1809658 (Refugee)
[2021] AATA 2987
•22 June 2021
1809658 (Refugee) [2021] AATA 2987 (22 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1809658
COUNTRY OF REFERENCE: China
MEMBER:Peter Booth
DATE:22 June 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 22 June 2021 at 8:57am
CATCHWORDS
REFUGEE – protection visa – China – religion – practitioner of Falun Gong – identical factual claim for a protection visa made by another person – claimed fear of being persecuted is not well founded –credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 438, 440, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2018 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 24 October 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
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–LA, which are extracted in the attachment to this decision.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or the characteristic must distinguish the group from society.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Pursuant to s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.
Pursuant to s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Pursuant to s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
The issue in this case is whether the applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicant’s protection visa application as follows:
a)The applicant is a [age]-year-old female, born on [date] in Fuzhou City, Jianxi Province. China.
b)The applicant can speak, read and write Mandarin.
c)The applicant stated she is of Han ethnicity and did not specify a religion in her protection visa application.
d)The applicant claims to have Chinese citizenship by birth and a copy of her passport, held upon the Department file, confirms that she is a citizen of China.
e)The applicant claims to have been married since [March] 2007.
f)The applicant reported working as an office clerk in China and completing High School in China.
g)In summary, the applicant claims that she left China to avoid persecution due to her practise of Falun Gong (FG).
h)The applicant arrived in Australia on [date] October 2017 on a Visitor visa.
i)The applicant applied for a XA-866 Protection visa on 24 October 2017.
CLAIMS
866 visa application
The applicant’s claims for protection are contained in her protection visa application and attached statement. A Department interview was conducted on 15 March 2018. The claims submitted were as follows:
I am seeking protection in Australia so that I do not have to return to:
China.
Why did you leave that country(s)?
But I want to leave China. Because my faith has been persecuted and thwarted by the government “601” – a leading group office clearing Falun Gong. Falun Gong is a kind of Qigong, also known as “Falun Dafa”. It means “Truth goodness; tolerance” as a concept and that is to create the principles and elements of the universe and the physical and mental cultivation which has a very good effect. In the past I can easy got sick. When I began to practice Falun Dafa. The body really changed well. And not only good body but also mentally heathy. From then on I began to on the way to the practice of Falun Dafa.
Have you experienced harm in that country?
Applicant selected ‘yes’.
Give details:
I remember they used to poke me with an electric stick, punished me for ten days. From 6.30 in the morning to 8.00 clock pm whole day standing and in very cold weather, my arms are frozen and purple. Leg’s swollen like two sticks and then they do not let me wash, even the water can not give me a team leader [Mr A] said: Dafa disciples are used to persecute. There is a partner to see my really too poor. And secretly stuffed me an apple to eat. The results were found by a police, he put the partner’s face kicked, and punch him on eyes make them purples and hard to kick her, her move insult her, I and this partner shouted for help. The police said if you do not give up faith, abandon Falun Gong and do not sign the letter leave from Falun Gong you two should to death should killing yourself.
What do you fear may happen to you if you go back to that country?
I can not back to China, because it is said that at present the Chinese government is still resolutely eradicating Falun Gong practitioners. Although the labor education system has been abolished in 2013, there are still a large number of people who have practiced Falun Gong practitioners who are filmed in high risk. An analysis shows that from January 1, 2014 to June 1 2016, at least 597 Falun Gong practitioners were sentenced to one year’s imprisonment for up to 12 years. Over time, especially when the authorities see that Falun Gong will not be easily eradicated, open repression will damage China’s international reputation, the means of repression the means of repression became more subtle, such as real monitoring and external electronic monitoring, isolation of Falun Gong, so that they can not get the support
Who do you think may harm/mistreat you if you go back
It was a painful memory until I came to Australia to see the freedom and equality here. The government support the Falun Gong movement so my family and friends are happy for me to come to Australia, and I know that once I return to China, I will again be severely punished by the local government, my good friend, [Ms B] told me that the local police said that I was the main members of the Falun Gong team. So they will use the most brutal means to punish me, so my friends repeatedly persuaded me not to return to China. Once I arrive in China no less I will be caught by the local government definitely.
Why do you think this will happen to you if you go back?
The Communist party of China has already formulated a policy. In order to persuade Falun Gong practitioners to abandon their beliefs. They can use all kinds of torture. If they persecute Falun Gong practitioners to abandon their beliefs. They can raise the level of the position in the police officer and persecute Falun Gong practitioners as their reward. The more bad the behaviour the more prize can be re-reward, otherwise the police will be punished. In this case, the experience of Falun Gong practitioners in the ccp’s prison is very tragic. I still can not forget what I was in the prison.
Do you think the authorities of that country can and will protect you if you go back?
Applicant selected ‘no’
Why not?
I can not back to China, because it is said that at present the Chinese government is still resolutely eradicating Falun Gong practitioners. Although the labor education system has been abolished in 2013, there are still a large number of people who have analysis shows that from Jan 1, 2014 to June 1, 2016 at least 597. Falun Gong practitioners were sentenced to one year’s imprisonment for up to 12 years.
So the Chinese government will not protect me. I hope the Australian government can support and protect me, I applied for protection visa in Australia. I and my Falun Gong practitioners calling for all governments. International organizations and people of goodwill worldwide to extend their support and assistance to us in order to resolve the present crisis that is taking place in China
EVIDENCE AND SUBMISSIONS
The applicant did not provide any additional written submissions to the Department or to the Tribunal.
The applicant originally provided the following (undated) statement to the Department:
My name is [name], born on [date] ,Jiang Xi Province, in China. I am a very devout Falun Gong practitioner. I started practicing Falun Dafa at the age of 30. I did not understand it for the beginning of the practice. But step by step I learned the essence of Falun Gong's “Truthfulness and Compassion” and To be a Dafa disciple.
But I want to leave China because my faith has been persecuted and Thwarted by the government "601” - a leading group office dealing Falun Gong. Falun Gong is a kind of Qigong, also known as “Falun Data” It means “truth, goodness, tolerance” as a concept, and that is to create the principles and elements of the universe and the physical and mental cultivation which has a very good effect. In the past I can easy got sick, when I began to practice Falun Dafa, the body really well changed well, and not only good body, but also mentally healthy, from then I began to on the way to the practice of Falun Dafa.
But this road is very difficult in China, I was very early to learn the Falun Gong, in order to practice physical and mental, enhance the body's immunity, During the 1980s and 1990s there was an explosion in popularity of Qigong. The Falun Gong were one of the largest qigong groups, who were focused on the teachings of their founder Li Hongzhi. Many people took up qigong as a way to look after their own health. But soon after The authorities believed that Falun Gong was a cult, destroying mankind and endangering society. It was engaging in feudalism. The government decided that a crack down on the movement was needed. And thus, it was banned, leading to human rights abuses against practitioners. several people and I were beaten and arrested or to be subject to surveillance and harassment by the Public Security Bureau. most practitioners behave in ways which could be described as cultish.
But Falun Gong is practicing Truthfulness and Compassion, and it is helpful for the health of the People. There Is nothing wrong with the FaLun Gong. How can it be banned?
