1731435 (Refugee)

1731435 (Refugee) [2024] AATA 2232 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ronnie He (MARN: 0963986)
CASE NUMBER:  1731435
COUNTRY OF REFERENCE:                   China
MEMBER:Hee-Jung Kim
DATE:12 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 12:01pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – questioned and detained by police and visited by village leaders – vague and inconsistent claims and evidence – timing, reason and person who introduced applicant to Falun Gong – acquired passport and departed without problems – recent return trip – vague knowledge of Falun Gong teachings and practices and no group participation in Australia – late claims of domestic violence by husband and as returned failed asylum seeker – divorce proceedings and effect on children – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 427(6)(a)
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Rajasundaram v MIMA (1999) 51 ALD 682
Selvadurai v MIEA (1994) 34 ALD 347
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 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 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 9 August 2017. She did not attend the interview with the Department on 24 November 2017. The delegate refused to grant the visa on the basis that the limited evidence did not satisfy that the applicant was a Falun Gong practitioner as claimed, and therefore the delegate found that the applicant did not face a real chance of serious harm or real risk of significant harm in China for this reason or for any other reasons.
The applicant appeared before the Tribunal on 5 December 2023 and 9 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review but the representative did not attend the hearings.
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.
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).
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-5LA, which are extracted in the attachment to this decision.
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
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee or complementary protection criterion. For the following reasons, I have concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a citizen of China and provided to the Department and the Tribunal a copy of the biodata page of her Chinese passport, issued on 5 July 2016 in Shandong province, China. At the hearing the applicant confirmed information about her identity which was consistent with the biodata page of her passport. Based on the evidence before the Tribunal, I am satisfied of the applicant’s identity as claimed and that she is a citizen of China. I find that China is the receiving country for the purpose of assessing her claims for protection under the refugee and complementary protection criteria. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than China.
Evidence before the delegate
In her protection visa application, the applicant claimed that she was born in [Year] in [Location], Shandong province. She married in [Year] and provided the details of her husband and [Children] born in [Years], who all reside in Qingdao, Shandong province. She did not provide the details of any other family members and only provided one address in Qingdao, Shandong province, China for the period of [Date] to [July] 2017. She claimed that she completed high school in [Year] in Weishan, Jiling city, Shandong province, and was employed as a team leader in a [factory] in Qingdao from [Date] to [Date]. From [Date] to [July 2017], she was unemployed and was a housewife, financially supported by her husband and savings. She arrived in Australia [in] July 2017 on a Visitor visa on her own passport issued in [2016] in Shandong. She claimed that she obtained the passport from the police department.
In her application and an accompanying undated statement, she claimed that her reason for seeking protection was because of her Falun Gong religion. She claimed that she was depressed after giving birth to her second child in 2015 and struggled to look after both children, sleep or eat. She saw some doctors who gave anti-depressant pills and also saw Chinese doctors, but none really helped. Her mother then took her to see a friend named [A] who was a Falun Gong master and passed ‘zhenqi’ to the applicant while she followed the exercises. She felt much better straight away and went to see [A] twice a week. She practised the exercises at work at other times. [A] asked the applicant to read ‘Zhuan Falun’ by Master Hongzhi Li and gave her ‘Pudu’ and ‘Jishi’ music and the 9 lecture videos. The applicant listened to the music and her sleep improved. She fully recovered in just 6 months. Her friends and neighbours were all very curious, but she did not tell them how she recovered because she knew from Chinese media that Falun Gong was banned and she could be in trouble if others reported her to the police. She hid in her room to practise but did not understand why she could not practise in public. She did not want to live such a secret life so she came to Australia and she can now practise Falun Gong freely. If she returns to China, she will be sent to jail and tortured by the Chinese government and the police.
Evidence before the Tribunal
Before the hearing on 5 December 2023 (the first hearing), the applicant advised the Tribunal that she was travelling to China to visit her father who was ill and provided her Bridging B visa application dated 4 July 2023 with various untranslated Chinese documents purporting to support her familial relationship with her father and his hospitalisation; the subsequent Bridging B visa grant notice dated 7 August 2023; and a travel itinerary to China, departing Sydney [in] August 2023, arriving in Qingdao via Guangzhou, and returning to Sydney [in] September 2023 via the same route. The applicant’s email submissions attaching these documents provided her claimed reason for travelling back to China, but they did not provide any further information about her reasons for seeking protection in Australia nor her fears of returning to China.
At the first hearing, the Tribunal discussed with the applicant her life in China, her reasons for leaving and why she fears returning. She confirmed that her reason for seeking protection was her Falun Gong religion, and claimed for the first time that she feared her husband because he was angry with her for practising Falun Gong and leaving China. Given her new claim, the Tribunal’s overall concerns with her evidence and the absence of her representative at the hearing, the Tribunal allowed additional time for the applicant to provide further information.
In post-hearing submissions emailed to the Tribunal on 15 December 2023, the representative raised several new claims and provided 13 WeChat screenshots with English translations of selected message extracts and an unlabelled photograph of an arm. On 29 January and 7 February 2024, the representative emailed the Tribunal a screenshot of undated bank transaction records, a translated savings account statement of [Ms B], a translated ‘transaction search’ for a ‘refund’ in the amount of RMB43,500, and submissions that these records show the applicant’s two AUD payments to ‘a person’, [C], which was then transferred to her sister [Ms B] on 24 March 2022 and that the money had to be refunded on 3 March 2023 to unfreeze the sister’s account, resulting in the applicant losing most of her earnings.
The applicant appeared at a further hearing on 9 February 2024 (the resumed hearing) to discuss the new claims and evidence. At the applicant’s request and again having regard to the representative’s absence, the Tribunal allowed the applicant further time to provide additional material by 16 February 2024. At the representative’s request, the Tribunal allowed an extension to 23 February 2024. Due to the various documents not being submitted in accordance with the Tribunal’s Practice Directions[1], the representative was requested to re-submit the documents in an accessible format. On 26 February 2024, the Tribunal received the following additional material:
[1] AAT Practice Direction – Giving Documents or Things to the AAT, 8 August 2023; AAT Practice Direction – Migration and Refugee Division Practice Direction, 22 February 2023, [7.8].
a)    a PDF document in English labelled ‘Appendix 1 What if you look at the recent wife murder case that everyone is afraid of marriage – Zhihu’[2] which appears to be content responding to the question in the title;
[2] ‘Zhihu’ is an online Q&A content community in China (see InvestorRoom - Investor Home (zhihu.com)).
b)    a PDF document in Chinese which appears to be the same Zhihu content as (a);
c)    a PDF document in English labelled ‘Case 1 Murder case in the Department of Civil Affairs: The divorce procedures of the husband and wife have’ which appears to be an article from Red Star News dated 15 June 2020;
d)    a PDF document in Chinese which appears to be the same article as (c);
e)    a PDF document in English labelled ‘Case 2 Why would someone kill his wife at the door of the court – Zhihu’ which appears to be content in response to the question in the title;
f)     a PDF document in Chinese which appears to be the same Zhihu content as (e);
g)    a PDF document in English labelled ‘Case 3 The wife insists on divorce and the evil husband chops her with a knife – China Court Network’ which appears to be an article from China Court Network News dated 4 September 2006;
h)    a PDF document in Chinese which appears to be the same article as (g);
i)   a PDF document partially in English labelled ‘Beiqing once deep_On the 13^th day of the divorce cooling-off period, she fell under the knife’ which appears to be an article from China Digital Times dated 19 February 2024;
j)   a PDF document in Chinese which appears to be the same article as (i);
k)    two WeChat screenshots of conversations in Chinese with some English translations by ‘Weixin’[3];
l)   two WeChat screenshots of conversations between ‘Dog’ and ‘Cat’ avatars, and certified English translations of the conversation;
m)   statutory declaration of Ronnie He, the applicant’s representative, affirmed on 20 February 2024, declaring that he is the ‘Cat’ avatar in the conversations;
n)    statutory declaration of the applicant affirmed 22 February 2024;
o)    individual social insurance participation statement of [the applicant] dated 19 February 2024, and its certified English translation; and
p)    the representative’s submissions dated 23 February 2024.
