1928454 (Refugee)

1928454 (Refugee) [2020] AATA 5046 (4 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1928454

COUNTRY OF REFERENCE: China
MEMBER:Luke Hardy
DATE:4 November 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 4 November 2020 at 3:19 p.m.
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Falun Gong – sacked from government job – political aspects of Falun Gong – inconsistent evidence – unreliable witness – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant], is a citizen of China. He arrived in Australia on a three-month visitor visa [in] May 2015. He lodged a protection visa application on 2 June 2015. The delegate invited him by registered mail to an interview, but the invitation was returned unclaimed. The delegate decided the matter on the papers and refused to grant the visa on 25 February 2016. [The applicant] then sought review by this Tribunal, differently-constituted. For the purposes of review by the Tribunal, he submitted a copy of the delegate’s decision.
The previously-constituted Tribunal authorised a Tribunal officer to conduct a preliminary hearing of his review application on 26 October 2018. The previously-constituted Tribunal heard [the applicant’s] oral evidence on 26 February 2019 and affirmed the delegate’s decision on 4 March 2019. [The applicant] then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The matter was remitted by consent, the Minister having conceded judicial error, [in] September 2019. The matter is now before the presently-constituted Tribunal pursuant to an order of the Court.
The hearing before the Tribunal, constituted by me, was held during the COVID-19 pandemic. [The applicant] appeared before me by telephone on 3 November 2020. The Tribunal exercised its discretion to hold the hearing by telephone, determining that it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of [the applicant], who also agreed for his own part to be heard by telephone. I also had regard, in considering this option, to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The hearing was facilitated by an interpreter in the Mandarin-English medium. She also attended by telephone. In view of various properties of the telephone medium, I took pains to check several details and have them repeated and even to have some words spelt out for clarity. When the interpreter did not catch something said by [the applicant], I invited her to repeat my questions or interim observations. To the extent possible, I encouraged [the applicant] to give evidence in short phrases, allowing the interpreter to interpret before he continued. This met with occasional success, and sometimes it was necessary to interrupt so that the interpreter could translate. Some of these issues are not uncommon even in live hearings. I asked [the applicant] towards the end of the hearing if he felt he had been able to convey all of his evidence and he said he was confident he had been understood. All things considered, I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments, and was not prevented from providing cogent and detailed information due to any circumstances beyond his control.
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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian -- Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the former Immigration Department (the Department)
In his original protection visa application, [the applicant] claimed to have lived at the same address in Chengdu city, Sichuan province all his life until coming to Australia. He claimed to have worked in the office of his local government from [year] to [1998] and that he was self-employed from August 1998 to March 2014, after which he became unemployed in China. He appeared to have lodged a visitor visa in 2015, and he later confirmed with me that this was correct. The visa was evidently granted in April 2015 about a week before he travelled here. [The applicant] claimed that his wife, daughter and parents still resided in his family home in Chengdu.
[The applicant] told the Department that his religion was “Falun Gong.” He claimed to be a “Falun Gong participationer.” Falun Gong is a spiritual cultivation movement based on traditional qigong exercises and mysticism that was banned in China in 1999.[1] [The applicant] claimed that his membership of the Falun Gong movement cost him his job. He claimed to have been detained by authorities in China many times due to his adherence to Falun Gong. In more detail, he claimed to have been beaten by police in a detention centre. He claimed to have required a medical operation due to internal bleeding. He claimed to be unable to relocate within China due, as is true, to the movement being banned nationally.
[1] DFAT Country Information Report: China, 3 October 2019
[The applicant] provided no material to the Department in support of his claims.
Evidence to the previously-constituted Tribunal
[The applicant] submitted no evidence to the previously-constituted Tribunal in support of claims.
At the preliminary hearing, [the applicant] told the authorised officer that in his last job he was employed by a company that made [Product 1]. This appeared to contradict his earlier claim about having been self-employed until becoming unemployed in March 2014. He said he lost his job at the [Product 1] company because of intimidation over his friends having been involved in with Falun Gong. He said that a policeman around that time beat him on the head, arrested and questioned him. He told the authorised officer that his job prior to that had been with his local government office. He claimed he had been sacked form that job in [1998] because of his involvement with Falun Gong. Asked by the authorised officer about his Falun Gong practice since arriving in Australia, [the applicant] said he had sometimes stood by the street at Falun Gong “propaganda spots” in [Location 1] and once in [Location 2] (“the city,” as he evidently put it).
The following is an extract from the part of the previously-constituted Tribunal’s decision record in which [the applicant’s] oral evidence and discussion of that evidence was summarised:
6. The applicant stated he came to Australia because he suffered interrogation because of Falungong. He also stated his fellow practitioner was arrested and sentenced to prison for three years. The applicant confirmed he himself was a Falungong practitioner and practised Falungong. When asked what was the main book of Falungong he stated Falun Dafa and when the Tribunal disagreed he stated Zhuan Falun. He did not know how many chapters were in the book.
7. The applicant stated he practised Falungong in Australia on and off. When asked how he practised he stated there was four kinds of practising, he practised at home and there were four exercises. The Tribunal put to him there were five and he stated he normally practised four.
8. When asked what had happened to him because he was a Falungong practitioner in China he stated he used to work for the government and because of his Falungong practice they fired him in [1998] because they thought he would do something bad. When asked if Falun Gong was unlawful, he stated not at that stage but it had huge influence. The applicant then stated that Falungong became unlawful since 25 April 1999. The Tribunal asked when Falungong had been outlawed in China and he stated June 1999. The Tribunal put to him that Falungong was outlawed in October 1999.
9. The applicant stated that in addition to him losing his job and being interrogated, the government came and asked questions and it was like he was monitored but apart from that, nothing else happened to him. The Tribunal put to him that it found it a little strange that he had never been arrested and yet other Falungong practitioners in China commonly received three years imprisonment or less. He stated his friend was arrested because of their visit to Upper government but he had not done that and was not arrested. The Tribunal put to him one of the reasons the Chinese government imprisoned people was to try and get them to denounce their faith and yet he said he had been interrogated but not arrested. When asked why they only gave him a warning he stated because he worked for government for 10 years and he knew someone in the system and some of his practice was in private. He also stated he did not go for upper visits [appeals to higher authorities].
10. The Tribunal put to him that he didn’t seem to know very much about Falungong, he did not know how many exercises there were, he didn’t know when it was first outlawed, he struggled to identify the main text and then was unable to name how many chapters were in the main text, it was difficult to understand why he would be fired because of Falun Gong in 1998 which was before Falungong was banned in 1999, and his story that the authorities knew that he was a Falungong practitioner but only warned and did not arrest him was also difficult to accept given the country information. The applicant said he didn’t express himself very clearly and the government monitored many activities. The Tribunal put to him that it had put concerns about his credibility, that is he did not seem to know basic information about Falungong that a genuine Falungong practitioner would know. He said the reason he was in contact with Falun gong in the first place was because of friends and what happened to him may be different from what happened to other people because of his experience. He stated he first went to Falungong in a stadium and at that time he was working for government. He also stated he was a member of the Communist Party and had a lot of responsibilities in the government and at that time could only go to some of the Falungong activities.
11. The Tribunal put to him it was not sure that he was addressing its concerns. He stated he wanted to tell the Tribunal about his understanding and his thinking. The Tribunal again repeated its concerns. The applicant stated he was fired in 1998 because someone told them about him. He also stated that in China if the government wanted to control something they began slowly and that is what happened with Falungong.
The findings of the previously-constituted Tribunal are quashed, but all of [the applicant’s] evidence to that Tribunal is evidence before me.
Independent country information
The previously-constituted Tribunal had regard to independent country information as discussed here:
12. According to Dr Benjamin Penny’s talk, 'An Academic's Perspective', given to the Tribunal on 26 July 2006, he would look at a number of factors in order to know if a person was a genuine Falun Gong practitioner. Benjamin Penny is an Australian academic specialising in religious and spiritual movements in modern and contemporary China.
13. Those factors include the five exercises and knowing the main scripture of Falun Gong, Zhuan Falun including how many chapters are in it.
14. According to DFAT Country Information Report Peoples Republic of China 21 December 2017:
Falun Gong members face widespread official and societal discrimination. Arrested Falun Gong practitioners (leaders and followers alike) commonly receive sentences of three years’ imprisonment or less. Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. DFAT is unable to verify reports that Falun Gong practitioners suffer psychiatric experimentation and organ harvesting.
15. According to the Immigration and Refugee Board of Canada China: Falun Dafa (Falu[n] Gong, Falungong) update; update to CHN33180.EX of 26 November 1999, Falun Dafa was characteri[s]ed as a cult in October 1999.
16. According to Human Rights Watch ( From July 1999 on, Falungong protests were countered by police sweeps which sent thousands, if not tens of thousands of practitioners, to police lockups and makeshift facilities for short-term "reeducation." According to Politburo member Li Lanqing, from the time of the July 22 Ministry of Public Security order until the end of October when tightened "cult" regulations went into effect, there were 35,792 occasions when followers were stopped by police and either taken away or told to leave Beijing. Many more may have been rounded up before they could reach the capital.
[The applicant] has evidently had ample opportunity over the years to familiarise himself with the information to which the previously-constituted Tribunal has drawn attention.
Evidence to the presently-constituted Tribunal
[The applicant’s] oral evidence in the hearing before me was internally inconsistent in a number of ways and also contradicted independent evidence and testimony evidence he had previously provided in this matter.
For example, early in the hearing, he said he became attracted to Falun Gong because, whilst at school he had become attracted to humanism and found himself opposed to Communism. He said he was attracted to Falun Gong because it took a political stand against the Chinese Communist Party (CCP). However, later in the hearing, he told me, as he had told the previously-constituted Tribunal, that he had since school become a member of the Chinese Communist Party. I asked him why he joined the CCP after having rejected Communism previously, and he said that at school he had “just learned about humanism.” He did not resolve the incongruity.
[The applicant], who claims he was already a Falun Gong follower in 1998, said that from the beginning he was more interested in the “political” side of Falun Gong, such as having “secret” conversations with Falun Gong followers about lobbying the government, putting up posters at night and distributing pamphlets. However, according to independent country information, the Falun Gong movement was not a political movement in 1998, let alone illegal or secret. The first significant political activity was the 25 April 1999 rally in Beijing. The state’s crackdown on Falun Gong began in the months that followed.
[The applicant] told me he was sacked from his government job in 1998 because of his involvement with Falun Gong. I put to him that this seemed chronologically impossible given that the Chinese government was taken by surprise in April 1999 and only after that began curbing the freedom of Falun Gong followers. I also put to him that Communist Party members openly followed Falun Gong up until 1999.[2] In reply, [the applicant] said he knew about that and proceeded to provide a different reason for why he was sacked. He said that a colleague was jealous of his job and stole it from him by telling the boss he was a Falun Gong supporter. Again, this did not appear to make much sense alongside independent reporting.
[2] David Ownby, Falun Gong and the Future of China, (2008) Oxford University Press, p 89.
After he left his local government job, [the applicant] worked for a company making [Product 2]. His alleged local notoriety as a Falun Gong supporter did not stop him gaining employment in the private sector. He told me that in 2008 he changed jobs and that this was when he started working for the [Product 1] company as a salesman. This was the job he claimed to have lost in 2014, again due to Falun Gong affiliation. He claimed he was sacked from his job because the police suspected him of involvement with a group of his Falun Gong friends who were interdicted en route to Beijing to protest to the central government against its treatment of Falun Gong adherents. He said to me that he stopped working for that company in March 2014. I then drew [the applicant’s] attention to the process of obtaining his visitor visa for Australia in 2015. He said that he provided the Department officer at Australian Embassy with evidence of his continuing employment as a salesman at the [Product 1] company as at 2015. He also said he provided supporting material from his employer about the continuity of his tenure and about his being expected back at work after his temporary visit to Australia. Further, he told me he presented documentary evidence of his financial capacity to pay for the trip and for his accommodation and upkeep during his temporary visit. He said he provided all this material through an agent who also helped him obtain his passport. I put to [the applicant] that, by this evidence, he did not lose his job at the [Product 1] company in 2014, as claimed, let alone due to imputed involvement with Falun Gong, whereupon he changed his evidence and said his job with the [Product 1] company was “affected,” in that he continued to work as a salesman but, due to being a salesman, he did not have to go into the office so often. In this way, he contradicted earlier claims about having been sacked and about his job having “stopped” in March 2014.

Having called Falun Gong his “religion” in his original protection visa application, [the applicant] told me he was mainly interested in Falun Gong’s critique of the government. He did not resolve the incongruity between these two positions. In addition, he said he rarely got involved politically in China as he was too busy with his family, and with raising his daughter in particular. He said this was why he did not join the group that tried to go to Beijing in 2014.
Having said in his protection visa application that he had been arrested and detained due to his support for Falun Gong, [the applicant] told me that no such things ever happened.
I asked [the applicant] how many chapters or lectures appear in the central text of Falun Dafa, the Zhuan Falun, and he said there are nine. I put to him that he had been unable to tell the previously-constituted Tribunal how many chapters there were and he said he normally did not pay much attention to such things. I put to him that this did not help suggest that he was genuinely interested in Falun Dafa and he said that after his daughter was born in [specified year] he was “not active with things including exercise.”
I asked [the applicant] to tell me how many Falun Gong exercises there are, and he said there are five. I reminded him that he had told the previously-constituted Tribunal that there were only four. He then said to me that this was because he had been nervous during the hearing before the previously-constituted Tribunal and also because he was personally more focussed on the political aspects of Falun Gong than on the spiritual cultivation side; this whilst telling me that he had even moved away from the political aspects after [the specified year].
I put to [the applicant] that when the previously-constituted Tribunal had told him there are five exercises and not four, his explanation for the error had been very different. In reply, he said that that had been his mistake. I put to him that he had told the previously-constituted Tribunal that he had answered “four” because he usually chose to do only four of the five exercises. I then put to him that if he only did four of the five exercises, that did not appear satisfactorily to explain why he had said there were only four. In the context of his explanation to the previously-constituted Tribunal, one would reasonably expect him to say that there were five exercises, even though he only did four of them. In response, [the applicant] said this had been his mistake. [The applicant] ultimately did not provide me with a satisfactory, consistent explanation for having given the wrong answer to the previously-constituted Tribunal.
I asked [the applicant] which exercise he omitted from his Falun Gong exercise routine, and he said it was the third one. I asked him to name that exercise and through the interpreter, who had some difficulty translating the term in detail, I heard a close enough approximation of the name of the third exercise: “cut through [the] two ends” was an acceptable reference to “Penetrating the Two Cosmic Extremes,” the exercise which is held to be important because it is the one that expels bad energy and absorbs good energy into the body.[3] In view of how essential, or pivotal or central the third exercise appears to be, I asked [the applicant] to explain why he commonly omitted it from his routine. In reply, he said he did not consider it essential; he added that he had made a mistake when discussing the exercises. All in all, [the applicant] said he had spent very little time and attention in his life to Falun Gong exercises and teachings because he was busy with his family and more interested in the Falun Gong as a means of weakening the power of the Chinese government. Generally, his discussions of this claim were contradictory and unsatisfactory. Significantly, he said he rarely got involved with Falun Gong in China and in Australia.
[3]
I asked [the applicant] when he was last involved with Falun Gong in Australia. In reply, he said he was occasionally involved for about one or two years after arriving here in 2015. I put to him that the previously-constituted Tribunal had asked him what activities he had engaged in in Australia and he said that he had sometimes stood by the street at Falun Gong “propaganda spots.” He said he could remember saying this before. He said he used to stand on the street and hand out brochures but performed no other Falun Gong activities. I asked him to tell me when and where he performed those activities and he said, “[Location 2].” He said he happened to see some practitioners “over there” and decided to join in what they were doing, handing out brochures. He said it was a few years ago and that he could not remember much because he rarely got involved. I asked him if he only ever did this in [Location 2] and he said, “Just [Location 2].” He said he recalled having gone to other places to talk with Falun Gong followers about “information” but did not attend any Falun Gong activities here. I asked [the applicant] to confirm that the only place where he had stood by the street at a Falun Gong propaganda spot was in [Location 2], and he said, “Yes.” I then put to him that this information was not consistent with what he had told the previously-constituted Tribunal’s authorised officer that he had pamphleteered in a different location. He then said he could not recall clearly and that if he had mentioned another place it might have been [Location 1]. I put to him that he had several times told me he only ever engaged in Falun Gong propaganda activities in [Location 2], and he agreed. I put to him that his evidence about pamphleteering by the street at Falun Gong “propaganda spots” was inconsistent, and he said, “Yes.” I put to him that I might not be able to rely on his claim about having engaged in public Falun Gong activities of any kind in Australia, and he said, “Yes.”
[The applicant] told me he did not practice Falun Gong in public in Australia because the movement has been infiltrated by Chinese government informers and because he had heard about family members of Falun Gong practitioners in Australia being harassed by authorities in China. He said, however, that his own family in China had never been bothered by authorities. In addition, he had already told me the reason why he did not practice the essential spiritual cultivation exercises in China or in Australia was because he was not interested in that aspect of the Falun Gong experience, preferring to support it as a means of attacking the Chinese government. He said had reduced that activity in China due to being busy with his family, and he said he rarely engaged in either political or spiritual activities even privately in Australia.
[The applicant] told me two Koreans told him about a Chinese Falun Gong practitioner who returned to China and was arrested on arrival. He provided no evidence to support this claim.
I put to [the applicant] that all of his claims about involvement with Falun Gong appeared to be unsupported. He said there was not much evidence he could provide. He said that if he asked a friend in China to send him supporting material it might endanger the friend.
Generally, [the applicant] portrayed the essential purpose of Falun Gong as being to dismantle Communist Party control of China. None of this, evidently, is discussed in Zhuan Falun or any other essential Falun Gong teaching. [The applicant] did not display to me even the slightest grasp of what the Falun Gong movement portrays as its core objectives. He likened his association with Falun Gong to protesting against China’s “one child” policy. In this way, he failed to support his original claim about Falun Gong being his “religion.”
I asked [the applicant] if he has been working in Australia and he said he has. I asked him of he sends money back to his family and he said he does and that his family depends entirely on the money he sends back from Australia.
Findings with regard to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] 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 his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[7] Sun v MIBP [2016] FCAFC 52 at [69].
In this case, I find on cumulative grounds that [the applicant] is an unreliable witness in relation to everything he has said connecting himself with Falun Gong. His evidence was generally inconsistent and lacking in plausible detail. He strikes me as having had no spiritual investment in the core beliefs of Falun Gong at all. His description of having joined Falun Gong because it appealed to him as a political movement is anachronistic with the time in which he supposedly joined, i.e., substantially before critical events in 1999. I do not accept that he ceased to be employed in 2014, let alone for the reasons claimed. Accordingly, I do not accept that he was been fired from a government job in 1998 due to affiliation with Falun Gong. Again, that is anachronistic. I find that [the applicant’s] description of so-called Falun Gong friends forming a delegation to go to Beijing to protest on behalf of Falun Gong is far-fetched and fanciful. I do not accept he supported Falun Gong in China, let alone that he was imputed by employers or authorities with having any such affiliations. I do not accept that he engaged in pro-Falun Gong propaganda anywhere in Australia at any time.
On the evidence before me, I find that [the applicant] came here and remains here in order to provide financial support his family, which he frequently put above and ahead of any claimed religious or political interests.
Having considered the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in China in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings with regard to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
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.
Accepting that [the applicant] is a citizen of China, I find that China is the “receiving country” in this case.
[The applicant’s] claims to complementary protection are essentially the same as his refugee status claims. Those claims have failed as refugee status claims due to their lack of credibility and/or not having met the “real chance” test. In the circumstances, those claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5046

4 November 2020

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Immigration

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