The Communist Party of China has already formulated a policy. In order to persuade Falun Gong practitioners to abandon their beliefs, they can use all kinds of torture. If they persecute Falun Gong practitioners to abandon their beliefs, they can raise the level of the position in the police office and persecute Falun Gong practitioners as their reward. The more bad the behavior the more prize can be re-reward, otherwise the police will be punished. In this case, the experience of Falun Gong practitioners in the CCP's prison Is very tragic. I still can not forget that I was In prison.
I remember they used to poke me with an electric stick, punished me for ten days, from 6:30 in the morning to 8:00 clock pm whole day standing. And in very cold weather, my arms are frozen and purple, legs swollen like two sticks. And then they do not let me wash, even the water can not give me. A team leader [Mr A] said: Dafa disciples are used to
persecute. There is a partner to see me really too poor, and secretly stuffed me an apple to eat, the results were found by a police, he put the partner's face kicked, and punch him on eyes make them purple, and hard to kick her, Let her move, insult her. I and this partner shouted for help, the police said, if you do not give up faith, abandon FaLun Gong and do not sign the letter leave from Falun Gong, you two should to death, should killing yourself.
It was a painful memory until I came to Australia to see the freedom and equality here, The government support the Falun Gong movement. So my family and friends are happy for me to come to Australia, and I know that once I return to China, I will again be severely punished by the local government. My good friend, [Ms B], told me that the local police said that I was the main members of the Falun Gong team. so they will use the most brutal means to punish me, so my friends repeatedly persuaded me not to return to China, once I arrive in china no less I will be caught by the local government definitely.
I can not back to china , because At present, the Chinese government is still resolutely eradicating Falun Gong practitioners. Although the labor education system has been abolished in 2013, there are still a large number of people who have practiced Falun Gong practitioners who are filmed in high risk. An analysis shows that from January 1, 2014 to June 1, 2016, at least 597 Falun Gong practitioners were sentenced to one year's imprisonment for up to 12 years. Over time, especially when the authorities see that Falun Gong will not be easily eradicated, open repression will damage China's international reputation, the means of repression become more subtle. Such as real monitoring and external electronic monitoring, isolation of Falun Gong, so that they can not get me the support..
So the Chinese government is not to protect me, I hope the Australian government can protect me, I applied for a protection visa in Australia, I and all my Falun Gong practitioners calling for all governments, international organizations, and people of goodwill worldwide to extend their support and assistance to us in order to resolve the present crisis that is taking place in China. thanks a lot.
In summary the applicant’s claims are:
a)She is a devout Falun Gong practitioner who began practising at [age] years old. The applicant was beaten, arrested or subject to surveillance and harassment during the crackdown on Falun Gong in the 1980s and 1990s.
b)The applicant was in prison where she suffered torture for 10 days. The police asked her to abandon Falun Gong.
c)Her good friend, [Ms B], told her that the local police said she was one of the main members of the Falun Gong team, and once she arrives in China she will be caught by the local government.
The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows.
The applicant confirmed that, in summary, the basis for her claim for protection in Australia was that she left China because of her involvement in FG. She was also asked whether she made any claim for protection in Australia on any other basis. She replied, “I like Australian lifestyle, if I go back I will be arrested by the police, I hope the Australian government will give me protection”. She did not elaborate.
Prior to commencing the substantive hearing, the Tribunal turned to consider a certificate on the Department file. The Department file contains a certificate pursuant to s 438 of the Act. It states that:
This document contains information given to an officer of the Department of Home Affairs in confidence. The Department considers that information contained in the document should not be disclosed to the applicant or the applicant's representative because it contains the name and other details relating to another person.
The relevant document is at folio 57 of the Department file and is in the following terms:
I, [Ms C] believe that it is necessary to use the information outlined below as being reasonably necessary for, or directly related to, one or more of the department's enforcement related activities.
The information required relates to the following person or persons:
Name: [Ms D]
DOB: [date]
CID: [deleted]File number: [deleted]
I accessed the following information held by the department:
Client Protection visa file [number deleted]. This is a file in the name of [Ms D], who is a Protection visa applicant. This file contains a statement of claims which contains sections which are identical or near identical to the statement of claims submitted by the current applicant.
This information is required to be used to assess the claims for a visa application and I have formed the belief that it is reasonably necessary for the following enforcement related activity conducted by or on behalf of the Department of Home Affairs:
· Identifying and assessing claims by non-citizens for protection in Australia.
(signature)
[Ms C]
Position number [deleted]
Humanitarian Program Operations Branch
PN: [deleted]She was informed that the Department file contains a certificate regarding the disclosure of certain information pursuant to s 438 of the Act. In particular, she was informed that the certificate pertains to the information in folio 57 of the Department file in respect of her application. The Tribunal informed the applicant that the reason for the certificate is stated as follows: “the department considers that this document, matter contained in the document or information should not be disclosed to the applicant or the applicant’s representative because it contains the name and other details relating to another person.” The Tribunal informed the applicant that in its view the certificate is valid.
The Tribunal went on to inform the applicant that it has a discretion, pursuant to s 438(3)(b), to disclose information to the applicant if it thinks it is appropriate to do so. However, the Tribunal must make a direction pursuant to s 440 in relation to the information in those circumstances.
Section 440 applies in circumstances where the Tribunal is satisfied that it is in the public interest that the information given to the Tribunal or the contents of any document produced to the Tribunal not be published, and in such circumstances the Tribunal may give a written direction. The applicant was informed that the Tribunal was satisfied that the circumstances arise such that it is in the public interest for publication of this document or the information contained in it to be restricted and it will make such a direction in due course.
The applicant was informed that the information relates to a protection visa application file in the name of [Ms D]. That person is the protection visa applicant. This file contains a statement of claims which contains sections that are identical or near identical to the statement of claims submitted by the current applicant in this application.
The applicant was informed that this information may be relevant to her review. The Tribunal invited her to comment upon it. She was also informed that if she needed time in order to consider this information she may ask for it.
In addition, the Tribunal informed the applicant that the Tribunal was required to give her clear particulars of any information that it considered would be the reason or a part of the reason for affirming the decision that is under review.
The Tribunal informed the applicant that it was also required to ensure as far as is reasonably practicable that she understand why information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review.
The applicant was informed that the particulars of the information are as described earlier, namely, apparently an almost identical factual claim for a protection visa made by another person. The applicant was informed that the Tribunal did not know whether this person was related to her. She was informed that, in any event, the close similarity of the facts may suggest that she was not telling the truth about the basis of her claim.
The Tribunal stressed that it had not come to a view about this but that it would ask her some questions about this information.
However, she was invited to comment on or respond to the information. The applicant was also informed that before she did so she may seek additional time to comment on or respond to the information.
The applicant responded, “my personal experience is because of persecution in China, therefore a came to Australia in order to Australia government give me protection, currently China is still punishing FG practitioners severely, therefore I cannot go back to China now”. The Tribunal asked whether she wanted to say anything in response to the information outlined in the certificate. She responded, “I don’t need to, I just tell you the truth”. She did not elaborate. When asked whether she knew [Ms D], she said “this person is my lawyer, my application”. The Tribunal observed that this was probably incorrect and reminded the applicant that this person had applied for a protection visa and asked whether the applicant knew her. She said, “I know this person”. She did not elaborate. When asked to state her relationship with [Ms D], she said “that is relationship of lawyer”. When asked where this lawyer practised she said, “in his office in Australia”. The Tribunal pointed out that there were two problems with her response. First, the person in question is a female and secondly the person in question is not a lawyer. The applicant was asked to respond. She said, “not a male, he is a lawyer”.
