF REFERENCE:                   China

MEMBER:Damian Creedon

DATE:25 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 25 July 2021 at 2:45pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Falun Gong – detention – employment – physical assault – extortion – continued Falun Gong practice in Australia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 October 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

   Background:

2. The applicants are citizens of China.  They applied for the visas on 2 September 2016.  The first-named applicant, the primary applicant (applicant), is [age] years of age.  The second-named applicant is the applicant’s son and is [age] years of age.

3. The applicant arrived onshore [in] October 2014 as a dependant on the second-named applicant’s student visa.  The applicant was granted a Bridging visa on 2 September 2016 which remains in effect.

   Protection visa application

4. The applicant’s written claims for protection are set out in her visa application.  They are short and it is convenient to reproduce them in full (uncorrected):

   I will persist in persist in Practicing Falun Gong no matter where I am, and I will continue to expose the persecution of my fellow Practitioners in China.  So if I was to return to China, I’ll continue to be harassed and threatened by the Chinese authorities and the 610 office.  I may lose my personal freedom and even my life.  Many Falun Gong Practitioners are still being tortured to death, even through forced organ harvesting.

   Also, I have participated in Public Falun Gong activities in [City 1], I am concerned that I may be persecuted if I was to return to China.

5. In a written statement accompanying her application the applicant made the following claims:

   a.The applicant comes from Jinan City, Shandong Province.

   b.The applicant and her mother first learnt about Falun Dafa together in 1996, practicing in “a place [at a location in] Jinan city”.

   c.In 1999 the applicant started to hear rumours about the abolition of Falun Gong; she states:

   At the beginning the park where we held our practices stopped us from entering. Shortly after some people would come to disrupt our practices. They piled rubbish on the ground where we would use to practice or they would spray water and wet the ground. Later on policemen also started using water to hose down on us.

   On July 20, 1999, the Chinese Communist Party media started its propaganda campaign to vilify and suppress Falun Dafa. My work held talks with me and demanded me to abandon my belief and ordered me to write letter of repentant otherwise my pay would be deducted or worst even I would lose my job. My colleagues started looking at me in a different manner. Policemen came to my  home and confiscated all my books and materials for practice Falungong. They interrogated me and threatened me and demanded me to tell them how I practiced and required me to disclose the names of other practitioners

   d.In response, the applicant states that she and her mother went to Beijing [in] February 2000 with the intention of appealing for help to the “State Council’s Letters & Visitors’ Office”.  The applicant and her mother were, however, detained by police and returned to Jinan; the applicant states that she was detained for 24 hours and her mother was “locked up” for one month and fined 5,000 Yuan.

   e.The applicant states that [in] October 2000 she accompanied [Leader A] to Beijing together with her mother and “several others” to appeal for help; the applicant was [pregnant] at that time; she states:

   In Tiananmen Square, several policemen and plain clothed police grabbed my hair and pull me to the ground and they hit me and kicked me. My mother tried her best to protect me and screamed that "she is pregnant" however it didn't help. My mother received injuries to her head and leg and they pulled lots of hair out of our head. We were sent to [a named] Detention Centre in Beijing later. Once we got there, we received slaps on the face. We were locked up for a day and a night and then sent back to Jinan.

   f.The applicant states that she was “locked up” for two days in Jinan, but then sent home as she was pregnant.  She states, however, that “they” arranged people from her work to “keep watch” on her.  She states that police from 610 Office showed her husband that her name was on a lost of people who were to be sent to the labour camp and they “extorted” [amount] Yuan from him.

   g.In August 2001, the applicant states that:

   …the police raided my home at night (my mother and I lived together) and searched the residence. They made a mess of the place and again confiscated my books and materials for practice Falun Dafa. We were fined [amount] Yuan and my mother was sent to a re-education camp and was detained illegally for a month

   h.Between 2002 and 2005 the applicant states that her work suspended her duties and paid only a “small sum” for her to live on.  She was ordered to attend work everyday so that she could be supervised.  Her mother was sent to a labour camp for three years and one month.

   i.On 10 October 2009 the applicant claims that police raided her home, confiscated her computer and printer and locked up her mother for [number] days.  She states that they were ordered to pay [amount] Yuan as surety which was not returned.

   j.In Autumn 2014, the applicant states that the “Review Team” of Shandong Province attempted to sabotage her husband’s work promotion due to her and her mother’s practice of Falun Gong.  She states:

   At festive events or important meeting times for the Communist Party, the police would come to our home and threaten us, or ask my work to detain me for several days, or send people to watch on us. My husband was denied any promotion opportunities because of my practice. His manager even held talks with him and pressured him to divorce me for his own future. Overall, the police extorted from my husband money totalled exceeding [amount] Yuan from all these years.

   k.The applicant states that her son was discriminated against at kindergarten and school on account of her practice of Falun Dafa, and that he has been traumatised and suffered psychological harm from the actions of the police against the applicant.

   l.The applicant states:

   After I got out of China, we wanted to rescue my mother and get her out of China as well therefore I was not able to apply for a political protection visa otherwise my husband and my mother would both be in trouble because of this, and more severe persecution would follow. Because my mother had been under police surveillance all the time, she couldn't get out of the country until August 2016 after overcoming many difficulties

   m.The applicant states that the authorities in China have continued to harass her husband and he has had to resign his job as a public servant on account of her practice of Falun Gong.

6. The applicant attended an interview with the delegate of the Minister on 28 June 2017. Where relevant, the applicant’s evidence to the delegate is referred to below.

7. The delegate refused to grant the visa on 19 October 2017 on the basis that the applicant does not have a well-founded fear of being persecuted in China. The delegate also did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that she will suffer significant harm.

8. The applicant applied for a review of the delegate’s decision.

   Application for review

9. The applicant applied for a review of the delegate’s decision by an application lodged with the Tribunal on 24 October 2017.

   Documentary evidence

10. In support of her application the applicant has provided the Tribunal copies of a number of documents, including the following:

    a.The applicant’s People’s Republic of China Resident Identity Card, valid from [2013] to [2023].

    b.A letter of support from a [Ms A], dated 10 November 2017.  In the letter [Ms A] states, relevantly:

    I have recently completed my [qualification] at [a named university] and have been practicing Falun Gong for over five years. Since 2014, I have been teaching weekly Falun Gong classes near the university. I am also one of the primary contacts for Falun Gong classes in [region].

    I first got to know [the applicant] when she attended weekly Falun Gong study sessions upon her arrival in [City 1]. More recently, I have been involved in sharing her family’s story of persecution with the public, as I found it very touching. To do this, I had many in-depth conversations with [the applicant] about the persecution she and her family endured. Her words and conduct left no doubt in my mind that she is a genuine Falun Gong practitioner.

    In addition to this, [the applicant] has been an active participant in activities in [City 1] which expose the truth of the persecution in China to the public.

    c.A letter of support from a [Doctor A], dated 11 November 2017.  In the letter [Doctor A] states, relevantly:

    I have been an Australian citizen for over 30 years and am a registered medical practitioner in Australia (Registration no. [REDACTED]). I have practiced Falun Gong (also known as Falun Dafa) for more than 17 years.

    I am also [an official] of [a regional] branch of the Falun Dafa Association of Australia, a registered non-profit organisation representing all Falun Gong practitioners living in Australia.

    …

    I first met [the applicant] around November 2014 at our local study group. She has since taken part in many of our local public activities.  Through my interaction with [the applicant], I have no doubt in my mind that she is a veteran practitioner of Falun Gong. Her knowledge of the practice and its persecution in China, her exercise movements and her personal experience of the persecution are consistent with that of a veteran practitioner of Falun Gong.

    d.A letter of support from a [Friend A], dated 17 November 2017.  In the letter it is stated, relevantly:

    During the 15 years+ I have been practicing Falun Gong myself, I have had countless interactions with both the Australian and global Falun Gong communities. With the added context of my experience as a professional psychologist, I have come to recognise the key characteristics that distinguish genuine practitioners from those simply trying to appear so.

    I have known [the applicant] for over a year now, spoken with her individually and heard her speak within the small group of Falun Gong practitioners in [City 1]. She has consistently demonstrated herself in accordance to what I have come to expect from a Falun Gong practitioner.

    e.A letter of support from a [Mr A], dated 26 November 2017.  In the letter [Mr A] states, relevantly:

    I’m writing this letter to verify that [the applicant] is a genuine Falun Dafa practitioner as supportive evidence for her application of protection visa.