[3] ‘Weixin’ is the Chinese name for ‘WeChat’, the Chinese instant messaging/social media service (see >
In summary, the applicant’s reasons for seeking protection in Australia, as claimed and arising on the material, are:
a.Her religion as a Falun Gong practitioner;
b.As a victim of domestic violence;
c.For transferring money via third party to China and losing it; and
d.As a failed protection visa applicant returnee.
Her oral evidence at the hearing and the material submitted to the Tribunal, where relevant, are discussed below in detail.
Assessment of claims and findings
Procedural matters
As noted above, the applicant first appeared on 5 December 2023 to give evidence and present arguments in support of her claims. On the day of the hearing, her representative advised the Tribunal that he will not be attending with the applicant. Therefore, at the commencement of the hearing, the Tribunal sought the applicant’s express consent to proceed in the absence of her representative and she confirmed that she was happy to proceed without her representative present. Considering the representative’s absence and the applicant’s new claim raised at the hearing regarding her fear of harm from her husband, the Tribunal provided the applicant time to discuss the issues raised at the hearing with her representative and submit post-hearing material.
The applicant provided the first set of numerous post-hearing material with the assistance of her representative, but the relevance of some of the documents was not very clear from the material themselves nor the representative’s submissions. The representative’s submissions were particularly confusing and unhelpful as he appeared to be giving evidence despite his role as an advisor. The submissions also raised new claims and evidence including in relation to the applicant’s domestic violence claim, a claim about losing money transferred to China, and that she will be harmed if she returns to China and discloses her protection visa application. To discuss and clarify these new matters and to further explore the applicant’s domestic violence claim, the Tribunal invited the applicant to a resumed hearing on 9 February 2024. Her hearing response clearly stated that the representative was not attending and it did not indicate that the representative was a witness in this review. At the applicant’s request, the Tribunal provided her further time post-hearing to confer with her representative and submit more material, which she did, after also being granted an extension of time.
In the representative’s post-hearing submissions dated 23 February 2024, the applicant claimed that she struggled to understand the interpreter at the resumed hearing on a number of occasions. However, she did not provide any specific examples of misinterpretation or miscommunication. While I acknowledge communicating through an interpreter can be challenging and giving evidence can be a nervous experience, I note that the applicant did not display any obvious difficulty in responding at either hearing. She also did not complain that she could not understand and did not raise any interpretation issues throughout the hearings. She was expressly advised at the commencement of both hearings that she should immediately raise her concerns if she does not understand the interpreter or the question. She confirmed that she could clearly understand and did not object to the interpreters both times, and generally gave immediate uninterrupted responses to my questions at both hearings. Therefore, I do not accept the applicant’s unsupported assertion that her struggle to understand the interpreter on a number of occasions at the resumed hearing negatively impacted her answers. I do not accept that there were any interpretation issues at either the first or the resumed hearing to the extent that the standard of interpretation was unacceptable or that it impaired the applicant’s ability to give evidence.
I have thoroughly considered all of the submitted material, as well as the existing material on file, as discussed in detail in the assessment of claims below. I do not accept the representative’s submission that the applicant was ‘significantly disadvantaged’ by the representative’s non-attendance at the hearing. Notwithstanding the fact that he expressly declined to attend (to save costs according to his submissions), the applicant is not entitled to be represented before the Tribunal by any other person at a hearing: s 427(6)(a) of the Act. In any event, I sought her express consent to proceed the hearing in the absence of her representative and she confirmed on both occasions. She was also provided sufficient time on 2 occasions to provide post-hearing material, assisted by her representative. Having regard to the various procedural accommodations that the Tribunal has afforded the applicant in light of her circumstances, I am satisfied that she was given a real and meaningful opportunity to present her arguments and evidence in this review.
Credibility
In assessing the applicant’s claims, I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility. If the Tribunal is unable to make a confident finding that an applicant’s account is not credible, it must assess the claim on the basis that it is possible, although not certain, that the applicant’s account is true.[4] However, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. Further, the Tribunal does not need rebutting evidence before it can find that a particular factual assertion by an applicant is not made out.[5]
[4] MIEA v Guo (1997) 191 CLR 559; Rajasundaram v MIMA (1999) 51 ALD 682; MIMA v Rajalingam (1999) 93 FCR 220.
[5] Selvadurai v MIEA (1994) 34 ALD 347 at 348.

The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear, or that it is for the reason claimed, or that it is well-founded. It remains for the applicant to provide the relevant information in her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts and be satisfied that all of the statutory elements are made out.[6] The Tribunal is not required to make the applicant’s case for her. It 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: s 5AAA of the Act.
[6] MIEA v Guo (1997) 191 CLR 559; Nagalingam v MILGEA (1992) 38 FCR 91; Prasad v MIEA (1985) 6 FCR 155.
I have taken into account the applicant’s unfamiliarity with a hearing setting, the absence of her representative and the impact of time in recalling past events in assessing her evidence. In view of these considerations, I asked simple straightforward questions, sought clarifications with follow-up questions and provided multiple opportunities for the applicant to elaborate on aspects of her claims at the hearing. Where she did not directly answer the question, I rephrased to ensure she understood the question. I have also taken into account the applicant’s claim that at the hearing her mind was not very clear because of her sleeping problems and that she gets dates and details mixed up due to the events having occurred a long time ago. However, I found the applicant’s responses throughout the hearing to be vague and evasive, and the aforementioned factors that may impact memory recall did not adequately explain the contradictions and inconsistencies in her own evidence.
In particular, she gave evidence about claimed past events in China relating to her Falun Gong practice for the first time at the hearing, which appeared to be important and supportive of her fear of harm from the Chinese authorities. She claimed that she didn’t raise them earlier because she did not know the procedure well, her representative only asked about her general situation and she did not give him the details about which he didn’t ask. I am not persuaded by this explanation because I do not accept that the applicant would neglect to mention such important matters that would strengthen her case to her representative whose role is to advise and assist her to prepare the application. Her evidence about these claimed past events also lacked sufficient details, which I expected her to be able to reasonably describe if she had indeed personally experienced them.
In his submissions dated 23 February 2024, the representative referred to the applicant’s level of education, employment history as a general labourer and her lack of knowledge about Chinese or Australian laws. To the extent that these submissions implicitly suggest that the applicant’s capacity to give evidence and prepare supporting material may have been impaired by these factors, I reject them. As noted above, I asked straightforward questions about her claimed experiences in China and her personal opinions about what she feared in China. These are not questions that require legal knowledge or a higher-level intelligence. She was requested to provide an account of her own experiences, and I do not accept that the deficiencies in her oral evidence (detailed in the assessment of the claims) are due to her level of education, employment and/or lack of legal knowledge. Further, by her own evidence, she claimed to have been assisted by the same representative from the beginning of her visa application process, or based on the Tribunal file, the representative was formally on the record at least from the review application stage to assist her. She was not an unrepresented applicant, but rather she had the professional assistance of an immigration advisor, to whom she had paid fees to advise her on legal aspects and assist her in preparing her application and supporting evidence. I do not accept the representative’s assertions that the applicant did not understand what constituted ‘persecution’ to prepare the relevant evidence for her claims and failed to previously mention the new claims including about the loss of transferred money and inability to divorce. It was the representative’s professional responsibility to assist his client to present these claims at the earliest available opportunity if he was of the view that they were an ‘obvious invasion of human rights’ and relevant to the applicant’s claims for protection.
Having regard to the concerns about her evidence cumulatively, I do not find the applicant to be a truthful witness and have significant credibility concerns with her claims as further discussed in detail below.
The applicant’s claim to be a Falun Gong practitioner
At the beginning of first hearing, the applicant stated that her representative, Mr He, assisted her in preparing the protection visa application and the statement based on the information she told him. Although Mr He was not listed as the representative in the visa application, the applicant confirmed that he represented her from the beginning in 2017. She stated that Mr He wrote the statement in English based on the information she gave him, and she believed everything in her application and statement were correct. However, the applicant’s evidence at the hearing in relation to her Falun Gong practice in China was significantly different to the written evidence.