When asked who had completed her protection visa application, the applicant responded, “this person”. The Tribunal observed that the form was completed in handwriting and asked the applicant whether she contended that it was not her handwriting. She responded, “I told my lawyer my experience”. She did not elaborate.
The Tribunal asked the applicant whether she could explain two separate protection visa applications, made by two different people, but that were substantially factually identical. She said, “I cannot explain, I only know my lawyer lodge the application, after I’d told the lawyer my experience, in order that I can apply for protection”. When asked to state the name of the lawyer, she said “[Mr E]”. The Tribunal reminded the applicant that her previous evidence was that [Ms D] was her lawyer and invited her to explain. She said, “I don’t know what name the lawyer use, perhaps he just used a Chinese name”. The Tribunal informed the applicant that he found her explanations and responses on this point to be most unconvincing and invited her to comment. She said, “I only tell you I am not familiar with the information of the lawyer however when I came to practise FG that is true”. She did not elaborate.
The Tribunal moved on to the substantive part of the hearing.
The Tribunal asked the applicant why she left China and now claimed protection in Australia. The applicant responded as follows: “because if I go back I would be arrested by Chinese police and I like the life in Australia”. The Tribunal reminded the applicant that it was up to her to give details as to the basis of her fear of persecution if she was to return to China. She was invited to proceed. She responded, “I continue, I practise FG five years in China and I was in a small team leader and I was arrested by Chinese police many times, because I was arrested by police in China very often therefore I come to Australia, therefore I apply for protection visa in Australia in the hope Australian government can protect me, nothing else”. She did not elaborate.
When asked when she commenced practising FG in China, she said “2008”. She was asked how often she practised FG. She responded, “sporadically, six or seven years, but I persisted the practice five years”. The Tribunal observed that her response was vague and invited her to provide detail. She replied, “started practice in 2005, I was arrested once in 2008, also practised in 2009 and 2010”. She did not elaborate.
the Tribunal observed that her earlier evidence was that she had commenced the practice of FG in China in 2008 but now said it was 2005. She was invited to clarify her response. She said, “previously I was not so persistent, so I only practised occasionally, but in 2008 I started to persist, I was a small team leader in 2008”.
She was asked whether she practised FG in public or in private and responded, “in private we have gathering, we have secret place”. When asked whether she practised FG with other people she said “yes”. The Tribunal asked whether her family was involved in the practice of FG. She replied, “not my family and myself, my family did not support me, therefore my family asked me not to go back to China”.
The Tribunal observed that she had stated she was arrested “many times” and asked if the applicant knew how many times she had been arrested. She responded, “the bigarrest was once, I was beaten twice when they arrested us”. When invited to answer the question that had been put to her she said, “I have told you that there was a big arrest in 2008, I was beaten twice”. The Tribunal again repeated the question and asked how many times the applicant had been arrested. She responded, “I faced big arrest once, I was detained for 10 days, and I was arrested twice but I was released”. The Tribunal invited the applicant to provide details of how many times she was arrested and as to the particular occasions. She said, “there are many times that I was arrested”. She did not elaborate. The Tribunal put to her that her responses were very vague and invited her once again to inform it as to the number of arrests and when the arrests had occurred. She said, “three times, in 2008”. She did not elaborate. She was asked why she had been arrested. She replied, “because of FG”. She did not elaborate. The Tribunal asked the applicant to explain what happened on each occasion and to go through each arrest one by one. She responded, “one time I was arrested and detained 10 days and I was beaten and punished to stand upside down, following two times I was only detained for a few hours and then released, therefore my memory was quite painful, especially when detained for 10 days”. When asked when the 10 day detention had occurred she said “2008”. She did not elaborate. When invited to be more particular she said, “Winter 2008”. She did not elaborate.
She was asked whether the other two arrests had occurred before or after the 10 day detention. She said, “before that”. She did not elaborate.
When asked whether she had been detained together with other people she said, “yes, last arrests I was detained with many other people”. She did not elaborate.
She was asked why the other arrest had not been mentioned in her application or written statement; she said, “because for another two times only a few hours”.
The Tribunal asked the applicant why she had no witness or document to corroborate her assertion of involvement in FG in China or the 10 day detention or of her arrests. She replied, “people are in China how can I give evidence”.
She was asked whether, after the 10 day detention, she had continued to practise FG. She said, “I practise myself at home, quietly and then I went out”.
The Tribunal asked the applicant whether she had been harmed or threatened because of her involvement in FG after she was released from detention. She said, “there is a threat, there is minor harm, many factories do not want to use me”. The Tribunal observed that her response was vague and invited her to give details. She said, “when I was released I practise quietly and then I was harmed, therefore many factories are afraid of recruiting me”.
When asked whether she was afraid of being persecuted when in China she said “yes”. She was asked whether her fear of persecution persisted after her release from detention. She said “yes”. The Tribunal asked the applicant why she did not leave China in 2008 and why she had waited until 2017 to leave China. She said, “because when in China I secretly practise with other members, I did not have passport I could not come out”.
She was asked when she obtained a passport. She replied “2010”. The Tribunal asked the applicant why she did not leave China in 2010. She said, “I did not have the financial capacity to leave”.
The Tribunal asked the applicant why she left the family behind in China. She said, “because I like FG and my physical condition became good therefore I did not tell my family”. When invited to respond to the question she said, “what did you say”. When the question was repeated she said, “because I need to leave”. The Tribunal observed that her response was most unconvincing and invited her to comment. She said, “I have told the personal experience”.
The applicant confirmed that she arrived in Australia as a tourist on [date] October 2017. When asked how long she intended to stay she said, “I did not want to go back, because if I go back would be arrested”. The Tribunal asked the applicant to provide the date of her return air ticket. She said, “[date] October 2017”.
When asked whether she practised FG in Australia she said, “in order to do exercises I would practise”. She did not elaborate. When asked whether she practised FG privately or in public in Australia she said “privately”.
She was asked when she commenced the practice of FG in Australia. She said, “ when I came here I would practise privately in order to exercise”.
The Tribunal asked the applicant whether she was or had been involved with other FG practitioners in Australia. She said “no”. The Tribunal asked the applicant whether she asserted that she had no involvement with any other FG practitioners whilst in Australia. She said “yes”. When asked whether she was sure of her response, she said “only practise privately”. The Tribunal put to the applicant that in the delegate’s decision it was stated that she had been asked about this and had responded by saying she had met one FG practitioner in Australia but could not provide the person’s name. She was invited to comment. She replied, “correct I don’t know their name”. The Tribunal asked the applicant whether she now asserted that she had met a FG practitioner in Australia. She replied, “yes only that they practise in China but we don’t practise together”. The Tribunal observed that the applicant appeared to be changing the evidence and repeated the propositions to her. She was invited to comment. She said, “as I told you only practise in private, I don’t know they practise FG or not”. When asked who “they” were she said, “only those people in my workplace said they practised FG in China, I could not confirm”.
The Tribunal asked whether she asserted that she would be harmed or threatened with harm because of her FG involvement if she were to return to China. She said “yes”. She was asked why she had that belief. She replied, “because in China still my file”. She did not elaborate.