    [The applicant] is a veteran Falun Dafa practitioner from my point of view as the [position] in [City 1] Office of The Epoch Times…

    I interviewed [the applicant] last April about her early tribulation when the persecution started in 1999. Her story was written in my report titled “[title deleted]”…

    I’ve had contacts with [the applicant] when she took part in Falun Gong activities in [City 1]. From the interview and contacts I know how she understands Falun Dafa. I’ve been practitising Falun Gong since 1997 and have no doubt that she is a veteran Falun Dafa practitioner…

    f.A letter of support from a [Leader A], dated 30 November 2017.  In the letter [Leader A] states, relevantly:

    I am [specified occupations] and a [Country 1] citizen.  I started practicing Fa Lun Gong in [Country 1] in February 1996.  I felt Fa Lun Gong was great so I return to China in April the same year because China is where Fa Lun Gong originated.  I was working as [professional role] in Jinan at the time.  I practiced Fa Lun Gong at the same place as [the applicant] and [her mother]…

    I was [arrested and] sentenced to three years of reform through labor.  Under the assistance of the [Country 1] Government I was rescued in January 2001 and went back to [Country 1]….

    I am lucky to be able to stay away from the persecution of the Chinese Communist Party and live and work in a free Western country, but I deeply miss my fellow practitioners who still live in mainland China….

    I especially miss me fellow practitioners such as [the applicant] and [her mother] who have been through life and death together with me.

    In May this year there was a conference of religions held in New York.  [An Australian participant] [redacted] gave me a letter from [the applicant] and her mother [redacted].  I was so glad that they went to Australia and now live in a place with freedom and safety….

    g.A statutory declaration made 25 August 2019 by the applicant’s mother.

    h.Numerous written articles and electronic media concerning the practice of Falun Gong, the activities of Falun Gong practitioners in [region] and the situation of practitioners in China.  Where relevant, these articles will be referred to by the Tribunal in its analysis below.

    Hearing

11. The applicant appeared before the Tribunal on 13 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

12. The Tribunal also heard evidence from:

    a.The second-named applicant; and

    b.[Doctor A].

13. Where relevant, this evidence will be referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

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

    Analysis, findings and reasons

20. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Country information

21. It is convenient to outline the relevant country information prior to an analysis of the evidence.

22. A useful description of the basic tenants of Falun Gong is found in a recent Freedom House report (citations omitted):[1]

    Falun Gong is a spiritual practice whose key features are five meditative qigong exercises and teachings reminiscent of Buddhist and Taoist traditions, with particular emphasis placed on the tenets of truthfulness, compassion, and tolerance (Zhen-Shan-Ren in Chinese). Adherents perform the exercises, study spiritual texts, and attempt to conform to these values—believed to be in harmony with the spiritual nature of the universe—in their daily lives, with the understanding that doing so leads to better physical health, mental well-being, and spiritual enlightenment.  While Falun Gong includes some spiritual attributes of religion, it is loosely organized and lacks a professional clergy, formal membership, acceptance of  donations, and specialized places of worship.

    [1] Freedom House “The Battle for China’s Spirit: Religious Revival, Repression and Resistance under Xi Jinping” (27 February 2017) at p.110 <>

    The latest DFAT country report on China[2] notes the following in respect of Falun Gong:

    [2] DFAT Country Information Report People’s Republic of China, 3 October 2019.

    Falun Gong

    3.96      Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism, and Qigong (traditional breathing and meditation). Freedom House estimates seven to 20 million people currently practice Falun Gong in China. Falun Gong practitioners claim the movement has ancient origins, but it first appeared in its modern form in 1992, when founder Li Hongzhi began teaching the exercises in Changchun, Jilin province. Unlike other religions, Falun Gong focuses on private exercises and meditation.

    3.97      The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address ‘evil cults’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as ‘transformation through re-education centres’ to force practitioners to relinquish their faith. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and northeastern China, although Falun Gong’s illegal status makes this difficult to verify.

    3.98      Since the abolition of re-education through labour centres in late 2013, Falun Gong practitioners have reportedly been subjected to residential detention, criminal and other forms of administrative punishment (see Arbitrary Arrest and Detention), or have been released after receiving propaganda training. Freedom House states it independently verified 933 cases between 1 January 2013 and 1 June 2016 of Falun Gong adherents receiving prison sentences of up to 12 years for their beliefs.