In the written statement, the applicant claimed that she was introduced to Falun Gong by her mother’s friend and Falun Gong master, [A]. The statement identified the person by name and the relationship to the applicant. It stated that the applicant visited [A] twice a week on the other side of the city and [A] showed her the moves and provided Falun Gong resources. While the statement was brief, I considered these details to be critical in the context of a non-believer’s introduction to a new religion.
At the hearing, the applicant claimed that she was introduced to Falun Gong by a completely different person, [D], who was her friend of over 10 years and a co-worker at the factory. She claimed that in 2015 when she had severe depression after giving birth to her second child, [D] came to talk to her and gave her music to help her sleep. She listened to it for several months, not knowing it was Falun Gong, and found that it helped in calming her spirit. After the applicant told [D] the music was very good, [D] came to talk to her about Falun Gong and gradually started to teach her to practise. The applicant claimed that [D] came to her home around 3-4 times a week when her husband, mother-in-law and first [Child] were out. [D] taught her about ‘blessing from the Dharma Wheel’ and meditation, which were only 2 of the 5 Falun Gong exercises, and the applicant started to practise from October 2015 at home. She would practice for 10-30 minutes, sometimes 3-4 times a week or several times a day. In 2016, the applicant also went to [D]’s home at least twice a week to practise with a group of more than 10 fellow practitioners. [D]’s home was about 20 minutes’ drive from the applicant’s home and while the practitioners in the group did not know each other, they gathered at [D]’s home because she was ‘like the instructor’ who taught everyone.
I do not find the applicant’s reference to a completely new person to be a mere clarification of a minor inconsistency with the written statement or elaborating on a brief claim made in the application. I note that the statement and the oral evidence are broadly consistent in relation to the timing (after giving birth to her second child in 2015) and the manner (to help her recover from depression and sleep problems) in which Falun Gong was introduced to the applicant. Therefore, I find it implausible that the applicant would mistake the identity of such an important person in her life who introduced a religion she claims to continuously practise and is the basis for which she claims to fear harm in China.
When this significant inconsistency was put to her, the applicant insisted that her friend [D] introduced her to Falun Gong and that she told her representative the account she gave to the Tribunal. She suggested that because her representative had many clients, he probably made a mistake by confusing her story with others. She confirmed that she did not know a person called [A] and the written statement was incorrect. I do not accept her claim that the representative confused her story with another client’s because I find it to be a self-serving response in the absence of the representative at the hearing and it contradicts her earlier evidence that she believed the statement to be correct. I am not convinced that the representative mistakenly inserted the name of a completely unknown person in the applicant’s statement prepared in 2017 and despite being assisted by the same representative to date, she did not know about the inaccuracy in the statement until it was raised to her at the hearing. The applicant nor the representative clarified the statement’s inaccuracy in any of the post-hearing submissions. In my view, this significant inconsistency regarding the applicant’s introduction to Falun Gong, particularly the identity of the person purporting to have introduced her, and the applicant’s inability to provide a reasonable explanation for the inconsistency undermine her claim to have been introduced to and practised Falun Gong in China. It casts a serious doubt on the veracity of her overall evidence.
There are several other new claims about her Falun Gong practice for which the applicant provided internally inconsistent evidence, set out below, that cumulatively support my findings that the applicant did not practise Falun Gong in China and that she is not a truthful witness.
The applicant claimed for the first time at the hearing that the police in China were investigating her for her Falun Gong practice. She claimed that the police first came to question her at the end of 2015 at her home and it became more serious in 2016 with the police visiting her no matter where she was, including at her work at the factory. She claimed that the police visited her at the factory about 4 times, talked to her supervisors about her Falun Gong practice and asked her to go to the police station where she was questioned. She also claimed that her village leaders came to her home multiple times looking for her. While she was not physically harmed, she claimed that the police’s conduct prevented people from associating with her and isolated her, which was a worse form of mental harm.
I do not accept the claim that the police came to visit her at work in 2016 because her visa application indicates that she was an unemployed housewife from February 2012 to July 2017 and at the hearing she stated that she stopped working after she gave birth to her second child (in 2015). Although the year she ceased her employment at the factory differs, it is clear from the applicant’s own evidence that she was not working in 2016. Therefore, her claim to have been visited by the police at work at this time simply cannot be true.
When this was put to the applicant at the resumed hearing, she claimed that she returned to work for less than a month, about 5 months after giving birth, but did not think it was worth mentioning earlier. I do not accept this because even a broad interpretation of the claimed timeline does not support her claim that the police visited her work in 2016. She claimed that she went back to work about 5-6 months after giving birth on [Date] and [D] visiting her in April 2015, which would place her return to work for 1 month in September 2015. This evidence in turn indicates that she was not working in 2016 when the police purportedly came to her work to talk to her supervisors, because she would have already stopped working. Also, given her evidence that she started practising Falun Gong from October 2015 at home and the police first visited her at home at the end of 2015, her own later evidence would suggest that she went back to and ceased work before she even started practicing Falun Gong. I find these internal contradictions in her own responses demonstrate her propensity to fabricate answers as and when questions are put to her.
In her statutory declaration affirmed 22 February 2024, her evidence about when the police visited her work again changed, claiming they visited ‘April to June 2017’. She submitted a translated copy of her ‘Individual Social Insurance Participation Statement’ without any explanation as to what this document supported. The insurance statement indicates that from March to June 2017 ‘[Employer]’ contributed Pension and WorkCover for 4 months. I am willing to accept based on this document that the applicant returned to work at the factory for 4 months between March and June 2017. However, based on the vastly different periods of the purported visits by the police at her work at different points of her evidence, I do not accept that the police visited her at the factory from April to June 2017 or at all. I find her claim about the police visiting at her work to be false.
The applicant claimed that she visited [D]’s home twice a week in 2016 to practise regularly with a group of more than 10 people, during the same period in which she was investigated, visited and questioned by the police frequently. It is implausible that the police did not stop the applicant’s regular and frequent practice with a large group at [D]’s for a whole year if they were investigating the applicant ‘more seriously’ in 2016 as the applicant claimed. When this concern was put to her, she claimed that her town was very small with a small population without a lot of police, and that she normally went to [D]’s at night or on Sundays. I am not persuaded by this explanation. Her vague evidence about the group practice also lacked any meaningful detail about the identity of the participants or the actual activities undertaken to persuade me that she did in fact attend any Falun Gong group ‘practice’ or meetings. Therefore, I do not accept that she was practicing in a group nor that police were investigating her.
Her claim to have been of interest to the police is also contradicted by her earlier evidence about obtaining her passport. The applicant had stated at the beginning of the hearing that when she applied for her passport herself in 2016, she obtained it quite smoothly because ‘people did not know yet she was practising Falun Gong’. However, her later claim to have been visited by the police and village leaders and that her supervisors were informed of her religion in 2016 would suggest that people, including the police, did know about her Falun Gong practice in 2016. If the police were aware of her Falun Gong practice, it is unlikely that her passport would have been issued smoothly because country information indicates that the Chinese government has refused passports to many religious and political dissidents,[7] which would include a Falun Gong practitioner being investigated by police.
[7] DFAT, ‘Country Information Report – People’s Republic of China’, 22 December 2021, [5.40]; ‘Country Information Report – People’s Republic of China’, 21 December 2017, [5.28].
In response to this concern and country information, the applicant claimed that she went to higher-level municipal police, and she thought that because her small-town police did not escalate the matter, the municipal police did not know about her Falun Gong practice and issued her passport. The representative reiterated this in his submissions of 23 February 2024 that her case was at the local area police ‘Pai Chu Suo’ level and her passport was issued at the province police department ‘Sheng Gong An Ting’. I accept that her passport was issued by the Shandong provincial government or police department. However, I am not convinced that the Chinese police would not have a centralised database to share information about persons of interest between different levels of police and government, particularly in respect of someone being investigated for Falun Gong practice for months. Therefore, I do not accept her explanation, and I find that her passport was issued smoothly because the authorities were not investigating her and did not have any interest in her.