The Tribunal observed that she had lived in China for nine years after being detained and had provided no detail of any persecution in that time and asked why she believed she would be persecuted if she returned to China. She said, “because it is like this, any FG with a file, when they meet they will be arrested”.
The Tribunal observed that in the nine years that she had lived in China after being arrested in 2008 she had not been arrested. She was invited to explain why she had not been arrested. She said, “I stayed two years overseas, only in rural areas, in smalltown, did not stay in big city”. The Tribunal asked the applicant why she could not maintain a low profile if she returned to China, as she had done in the past. She said, “because I go back to China now the police will go after me and arrest me and give me penalty”.
The Tribunal put to the applicant that it found her responses to these series of questions to be most unconvincing. She was invited to comment. She replied, “I want to tell you, Chinese government will give severe penalty to FG, therefore I apply for Australian protection”.
When invited to add anything further to her application for review the applicant said, “I request Australian government to protect me”.
The Tribunal finds that the applicant:
a)is a [age]-year-old female, born on [date] in Fuzhou City, Jianxi Province in China.
b)can speak, read and write Mandarin.
c)is of Han ethnicity
d)is a citizen of China.
e)arrived in Australia [in] October 2017 on a Visitor visa.
f)applied for a XA-866 Protection visa on 24 October 2017.
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, 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. The following relevant information is from the DFAT report:
SECURITY SITUATION
2.55Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou, see Hukou (household registration) system, Health and Children)); the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military (see also Military and Police). In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.
2.56Security personnel and surveillance technology are ubiquitous throughout China. Increased artificial intelligence (AI) capabilities serve China’s economic and military modernisation interests, while simultaneously enhancing Party stability through increased power to surveil and control the population (see The Social Credit System).
2.57Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. Sensitive social groups, including religious organisations, Uighur and Tibetan ethnic groups, Falun Gong practitioners and human rights activists, have alleged that the government uses a range of surveillance methods to monitor their activities. Since 2016, media have reported that Chinese police and security agencies have begun combining photo databases, artificial intelligence and facial recognition technology installed in surveillance cameras to track down criminal suspects and ‘destabilising agents’ in society.
2.58 Since 2010, China’s expenditure on internal security agencies such as the police, the PAP, the courts and the prison system has outstripped spending on the military. In 2016, the gap between domestic security and defence expenditure reportedly reached a record high of 13 per cent, with domestic security expenditure increasing by 17.6 per cent compared to the previous year, to exceed RMB 1 trillion (AUD 209.4 billion), while defence expenditure only increased by 7.5 per cent. However, the actual amount China spends on its military and domestic security is widely debated. Most foreign experts, governments and relevant publications concur that Chinese statistics on security spending do not include some outlays that are standard reporting for most other countries, and note there is no way to verify the accuracy of official figures reported by China.
2.59 Domestic security expenditure across all provinces and regions increased by 215 per cent between 2007 and 2016, and continued to grow in 2018 - particularly in sensitive minority regions such as Xinjiang and Tibet, where security remains volatile due to heightened ethnic tensions and government attempts to curb perceived threats to social stability (see Ethnic Uighurs and Ethnic Tibetans). Over the same 10 year period, security expenditure increased by 411 per cent in the Xinjiang Uighur Autonomous Region (XUAR, Xinjiang), by 404 per cent in the Tibet Autonomous Region (TAR) and 316 per cent in Qinghai (where the population is approximately 25 per cent Tibetan). In February 2018, Xinjiang reported a 92.8 per cent increase in its domestic security spending, from RMB 30.05 billion (AUD 6.3 billion) in 2016 to RMB 57.95 billion (AUD 12.9 billion) in 2017. The increase in security spending in TAR is estimated at 9.3 per cent, although TAR maintains its position as the region with the highest per capita domestic security expenditure of all provinces and regions since 2008, ahead of Xinjiang. Analysts of Chinese security expenditure suggest that per capita domestic security spending in sensitive minority regions is now higher than per capita domestic security spending in the US or Russia (PP adjusted by wage levels).
2.60 In June 2017, China’s National People’s Congress Standing Committee also passed a new National Intelligence Law (2017; amended 2018) which forms part of a national security legal architecture introduced in 2014 which includes the Counter-Espionage Law (2014), Criminal Law (1979; Amended 2015), National Security Law (2015), Anti-Terrorism Law (2015) and Cyber Security Law (2017). The National Intelligence Law calls upon all elements of Chinese society, including individuals, to contribute to national intelligence work. The law inter alia empowers security agencies: to launch intelligence operations in China and abroad; to collect intelligence on foreign bodies ‘engaged in activities that may harm China’s national security or its interests’; to monitor suspects, raid premises or seize vehicles during the investigation of domestic or foreign individuals or groups; to gain priority use of transportation or telecommunications equipment, buildings or enterprises; and to employ ‘technical reconnaissance’ measures with permission. The law explicitly requires security agencies to act in strict compliance with laws relating to the protection of human rights, and states agencies should not exceed their authority or abuse their powers. DFAT is aware of reports of kindergarten children being given homework instructing how they should assist state security officers.
ARBITRARY DEPRIVATION OF LIFE
4.1Article 37 of China’s Constitution states that ‘freedom of the person’ of citizens of the People’s Republic of China is inviolable.
Enforced or Involuntary Disappearances
4.3Chinese law permits security agencies to detain suspects without charge for varying lengths of time during an investigation, with the conditions dependent on the nature of the offence investigated (see Arbitrary Arrest and Detention). Police have broad powers of detention during investigations relating to national security or intelligence matters, as defined by the CCP or state agencies. In the course of the anti-corruption campaign, the CCDI has detained many Party members suspected of corruption, holding some for several months before delivering them to the state criminal justice system (see Corruption).
4.4The authorities' power to restrain the liberty of citizens through a number of legal or extra-legal measures applies to children as well as adults: Then six-year-old Gedhun Choekyi Nyima disappeared with his parents in 1995, after the current Dalai Lama recognised him as the reincarnation of the Panchen Lama, Tibet’s second most senior spiritual leader. The Chinese authorities declared the nomination invalid and installed another six-year-old, Gyaltsen Norbu, as Panchen Lama in his place (see Buddhists). No international observer (diplomatic, media or NGO) has seen Gedhun Choekyi Nyima since 1995. The then 16-year-old son of a ‘709’ lawyer (see Human Rights Defenders (including Lawyers)) was arrested in 2015 at Beijing airport on his way to school in Australia, and again later that year on the Chinese-Myanmar border. In November 2017, he was denied exit from Beijing airport while again seeking to travel to Australia for study.
TORTURE
4.14China ratified the Convention against Torture and Other Inhuman and Degrading Treatments in 1988. Chinese law prohibits the physical abuse of detainees and forbids prison guards from extracting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. Amendments to the Criminal Procedure Law that exclude evidence, including confessions, obtained through illegal means, including under torture, took effect on 1 January 2013.
