1730150 (Refugee)

[2023] AATA 4434

1730150 (Refugee) [2023] AATA 4434 (9 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ming Zhao

CASE NUMBER:  1730150

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:9 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2023 at 9:15am

CATCHWORDS

REFUGEE – Protection visa – China –Falun Gong practitioner– association with Falun Gong in Australia – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437
Yao Jing Li v MIMA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of China, applied for the visa on 5 July 2017. The applicant was represented in relation to the review. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   The applicant’s receiving country:

5. With the Department the applicant lodged a photocopy of the bio-data page of his Chinese passport (expiry date: [date] 2022). Based on this evidence, the Tribunal accepts the applicant is a citizen of China and that China is his receiving country.

6. The evidence before the Tribunal also included that Chinese passports may be renewed in Australia.[1]  

   The applicant’s recent migration history:

   [1] Chinese Consulate General of China in Sydney, Australia - Embassy WorldWide (embassy-worldwide.com) , accessed 6 October 2023.

7. The applicant’s migration history included:

   The Tribunal’s consideration of material claims:

8. By the Tribunal’s ‘Pre-hearing information form’ lodged on 31 July 2023 (signed 28 July 2023), the applicant advised the Tribunal he did ‘not want to have hearing and he consented to the Tribunal making a decision on the papers without inviting him to a hearing for his case’. In this form, the applicant also confirmed he had no further claims to lodge. In this form, the applicant was also advised inter alia, that if he did not wish to be offered a hearing, the Tribunal would make a decision based on information and evidence then before it.

9. The applicant also did not attend the Department interview, which had been scheduled for 15 November 2017. As the applicant had some access to a migration agent, the Tribunal might not have accepted it was plausible he would not have attempted to explain this failure, to the Tribunal, to appear before the delegate if his claims were genuine.

10. The Tribunal also notes the applicant’s Student visa was cancelled on 19 September 2016, and though he had allegedly commenced to practise Falun Gong from around January 2015, the applicant only lodged the Protection visa application on 5 July 2017 (some 10 months later). Given that Chinese Protection visa applicants continue to be the largest, or one of the largest cohorts of Protection visa applicants in Australia, and that there commonly exists a community of knowledge that applicants may access, this delay in lodging the Protection visa might have been one of the reasons the Tribunal would not have accepted the applicant’s claims were genuine, otherwise the Tribunal may have anticipated he would have lodged the Protection visa application sooner than he did.

11. In support of his Protection visa (PV) application, the applicant (DOB: [date]) claimed:[2]

    ·     after arriving in Australia to study in July 2014, he had spent time with a schoolfriend in Australia. The named housemate often practised an exercise similar to Chinese Qigong. As the applicant was curious, he subsequently learnt the housemate was practising Falun Gong

    ·     the applicant understood that one could feel energised by regular practice and that it was beneficial to a person’s health

    ·     the housemate told the applicant he could teach him if he was interested. The applicant then said ‘sometimes he had free time’, so he commenced to learn Falun Gong from around January 2015

    ·     after three months practice, the applicant ‘felt it really had good effect on his body so he kept practising’

    ·     the housemate introduced the applicant to other people who also practised Falun Gong, sometimes together. This practice was normally undertaken in a park in [a subrub]. Sometimes more than 10 practised together

    ·     a Falun Gong (group) organised a parade in Sydney’s Chinatown during the Chinese New Year, every year. The applicant took part in the parade organised by Falun Gong ‘last year and this year’. He felt petitioners were friendly to him and often told him about the benefits practice. The applicant agreed with what was said

    ·     one day in May this year (2017), the housemate phoned the applicant and told him that a person who practised Falun Gong in Australia, had just been arrested when he returned to China. The police had accused him of promoting Falun Gong overseas and acting against the Chinese government

    ·     the applicant also said, the arrested man was shown photographs of him taking part in a Falun Gong parade in Sydney. The housemate said there may have been Chinese government employees who collected evidence of people practising Falun Gong in Australia. The housemate then warned the applicant not to return to China as the Government may also have photos of him taking part in the parades - and he would surely be arrested

    ·     the applicant now fears he would be arrested should he return to China for reason of his association with Falun Gong in Australia and his involvement in a Falun Gong parade/s in Australia, at which he believes he was photographed. He fears the photographs were provided to the authorities in China

    [2] PDF – from p.48.

12. The Tribunal notes country information which has indicated that Falun Gong practitioners may be subject to serious and/or significant harm in China.[3]

    [3] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021, from [3.64].

13. However, and most importantly, the mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he was a Falun Gong practitioner in Australia, nor that he would wish to practise in China, nor that he would be imputed with any practise should he return to China.

14. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

15. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

16. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

17. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

18. 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

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

    Mr S Norman
    Member