2104422 (Refugee)
[2021] AATA 3670
•1 September 2021
2104422 (Refugee) [2021] AATA 3670 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2104422
COUNTRY OF REFERENCE: China
MEMBER:Amanda Paxton
DATE:1 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 01 September 2021 at 5:03pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – particular social group – failed asylum seekers – family violence – physical assault – fear of arrest – applicant resigned from the Communist Party – employment – departure from China – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, r 1.12; Schedule 2CASES
GLD18 v MHA [2020] FCAFC 2
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZRSN v MIAC [2013] FCA 751
WZARI v MIMAC [2013] FCA 788Any 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 13 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicant, her son, the ‘second applicant’, and daughter, the ‘third applicant’ arrived in Australia together [in] June 2017, the applicant as the holder of a Subclass 590 Student Guardian visa, the second and third applicants on TU500 Student visas, having departed Beijing China [earlier in] June 2017. On 26 July 2017, the Protection visa application was lodged with the Department, with her husband as the primary visa applicant. The applicant and her two children were included as secondary applicants on the Protection visa application of [Mr A].[1] All four visa applicants were granted bridging visa As, without conditions, in connection with the Protection visa application on 4 September 2017.[2] None of the applicants have departed Australia since their arrival.
[1] [File number], Application for a protection visa, pp. 32–80.
[2] [File number], pp. 113–126.
On 20 December 2017, the applicants validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification and decision from the Department, to the application.
[In] July 2004, the applicant married [Mr A].[3] On 14 April 2021 she advised that she and her husband have separated, and requested that a new merits review case be created for the applicants.[4] A Family Violence Interim Intervention Order dated [in] March 2021 issued by [Court 1] against [Mr A], protecting the applicant and the third applicant, has been provided to the Tribunal with a hearing set down for [July] 2021.[5] The Order states [Mr A] must not contact the applicant or their daughter and that he must stay at least 5 metres away from them at all times. On 9 April 2021, acknowledging the changed relationship between the applicant and her husband, the Tribunal created a review case for the applicants.
[3] [File number], p. 25.
[4] AAT 2104422, Doc Id [Number], 14 April 2021.
[5] AAT, 2104422, Doc Id. [Number], 29 June 2021.
The delegate found the applicants to be members of the family unit of [Mr A], as defined in Regulation 1.12 of the Migration Regulations 1994 and therefore also are members of the same family unit as defined in s 5(1) of the Act. As the delegate refused to grant a Protection visa to [Mr A], the applicants do not satisfy s 36(2)(b) or s 36(2)(c) of the Act as they are not members of the same family unit as a non-citizen who holds a Protection visa of the same class applied for in this application and who engages Australia’s protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. The applicants made no claims of their own for Protection visas.
The applicants appeared before the Tribunal on 8 July 2021 to give evidence and present arguments in relation to the application. The applicants were not represented at the hearing. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 MigrationRegulations1994 (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) of the Act. 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) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K– 5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[6] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[7]
[6] Migration Act 1958, s 5AAA.
[7] 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].
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[8] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[8] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J, p. 482.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[9] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[10]
[9] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
[10] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].
CLAIMS AND EVIDENCE
The issue in this case is whether any of the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicants claim to be citizens of China. Copies of the applicants’ passports were provided to the Department and the Tribunal. The applicant’s passport, issued [in] 2015, indicates she was born [date] in Hebei, China.[11] The second applicant’s passport, issued [in] 2016 indicates he was born [on date] in Hebei, China, and the third applicant’s passport also issued [in] 2016 indicates she was born on [date] in Hebei, China.[12]
[11] AAT 2104422, Doc Id [Number], 8 July 2021.
[12] Ibid.
Accordingly, the Tribunal accepts and finds that the applicants are Chinese citizens. There is no evidence to suggest that the applicant has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the applicants’ protection claims will be assessed against China as the country of reference and as the ‘receiving country’.
Background
According to the applicant’s Form 866C, Application for a Protection Visa, the applicant was born on [date] ([age] years old), is a Chinese citizen by birth, born in Digzhou, Hebei province, China.
The Form 866C includes the second applicant, born on [date] ([age] years old), and the third applicant, born on [date] ([age] years old), both born in China.[13]
[13] [File number], pp. 32–80.
The Form 866C indicates the applicant travel history is as follows:
·[city and province in Country 1], [specified dates in] May 2015, Tourist visa;
·Melbourne, Australia, [June] 2017–present.
The Form 866C application states the applicant’s ethnicity as Han Chinese and religion as Falun Gong. She indicated that she could speak, read and write in Mandarin. The only extended family declared in the Form 866C are [Mr A’s] parents both living in China, together with his [specified relatives] all residing in Australia.
Written claims for protection
The applicant’s written claims for protection are first put forward in the Form 886C, in which she is a secondary applicant of the main applicant, [Mr A].[14] In the Form 886C, it is declared that [Mr A] and his colleague, [Friend A], were Falun Gong practitioners and that [Friend A] had been arrested multiple times and interrogated by police. [Mr A] feared he and his family were in danger of persecution.
[14] Ibid. pp. 72–73.
In the Form 886C, [Mr A] claims he was monitored by the Chinese government, that he was not able to publicly practise Falun Gong, and that Falun Gong is regarded as a cult and subject to crackdowns.
[Mr A] stated he did not seek help within the country following the harm he had experienced nor did he try to move to another part of the country. He said there was no one who could protect him from the control and monitoring by the Chinese Communist Party which is all over China.
[Mr A] stated he feared if he returned to China, he would be arrested, imprisoned, persecuted and could lose his life to the one-party Chinese Communist Party.