    3.99      Falun Gong members do not openly proselytise in mainland China, although the movement is active in Hong Kong (where it remains legal) and abroad. Falun Gong practitioners identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong. Falun Gong practitioners are generally able to practise privately in their homes. Once known to authorities, colleagues or neighbours, however, Falun Gong members face widespread official and societal discrimination.

    3.100     Lawyers representing Falun Gong practitioners claim a typical Falun Gong case involves: a period of initial investigation; the suspect having their personal belongings confiscated and being placed in custody for three to six months; trial by court; and then sentencing. Arrested Falun Gong practitioners (leaders and followers alike) commonly receive sentences of three to seven years’ imprisonment. Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. Falun Gong practitioners and their lawyers claim that judges and lawyers are actively discouraged from taking on Falun Gong cases, and that Falun Gong practitioners have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims.

    3.101     On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs. Discrimination against Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships. Government officials, members of the police force and employees of state-owned enterprises are commonly required to sign a statement that they and their families are not Falun Gong members. A widespread and sustained government communications campaign against Falun Gong has effectively discredited it within mainstream Chinese society.

    3.102     Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly (see Political Opinion (actual or imputed)). Lawyers who defend Falun Gong practitioners are frequently denied access to their clients in detention or court, and are subjected to adverse treatment and physical and electronic surveillance by authorities (see Human Rights Defenders (including Lawyers)).

    3.103     Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport. Sources report some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.

    3.104     DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.

1. The repression against Falun Gong practitioners is ongoing.  In a recent report, Freedom House stated:[3]

   The [Chinese] regime’s 20-year campaign to eradicate the Falun Gong spiritual group continued in 2019. Hundreds of Falun Gong practitioners have received long prison terms in recent years, and many others are arbitrarily detained in various “legal education” facilities. Detainees typically face torture aimed at forcing them to abandon their beliefs, sometimes resulting in deaths in custody.

   Oral evidence: the applicant

   [3] Freedom House “Freedom in the World 2020 Report: China” (4 March 2020), <>

   The applicant gave evidence broadly conforming with her written claims.  In summary, she stated that she first became acquainted with Falun Gong through her mother in or around 1996.  When pressed by the Tribunal, and making allowance for the challenge of interpretation, the applicant was able to provide a reasonable explanation of her introduction to the physical practice of Falun Gong, the tenets of the belief system and the perceived benefits to her life of her practice.  

2. The applicant stated that she and her mother practiced Falun Gong in her home city of Jinan, in Shandong Province, with other practitioners and initiates, largely unmolested until July 1999. 

3. A that time, she stated, the Chinese Communist Party (CCP) began its “crackdown” on the practice of Falun Gong, including raiding the applicant’s home to seize books and other Falun Gong materials. 

4. The applicant stated that, in response to, the CCP’s actions, she and other practitioners including her mother, attended the “State Council’s Letters & Visitors’ Office” in early 2000 to plead their case.  The Tribunal’s impression of the applicant’s evidence is that, at that time, the view she and her fellow practitioners held was that the CCP’s crackdown was as a result of a “misunderstanding” of Falun Gong and that, if their case could be properly heard, they would be able “to set the record straight”.

5. The applicant’s evidence is, however, that she and her mother were arrested and detained by police when it became apparent why they wished to plead a case (that is, once the police were aware that they were Falun Gong practitioners) they were detained before reaching the “State Council’s Letters & Visitors’ Office”.  The applicant stated that she was detained for a day and her mother for approximately one month.

6. The applicant stated that later in 2000, when she was [pregnant], she again travelled to Beijing with other Falun Gong practitioners including her mother and [Leader A].  The applicant stated in evidence that she and her mother were both beaten by police in Tiananmen Square.  When pressed, the applicant recalled being forcibly pulled to the ground by the hair with such force that bunches were pulled out; she stated that she used her hands to “protect her belly” and was hit and kicked by police; she stated that she suffered an injury to her leg.  The applicant’s emotion at recalling these events was evident to the Tribunal.

7. The applicant stated she and her mother were again returned to Jinan City and she was detained for a further two days.

8. After this event, the applicant stated that she and her husband and son (when he was born) became the target of local authorities who:

   a.regularly threatened the family at their home by attending, searching and seizing their property;

   b.interfered with her work by informing her employer of her Falun Gong association;

   c.extorted the applicant and her husband on threat of persecution for her Falun Gong association; and

   d.solicited bribes from the applicant and her husband.