In light of the above concerns, I do not accept that she was visited by the police or the village leaders in relation to her Falun Gong practice from end of 2015 and throughout 2016 or in April-June 2017 at home or work. Her changing and internally contradictory evidence strongly indicates she was not truthful at the hearing.
The applicant also claimed that [D] was detained in around February or March 2017 and the police came to her home and questioned whether she had been to [D]’s home to practise Falun Gong with others. She then claimed that the police had already confirmed her involvement in Falun Gong and asked her to write statements. When I asked how the police had confirmed she was participating in Falun Gong activities, the applicant gave a vague response that many households install CCTV at the door and her friend may have confessed her participation, but she did not mention her earlier claims about having been visited at home by the police from the end of 2015. She then claimed that she was also detained at the police station for 2 days until her husband found a connection to get her out. However, when asked for more details about what happened during the detention, the applicant’s response was ‘nothing special, they kept asking me questions and requesting me to write statements’ that ‘Falun Gong was not good practice and things like that.’
The late introduction of what I consider to be an important event about a potential past harm she experienced in China concerns me about its veracity. Her evidence in relation to this claimed event was also not forthcoming and lacking in meaningful detail. It is implausible that ‘nothing special’ happened to the applicant during her 2-day detention if her claims to have been of interest to the police from end of 2015 and that they had confirmed her involvement in Falun Gong activities with [D] were true. Given that Falun Gong has been illegal in China since 1999 and the Chinese government searches for and prosecutes practitioners,[8] I consider it highly unlikely that the applicant was let go with just writing statements, particularly if her Falun Gong involvement was confirmed by the police who detained her. All of these strongly indicate that she was fabricating answers at the hearing.
[8] DFAT, ‘Country Information Report – People’s Republic of China’, 22 December 2021, [3.66].
She then raised another new claim that she distributed flyers at the beginning of 2017. The evidence regarding this claim lacked reasonable details even with multiple prompts and follow-up questions.
She claimed that her friend [D] printed around 2000-3000 flyers that contained information about the benefit of Falun Gong and about 4-5 people including herself and [D] distributed these flyers in the markets during Spring Festival time in February 2017, shortly before [D] was arrested. She distributed the flyers because she thought Falun Gong was a good thing that shouldn’t be kept away from the public just because the authority didn’t allow it. She agreed that she knew Falun Gong was illegal and it was dangerous to distribute flyers and claimed that they did it ‘in a secret way’. When pressed to elaborate, she claimed that as the weather was cold, they were wearing thick clothes and they kept the flyers in their coats. I pointed out her claim to have handed the flyers directly to people seemed quite visible and not in secret, and she responded that normally in China people will just toss the flyers if they are not interested and they wouldn’t report to the police if it’s not their business. I find this response about the casual attitude of the people being handed information about an illegal religion is at odds with her claim to have distributed ‘in a secret way’ because it was dangerous.

Her evidence then evolved to having distributed the flyers 3 times in total during the end of 2016 to the beginning of 2017. She stated that they didn’t have any difficulties while distributing the flyers because they didn’t distribute to males. She claimed that males are less likely to accept Falun Gong, while females accept it more easily; her group thought Falun Gong was very beneficial to females so they only distributed to females; and females would simply toss the flyer away if they didn’t like it or ‘in worst case they may scold at you but it wasn’t a big deal’. When asked what happened to those who distributed the flyers with her, she claimed that [D] was detained at the detention house for around half a year, and while she wasn’t familiar with the others because they didn’t talk and only exercised together, she knew that they didn’t end up very well. When asked to clarify her vague answer, she stated that their and her situations would be very similar in that they would be constantly summoned to the police station and they would not have a stable job or income. Then she claimed that 2 people went to the US, and contrary to her earlier answer that she wasn’t familiar and didn’t talk with them, she claimed that she knew they had gone to the US because they contacted her when they went to the US. She also claimed that her husband told her because he knew the husband of one person who went to the US.
I do not accept any of the above evidence or her new claim to have distributed flyers to be true. Not only was her evidence vague, she also did not mention anything about this activity when she discussed her Falun Gong practice in China earlier on during the first hearing. It was only when I asked toward the end of exploring her Falun Gong claim whether she had publicly spoken about Falun Gong she suddenly claimed that she distributed flyers at the beginning of 2017. Her lateness in raising this claim during the hearing, considered together with her vague responses, strongly indicates that she was not speaking of her own lived experiences.
Having regard to all of the concerns detailed above, I do not accept that the applicant was investigated and visited by the police or the village leaders at any time at all in China in relation to her Falun Gong practice. Nor do I accept that she was questioned and detained for 2 days by the police in 2017. I do not accept that she practised in a large group at [D]’s home or any place at all nor that she distributed flyers promoting Falun Gong in China at any time. It follows that I reject the representative’s submission that the Chinese authorities prosecuted the applicant and have a record of the applicant being a Falun Gong practitioner. The applicant also confirmed at the resumed hearing that neither the Chinese authorities nor the police have any past or current legal proceedings or prosecution against her.
In addition to the above concerns about the applicant’s evidence regarding her Falun Gong practice in China, her limited knowledge of the Falun Gong religion itself was not consistent with her claim to be a committed practitioner since October 2015.
At the hearing, the applicant claimed that she has consistently practised the Falun Gong exercises and never stopped practising even in 2017 when the police kept pursuing her. However, she conceded that she has never read Zhuan Falun, one of the key texts in Falun Gong, or any of Master Li’s teachings[9] even in Australia because she wasn’t sure where you could buy such material. When it was put to her those materials are available online, she claimed that she simply practised the exercises and watched YouTube videos of Master Li’s teachings. When asked to elaborate, she could not describe the content of the video teachings or her individual personal learnings, but vaguely stated that she watched ‘videos about many people exercising together and some instructions about the dharma.’ When pressed further, she referred again to the exercises and that they were beneficial to her health. I put to her that apart from the exercises she did not appear to have engaged with the teachings of the religion itself, and she responded she was not very good at talking but she knew the core of Falun Gong to be promoting truthfulness, kindness and forbearance. I am not persuaded her claimed lack of eloquence prevented her from describing her practice of Falun Gong at the hearing because her own evidence indicates that she has not made efforts to learn about or engage with the central teachings of the Falun Gong religion even in Australia where she is free to do so.
[9] DFAT reports that core to Falun Gong beliefs is the reading and re-reading of the Zhuan Falun, the sacred text of Falun Gong and one cannot be Falun Gong without that practice: ‘Country Information Report – People’s Republic of China’, 22 December 2021, [3.65], [3.68].
As she appeared to be claiming that the Falun Gong exercises were the most important aspect of her religious practice, I sought to explore this further. While she stated that there were 5 exercises, she claimed that she only practiced 2, which she described as ‘the blessing of the Dharma wheel’ and the meditation. She couldn’t remember all 5 because she doesn’t practise and ‘pay much attention to them’. Although I did not seek to test her doctrinal knowledge, I was concerned with her vague, evasive answers about the religion she claims to have practised for 8 years since late 2015. Given her emphasis on the personal health benefits from practising the exercises, I expected her to be able to at least identify the 5 exercises. When this concern was put to her, she repeated that she only practises the exercises that she believes are beneficial to her and wouldn’t pay much attention to those she doesn’t practise so it is not strange that she doesn’t know their names. I find this response demonstrates her lack of interest in Falun Gong as a religion and lack of commitment in following the religious tenets of Falun Gong. While she may have had some exposure to the basic ideas of Falun Gong, it was apparent from her evidence at the hearing that she lacked any insight or genuine interest in pursuing Falun Gong as a religion.