In the Form 866C, it is claimed that Falun Gong is treated as an illegal cult, where members are subject to arrest. Reference is made in the Form 866C to public demonstrations by Falun Gong members against the Chinese government, resulting in tens of thousands of Falun Gong members being persecuted and killed.
Various documents were provided to the Department in support of these claims including photographs of Falun Gong members involved in public demonstrations in Australia,[15] passports of all four visa applicants,[16] a signed statement of [Mr A] dated 10 July 2017 with additional explanation of his claims,[17] a stamped passport page of [the applicant] showing her trip to [Country 1],[18] Notarial Certificates of [the third applicant] and [the second applicant] showing their birth dates,[19] a statement from [specified] Public Security Bureau dated [in] January 2013,[20] a Notarial Certificate issued by the Notary Public Office of Dingzhou City, Hebei Province, China, confirming the applicant has no criminal record[21] and letters of support in the Chinese language.[22]
[15] Ibid. pp.12–13,18, 23–24, 81–88, 93, 98,145–149, 281–284.
[16] Ibid. pp.152–280.
[17] Ibid. p.139.
[18] Ibid. p.14.
[19] Ibid. p.17 & 27.
[20] Ibid. pp 100 & 135.
[21] Ibid. p.104.
[22] Ibid. pp 89–90.
On 29 June 2021, the applicant lodged the following pre-hearing submissions with the Tribunal:
· Unsigned statement of the applicant dated 29 June 2021;[23]
· Unsigned statement of the second applicant dated 29 June 2021;[24]
· Unsigned statement of the third applicant dated 29 June 2021;[25] and
· Family Violence Intervention Order against [Mr A] dated [in] March 2021.[26]
[23] AAT, 2104422, Doc Id [Number], 29 June 2021.
[24] Ibid.
[25] Ibid.
[26] AAT, 2104422, Doc Id [Number], 29 June 2021.
In her statement to the Tribunal, the applicant explains that she was initially a secondary applicant on her husband’s visa application and she now raises her own Protection visa claims. She states she disagrees with the refusal of her husband’s Protection visa application and makes the following claims:
· Her husband left China and came to Australia in or around 2016 or 2017 on a Subclass 600 Visitor Visa. The applicant subsequently came to Australia in June 2017 on a Subclass 590 Student Guardian visa. Her husband came to Australia because his [Relative A] was living here, and because he was learning Falun Gong in China, where it was not legal. He wanted to continue learning Falun Gong, and has been practising it continuously since he came to Australia.
· The applicant has been a victim of family violence since around 2005. Her husband would often hit her and abuse her physically when they argued, something her children witnessed. In China, family violence is considered a family matter. On two occasions the police came to their house because of instances of her husband’s physical violence, but they did not take action to arrest him. His physical violence became more severe when they moved to Australia, but she did not go to the police because she thought it was a family matter and because they had been married for 20 years. The applicant lists a number of occasions of violence against her perpetrated by her husband this year, the most recent leading to the Interim Intervention Order being made when her husband threatened to kill their daughter, the third applicant with a knife. The applicant intends to seek to keep the Intervention Order in place as she is afraid of her husband.
· The applicant’s husband is a committed Falun Gong practitioner. In China, he secretly practised Falun Gong with his friend [Friend A] and promoted Falun Gong through his [product] business. The applicant believes the authorities focussed on the leader, [Friend A], but were aware of her husband’s Falun Gong activities. She believes the other practitioners, including [Friend A], protected them and did not report on them when they were arrested and questioned. [Friend A] told them they were monitoring the applicant’s husband, and by extension their family.
· In Australia, the applicant’s husband practised Falun Gong publicly and there are pictures of him on the Falun Gong website. As Falun Gong is regarded as an illegal cult in China and the government has access to their information, the applicant fears returning to China.
· Prior to the birth of her children, the applicant asserts she practised Falun Gong regularly, but now practises less. The applicant has not attended any Falun Gong activities in Australia because she has been looking after the children, but she is a true practitioner. She believes people will find out she is a Falun Gong practitioner, stay away from her and report her to the authorities. If the Government finds out she has practised Falun Gong, she will be arrested and persecuted.
· The children practised Falun Gong when they were younger, but they do not practise anymore.
· The applicant and her husband are not formally separated or divorced but they no longer live together. As she is still legally married to her husband, she and her children will be perceived to be Falun Gong practitioners too because of their association to her husband. She and the children will be put under surveillance, followed by police and followed by members of the Chinese Communist Party (CCP) in the community. She will be in greater danger than previously because she will not have the protection of the Falun Gong community.
· The authorities will also be aware that she and her husband resigned from the Chinese Communist Party.
· She fears discrimination, surveillance and arrest in China because she and her husband are both Falun Gong members, and her husband has publicly practised Falun Gong in Australia. The applicant believes she will be denied work. She does not believe that they will be protected from harm or that they can live safely in any part of China.
· The applicant claims she will be in more danger now because the authorities will know they have applied for a Protection visa in Australia.
· The children, the second and third applicants, will also be at risk of discrimination in employment and study because they are the children of Falun Gong practitioners. Her children will not be allowed to go to university.
· The applicant states she could not live with her parents on return to China becuase they live in the countryside in Hubei where there are a lot of communists.
· She also claims she would not be able to work and the children would not be able to go to school because they live in the countryside. As a single mother, she would have to work and support herself and her children which would be difficult.
Both the applicant’s children in their written statements to the Tribunal state that they fear discrimination, monitoring and persecution in China because of their family’s association with Falun Gong.
CONSIDERATION OF CLAIMS AND FINDINGS
At hearing, the applicant stated that she had the assistance of a lawyer to complete her statement to the Tribunal and she is confident everything is correct.