9. The applicant stated that the cumulative effect of these events over several years forced her to leave China with the second-named applicant.

10. The Tribunal raised with the applicant the apparent delay in her applying for a protection visa upon her arrival onshore.  The applicant stated that she did not seek a protection visa initially as her mother was still in China, and she feared repercussions for her mother should she do so.  Once her mother had arrived onshore, she felt able to safely make the application.[4] 

    [4] The Tribunal notes that the applicant’s mother was granted a protection visa in Australia on the grounds of Falun Gong practitionership and she is now an Australian citizen.

11. The applicant stated that she has continued her practice of Falun Gong in Australia, including participating in public events that have been reported upon in social and print media.

    Oral evidence: the second-named applicant

12. The second-named applicant confirmed to the Tribunal that he suffers from [a medical condition][5] as well as a mild speech impediment.

    [5] The Tribunal notes that a certificate confirming this diagnosis formed part of the applicant’s visa application: see Department File, folios 132-133.

13. The applicant stated that he is presently a full-time student, enrolled in [specified studies] at [a named] University.  He stated that he lives with his mother and grandmother; that he does not undertake paid work; and that he is financially dependent upon the applicant and his grandmother for his basic needs for food, clothing and shelter.

    Oral evidence: [Doctor A]

14. [Doctor A] provided sworn evidence to the Tribunal.  In summary, he stated that he is a Falun Gong practitioner of 20 years’ experience and that he is [an official] of [a regional] branch of the Falun Dafa Association of Australia.  He stated that he first met the applicant “some years ago” when she first came onshore.  He stated that, of necessity, new members of Falun Gong are treated with caution by the group so as to avoid the risk of “infiltration” by agents of the Chinese Communist Party.  He stated that he had interviewed the applicant at length upon her joining the group and had observed her manner of behaviour, in particular her performance of the physical exercises of Falun Gong.

15. [Doctor A] stated that, in his opinion, the applicant was a “veteran” practitioner of Falun Gong.  When pressed by the Tribunal, [Doctor A] stated that the applicant’s knowledge of Falun Gong and her participation in Falun Gong group activities, including exercises, was consistent with her claims to being an experienced and knowledgeable Falun Gong practitioner and that such knowledge and skills are “hard to fake”.

16. [Doctor A] stated his opinion to the effect that the applicant is a genuine Falun Gong practitioner.

    Analysis

17. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

18. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

19. The Tribunal also accepts that ‘if the applicant's account appears credible, she should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

20. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

21. In giving her oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully.  The Tribunal is satisfied that the available evidence, including the evidence of [Doctor A], establishes that the applicant is a genuine practitioner of Falun Gong.  She experienced persecution in China including being arbitrarily detained, beaten, harassed and extorted because of her beliefs.  Despite this experience she has continued to practice Falun Gong for more than 20 years.  Since arriving in Australia, she has been able to freely practice her beliefs in public and without fear of harm.  If she was to return to China, the applicant would continue her practice of Falun Gong.  Being able to practice and share her beliefs with others is a central part of her beliefs.

22. The Tribunal accepts that if the applicant was to return to China, she will continue her Falun Gong practice and look for opportunities to practice alongside others, as she has been able to do in Australia.  Given her previous history of arrest, detention and harassment, the Tribunal is satisfied there is a real chance that the applicant would come to the attention of the Chinese authorities.  As the country information indicates, Falun Gong practitioners continue to be subjected to persecution, arbitrary detention, torture and other ill-treatment.  Many are criminally prosecuted, in some cases receiving long prison terms, or arbitrarily detained in “legal education centres” where they can face torture to force them to abandon their beliefs.

23. Falun Gong is a belief system which is fundamental to the applicant’s identity.  The Tribunal is satisfied that there is a real chance that, in China, if the applicant seeks to manifest this belief, she may be subjected to arbitrary arrest and detention and to cruel, inhuman or degrading treatment, punishment or torture in violation the Act.   On the facts before it, the Tribunal finds that there is a real chance of the applicant being persecuted if returned to China.  The applicant’s fear of being persecuted is therefore well-founded.

24. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).

25. The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the first named applicant’s son and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

26. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the second named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Damian Creedon
    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.

    …