4.15In 2015, the UN Committee against Torture expressed serious concern over consistent reports indicating torture and ill-treatment were still deeply entrenched in China’s criminal justice system (see Torture). In 2016, in its concluding observations on the Fifth Periodic Report of China in January 2016, the UN Committee against Torture also expressed concern over a number of continuing practices that it assessed increased the risk of torture of detainees. These practices include: lengthy pre-trial detention; denial of access to a private lawyer; withholding of information from the detainee’s family in cases deemed ‘endangering state security’, ‘terrorism’ or serious ‘bribery’; ‘residential surveillance’ (see Arbitrary Arrest and Detention); the lack of independence of medical practitioners examining detainees; revisions to laws that prohibit (undefined) ‘conduct that disrupts court order’; lack of judicial or procuratorial oversight of criminal investigations; lack of information on past investigations of allegations of torture by security officials; unexplained deaths in custody; solitary confinement and use of restraints; a lack of information on inspection of detention facilities; exclusion of matters relating to ‘State secrets’ from the government’s reporting on torture; and the broad definition of many offences, including ‘endangering State security’, ‘picking quarrels and provoking troubles’, and ‘gathering a crowd to disturb social order’.
4.16Family members of the ‘709 lawyers’ (see Human Rights Defenders (including Lawyers)) wrote an open letter to world leaders on 1 March 2017 detailing allegations of mistreatment of their family members while in detention. The allegations included: forced consumption of drugs; marathon interrogation sessions and sleep deprivation; beatings; the application of heavy weights on legs; being almost entirely submerged in water for several days at a time; and threats and detention of family members. Individual lawyers detained during the ‘709’ crackdown have also detailed allegations of mistreatment at the hands of the authorities.
4.17Falun Gong practitioners have reported mistreatment in custody including sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings (see Falun Gong). International human rights reporting continues to document use of psychological pressure against Falun Gong practitioners. Media, human rights groups, members of the international community, and Uighurs have also reported the use of violence and torture of Uighurs in re-education centres in Xinjiang (see Ethnic Uighurs, Muslims).
4.18Media and Uighurs’ reports of physical and psychological maltreatment have included, but are not limited to, interrogation, inappropriate clothing for climate, sleep deprivation, administration of electric shocks, having weights tied to feet, indefinite confinement, forced administration of medication, psychiatric drugs, injections, blood tests, DNA sampling, and medication to stop menstruation, as well as intrusive medical examinations.
4.19DFAT considers allegations of torture, particularly those detailed in cases deemed politically sensitive, to be credible.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Arbitrary Arrest and Detention
4.20The Ministry of Public Security manages pre-trial detention facilities and procedures. Authorities with the power to authorise the detention of a criminal suspect include (but are not limited to) the Public Security Bureau (PSB), Ministry of State Security, and the Anti-Smuggling Bureau.
4.21Under the Criminal Procedure Law, the term ‘arrest’ refers to the stage of the criminal prosecution process when authorities determine there is sufficient evidence to proceed with prosecution. A suspect can be, though is not necessarily, detained prior to being formally arrested. A detention warrant must be issued to a suspect’s family within 24 hours of their detention. The formal arrest of a detainee must be approved by the Procuratorate, which can take up to 37 days. Unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, including appeals. In practice, the rate of release on bail is extremely low. Bail is not considered a right; under the Criminal Procedure law bail ‘is not an individual right designed to minimize restraints on freedom, but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police.’
4.22These procedures are not subject to judicial oversight. The post-arrest investigation period can be up to seven months, and preparation of indictment can take up to six and a half months. The total time required to hear a case and issue a verdict in standard cases ranges from twenty months to an indefinite period. Security agencies can hold individuals for years while they progress through the charge, arrest, investigation, court hearing and sentencing processes. Individuals convicted of an offence do not move into the prison system until their case is finalised, including any appeal processes. Time served in a detention centre is deducted from their custodial sentence.
4.23Amendments to the Criminal Procedure Law (1979; amended 2012, 2018) require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video. The revised law also requires judicial officials to investigate cases of extraction of confessions under torture.
4.24Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. Police can hold individuals for up to 30 days in criminal detention before deciding whether to pass the case to prosecutors, and for an additional seven days prior to formal arrest. Police detention beyond 37 days requires prosecutorial approval of a formal arrest and notification of family members within 24 hours of detention. The law permits officials not to provide notification if doing so would ‘hinder the investigation’ or for cases pertaining to ‘national security, terrorism, and major bribery’. During periods and anniversaries considered politically sensitive, authorities often detain activists without charge for the full 37-day period.
4.25Administrative detention is regulated under the law on Penalties for Administration of Public Security (2006). Administrative detention is imposed for crimes of a minor nature, and which are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.
4.26Under the Criminal Procedure Law, police may also detain individuals in ‘residential surveillance at a designated location’ (RSDL) away from their home for up to six months before formal arrest or release. RSDL can be used to detain individuals suspected of crimes endangering national security, involving terrorist activity, or involving serious corruption (see Corruption), or where the suspect or defendant does not have a fixed residence. Authorities must notify relatives of individuals placed under formal arrest or residential surveillance in a designated location within 24 hours, unless notification is impossible. The notification does not need to specify the reason for or location of detention. Suspects do not have the right to meet defence lawyers in these categories of cases. In cases involving national security or terrorism, police are authorised to detain a suspect after arrest for up to an additional seven months while investigating the case. Following investigation, the procuratorate has an additional 45 days to determine whether to file criminal charges of detention, during which time detention can continue. The law explicitly allows detainees to meet with defence counsel before criminal charges are filed but this rarely happens where cases are considered politically sensitive. After filing charges, authorities can detain a suspect for an additional 45 days before beginning judicial proceedings.
4.27RSDL has been criticised for exposing detainees to risk of mistreatment (see Torture) and for enabling conditions of detention that produce forced confessions. While evidence obtained while in RSDL should be able to be excluded in court, rarely is this the case. Human rights groups report RDSL has been increasingly used to detain activists, human rights lawyers and government critics in recent years, and claim police training dormitory facilities have been repurposed for RSDL.
4.28Locations used to enforce RSDL are often referred to as ‘black jail,’ however the term ‘black jail’ more correctly describes short-term detention in rented/owned, run down hotel rooms or similar, often used for petitioners, criminals and those under suspicion of less sensitive allegations, as a coercive measure. The primary distinction between RSDL and ‘black jail’ is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in ‘black jails,’ and occurs in government-run, custom fit for purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.
4.29Public security authorities continue to use other forms of administrative detention to suppress political and religious dissidents, sex workers, drug users and petitioners. Authorities also detain family members of dissidents: poet Liu Xia, widow of Nobel Peace laureate Liu Xiaobo, was released in July 2018 after being under house arrest for nearly eight years following her husband’s nomination for the Nobel Peace Prize in 2010 (see Deaths in Custody). Authorities have also curtailed the freedom of family members of ‘709’ lawyers (see Human Rights Defenders (including Lawyers) and Uighur and Tibetan activists (see Ethnic Uighurs and Ethnic Tibetans). The law does not provide for house arrest. Individuals facing this type of detention do not have the right to legal counsel or due process. The Chinese government abolished its ‘re-education through labour’ policy in December 2013, although media and human rights groups claim re-education through labour (including in prisons and linked to Xinjiang-based re-education centres) continued in 2018 and supported production in factories for overseas markets (see Detention and Prison and Ethnic Uighurs).
4.30DFAT assesses that reports that security authorities use extra-legal detention for politically sensitive investigations are credible.