On the basis of the documentary evidence before it and consistent testimony of the applicants across their statements and at hearing, the Tribunal accepts the applicant was born into a rural family in a village in Hubei. The Tribunal accepts the applicant’s parents and [a sibling] and his family remain there, supporting themselves growing crops and working in casual work. The Tribunal accepts the applicant attended primary school in the village and middle school in the township nearby. The Tribunal accepts the applicant’s oral evidence that if she returned to China, she would return to her parents’ home in Hubei, where her hukou (household registration) remains.
On the same basis, the Tribunal accepts the applicant’s statements at hearing that she went to Beijing in 1995 and remained, first [studying] at technical school, and later working in casual jobs. She often returned to her home about 200 kilometres away to visit her family.
The Tribunal accepts the evidence of the applicant at hearing consistent with the documentary evidence provided, that she met her husband through her work as [an occupation 1] in a service company and their relationship commenced in 2000 and they married in 2004. The Tribunal further accepts the applicant stopped working when her first child was born in [year] returning to work when he was six. She worked in [a specified role] for a company, a job she enjoyed very much. The applicant told the Tribunal that her husband did not work because he didn’t want to and was not successful when he looked for a job. When the children were young her husband’s brother gave them money because she could not work.
The applicant gave oral evidence that her husband’s violence escalated from 2005 when the children were young, and he started beating the applicant hard. While this was not often, her husband would erupt suddenly. The applicant believes that the third applicant, now [age] years old, has suffered trauma as a result of witnessing family violence and she referred to the recent occasion where the third applicant sought to intervene to prevent her father’s violence and in response he threatened her with a knife. This incident prompted the Interim Intervention Order of March 2021. Taking into account the documentary evidence of the Interim Intervention Order, the Tribunal accepts the applicant was the subject of family violence in China and Australia. The Tribunal accepts the applicant’s view that the third applicant’s experience as witness and subject of her father’s violence in China and Australia could have serious negative consequences for the third applicant and indeed all the family.
The Tribunal accepts the applicant’s current marital status is ‘separated’. The applicant explained that she and her husband had been in a ‘separated’ status in China for a period variously described as “about four years”, “more than four years” and “three or four years”, before coming to Australia in 2017. As the evidence of the second and third applicants corroborated, since about 2013, the applicant and the children lived in a home provided by the applicant’s husband’s brother. All the applicants agreed they did not experience violence perpetrated by the applicant’s husband over this period and that this was a peaceful time. On the basis of the evidence of all the applicants, the Tribunal accepts the applicant was separated, but not divorced, from her husband for about four years before their departure from China in 2017 and that she and the children did not experience family violence in this period.
Noting the applicants’ evidence that the applicant was separated from her husband for four years prior to their departure for Australia, the Tribunal enquired what prompted the applicant to join her husband who was in Australia as a visitor. Initially she stated she came to Australia for the “sake of the children” so the children could come to school here and to have a good education. She also stated she decided to live with her husband in Australia to see if the marriage could work. Following this discussion, she said that the most important thing was that she wanted to support her husband’s practise of Falun Gong in Australia. The Tribunal found the applicant’s response was confused but given the second and third applicants came to Australia as students and their mother was their guardian, the Tribunal accepts they came to advance the children’s education. As discussed below, the Tribunal does not accept the applicant was involved in Falun Gong practice in China. In light of the applicant’s confusing oral evidence, and findings below that neither she nor her husband were Falun Gong practitioners in China, the Tribunal does not accept she came to Australia to support her husband’s Falun Gong involvement. However, on the evidence before it, the Tribunal accepts the applicant lived together with her husband after her arrival in Australia.
The applicant explained that none of the applicants have lived together with their husband/father since [a day in] March 2021 when the Interim Intervention Order was put in place and that she does not intend to reunite with him because she and the children are scared of him because they do not know when he will erupt in violence. She stated she will seek extension of the Interim Intervention Order which states that her husband must not contact the applicant or their daughter and that he must always stay at least five metres away from them. The Tribunal has considered whether the applicant would reconcile with her husband if they were to return to China. In this consideration, the Tribunal has taken account of the applicant’s evidence at hearing that she does not intend to reunite with him. The Tribunal is satisfied the applicant and her husband will not reconcile. On the basis of the applicant’s evidence that she does not intend to reunite with her husband, and taking into account the finding above that they were separated for about four years from her husband in China, the Tribunal accepts the applicant and her husband are now separated and will continue to be so in the future.
The Tribunal has considered whether the applicants’ husband/father presents a risk to the applicants in future. The Tribunal has considered the evidence of all the applicants and is satisfied that while the applicants’ husband/father was separated from the applicants in China, and since their separation in Australia, the applicants’ husband/father has not harmed any of the applicants, and they have described life as peaceful. As the Tribunal is satisfied the applicant and her husband will continue to be separated, the Tribunal is also satisfied the applicant’s husband does not present a further risk of harm to the applicants, here or in China.
The applicant’s involvement in Falun Gong
In her Statutory Declaration the applicant declares that she and her husband learnt Falun Gong together, and they are both true Falun Gong practitioners. The Tribunal asked her what being a true Falun Gong practitioner meant to her. The Tribunal formed the view that she was reluctant to respond because she clutched her forehead and hesitated for some time, before saying she has a commitment to Falun Gong which is a kind of faith. She told the Tribunal she has not spent much time practising and when the Tribunal asked her to recall the names or movements of any Falun Gong exercises, she could not. She offered that she had read some Falun Gong texts such as Zhuan Falun, and in response to enquiry from the Tribunal about the purpose of the exercises, she said the exercises are important to cleanse the spirit, make you become a good person and seek improvement by self-reflection.