The applicant’s lack of commitment as a genuine Falun Gong adherent is further supported by her evidence regarding her religious practice in Australia. At the hearing, she claimed that she only practises at home in her room around 2-3 or 3-4 times a week. When pressed for more details about what she actually does, her response was that because her room is very small, 90% of the time she would just meditate. I asked whether she had ever practised in groups with others in Australia and she claimed that she went to see people practising but did not join them. Despite multiple follow up questions, she could not provide where, when and how many times she saw these groups in practice. She claimed that she was not very good with directions and locations, it was when she had just arrived in Australia, and sometimes she was just passing by and would stop to watch the group practice. When I asked why she didn’t join the group, she responded that firstly she doesn’t like engaging with people and prefers practising on her own, and secondly she wasn’t sure if her visa would be granted so she didn’t want to make her situation in China worse by participating in the group here. I consider these vague answers reveal her lack of interest in Falun Gong as a religion. Her inability to provide any meaningful detail about the group practice she claimed to have seen also leads me to reject her claim to have viewed public practices of the Falun Gong exercises in Australia and that she did not join them for fear of making her situation in China worse. I accept that she may meditate from time to time in private for her own health benefits but I do not accept she engages in meditation or any exercises as a Falun Gong practitioner. Based on her inability to describe the exercises, I do not accept that she knows or practises any of the Falun Gong exercises.
In the first post-hearing written submissions, the representative submitted that the applicant has been practising Falun Gong in Australia and has been helping distribute pamphlets to promote Falun Gong. I do not accept this claim because the applicant did not mention distributing pamphlets in Australia at the hearing. Such claimed activity is also inconsistent with the applicant’s own evidence that she prefers to practise in private at home, doesn’t like engaging with people and did not participate in the group in Australia.
Having regard to all of the above concerns, I do not accept that the applicant was a Falun Gong practitioner in China or that she practices Falun Gong in Australia. While I accept that she may have had minimal exposure to the basic concepts of Falun Gong, I do not accept that she has accepted Falun Gong as a religion or has any desire or commitment to pursue it as her religion. Consequently, I do not accept that she will practise Falun Gong in future if she returns to China.
I accept that the applicant meditates occasionally for her own health benefits in private, but I do not accept that such activity is on the basis of her Falun Gong religion or practice. When I asked her how the authorities would know that she is practising Falun Gong if all she does is private meditation, she could not give a persuasive answer and repeatedly insisted that ‘they will know’. Even if her private meditation was perceived to be Falun Gong activity, country information indicates that Falun Gong practitioners generally practise alone in their homes without interference or problems and there will not normally be any risk from the Chinese authorities unless they become known to authorities because of their activities including public practice of Falun Gong exercises, recruitment of new members, dissemination of Falun Gong information, or they previously came to the adverse attention of the authorities.[10] There is also information that absent special factors and credible motivation, a person displaying limited knowledge of Falun Gong or limited involvement with it, is unlikely to be committed to undertaking activities on return to China that would bring them to the adverse attention of the authorities and materially increase their risk.[11] When the country information was put to the applicant for comment, she claimed that she and her group were targeted by the authorities because there were more than 10 people participating in the meeting and exercises and because they distributed flyers to promote the benefits of Falun Gong. I have already rejected her claims to have participated in group exercises and flyer distribution in China. I do not accept that the applicant will engage in any public practice or activities related to Falun Gong if returned to China. Therefore, I do not accept that she will come to the adverse attention of the Chinese authorities for any reasons related to Falun Gong.
The applicant’s claim to be of interest to the Chinese authorities
[10] DFAT, ‘Country Information Report – People’s Republic of China’, 22 December 2021, [3.70]; UK Home Office, ‘Country Policy and Information Note – China: Falun Gong’, November 2023, [3.1.12]-[3.1.14].
[11] UK Home Office, ‘Country Policy and Information Note – China: Falun Gong’, November 2023, [3.1.14].
In addition to the above, I do not accept that the applicant was or is of adverse interest to the Chinese authorities for reasons of her religion or any other reasons because she was able to depart China without any problems in 2017 and recently travelled back to China in August 2023.
The applicant claimed that she did not have any difficulty departing from the airport in 2017 and the authorities did not check her because she was leaving early in the morning and it was not a direct flight to Australia. I do not accept this claim because it is inconsistent with the country information on Chinese exit and entry procedures. DFAT indicates that exit and entry in China is strictly regulated, major airports have a centralised system with comprehensive security monitoring capabilities, and departing passengers pass through several identity checks. Various government agencies, including police, can feed data into databases to create an exit control list of those suspected of a crime and persons of interest on ‘national security grounds’, and these people may be prevented from leaving the country.[12] Based on the country information, it is unlikely that the applicant could depart on any international flight without being questioned by the airport officers if she in fact has a history of being investigated, questioned and detained by the police for her Falun Gong activities. I have already rejected her claims to have been of interest to the police in China for Falun Gong, but her ability to depart China further supports that she was not of interest to the authorities for any reasons.
[12] DFAT, ‘Country Information Report – People’s Republic of China’, 22 December 2021, [5.31]-[5.35]; ‘Country Information Report – People’s Republic of China’, 21 December 2017, [5.20].
When I put to her that the above country information and her recent return trip indicate she is not of interest to the Chinese authorities and she has no fear of returning, the applicant claimed that she would have returned at all costs because she had to see her critically ill father. While I accept her reason for the travel, I find that she was able to enter and exit China because she has no adverse profile with the Chinese authorities for any reason whatsoever. In this regard, she claimed that when she arrived in China, she did not have issues in Guangzhou airport while transferring but the authorities held her at Qingdao airport and questioned her for 5 hours. She also claimed that she got lucky departing China because in Qingdao airport there was an intern who got called away and didn’t check her passport and visa strictly and in Guangzhou airport she did not have to go through customs. I reject these claims based on her own deficient evidence discussed below.
Despite my efforts to elicit detailed information, her account of detention at Qingdao airport was vague and unconvincing. She did not answer specific follow up questions with sufficient details to persuade me that it in fact occurred. For example, she vaguely claimed that it was ‘probably police at the airport’ who questioned her for 5 hours and she was ‘requested to write a lot of document’, but when asked to describe the document, her answer was general, stating ‘things like self-criticism statement, like I stopped practicing Falun Gong, what I did was wrong and it is not a good practice’. Given her claim to have written around 4-5 documents and 20 pages of documents with similar contents when she had to report at the local police station during her trip to China, it concerned me that she could not describe the contents with reasonable detail.
She claimed that she was released after she called her husband who asked for a favour from his friend but obtaining any detail about this claim required significant probing. When asked how she was able to call her husband, she did not answer the question and said that her husband was already waiting at the airport. When the question was repeated, she responded that the police took away her phone and didn’t allow her to leave but she begged them several times to allow her to make a phone call. She claimed that the police were present while making this phone call, but when asked to detail what she actually said to her husband, her response was again very vague. She initially said that she told him she was taken to a room, and added that her husband has a friend in Public Security Bureau who could help with minor issues. When I asked whether she asked her husband to contact this friend, she claimed that she didn’t dare say it. When asked again what she actually asked her husband to do, she claimed that she asked him to think of some way to help as she was taken to this room and not allowed to leave. She then claimed that about 2-3 hours later she was let out and during those hours the police continued to ask her questions and educate her, even after she told them she stopped practicing Falun Gong and signed the documents. She claimed that her husband told her that his friend helped, but when asked for more details about how the friend ‘helped’, she gave an evasive response that did not answer the question, being ‘we’ve been separated for all these years and there is not much affection left between us and so I think he has some grudges against me.’
As the above example demonstrates, the applicant was unable to spontaneously offer explanations and details about her claimed recent experience. In the first post-hearing written submissions, the representative repeated the applicant’s claim that she was locked up in police custody for 5 hours at the airport and ‘somehow she was released with the condition of reporting to local police office on daily basis’ but did not provide further details. The representative further submitted that the applicant was prosecuted by the Chinese police, the local police was aware of her return trip and Australian visa status and that she is under the radar of the Chinese authorities but did not substantiate these assertions with any explanations. In his submissions of 23 February 2024, the representative stated that his reference to ‘daily’ reporting and ‘prosecution’ were typographical errors. However, there were no further details about the applicant’s personal experiences during the claimed detention and interrogation at the airport in the representative’s submissions, supporting documents or in the applicant’s statutory declaration of 22 February 2024. I find the lack of meaningful details in her evidence at the hearing and the post-hearing submissions about the detention at the airport indicate that the applicant was not describing an experience that in fact occurred. Therefore, I reject her claim to have been detained and interrogated at the airport. I also do not accept that the applicant was prosecuted by the Chinese police based on her own evidence that she does not have any past or ongoing legal proceedings against her initiated by the police or the Chinese authorities.