Detention and Prison
Prison
5.19Prison conditions vary significantly among different parts of the country depending on local economic conditions; however, conditions in prisons are generally better than conditions in detention centres. Chinese law provides for prison accommodation to be ventilated, clean and warm with natural light. Prisons are required to provide adequate medical, living, and sanitary facilities. In practice, there is no independent monitoring of the prison system and the lack of transparency into China’s legal system makes it difficult to make generalised assessments of prison conditions.
5.20In general, prisoners are segregated by gender, and four to eight prisoners are allocated to each cell, although DFAT is aware of reports of up to 20 to 40 people in cells. Conditions can be overcrowded, and detainees can be required to sleep on the floor and denied regular exercise. Nevertheless, prisoners generally have beds, shower facilities, access to telephone calls and family visits. However, conditions vary depending on the location, resources available, training of prison or detention guards, and perceived level of political sensitivity and profile of the individual concerned. Foreign prisoners generally receive better treatment in detention than locals receive.
5.21Meals are served regularly, but nutritional quality is poor (often plain rice and vegetables) and quantities are small. Many detainees rely on supplemental food, medicines and warm clothing provided by relatives. Sanitation facilities are limited to buckets and sanitation troughs and/or open toilets. Prison officials sometimes deny these privileges as a form of punishment, particularly for political dissidents (see Torture). Prisoners do not always receive adequate medical care (see Deaths in Custody).
5.22All prisoners are put in the same cells, irrespective of their crime. There is no solitary confinement. Those sentenced to the death penalty are shackled during the day, and locked to a permanent position in the cell at night in the period before execution. Due to shackling, those sentenced to the death penalty have reported they were required to seek the assistance of other non-shackled prisoners to access basic needs like food, water and toilet facilities. Only family members can visit prisoners in China, and prisons generally allow one family visit per month. Women’s prisons are more likely to have better conditions than men’s, and tend to have more psychosocial support services.
5.23Prisoners are generally required to perform work tasks. Prisons operate a merit points system (similar to The Social Credit System), whereby work (such as factory or circuitry work) can be performed to earn points to reduce sentencing, to pay off fines, or supplement inadequate food supplies. In order to be eligible for prisoner exchange, sentences need to be reduced from ‘life sentences’ to a tangible fixed-term sentence of a number of years. However, DFAT is aware it is difficult for prisoners to use work to successfully achieve sentence reductions, and understands working conditions are generally poor. The government formally abolished its ‘re-education through labour’ policy in December 2013. Media and human rights observers claim, however, that forced labour in prisons continued in 2018, supporting production for overseas markets.
5.24Medical facilities in prisons can be comprehensive. Most prisons have a hospital wing, where medical conditions can be treated and monitored. There is at least one prison hospital in each province, and prisoners suffering serious or long-term medical conditions can be transferred to the prison hospital.
Detention
5.25See Arbitrary Arrest and Detention for distinctions between types of detention. Conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Pre-trial detention is highly controlled, and there are no opportunities to work to reduce sentences or for family visitation. Cells in pre-trial detention are approximately 12 metres long and five metres deep, with up to 24 detainees held in each cell.
5.26Detainees are not permitted to leave cells except to meet with investigating and Procuratorate officials, lawyers and consular officials. There is no opportunity to exercise. Meals are delivered to cells three times a day, and detainees are permitted to purchase a limited range of additional food, clothes and personal hygiene items. In pre-trial detention, bright, fluorescent lights are generally switched on 24 hours a day. DFAT is aware of reports of violence and mistreatment in detention centres, with authorities taking immediate action (including shackling violent detainees) to discourage violence.
5.27Hygiene, medical services and food and water provisions are sub optimal and rudimentary at best. Cellmates generally share one open toilet per cell. While detention centres will generally have on-site doctors, they have limited options for treating medical problems.
5.28As in the prison system, national Detention Centre regulations require detainees sentenced to a non- suspended death penalty to be shackled, to prevent self-harm. Detainees subjected to shackling must wear the restraints, which are fixed to an anchor point in the cell, at all times, and require assistance from other detainees for toileting and washing themselves. According to the mandate of pre-trial detention centres, offenders who are sentenced to death are often kept in detention centres (rather than transferred to prisons), thus detained together with pre-trial detainees.
5.29Family visits are technically possible after all judicial proceedings have been finalised and the defendant is sentenced. However, DFAT is aware of reports that family visits to detainees are generally not permitted and, in most cases, families must wait until the defendant has been transferred to a prison and completed their mandatory one-month induction process before they can visit.
5.30Australia has signed, but has not ratified an extradition treaty with China.
Exit and Entry Procedures
5.40Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.
5.41Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.
STATE PROTECTION
5.1 Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
5.2 There is no organisation in China tasked with enforcement of the Constitution and courts do not have the general power of judicial review which would allow them to invalidate laws on the grounds they violate the Constitution. The Constitution states the National People’s Congress and its Standing Committee have the power to review laws that violate the Constitution, but, in practice, these powers are rarely exercised, with only one instance of regulations being rescinded.
5.3 Crimes are investigated by public security organs, generally the PSB, but also including other organs such as the Anti-smuggling Bureau, Ministry of State Security and National Supervision Commission, prosecuted by the People’s Procuratorate, and tried in the People’s Courts. All lawyers must be registered with, and operate in compliance with, regulations issued by the All China Lawyer’s Association, which is directly supervised by the Ministry of Justice (see Human Rights Defenders (including Lawyers)).
5.4 The Criminal Procedure Law and Criminal Law regulate arrest and detention. The Criminal Procedure Law sets out the procedures to be followed in the criminal process. It applies prior to a verdict being issued by a court and the Criminal Law is applied after a verdict has been issued. Criminal prosecution can be lengthy, and it can take in excess of one year for a case to progress from initial detention to verdict and sentencing.
Police
5.6 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. The government no longer publicises the size of its police force, but media estimates place the number at around two million. The People’s Armed Police, a paramilitary force responsible for internal security issues such as riots, terrorist attacks, natural disasters and other emergencies, has an estimated 660,000 members. Police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training. Performance is statistics-driven and a national ranking system provides incentives for compliance. Local-level police are generally entitled to receive housing and food allowances as part of their monthly salaries, which are calculated according to local conditions rather than a national standard.
5.7 Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity. Regular police do not generally carry firearms but can do so in areas of heightened security (such as in Xinjiang and Tibet). Reflecting the power held by the Ministry of Public Security, procuratorate oversight of the police is limited, localised and ad-hoc.
5.8 Chinese citizens have the right to lodge complaints against the police in their city of residence through a telephone hotline, or online complaints website, in person, or in writing to the Public Security Bureau Complaints Office. Local authorities have targeted petitioners (including those with complaints against police) with punishments including arrest and detention (see Protesters/petitioners). Complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released (see also Deaths in Custody).
5.9 Police are unable to open a case until the prosecutor is confident there is a high chance of conviction. Police are required to send a brief to the prosecutor seeking formal permission to arrest, and only very clear- cut cases are generally approved, accounting for the 99 per cent conviction rate. When the procuratorate deems there is not enough evidence to justify arrest, it sends the case back for further investigation. Sources report that police are under pressure to obtain confessions prior to trial, and to ensure success in all police investigations. However, China has taken some positive steps to protect individual rights through amendments to the Criminal Procedure Law prohibiting the use of confessions obtained under torture as evidence, and requiring interrogations in major criminal cases to be audio and video recorded. However, these protections do not apply in cases involving national security, which are investigated outside of China’s criminal justice system. In practice, the number of cases in which evidence is not accepted at trial because it was obtained through torture or other coercive means is still very low, and only very few cases of this nature have been reported.