Having considered Master Hongzhi Li’s text, Falun Gong,[27] one of the primary texts defining the practice of Falun Dafa, the overarching philosophy and practice, but here referred to generally as Falun Gong, the popular name for the movement,[28] and the exercises practised to cultivate gong, cultivation energy, it is clear to the Tribunal that the applicant’s understanding of Falun Gong was extremely superficial. The Tribunal would expect a committed Falun Gong practitioner to be able to identify the name and nature of the five Falun Gong exercises, because these are fundamental to Falun Gong practice.[29]
The Tribunal would also expect a person who had practised Falun Gong for even a short period to refer to the purpose of the exercises as the cultivation of energy and describe the role of the Falun, the Law Wheel.[30] The Tribunal accepts the applicant, who referred to “becoming a good person” and “improvement” may have a very broad concept of Falun Gong of a kind generally obtainable, noting Falun Gong’s purpose to improve one’s heart and mind through study of truthfulness, benevolence and forbearance.[31] However, the Tribunal formed the view that her knowledge of Falun Gong was superficial at best and that it was not indicative of a commitment to Falun Gong at any level.[27] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1, 2 and 3 (Updated in April 2001), pp. 42– 64
[28] UK Home Office 2002, Revolution of the Wheel – The Falun Gong in China and in Exile, < Accessed 10 December 2002
[29] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1, 2 and 3 (Updated in April 2001), pp. 42– 64
[30] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1, 2 and 3 (Updated in April 2001), p. 47 < Accessed 15 June 2005
[31] Falun Dafa Australia (undated), Introduction, < Accessed 14 November 2011
The applicant told the Tribunal a number of times that she has not practised for a long time and she stated clearly and repeatedly that she does not practise now. Over the course of the discussion, the applicant said she has not practised Falun Gong since she and her husband separated more than four years before she came to Australia and claimed this was because she had to make money and look after the children. According to the applicant, she has not practised Falun Gong or attended any Falun Gong activities in Australia for the same reason. The Tribunal acknowledges that supporting the children and working is time consuming. However, the Tribunal considers that a person professing to be a true practitioner of Falun Gong would find opportunity to practise, practice being a fundamental part of Falun Gong. The Tribunal would also expect practice in Australia over the last four years, given there are no restrictions on practice.
Having concluded above that the applicant has a very superficial understanding of Falun Gong, the Tribunal does not accept the applicant practised Falun Gong in China. On the totality of the evidence before it, the Tribunal does not accept the applicant is a Falun Gong practitioner now, true, committed or otherwise, or that she will become a practitioner in the future. The Tribunal does not accept that the applicant will seek to practise Falun Gong privately or publicly in China.
When the Tribunal put to the applicant the view that she is not a true Falun Gong practitioner, she did not express any intention to practise. However, she stated that once a person starts as a Falun Gong practitioner, you never stop being one until you die. The applicant implied that people in the community will observe this. In this context, the Tribunal acknowledges the applicant’s comment from a spiritual perspective that once a Falun Gong practitioner has had the Law Wheel installed in their abdomen, this remains in place through their lives.[32] As above, the Tribunal does not accept the applicant is a Falun Gong practitioner. That said, the Tribunal notes, the Law Wheel is not observable to anyone else and if the Law Wheel is installed in a person, the Tribunal does not accept the applicant’s inference that this will be apparent to any external observer. The Tribunal does not accept the applicant is identifiable as a Falun Gong practitioner in any way.
[32] Hongzhi, L. 2001, Falun Gong, Translation of Chapter 1, 2 and 3 (Updated in April 2001), p. 19
The applicant has claimed that her parents face harm arising from her claimed Falun Gong background. She claims that she could not live with her parents on return to China because they live in the countryside in Hubei where there are many communists who will be reporting on Falun Gong practitioners, and that her parents would be discriminated against when the village community knew of her Falun Gong connection. The Tribunal has found the applicant is not a Falun Gong practitioner and is not identifiable as such. It follows that the Tribunal does not accept communists in the community will discriminate against the applicant’s parents because the applicant has a Falun Gong background.
The second applicant’s involvement with Falun Gong
In his statement to the Tribunal, the second applicant declares his father is a Falun Gong practitioner, that he has seen him practising since he was very young and recalls seeing books about Falun Gong.[33]
[33] AAT, 2104422, Doc Id [Number], 29 June 2021.
In her statement to the Tribunal, the applicant stated the second and third applicants practised Falun Gong when they were younger, but do not practise anymore. At hearing she said her children’s understanding of Falun Gong was superficial. The second applicant, who is [age] years old, chose to speak with the Tribunal alone. He gave evidence that when he was young people asked him to learn Falun Gong. When the Tribunal asked him for more information about his understanding of Falun Gong, he said he didn’t understand it and he doesn’t know much about it, and that he does not practise Falun Gong.
The Tribunal acknowledges that as a young adult at [age] years of age, the second applicant may not have a deeply developed belief system. However, in line with his own assessment, the Tribunal formed the view that he has very little understanding of, interest in Falun Gong, and he has no commitment to Falun Gong. The Tribunal was satisfied that the second applicant’s exposure to Falun Gong was minimal. The Tribunal finds the second applicant is not a Falun Gong practitioner, and moreover that he had only a minimal exposure to Falun Gong, such that the Tribunal was not convinced his father or mother practised Falun Gong at home. The Tribunal does not accept that the applicant will seek to practise Falun Gong privately or publicly in China.