As I do not accept she was detained or interrogated by the police or any officer at the airport on arrival in China, I also do not accept any claims arising from it including her claim that she was released on the condition that the police must be able to find her whenever they want. In any event, her evidence regarding the reporting obligation for the month she stayed in China, in and of itself, was vague and changing, and I do not accept she had to report to the police at all during her trip to China. For example, she claimed that after she left the airport she returned with her husband and [Children] to their home in Laixi, and the very next day she was summoned to the Laixi police station where she was again questioned and requested to write ‘all those documents’. However, when I asked how the police summoned her, she changed her answer to being told at the airport that she must report to the police as a condition of release and although the police didn’t tell her to go to Laixi police station specifically, she knew they meant the Laixi police by common sense. Earlier she had claimed that she had to keep changing her addresses during her recent stay in China because the police would find her, but this claim evolved to dividing her weekly stays between Laixi and her father’s hospital in Weishan because she had to report at Laixi every week (5 days from 11 August at hospital, then back to Laixi to report, then to Weishan to care for father, then 3 days in Laixi, and so on). This changing evidence demonstrates her readiness to fabricate evidence.
Further, I find her claim about her ‘lucky’ exit from China in September 2023 to be far-fetched. She claimed that an intern at Qingdao airport asked about her passport and visa but she didn’t know his specific position or what exactly he does because he was helping with luggage. She also claimed that the intern didn’t actually check her passport and visa but simply asked about them, then somebody called him and ‘they’ let her through. When it was put to her that her account was difficult to accept given the stringent airport procedures in China, she changed her answer to ‘he checked my passport and flight ticket’ and stated that because her ticket from Qingdao to Guangzhou was domestic transfer he didn’t check very strictly and coincidentally someone called for him at that time and he let her go. When I asked what happened in Guangzhou for her flight to Sydney, she claimed that she didn’t have to go through customs. Having regard to the above-mentioned country information on the strict exit and entry procedures in China and particularly the DFAT information that the Chinese government uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and identity documents,[13] I do not accept that she could luckily depart China because an intern did not check her travel documents strictly and she did not have to go through customs. I find that the applicant was able to exit China without any problems in September 2023 because she did not have any adverse profile with the authorities.
[13] DFAT, ‘Country Information Report – People’s Republic of China’, 22 December 2021, [5.31].

In light of all of the above, I do not accept that the applicant is or was of interest to the Chinese authorities in relation to Falun Gong or for any other reasons.
For the reasons given above, I do not accept that the applicant was a Falun Gong practitioner, has suffered any past harm in China as a result of being a Falun Gong practitioner, or was of adverse interest to the Chinese authorities in relation to her Falun Gong practice or any other reasons. I also do not accept that she has practised or is currently practising Falun Gong in Australia, nor that she will seek to practise Falun Gong in China upon return. I do not accept that the applicant has a genuine interest in nor is a sincere follower of the Falun Gong religion. I find that the applicant will not come to the attention of the Chinese authorities if she returns to China for any reasons. Therefore, I am not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if she returns to China for reasons related to her Falun Gong claim.
New claim: victim of domestic violence
At the first hearing, the applicant raised a new claim that her husband may harm her because he hates her for her Falun Gong practice affecting the family’s lives and her not being home. She claimed that he was ashamed of her because he couldn’t have a stable job with the police coming to him. She also claimed that because they had lived apart for so many years, he has started to feel that she has brought him a lot of harm, and on her recent trip to China, he physically harmed her by forcibly trying to have sex with her but she didn’t allow it. She claimed that he also threatened to kill the children and himself if she did not return to China.
I note that she was initially hesitant to discuss the claim as it was a ‘domestic issue’. I acknowledged that it may be difficult for her, but I explained that as she raised this new claim as a reason for fearing harm on return to China it was important that I investigate whether it may give rise to her protection in Australia. Having regard to the sensitivities, I did not push vigorously for information, and I am satisfied that the applicant understood the importance of presenting her evidence and she was given a reasonable opportunity to do so in a safe and confidential environment. She also expanded on this claim in the post-hearing submissions and provided supporting documents. Therefore, I do not accept that the applicant’s initial hesitance to discuss the claim at the first hearing explains the deficiencies in her evidence, and I have serious credibility concerns about this claim for the following reasons.
At the first hearing, the applicant gave vague responses when I sought to clarify the nature of the claimed fear and to obtain further details about the claimed harm. She initially suggested that it was ‘quite normal for [her husband] to scold’ her and they used to quarrel before she came to Australia as many couples do, but the years of separation while she was in Australia has made him feel that she brought a lot of harm to him. She did not explain what ‘harm’ she brought to her husband but claimed that he threatened her with the children’s lives many times during their quarrels. I asked why he would threaten to harm his own children that he is caring for, and she claimed that he said he and the children all had miserable lives because of her and when she and her husband quarrelled, he would say that he would die with the children. She also claimed that because she wasn’t home and couldn’t care for the children with him, he started to hate her. These responses suggested strains and frustrations in spousal relationships, exacerbated by a lengthy physical separation and the burden of the sole primary carer duties, ensuing in sometimes heated arguments.
The two lengthy screenshot images of partially translated WeChat messages purportedly between the applicant and her husband between 6 January 2024 and 13 February 2024 appear to support the claimed marital discord. Although the accuracy of the in-app English translations is questionable, the general nature of the selected text messages that are translated indicate that the arguments are about the children and the applicant and the husband’s dissatisfaction with each other. However, I do not consider these messages support the applicant’s contention that her husband is abusive and has made ‘constant threats’ to the applicant, their children and the applicant’s parents and close relatives. The only reference to the lives of the applicant’s children and parents are in the applicant’s message to her husband on 27 January 2024 at 12:05PM where she states “I don’t want to discuss with you whether I go back or not. You force me with my children’s lives, with my parents’ lives, enough is enough.” However, the context of this message or the conversation is unclear, and having regard to the husband’s response to this message at 12:16PM, being “You call your parents. I went to the New Year. And straighten things out. Complete solution. Do what you want.”, I am not satisfied that these conversation records support the claim that the husband is abusive and threatening the applicant’s families’ lives. The representative in his 23 February 2024 submission claims that the husband’s threat to kill the children is within the video chat, spoken in the local dialect, and thus hasn’t been provided as translation would be costly. I do not consider this is a reasonable explanation for not providing evidence, particularly given the multiple opportunities this applicant has had to present her claims and evidence with the assistance of her representative, the fact that she has provided two sets of documents post-hearing, and it is the applicant’s responsibility to provide sufficient evidence to establish her claim. She had in fact claimed at the resumed hearing that the threat was over a videocall but she did not think to record it. For her or the representative to now suggest that the evidence of videocall threat is available but they haven’t translated it due to costs is, in my view inconsistent with her own evidence at the hearing and also casts a doubt on whether such a videocall actually exists because if the applicant has now realised such evidence does exist, it is strange that she would not provide it as an important evidence in support of her claim for reasons of costs alone.
Considering all of the above, I am not satisfied on the available material that the applicant’s husband threatened to kill himself, the children or the applicant’s parents and close relatives. The WeChat conversation records indicate that both may have said hurtful things to each other during their heated arguments,[14] but they do not support the claim that threats to life were made. If anything, the husband’s messages appear to show that he is continuing to care for the children as the primary carer in China – see for example the conversation on 7 January 2024 at 5:06PM about the second [Child]’s use of WeChat and the first [Child]’s trips to hospital and ailments.
[14] See for example, the applicant’s message on 6 January 2024 at 9:51PM, the husband’s message on 7 January 2024 at 2:46AM; the applicant’s message on 27 January 2024 at 11:46AM; their messages on 13 February 2024.