5.10 DFAT has no additional information on the quality of local policing or responsiveness of the PSB to local crime.
Judiciary
5.11 China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. The CPP approves judicial appointments and personnel decisions. Jurors are also appointed to a jury pool by the CCP for a five-year period and therefore serve the needs of the Party. The CCP also exercises direct influence in individual cases through Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts, and are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters, they can influence the outcome of cases, particularly when the case is sensitive or important.
5.12 China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification.
5.13 Enforcement of court judgements remains an issue. However courts now publish many routine judgements online on the Open Trial Network (OTN). The OTN is a case database platform, which increases transparency (for listed cases) to help enforce judgements and parole. If individuals or entities do not comply with fines or fulfil judgements, they can face other restrictions in line with the SCS (see The Social Credit System). Nevertheless, OTN coverage is patchy and not all cases reported in the media are listed. The 709 crackdown cases, for example, are not listed on the OTN. Only final judgements can be viewed on the OTN; intermediary judgements are not always accessible if there is an appeal.
5.14 Articles 183, 274 and 196 of the Criminal Procedure Law require cases involving state secrets, personal privacy, trade or commercial secrets or where the defendant is under 18, to be tried in a closed court. Cases involving trade or commercial secrets are also held in private if any party concerned in the matter requests a closed court session. However, Article 196 requires all verdicts to be issued in open courts.
5.15 Judicial reforms implemented in recent years have led to an increase in administrative law cases, albeit from a very low base, including local cases of official abuse of power. For example, the Shenzhen court has published figures for administrative cases showing 10,133 administrative cases in 2015, compared with 9,167 in 2014 and only 3,840 in 2013. In 2015, the government lost 381 (15.2 per cent) of 2508 lawsuits against it. While improving, these relatively low numbers - even in one of China’s wealthiest and most international cities (Shenzhen has a population of 12 million) - indicate the difficulties faced by ordinary people in pursuing cases against officials.
5.16 A number of special courts also play a key role in the judicial system. The Standing Committee of the National People’s Congress has the power to list the functions and powers of special courts and set up new special courts. Special courts include the military courts, maritime courts, railway transportation courts, forestry courts and the intellectual property courts. The military court, established within the People’s Liberation Army, is responsible for hearing criminal cases involving servicemen and women. This is a relatively closed system without external supervision.
5.17 The maritime court system deals with highly specialised issues related to waters under Chinese jurisdiction. Maritime courts operate in Shanghai, Tianjin, Qingdao, Guangzhou, Wuhan, Haikou, Xiamen, Ningbo, and Beihai, and there are also 39 detached tribunals in major port cities across 15 provinces. Maritime courts have jurisdiction over maritime tort disputes, maritime contract disputes, sea environmental protection cases, and maritime administrative and special procedure cases, including any disputes in this category arising between Chinese and foreign citizens, organisations and enterprises. The procedures of the maritime courts are governed by the Civil Procedure Law (1991; amended 2017), and where there is no provision in the Civil Procedure Law, the Special Maritime Procedure Law (1999) applies. However, maritime courts have no jurisdiction over criminal cases and other civil or administrative cases without a maritime element. In the event of a jurisdictional dispute regarding the existence of a maritime element, the ordinary court at one level higher than the maritime court and the ordinary court seeking to exercise jurisdiction, will determine jurisdiction. The High People’s Court in the locality where a particular maritime court is located has appellate jurisdiction over judgments and orders of the maritime court. Sources claim the maritime court’s remit has, at times, increased to include administrative cases, labour cases involving unpaid workers, shop workers (sailors) and maritime pollution cases. The Maritime Courts connect with port and border authorities, and entry and exit can be prohibited if an Individual has a pending Maritime Court order.
5.18 DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
INTERNAL RELOCATION
5.31 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement (see Hukou (household registration) system). Those who have otherwise come to the attention of the authorities may also face impediments to freedom of movement (see The Social Credit System and Security Situation).
5.32 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination (see also Uighurs and Tibetans).
5.33 DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score (see The Social Credit System, Religion, Political Opinion (actual or imputed) and Groups of Interest). People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel (see Security situation and The Social Credit System).
Hukou (household registration) system
5.34 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases, face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities.
5.35 The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have historically had tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) have been generally more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.
5.36 In April 2019, the National Development and Reform Commission announced the 2019 Urbanisation Plan, which relaxed hukou residency restrictions in small and medium-sized cities. The 2019 Urbanisation plan requires cities with populations between one and three million to end all household registration restrictions under the hukou system. Cities with populations between three and five million will relax restrictions on new migrants and remove limits on key population groups, including graduates of universities and vocational colleges. Small and medium-sized cities and towns of under one million permanent residents have already gradually lifted restrictions on household registration. In addition to loosening hukou restrictions, the plan directs local governments to promote basic public services for permanent residents and further develop urban infrastructure to handle increases in population.
5.37 According to media reports, it will be easier to apply for hukou in big, medium-sized, and small cities (some second-tier and all third and fourth tier cities). China has 13 cities with a population of more than five million in their urban areas, which will not see a relaxation of hukou restrictions under the new policy: Beijing, Shanghai, Guangzhou, Shenzhen, Tianjin, Chongqing, Wuhan, Chengdu, Nanjing, Zhengzhou, Hangzhou, Shenyang and Changsha. Cities that may be affected by the new plan may include, but are not limited to: Xi’an, Harbin, Changchun, Taiyuan, Nanning, Dongguan, Suzhou, Hefei, Jinan, Qingdao, Dalian, Xiamen, Ningbo, Kunming, Shijiazhuang, Nanchang and Fuzhou.
COUNTRY INFORMATION - CLAIMS SPECIFIC
RELIGION
3.28 China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
3.29 In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
3.30It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).
3.31The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.
3.32In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.
Government framework regarding religion
3.37Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).
3.38Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.
3.39Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed DFAT Country Information Report People’s Republic of China 25 SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office, and has been elevated to a level of importance not seen since 1949.
3.40The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.
3.41The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.
3.42According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices,’ and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations, or raising funds on their behalf.
3.43The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).
3.44Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of nonrecognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.
3.45Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.
3.46Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water, or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.
3.47Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’
3.48DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities. DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.
3.49While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.
OTHER GROUPS, INCLUDING ‘CULTS’
3.20The interpretation of what constitutes a cult can vary throughout China, with some local authorities listing behaviours such as “deifying leaders, deceiving people, and spreading superstitions and heretical beliefs” as grounds for labelling a group a “cult”. Practices deemed superstitious, cult-like, or beyond the vague legal definition of “normal,” can attract harassment, detention and imprisonment by authorities (for example, in December 2012, Chinese media reported more than 1,300 people across 16 provinces had been detained for propagating rumours of an apocalypse). A joint interpretation issued by the Supreme People’s Court and Supreme People’s Procuratorate in 1999 stated that punishments for cult crimes can be applied when one “resists group bans by relevant departments, resumes banned groups, establishes other sects, or continues [illegal] activities”. Individuals who organise or use “superstitious sects, secret societies or evil religious organisations” to undermine the state’s laws or administrative regulations can be sentenced from three to seven years in prison under Article 300 of the Criminal Law. Government crackdowns against cults occur with relative frequency in China.
3.21Groups such as the Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Zhong Gong (a qigong exercise discipline), and Falun Gong (see below) are banned by the Chinese government. The government also considers several Christian groups to be “evil cults,” including the DFAT Thematic Report - China 9 “Shouters,” Eastern Lightning, Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and South China Church.
3.22Both registered and unregistered orthodox Christian Churches tend to deride the doctrines of “cultish” organisations as heresy. However, at the same time, government crackdowns on “cults” often bring attention and scrutiny of Christian house churches by government officials, scholars, and ordinary people who can find it difficult to distinguish between the two
Other groups, including ‘cults’
3.93The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.
3.94In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.
3.95Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.
Falun Gong
3.96Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism, and Qigong (traditional breathing and meditation). Freedom House estimates seven to 20 million people currently practice Falun Gong in China. Falun Gong practitioners claim the movement has ancient origins, but it first appeared in its modern form in 1992, when founder Li Hongzhi began teaching the exercises in Changchun, Jilin province. Unlike other religions, Falun Gong focuses on private exercises and meditation.
3.97The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address ‘evil cults’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as ‘transformation through re-education centres’ to force practitioners to relinquish their faith. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and northeastern China, although Falun Gong’s illegal status makes this difficult to verify.
3.98Since the abolition of re-education through labour centres in late 2013, Falun Gong practitioners have reportedly been subjected to residential detention, criminal and other forms of administrative punishment (see Arbitrary Arrest and Detention), or have been released after receiving propaganda training. Freedom House states it independently verified 933 cases between 1 January 2013 and 1 June 2016 of Falun Gong adherents receiving prison sentences of up to 12 years for their beliefs.
3.99Falun Gong members do not openly proselytise in mainland China, although the movement is active in Hong Kong (where it remains legal) and abroad. Falun Gong practitioners identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong. Falun Gong practitioners are generally able to practise privately in their homes. Once known to authorities, colleagues or neighbours, however, Falun Gong members face widespread official and societal discrimination.
3.100Lawyers representing Falun Gong practitioners claim a typical Falun Gong case involves: a period of initial investigation; the suspect having their personal belongings confiscated and being placed in custody for three to six months; trial by court; and then sentencing. Arrested Falun Gong practitioners (leaders and followers alike) commonly receive sentences of three to seven years’ imprisonment. Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. Falun Gong practitioners and their lawyers claim that judges and lawyers are actively discouraged from taking on Falun Gong cases, and that Falun Gong practitioners have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims.
3.101On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs. Discrimination against Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships. Government officials, members of the police force and employees of state-owned enterprises are commonly required to sign a statement that they and their families are not Falun Gong members. A widespread and sustained government communications campaign against Falun Gong has effectively discredited it within mainstream Chinese society.
3.102Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly (see Political Opinion (actual or imputed)). Lawyers who defend Falun Gong practitioners are frequently denied access to their clients in detention or court, and are subjected to adverse treatment and physical and electronic surveillance by authorities (see Human Rights Defenders (including Lawyers)).
3.103Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport. Sources report some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.
3.104DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.
COUNTRY INFORMATION – SUMMARY
The Tribunal is informed by the country information, in summary, as follows:
a)As to security generally: gaining support for Chinese Communist Party (CCP) policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus.
b)As to the police: citizens can be arrested prior to being charged. Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. The arrest procedures are not subject to judicial oversight.
c)As to State protection: Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
d)As to the judiciary: China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
e)As to internal relocation: DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel.
f)As to religion: China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. The major religions practised in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million. Six million people follow Catholicism and 38 million follow Protestantism. There are 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practise openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues. While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continued in 2019.
g)As to practitioners of Falun Gong, Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism, and Qigong (traditional breathing and meditation). Unlike other religions, Falun Gong focuses on private exercises and meditation. The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. An extrajudicial security apparatus known as the 6–10 Office (named after the 10 June 1999 crackdown against Falun Gong) has the task of eradicating Falun Gong activities. Since the abolition of re-education through labour centres in late 2013, Falun Gong practitioners have reportedly been subjected to residential detention, criminal and other forms of administrative punishment, or have been released after receiving propaganda training. Falun Gong practitioners are generally able to practise.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate her claims for protection. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.
The applicant’s responses to the information in the certificate were vague and inconsistent. However, the Tribunal is unable to conclude whether the applicant fabricated her claims on the basis of those responses to the information in the certificate. Nonetheless, the vague and inconsistent responses are given some weight. They are suggestive of a person who obfuscated when it is convenient rather than respond directly. This characteristic became more evident as the hearing progressed.
She said that she had practised FG in China. However, she said it commenced in 2008 but later said it commenced in 2005. She gave vague details as to her involvement in FG. She said she was a small team leader but did not explain the significance of that role. She said that she practised privately but with others. However, she did not produce a witness or a document to corroborate her assertions. The Tribunal does not accept the applicant practised FG in China.
The applicant asserted that she was detained in 2008 for 10 days. She gave little detail. Written claims provide some further detail but do not include the date of incarceration. She also said she was arrested “many times”. When pressed on this response she became evasive. In the event she said there were two other arrests, but that she was released within hours on each occasion. She said that these arrests occurred in 2008. These are not included in her written claims. The explanation for the omission is unconvincing. She said she was detained in 2008 together with others. However, she produced no witness and no documents to corroborate her assertion of being detained or of the other arrests. The Tribunal does not accept that she was detained for 10 days in 2008 or at all. The Tribunal does not accept that she was arrested on two other occasions in 2008 or at all.
The applicant said that after the 2008 incidents she was persecuted but provided extremely vague details. She was pressed on this. She gave no meaningful details. The Tribunal does not accept that she was persecuted after her release in 2008 or at all.
She asserted that she was afraid of persecution after 2008 but continued to practise FG. She gave no meaningful details of her ongoing practise of FG. The Tribunal does not accept that she continued to practise FG subsequent to 2008.
The applicant did not leave China until 2017. She said that she did not have a passport. However, she obtained a passport in 2010 but still did not leave China. She said that she was impecunious. The failure to leave China immediately after the alleged detention in 2008 and the wait for a further nine years is inconsistent with a person having a genuine fear of persecution. This has been given some weight.
The applicant asserted that she has been involved in FG since arriving in Australia but has done so privately. However, she did refer to other people in the workplace being involved in FG. In the delegate’s decision, she is recorded as stating that she knew one another FG practitioner in Australia. However, she could not identify the person. The evidence in the hearing was confused if not evasive. The Tribunal does not accept that a person such as the applicant would not embrace the freedoms in Australia and would not seek out fellow FG practitioners. The applicant’s failure to do so is given some weight. The Tribunal does not accept that the applicant has been or is involved in FG in Australia.
The vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborative testimony compel the conclusion that the applicant’s assertions cannot be accepted. The Tribunal does not accept the matters asserted by the applicant are the basis for her claim for protection in Australia.
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s 5J(1)(a) of the Act.
Having regard to the evidence the Tribunal makes the following findings:
a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of China;
d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s 5H(1) of the Act; and
f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.
Complementary protection criteria assessment – s 36(2)(aa)
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether 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 the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2)(b) or (c) 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Booth
MemberATTACHMENT - 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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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