The third applicant’s involvement with Falun Gong
In the company of her mother, the third applicant told the Tribunal she is [age] years old and came to Australia when she was [age] and commenced school. She stated she used to learn Falun Gong when she was young with her parents, but she doesn’t practise Falun Gong anymore and she is not interested in it. She told the Tribunal Falun Gong is a religious belief, but she was not able to tell the Tribunal anything about these beliefs other than Falun Gong teaches that China is bad. She said she had read some texts but doesn’t remember the names.
At [age], the third applicant is a minor and the Tribunal accepts that her understanding of concepts embodied in Falun Gong may not be well developed. On the basis of the evidence of the third applicant at hearing, the Tribunal concluded her understanding of Falun Gong was minimal and she displayed no interest in developing her understanding. The Tribunal understands that the third applicant may not remember any details from her childhood but the Tribunal would expect that if her father practised at home all the time as claimed, she would be able to demonstrate knowledge of some of the basic concepts of Falun Gong. On the evidence before it, the Tribunal finds the third applicant is not a Falun Gong practitioner, and that she had only a minimal exposure to Falun Gong, such that the Tribunal was not convinced her mother or father practised at home. The Tribunal does not accept that the third applicant will seek to practise Falun Gong privately or publicly in China.
The third applicant stated she fears she will be identified as a Falun Gong practitioner in China because Falun Gong teaches that once you start Falun Gong practice you are always a Falun Gong practitioner whether or not you are practising. She fears she will be watched by the Chinese government because she used to learn Falun Gong. She fears return to China because this religious belief is not allowed, and she watches news websites showing that Falun Gong is not allowed. As discussed above, the Tribunal acknowledges that Falun Gong teaches that once the Law Wheel is “installed” in a person it will remain there.[34] However, as discussed above, the Law Wheel is not observable to the practitioner or indeed to anyone else. The Tribunal does not accept that the third applicant, who, as accepted is not a Falun Gong practitioner, has been identifiable as a Falun Gong practitioner in any way, or is identifiable as such now or in the foreseeable future.
[34] Hongzhi, L. 1999, Falun Dafa Lecture in Sydney, < > Accessed 30 January 2001
Fear of harm arising from the applicants’ association with the applicant’s estranged husband
Central to the applicant’s claim is that she and her children face serious harm because of her own involvement in Falun Gong and secondly because she is still legally married to her husband, and as such she and her children will be perceived to be Falun Gong practitioners, because of their association with him, a claimed practitioner of Falun Gong. As a result, she claims, they will be put under surveillance, followed by police, followed by members of the CCP in the community, and suffer discrimination.
As to the applicant’s estranged husband’s involvement in Falun Gong, the Tribunal has considered the evidence before it, noting the applicant’s declaration in her statement to the Tribunal that their Protection visa application was refused because the Department did not believe that her husband is a Falun Gong practitioner or that he regularly practised Falun Gong. In her statement, the applicant declares her husband is a very sincere and committed Falun Gong practitioner. She states he was learning Falun Gong in China where it was not legal, and that he came to Australia to visit his [Relative A] and also because he wanted to continue learning Falun Gong, and that he has been practising it continuously since he came to Australia.
At hearing, the applicant stated that her husband gained access to Falun Gong about 10 years ago and has practised since that time. She told the Tribunal that her husband was involved in a [product] business in Beijing with an active Falun Gong practitioner, [Friend A], that this business only occasionally made money but existed as a vehicle to spread Falun Gong teaching. The applicant explained that the ground floor of a two-storey property where they had lived accommodated the [product] business. She claimed Falun Gong practitioners would meet there and her husband would promote Falun Gong when he visited people associated with the [product] business. He also talked to family members such as his mother and her in-laws about Falun Gong.
The applicant told the Tribunal she has no evidence of her estranged husband’s Falun Gong activity in China. In review of the material provided by the applicant’s husband’s in support of his application, the Tribunal notes what appear to be one letter stamped with government seals and a brief business reference, all in Mandarin. The Tribunal can give these letters no weight in this assessment because they are untranslated. The applicant told the Tribunal that neither she nor her husband were ever arrested or persecuted for any reason in China. She said she believes her husband was monitored because [Friend A], her husband’s colleague in the [product] business who it is claimed organised Falun Gong events and meetings of Falun Gong practitioners at the business premises, had been arrested and persecuted many times for his Falun Gong activities. She claims [Friend A] had told her husband he would be monitored on the basis that he himself was. [Friend A] also said many people associated with him who practised Falun Gong had also been arrested and their association with the applicant’s husband would be known.
The Tribunal has taken account of the applicant’s evidence that none of the applicants or her husband experienced any difficulties with the authorities or anyone else for any reason in China. At hearing the Tribunal explored the applicant’s statement that the Chinese government had declared Falun Gong illegal and ‘an evil cult’ and banned its practice in 1999. The Tribunal notes DFAT country information discussed with the applicant in summary that involvement in banned religious groups attracts harsh penalties in China, that a national security law explicitly bans ‘cults’ and a special organ of the CCP targets cult activity.[35] As discussed with the applicant, Falun Gong practitioners face widespread official and societal discrimination, and DFAT report that in September 2017, the government published a list of 20 banned groups on its official Anti-Cult website which included a function for reporting suspicious activity.[36]
[35] ‘2019 Report on International Religious Freedom: China’, US Department of State, 10 June 2020, p. 7.
[36] DFAT Country Information Report People’s Republic of China, 3 October 2019, 3.94 and 3.104
Given the country information indicating the authorities’ harsh and close attention to people known to be involved in Falun Gong activity and the applicant’s evidence that neither she or her husband ever experienced any difficulties with the authorities or anyone else arising from Falun Gong activities, the Tribunal has difficulty in finding plausible the claim that the applicant’s husband practised Falun Gong and proselytised Falun Gong in China as claimed, or that authorities were aware of the applicant’s husband’s Falun Gong activity or monitored him but took no action against him. Further, for the same reason, the Tribunal has difficulty finding the applicant’s claim that she and the children were monitored on the basis of their association with the applicants’ husband/father to be plausible. In this regard, the Tribunal also notes the applicant provided with the Protection visa application a Notarial Certificate certifying she had no criminal record in China up to November 2016, confirming the applicant’s oral evidence that she had not come to the adverse attention of the authorities in China.[37] The absence of any indication of the authorities’ interest in the applicants raises serious doubts for the Tribunal that the applicants’ husband/father practised Falun Gong and proselytised Falun Gong, that his colleagues were arrested and detained, or that authorities were aware of them or monitored them for any reason.
[37] [File number], Doc Id [Number], Import Date 24 May 2021.
At hearing, the applicant told the Tribunal that her husband visited Australia twice before his last arrival in Australia as a visitor in 2017. The applicant said she didn’t know much about his visits — they were not living together at the time — but she thought the first visit was in 2016, the second in early 2017 and the third a bit later in 2017. She said she did not pay much attention to his visits to Australia, her husband did not tell her when he came, and later in 2017 she was herself very busy preparing to come to Australia. On the basis of the documentary evidence, the Tribunal accepts the applicant’s husband was permitted to depart China on three occasions. At hearing, the Tribunal also noted that the applicant departed China on her passport issued in 2015, first for a visit to [Country 1] and in 2017 to travel to Australia as Guardian for the second and third applicants who were coming to Australia to study.
The applicant told the Tribunal that even though a person might not be persecuted, restrictions such as not being able to leave the country, may be placed on you, and the Tribunal put to the applicant DFAT country information that Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport.[38] The Tribunal suggested that her claims to have been monitored appeared inconsistent with her evidence that she had no difficulty obtaining a passport in 2015, and had subsequently used the passport to depart China twice. The Tribunal referenced DFAT reports that China’s major airports have a centralised system with data matching capabilities and facial recognition technology that is also widely deployed at international checkpoints (air, land and sea), and the security monitoring capabilities at airports are comprehensive.[39] The Tribunal put to the applicant that had any of the applicants or her husband been of interest to the authorities for Falun Gong activities they would not have been permitted to travel. In response, the applicant stated that she and her husband had been protected by [Friend A] and the other Falun Gong practitioners. The Tribunal considers this explanation to be inconsistent with her claim that the applicant’s husband and the applicants were known to the authorities through their association with [Friend A] and the other Falun Gong practitioners who had been arrested many times. For these reasons, the Tribunal does not accept the applicant’s claim that she was previously protected by the Falun Gong community. The Tribunal does not accept the applicants were monitored by the authorities in connection with Falun Gong involvement.
[38] Ibid at 3.96 – 3.104.
[39] Ibid at 5.40-5.41
The Tribunal has considered the totality of the evidence before it and does not accept that any of the applicants or the applicant’s husband practised Falun Gong in China. Further, the Tribunal does not accept the applicants or the applicant’s husband were known to the Chinese authorities or monitored for involvement in Falun Gong. The Tribunal does not accept the applicant’s claim at hearing that all the people they have contact with in China are Falun Gong practitioners, or that her husband’s colleagues were arrested many times for Falun Gong activities.
The Falun Gong activities of the applicant’s estranged husband in Australia
The applicant claims that her husband has been involved in Falun Gong activities in Australia and referred to photographs provided by the applicant’s husband with their application to the Department and seen by the Tribunal on the applicant’s Departmental file, showing her husband participating in a Falun Gong protest in Australia.[40] The applicant told the Tribunal that she was aware her husband was attending these events, and that as far as she can remember he attended all events. Her husband had told her the photos appeared on a Falun Gong website, but she has not seen them on the internet herself and she does not know where they are on the internet. On the basis of the evidence before it, the Tribunal accepts the applicant’s husband had some involvement in Falun Gong in Australia.
[40] [File number], Doc Id [Numbers].
The Tribunal has considered whether the applicant’s relationship with her estranged husband may draw her to the adverse attention of the authorities. The applicants claim they face monitoring and discrimination in China because of their association with their father who will be known as a Falun Gong practitioner in Australia, and the second and the third applicants claim they will not be permitted to go to school or obtain work and may face other restrictions because children lose the right to study or work if associated with Falun Gong. In this regard, the Tribunal acknowledges DFAT reports discussed with the applicant at hearing that discrimination against Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships.[41]
[41] DFAT Country Information Report People’s Republic of China, 3 October 2019, 3.104.
The Tribunal accepts the applicant is still legally married to her husband; however, the Tribunal has found above that the applicant was separated from her husband for about four years in China before coming to Australia. The Tribunal has also found the applicant and children are separated from the applicant’s husband in Australia, will continue to be in China, and will return to her family home in Hubei on return to China. In these circumstances, the Tribunal is satisfied that it is highly unlikely that the applicants have been or will be associated with their estranged husband/father on return to China for any reason, because their connection with him, if known at all, will be considered to have been severed. The Tribunal finds the risk they will be imputed as being Falun Gong practitioners or discriminated against based on their legal relationship their husband/father now or in the foreseeable future is remote.
The applicant claimed that she will be in greater danger than previously on return to China because she will not have the protection of the Falun Gong community. The Tribunal has found the applicant is not a Falun Gong practitioner and faces no harm arising from her relationship with her estranged husband. The Tribunal has further found above that the applicant was not previously protected by the Falun Gong community. The Tribunal therefore does not accept the applicant will require the protection of the Falun Gong community or anyone else on return to China.
The Tribunal has considered the totality of the applicant’s evidence in respect of claimed Falun Gong association. The Tribunal has not accepted the applicants’ husband/father practised Falun Gong in China or that the applicants were imputed as Falun Gong practitioners in China through their estranged husband/father. In addition, for the reasons stated above, the Tribunal is satisfied the applicants will not be imputed as Falun Gong practitioners or discriminated against on the basis of the applicants’ husband/father’s activities in Australia because the applicants have been, are now and will be separated from their husband/father. The Tribunal does not accept any of the applicants will be associated with Falun Gong through their husband/father now or in the reasonably foreseeable future.
On the basis of all the evidence before it, the Tribunal does not accept any of the applicants face serious harm arising from their own Falun Gong involvement or by association with their estranged husband/father. The Tribunal does not accept that any of the applicants will be arrested or face societal or official discrimination. The Tribunal does not accept the second and third applicant will not be permitted to work or study.
Resignation from the CCP
In her statement to the Tribunal, the applicant claimed that after their arrival in Australia, her husband told her he had submitted a form on behalf of the family to say they were quitting the Communist Party. At hearing, she stated she did not know who he sent this form to, whether it was sent to the CCP or whether they are aware of it. In review of the material provided by the applicant’s husband’s in support of his application, the Tribunal finds no evidence to support this claim. The applicant told the Tribunal she believes that if the CCP find out they will consider that the applicant is against them and they may face discrimination or harm.
In response to Tribunal enquiry at hearing about the applicant’s membership of the CCP, the applicant told the Tribunal that she was not a member of the CCP but was a member of the Communist Youth League. The Tribunal commented that she was now [age] and membership of the Youth League did not seem appropriate. She explained that this membership was many years ago, and that it was a long time ago that she sent a letter of withdrawal. The applicant’s further evidence in this regard was very confused. She stated she submitted a letter of consent to withdraw when in China but that she did this again in Australia. She does not know if this was submitted and although she was uncertain why her husband would do this, he had asked her to sign a document. She was not sure what the document was or what happened to it.
On the evidence of the applicant at hearing, the Tribunal is satisfied the applicant was not a member of the CCP and did not resign from the CCP. The Tribunal is satisfied that many years ago, the applicant was a member of the Chinese Youth League and that at some point she withdrew from the League. However, the applicant’s confused and vague response about any contemporary action which might signal that she is against the CCP and which may lead to discrimination against her as a result led the Tribunal to have serious doubts about the credibility of these claims. The Tribunal does not accept that the applicant has taken any action to quit the CCP or signal that she is against the CCP. For this reason, the Tribunal is not satisfied the applicant, or her family have a real chance of serious harm arising from their political opinion, real or imputed.
Fear of harm from the authorities as a returnee who has sought asylum in Australia
When invited to discuss any other reasons she feared return to China at hearing, the applicant stated that on return to China she would not be able to live with her parents because of “the whole Protection visa thing”. The applicant’s response to further enquiry was confused, referring to claimed discrimination her parents would endure when their village knew she was a Falun Gong member, before mentioning that the Protection visa application has affected the children and it will be hard for them to return to the school environment in China, an issue discussed below.
The applicant’s confused response led the Tribunal to the view that claims arising from making the Protection visa did not have any basis. However, noting that in her Statutory Declaration she declares she will be in more danger now because the authorities will know they have applied for a Protection visa in Australia, the Tribunal prompted more information. The applicant stated that it will show in public that she has applied for protection and this will affect them. The Tribunal noted that the applicants have been in Australia lawfully since arrival, that all applications, including Protection visa applications are confidential, and that the Tribunal could see nothing to indicate to Chinese authorities that they have made an application for protection, or done anything to come to the adverse attention of the authorities in China. In this respect the Tribunal noted that DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention.[42] In response, the applicant told the Tribunal that her husband’s brother had been affected by his Protection application and explained that she had heard from the family that her brother-in-law made an application to visit Australia and this was refused. The Tribunal advised that decisions about Australian visas are made by Australian government officials and this did not indicate the applicants were of adverse interest to the Chinese authorities. The applicant agreed that this would be the case.
[42] DFAT Country Information Report, People’s Republic of China, 3 October 2019, 5.44.
The Tribunal has considered the totality of the applicant’s evidence that she and her children face harm from the authorities on the basis of their membership of a particular social group as returnees who have sought asylum in Australia; or for reason of their actual and imputed political opinion of opposition to the CCP, and their act of seeking asylum and resisting return to China. The Tribunal does not accept that any of the applicants face harm on this basis, now or in the foreseeable future.
Family violence
The Tribunal has found above that the applicants were victims of family violence perpetrated by the applicant’s estranged husband. The applicants have not raised any claims arising from their experience of family violence. However, as noted above, in accordance with Ministerial Direction No.84, the Tribunal must take into account country information assessments prepared by DFAT expressly for protection status determination purposes. The most recent DFAT advice includes information on people affected by family violence in China advising that, “Domestic violence remains pervasive in China… Domestic violence is seen as a private household matter and prosecution of domestic violence cases can be difficult due to failure of authorities to collect evidence …”[43] DFAT state that, “Although a new Family Violence Law (2016) came into effect in March 2016, implementation and enforcement of the law is not substantial and is inconsistent. Where domestic violence cases are reported, authorities are reluctant to enforce the new law.”[44] Public security forces reportedly continue to ignore domestic violence, and legal aid institutions working with victims of domestic violence have been pressured to suspend public activities and cease policy advocacy.”[45] The Tribunal therefore raised this information and the issue of protection from harm from family violence with the applicant at hearing.
[43] Ibid, 3.187.
[44] Ibid, 3.188.
[45] Ibid, 3.189.
The applicant said that family violence was considered a family matter and the police were not effective. She gave evidence that on one occasion when the applicant’s husband was physically abusing her in Beijing, the police attended responding to a call from her daughter who was old enough to call the police. The police asked her what she wanted them to do with her husband and she told the police she wanted her husband arrested but when he locked himself downstairs they went away. She and the children went to another place.
In assessing whether any of the applicants remain at risk from her husband, the Tribunal notes the finding above that the applicant and her husband were separated for about four years before coming to Australia in 2017 and that they are again separated. The Tribunal has considered whether the applicant would reconcile with her husband if they were to return to China. In this consideration, the Tribunal has taken account of the applicant’s evidence at hearing that she does not intend to reunite with him. The Tribunal is satisfied the applicant and her husband will not reconcile. The Tribunal also notes the finding above that the applicant’s husband does not present an ongoing risk to the applicants and notes that while he was separated from the applicants in China, and since their separation in Australia, the applicant’s husband has not sought to harm any of the applicants, and all the applicants agreed that life is peaceful. Given the ongoing separation of the applicants from the applicants’ father/husband and the evidence before it that he has not harmed the applicants in periods of separation, the Tribunal is satisfied that there is not a real chance that any of the applicants face harm from the applicant’s husband. The Tribunal is satisfied none of the applicants will require the assistance of public security forces to protect them from the applicant’s husband.
Do any of the applicants have a well-founded fear of persecution if they return to China?
After considering all of the applicants’ claims, both individually and cumulatively, the Tribunal does not accept that if any of the applicants were to return to China now or in the reasonably foreseeable future, there is a real chance that any of the applicants will be harmed for the reason of their race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that none of the applicants have a real chance of persecution if they return to China now or in the reasonably foreseeable future. The Tribunal finds that the applicants do not have a well-founded fear of being persecuted.
For the reasons given above, the Tribunal is not satisfied that the any of the applicants are a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Economic difficulties in China
In her statement to the Tribunal, the applicant has claimed she would not be able to work and the children would not be able to go to school because they would live in the countryside, and that supporting herself and the children as a single mother would be difficult. Exploring this matter at hearing, the applicant acknowledged that she had always supported the family through work in China, and that now it is easier as the children are growing older and are able to help her. She also stated that she has had the support of her [relative], and occasional contribution of her estranged husband.
The Tribunal acknowledges that meeting the economic demands of the family is a big responsibility for the applicant. The applicant indicated that she would return to her own family and in the view of the Tribunal she could obtain some support from them. The Tribunal also notes that she obtained support from her husband’s family members both in China and in Australia, and the Tribunal considers that these avenues of support will continue. On the evidence before it, the Tribunal is satisfied the applicant will be able to support herself and as needed, the second and third applicants. The Tribunal has also considered the evidence before it that the applicants had access to essential services, including education, in China, and it is satisfied that they will have access to essential services on return to China.
The Tribunal acknowledges the emotional distress faced by the applicant as a survivor of family violence. The applicant told the Tribunal she and her daughter have received no support in Australia, that she does not have anyone to speak for her and no emotional support. She expressed sadness that her husband’s family has not apologised or acknowledged the harm imposed by her husband on the children. The Tribunal also acknowledges that these concerns will continue but also notes that she has not sought community or other support in Australia, and that the applicant will be able to access emotional support in China from family members. The Tribunal accepts the applicant’s experience of family violence may have been damaging but is satisfied that all the applicants will have access to family and community support in China, as they have done in the past. The Tribunal finds that the economic and emotional pressures the applicants may experience as a result of returning to China from Australia does not meet the definition of ‘significant harm’ in s 36(2A).[46]
[46] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
The Tribunal has accepted above that the applicants’ experience of family violence in China and Australia could potentially have negative consequences for the third applicant and indeed all the family. However, the Tribunal finds that the economic and emotional pressures the applicants may experience as a result of returning to China from Australia does not meet the definition of ‘significant harm’ in s 36(2A).[47]
[47] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
Re-adjusting to life in China after Australia
On the basis of the documentary evidence and consistent testimony of the second and third applicants across their statements and at hearing, the Tribunal accepts they grew up in Beijing, arrived in Australia in June 2017 and have now lived in Australia for four years. On the same basis, the Tribunal accepts they attended [two specified Australian schools].
The second applicant stated he did not enjoy school much and has not made many friends, but he enjoys playing [a sport] and would like to be [an occupation 2]. He told the Tribunal he does not feel like returning to China because he is living in Australia, but maybe he will in the future. The third applicant told the Tribunal she did not enjoy school in China very much because of the long hours but she got used to it. She said she really likes school in Australia, particularly mathematics, and she indicated she does well and has friends. She said she does not want to return to China now because she likes the education and environment in Australia.
The Tribunal accepts that the second and third applicant have established themselves, at least to some extent, socially and educationally in Australia. As found above the Tribunal accepts the applicants would live with her parents in Hubei on return to China. The Tribunal accepts that after a four-year absence, they may face short term challenges re-adjusting to life in China, particularly in the rural setting of the applicant’s family in Hubei. The Tribunal accepts this may be stressful and accepts that the educational and employment opportunities of rural Hubei may more limited than in Australia. However, the Tribunal finds they will have access to essential services, including education and employment, and family support. In these circumstances, the Tribunal finds that removal from the educational opportunities and environment of Australia does not meet the definition of ‘significant harm’ in s 36(2A).[48]
[48] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
Having concluded that none of the applicants meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons given above, the Tribunal is not satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that any of the applicants will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Amanda Paxton
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.
…
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.
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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
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Appeal
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Natural Justice
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