The applicant also claimed that she was physically harmed on her recent return trip to China when she was with her husband for around 2-3 days. She claimed that he hit her and pinned her hands on the bed while forcibly trying to have sex with her but he was unsuccessful because she didn’t allow it. She did not report to the police because in China it would be no use. She vaguely mentioned that she knew a woman who was beaten by her husband but did not elaborate, including whether this woman sought police help to no avail. When asked whether she sought help from her family, she claimed that she met her second sister who called her husband to criticise him. Given her evidence that her sister worried that her husband might harm her, I asked whether her sister did more, such as offering the applicant to stay with her, and the applicant repeated that her sister could do no more than simply criticise her husband because her sister’s property is very small and she doesn’t have any extra money or ability to let the applicant stay with her. She claimed that her husband didn’t care about the sister’s criticism, then added that she also sought help from her mother-in-law but her husband blocked even his own mother on the phone.
I was concerned that she could not provide more specific details about recent events that she purportedly experienced herself, particularly as she was aware of the importance of providing such information for the Tribunal to make an informed assessment. Her evolving, but still very vague, evidence about the claimed harm (that it was normal for them to quarrel, to his attempt to rape her) and from whom she sought help (initially just her sister, but later adding her mother-in-law) in my view is indicative of her readiness to fabricate claims.
Of additional concern were the further assertions regarding this claim in the post-hearing submissions and the unreliability of the supporting documents in the first set of post-hearing submissions. At the outset, it was unclear whether the representative’s first post-hearing written submissions were to be read as his own evidence in support of the applicant’s claims or the second-hand account of the applicant’s evidence as told by the representative. The representative did not attend the first or resumed hearing to clarify the nature of these submissions. The applicant stated at the resumed hearing that she told the representative her account and instructed him to prepare the submissions and the documents. I do not consider the submissions contain a reliable account of the applicant’s evidence as they contained obvious inaccuracies such as the date the applicant ‘fled China’ (submissions stated 9/8/2017 but that is the date of the protection visa application; she arrived in Australia [in] 7/2017) and her claimed reporting obligation to the police as daily (the applicant admitted as a mistake at the resumed hearing; the representative claimed it was a typographical error in his 23 February 2024 submission).
In the resumed hearing, I discussed with the applicant the unreliability of the 13 WeChat screenshots with selected English translations as supporting the applicant’s various claims. These screenshots of conversations were submitted without clear context as to the identities of the chat participants and the circumstances of the conversation. In some screenshots, the dates are unclear or absent. The applicant explained at the resumed hearing that she did not capture these screenshots because she deleted her chats with the representative before returning to China for fear of being monitored. She claimed that the representative took the screenshots because these were conversations between him and the applicant, but she did have a look at them before submitting to the Tribunal. She made the decision with the representative to only translate some messages due to costs.
In the second set of post-hearing submissions after the resumed hearing, the applicant and the representative declared in statutory declarations that the applicant is the ‘Dog’ and ‘Flower’ avatars and the representative is the ‘Cat’ avatar in these WeChat screenshots. I am willing to accept that screenshots 1, 2, 3, 4, 5, 6, 10, 11, 12 and 13 are conversations between the applicant and the representative, screen-captured by the representative. However, I do not consider the selected messages convincingly support the applicant’s claims. For example, the submissions indicate screenshot 3 supports the claims that the applicant has been giving all her money to her husband in exchange for peace and good custody of her children and the husband has been using the children’s welfare to threaten the applicant including by saying that he would poison the children and kill himself. However, the messages themselves (“missing [her/him] is one thing, the issue is that other than seeing them, are you happy with everything else?”; “True. The child is my tender spot.”) do not reveal any such content. When this example was raised to the applicant at the resumed hearing, she claimed that her husband’s threat was actually over a videocall, and she did not think to record the videocall as evidence. This does not explain the dissonance between the submissions and the evidence purporting to support them. Therefore, I find the representative’s submissions to be unsupported assertions and reject them.
The representative submitted that screenshots 11, 12 and 13, together with a photo of a forearm, show the conversation he had with the applicant and support the applicant’s claim that her husband tried to rape her. I am willing to accept that this conversation took place on 29 August between the applicant and the representative. In relation to the photograph, it does not contain any information about when it was taken and whether it is of the applicant. It is simply of a forearm and there appears to be some very faint redness but the cause of it is not at all clear from the photograph alone. At the resumed hearing, the applicant explained that the photograph is to be viewed together with screenshots 10-13, as evidence of physical harm from her husband. When I asked her why she took the photo, she claimed that she wanted to find someone to talk to while wondering the street, took it using her WeChat to send to the representative to talk to him. She gave conflicting evidence about when she took the photo – initially she stated it was on 1 September because her [Child] went back to school on that day, but after viewing the chat screenshots, she stated that it was on 29 August, as per screenshot 10. When I put my concerns about the reliability of the screenshots and the photograph, the applicant stated that she didn’t actually share with the representative everything that happened in her life and this was something hard to share. I acknowledge that domestic violence is a difficult topic to discuss but what concerned me more about this response was that the applicant did not address my concern. I do not consider that the applicant adequately explained the relevance or the reliability of the supporting material. While I accept that the applicant may have had a conversation with the representative on 29 August accusing her husband of using force, because of my significant concerns about the reliability of the applicant as a witness and her readiness to fabricate claims, I am not satisfied that these documents support her claim to have been physically harmed by her husband on her recent trip to China.
In the two screenshots of the applicant’s claimed conversation with her husband provided with the second set of post hearing submissions, there is a chain of conversation on 13 February 2024 from 11:41AM to 3:56PM purporting to also support her claim to have been assaulted and almost raped by the husband on 29 August 2023. One message at 12:14PM and a similar message at 3:56PM appear to be the applicant’s accusation at her husband about the claimed assault and attempted rape and how that made her feel. The representative submits that the messages show that the husband did not deny the assault and attempted rape. In my view, this is not an accurate characterisation of the conversation because the unofficial translation of the messages does not indicate that the husband neither denied nor admitted to anything. The applicant’s 11 messages from 11:41AM to 2:59PM are one-sided and given my concerns about her readiness to fabricate claims I am concerned that the timing of this lengthy written messages is on 13 February, after the resumed hearing on 9 February 2024 when I had expressly put my concerns about the credibility of her claims and the reliability of her evidence. It is not clear why she would suddenly decide to put these matters in writing to her husband at this particular time. Her husband’s responses at 3:47PM and 3:56PM “Did I do this to you?” and “What do you want? You know you’re not just hurting me, you’re hurting the kids, you’re hurting this family. You saw what a dysfunctional family does to a child.” in my view read as surprised responses to the applicant’s one-sided accusations. While I accept this conversation occurred between the applicant and her husband, I do not accept this is evidence of his assault and attempted rape. In my view, this is just another example of their current marital discord.
Given my concerns expressed above, I give little weight to the representative’s evidence and the second-hand evidence of the applicant in the first post-hearing written submissions, the screenshots of conversations between the applicant and the representative, and between the applicant and her husband, and the photograph of a forearm as supporting the applicant’s claims to have been assaulted and almost raped by her husband.
The evidence in relation to the circumstances leading to the claimed rape also changed. At the hearing, the applicant claimed that after arriving in China, she went to the family’s Laixi home with her husband and the children and they all stayed for a night and travelled the next day to her mother’s home in Weishan, but her husband left after one day because he had to go back to work in Qingdao. Her husband and the children usually lived in their rental property in Qingdao closer to work and schools. That would suggest there were only about 2 days with her husband during the beginning of her return trip (early August), which is consistent with her later evidence that she didn’t spend much time with him, only around 2-3 days because she mostly stayed at the hospital. She also stated that on her subsequent returns to Laixi after several days at her father’s hospital in Weishan, she booked a hotel (2 times for 3 days each) and stayed there because she didn’t want to stay at the family home where the police would visit. However, the applicant’s statutory declaration of 22 February 2024 and the representative’s written submissions read together claim that the applicant’s husband attempted to rape her on 29 August 2023 when the children went to school, and the representative himself had to book the hotel for her for 30 August–2 September so she would have somewhere to go and avoid her husband. There is no mention of staying at the hotels because of the police.
At the resumed hearing, the applicant explained that she did not consider the first 2-3 days with her husband as ‘staying with her husband’ because there were other family members present and the period alone with her husband was actually toward the end of her trip. She also claimed that the representative booked the hotel both times but because she paid for it, she told me at the first hearing that she booked it. I am not persuaded by this explanation and again consider the applicant was fabricating responses as and when the questions were put. There were no further explanations about these concerns in the second set of post-hearing material.
I have already found the evidence contained in the representative’s first written post-hearing submissions to be unreliable and I give little weight to it. However, given the applicant’s evidence at the resumed hearing that these submissions were prepared under her instructions, I cannot overlook the inconsistencies with her own oral evidence. Importantly, the changing evidence does not persuade me that the differing dates, who booked the hotel and the reasons for the hotel stay may be regarded as minor inconsistencies due to memory recall issues or any other factors. Considered cumulatively with the overall concerns I have with the applicant’s evidence, these take on greater significance and undermine the claim that she was harmed by her husband and stayed at a hotel to avoid him.

[22] Dang’an is a personal file of a Chinese citizen which documents matters including their middle-school grades, religious affiliations, psychological problems and perceived political liabilities, updated by teachers, Community Party officials and employers. Copies are kept by local archive bureaus, the police or the employer, but ordinary citizens are not permitted to view the dossier: see Andrew Jacobs, ‘A rare look into one’s life on file in China’, The New York Times, Sinosphere – Dispatches from China, 15 March 2015.
104. Having regard to all of the above, I do not accept that the evidence supports the applicant’s claims that she sent money to her sister, the Chinese government accused her sister of scamming and froze her account, and she lost most of her hard-earned money as a result. To the extent that this claim relates to the applicant being of interest to the Chinese authorities, I reject this new claim in its entirety and do not accept that the applicant is or will be of adverse interest to the Chinese authorities on return to China for this or any other reasons.
105. The representative also submitted in the post-hearing submissions that the applicant has no money and nowhere to go if returned to China. The applicant clarified at the hearing that this submission was relevant to her inability to relocate. To the extent this raises a claim that the applicant’s will not be able to subsist on return to China, I reject it because there is no evidence to support this assertion. In fact, the applicant’s evidence is that on her recent return trip she stayed at her family home in Laixi which they own and at her parent’s home in Weishan, which strongly indicates that she will return to either of these places upon return. I have rejected her claims that she had to report to Laixi police and that her husband harmed her, and accordingly I do not accept that she cannot return to her Laixi home on these bases. She also stated that she has been earning money in Australia as [an Occupation 1] and other various [Occupation 2] on [Workplace]s and previously worked as a team leader in a factory in China which indicate that she has transferrable skills to earn an income in China. Therefore, I do not accept that she ‘has no money and nowhere to go’ in China.
106. Having regard to all of the above, I do not accept there is a real chance that the applicant will be harmed if she returns to China now or in the reasonably foreseeable future in relation to her claim to have transferred money to her sister and lost it, or any other reasons related to her financial circumstances.
New claim: failed protection visa applicant returnee
107. In the first written post-hearing submissions, the representative appeared to raise another new claim relating to the applicant’s status as a protection visa applicant who would have to disclose it to the Chinese authorities upon return. The submissions stated that during the interrogation at Qingdao airport on her recent trip to China, the applicant lied about her visa status by telling the police she was waiting for an outcome on her working visa and she was on a bridging visa. The representative further submitted that because the applicant had lied to the Chinese authorities, the authorities will ask her for evidence of the working visa application if she returns to China and if she can’t provide it she will need to disclose her protection visa application. These assertions were not supported by any corroborating evidence or explanations.
108. As I have already rejected that the applicant was detained or questioned at the airport or in the police station during her recent return trip to China, I do not accept that she lied to the Chinese authorities about her Australian visa history. However, country information suggests that the Chinese authorities may know about applicants for asylum and are likely to be aware of the behaviour of Chinese asylum seekers while they are outside of China.[23] Accordingly I have considered whether the applicant may be harmed on return to China for having applied for protection in Australia. As the written material did not provide any details on how her Australian visa history would lead to her harm, I sought to clarify at the resumed hearing.
[23] DFAT, ‘Country Information Report – People’s Republic of China’, 22 December 2021, [5.28].
109. The applicant again could not articulate how she will be harmed on this basis. She merely repeated that ‘there will be consequences’ and that she will be persecuted.
110. Country information indicates that there is no information to suggest that failed asylum seeker returnees are targeted by the Chinese authorities merely for having sought asylum.[24] In response to this information, the applicant claimed that according to her knowledge those who return to China after having applied for protection will be persecuted. I have already rejected the applicant’s claims to be a Falun Gong practitioner in China or in Australia and that she was or is of interest to, or have a record with, the Chinese authorities for reasons of her religion or any other reasons. Her evidence at the hearing confirmed that she did not engage in any activities in Australia that would bring her to the adverse attention of the Chinese authorities. I have also rejected her claim regarding her sister’s bank account being frozen because the applicant sent money. As she does not have any profile of interest with the Chinese authorities, I accept the country information and find that her having sought asylum in Australia alone will not result in any harm from the Chinese authorities. I find her claim that failed asylum seeker returnees will be persecuted to be an unsubstantiated assertion. The 23 February 2024 submissions by the representative did not clarify this claim other than to question how the Chinese authorities would know that the applicant applied for protection in Australia, which in essence appears to contradict the claim raised by the applicant and the representative. I have considered the country information referred to above and the applicant was invited to comment on the information as well as clarify how her disclosure of having applied for protection in Australia will lead to any harm in China. I consider that neither the applicant nor the representative have provided helpful clear submissions on this claim and reject the claim in its entirety.
[24] Ibid.
111. Therefore, I am not satisfied that there is a real chance that the applicant will be harmed in relation to this claim if she returns to China now or in the reasonably foreseeable future.
Other matters
112. In the first written post-hearing submissions, the representative submitted that the applicant would commit suicide or be insane within 6 months if she was forced to return to China. The applicant at the resumed hearing stated that she sometimes makes statements like this in Australia and ‘ramble on about this kind of thing’ with her representative. She vaguely claimed that she says these because of her husband and the police harassment. I have already rejected the applicant’s claims in relation to the police interest in her and her fear of her husband. It follows that I reject this unsupported assertion based on the overall unreliability of the representative’s submissions and the lack of any explanations or corroborating evidence from the applicant to substantiate it. The fact that such a claim was never raised by the applicant previously also indicates its unreliability as a genuine fear of harm. Considered together with the applicant’s propensity to fabricate evidence I find this to be a baseless claim.
113. To the extent this raises any implied claim about her mental health, I note her evidence that she has previously sought help from doctors in China (both Western and Chinese traditional medicine) and was able to access medicine including prescribed pills for depression. She also gave evidence at the first hearing that her mental health condition was now better and meditation helped. Accordingly, I find that the applicant will be able to access medical help in China if she requires it, as she has done in the past, and this does not give rise to any protection claim.
Does the applicant meet the refugee criterion?
114. Taking into account the findings set out above and having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicant returns to China now or in the reasonably foreseeable future, she faces a real chance of serious harm for any of the reasons claimed or arising on the material before the Tribunal. Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act, or for any other reason. I am not satisfied that the applicant is a refugee as defined in s 5H(1), and therefore, I find that she is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
115. As I have found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
116. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[25] for the same reasons as those set out above, I find that the applicant does not face a real risk of significant harm for any reason.
117. Therefore, I am not satisfied 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 she will suffer significant harm. I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[25] MIAC v SZQRB [2013] FCAFC 33
Conclusion

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) or 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

120. The Tribunal affirms the decision not to grant the applicant a protection visa.
Hee-Jung Kim
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.
…

[2024] AATA 2232

12 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice