2109051 (Refugee)

2109051 (Refugee) [2022] AATA 4568 (7 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kangshuo Long (MARN: 1808397)
CASE NUMBER:  2109051
COUNTRY OF REFERENCE:                   China

MEMBER:Michael Biviano
DATE:7 November 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 7 November 2022 at 3.15pm

CATCHWORDS

REFUGEE – protection visa – China – political opinion – published anti-government articles online – monitoring, beating and threats by police – member of Falun Gong – country information – lawful departure on own passport – consent to decision without hearing – responsibility to specify particulars and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BEH15 v MIBP [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO v MIBP [2018] FCFCA 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
WAKK v MIMIA [2005] FCAFC 225

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2021 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant in a [Age]-year-old person, who claims to be a citizen of China, applied for the visa on 5 December 2019.
The delegate refused to grant the visa on the grounds contained in the decision record of the delegate. The delegate was not satisfied that :-
a.the applicant was a refugee as defined by section 5H of the Act;
b.the applicant was a person in respect of which Australia has protection obligations as outlined in s. 36(a) of the Act;
c.there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to the People’s Republic of China, that there is a real risk she will suffer significant harm as defined in s. 36(2)(aa) of the Act;
d.the applicant is a person in respect of whom Australia has protection obligations as provided for in s.36(2)(aa) of the Act.
The applicant lodged a review application on 15 July 2021. The applicant has provided to the Tribunal the decision record of the delegate dated 21 June 2021, in support of the application (Decision Record).
On 19 July 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 25 July 2022, the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA (2).
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Credibility assessments
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[1] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason 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.
[1]Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ.
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 claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[2]
[2]Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] 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.[4]
[3]MIMA v Rajalingam (1999) 93 FCR 220.
[4]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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that it has had regard to the most recent DFAT Country Information Report: People’s Republic of China dated 22 December 2021 (the 2021 DFAT Report) in considering the claims raised in the application.
CONSIDERATION OF Claims and evidence
The issue in this case is are whether there is a real chance that, if she returns to China, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) race, namely religion, nationality, membership of a particular social group or political opinion for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s identity and country of reference
The applicant claims to be a citizen of the Peoples Republic of China (PRC). The applicant provided a copy of his PRC passport issued [in] 2018 and his People’s Republic of China Identity Card to the Department. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.
The Tribunal finds that the applicant is a citizen of PRC, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Claims
The delegate’s decision contains a summary of the applicant’s claims and relevant country information. The Tribunal finds that the delegate’s summary of the applicant’s claims for protection was a fair and accurate summary of the claims for protection notified by the applicant in his original application form, when seeking protection. Those claims were:-
·The applicant published some articles that were ‘anti China government policy & rule’.
·The applicant’s articles were not acceptable and removed from the internet, as the Chinese government ‘don’t want to see opposite voices’.
·The applicant ‘joined Falun gong’, which is not ‘liked but the Chinese government’ and the government wanted him to stop falungong and writing things anti them.
·The police attended the applicant’s place of residence as a result of the articles. The police monitored the applicant and if he ‘did not listen to them’ he was beaten.
·The applicant is on the ‘name list’ for writing against the government.
·The applicant is unable to relocate as the police ‘share’ information of people who are ‘antigovernment’ with other police in different provinces in China.
·If the applicant was to return to China they will be arrested at the airport and will go to jail or a ‘horrible camp created by the Chinese government’.
·No authority or ‘people’ can assist the applicant in China as they are ‘scared the Chinese government will do something harmful to them’.
(Claims)
The applicant did not make any further claims in writing to the Department or to the Tribunal and did not provide any statements of evidence supporting the Claims set out in the application.
The Decision Record outlines the attempts undertaken by the Department to give the applicant the opportunity to provide all of the details of his protection claims and supporting evidence in support of such claims. Those attempts were constituted by:-
a.the application form that he completed informed him that he should provide all of his claims for protection and all documentation or other evidence to support his claims. It also informed him that a decision could be made on the information provided in his application. The applicant did not provide any further documentation or evidence in support of the Claims;
b.on 12 December 2019 the applicant was sent an acknowledgement of a valid application letter which advised him that he could provide additional information relating to his claims and that there were three ways for him to provide it: ImmiAccount, mail or in person at the time of the collection of personal identifiers. The letter also informed the applicant that the decision on his application could be made without another opportunity for him to present any further information. The applicant did not provide any further documentation or evidence in support of the Claims.
c.on 23 November 2020 the applicant was sent a letter inviting him under s56 of the Act to provide additional information about some of the claims in his application and to provide clarification on particular points. The s56 invitation advised the applicant that their statement of claims lacked substantiating details and supporting documentation, in regard to his claims, and that no further details or documentary evidence to support their claims had been provided. This letter also invited him to provide more information about what happened to him in China which included to provide specific details and supporting documents relating to these claims. This letter also advised the applicant that, if he could not provide copies of documents or details of their claims as requested, he should provide a detailed explanation of why he could not provide these documents, and of the efforts they made to obtain these documents. This letter informed the applicant that if he did not respond to the invitation within the prescribed timeframe, the Department could decide the application with the information it had at that time without asking them again.
d.The applicant did not provide any additional information in relation to the claims and did not provide any information and supporting material in response to the s56 invitation.
The delegate considered the Claims and lack of detail and supporting evidence provided by the applicant and found that the Claims were unfounded.
Consideration of Claims
The applicant in the review application to this Tribunal has not provided any further documentation or information in support of the claims in the review application. The applicant was invited to the hearing and in the Response to the Hearing confirmed that he was not intending to rely on any documents at the hearing.

The Tribunal notes the delegate’s decision details information from the DFAT Country Information Report: China, published on 3 October 2019 (the 2019 DFAT Report), which provided an overview of a number of matters including religion and political opinion in China.
The Tribunal has had regard to relevant portions of the most recent DFAT Report for China, the 2021 DFAT Report. According to the 2021 DFAT Report regarding practising Falun Gong :
Falun Gong
3.64 Falun Gong was established based on the practice of qigong, a generic term for a family of
meditative breathing and stretching exercises with a long history in China. Qigong experienced a
resurgence in popularity in the 1980s and 1990s, and Li Hongzhi (Master Li) founded Falun Gong in 1992 at the same time as other movements were founded. Falun Gong is the most well-known qigong group outside China, but many others exist and many of them are banned or monitored in China.
3.65 By performing exercises, following the moral teachings of the religion and reading and re-reading the sacred text Zhuan Falun, believers hope to ascend to a state of perfection or ‘cultivation’. Practitioners may not see Falun Gong as a religion, seeing it as a method for ‘cultivation’ or science. Unlike other qigong practices, Falun Gong has moral teachings (for example teaching against gay sex and abortion) and supernatural aspects. DFAT understands from sources that these beliefs exist, but do not form a core part of Falun Gong belief or practice. The Chinese Government and some former members claim the religion encourages isolation from families or refusal of medical treatment. Falun Gong denies these claims.
3.66 Falun Gong has been illegal since 1999 and the government actively searches for and prosecutes practitioners. Adherents can be imprisoned for between three and seven years. For this reason, members do not openly proselytise and there is no initiation ceremony. Conversely, repression of the religion has become a key part of its teaching and practice abroad. Practitioners, including in diaspora communities, may be involved in anti-Chinese Government activism.
3.67 DFAT understands that many adherents are still active in China, but it is not clear whether they are the same adherents from before the ban or new converts. The 2020 US Department of State International Religious Freedom Report estimates there are between 7 and 20 million Falun Gong practitioners in China, but this is hard to verify given that practice is often private, and the group is illegal and stigmatised.
3.68 Unlike some other xie jiao, Falun Gong is not secretive about its beliefs. Most Falun Gong beliefs are published on the organisation’s websites. Unlike some other new religious movements there are no ‘gradations’ of knowledge where one has to be admitted or inducted into knowledge after perhaps being a believer for a certain time or paying a fee. Core to Falun Gong beliefs is the reading and re-reading of the Zhuan Falun, the sacred text of the organisation that comprises a series of lectures made by Master Li. A source told DFAT that a thorough knowledge and constant re-reading of the Zhuan Falun is central to Falun Gong beliefs; one cannot be Falun Gong without that practice.
3.69 Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. They may be unable to find jobs after release from detention. Unlike other xie jiao, the government regards Falun Gong practitioners as political opponents rather than victims and treats them accordingly …. They are likely to be monitored after release from detention.
3.70 DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination. Falun Gong practitioners are generally able to practise privately in their homes.
Furthermore to the 2021 DFAT Report regarding political opinion and posting online, the report provided:-
Political Opinion
3.79 Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy the freedoms of: speech, the press, assembly, association, procession and demonstration. In practice a wideranging number of topics are considered sensitive and are censored, with those raising them liable to punishment. Sensitive issues include commentary on: political issues and events (including the policy direction of the CCP and nation and sensitive anniversaries); serious economic, health (including COVID-19 origins and the government’s handling of the outbreak); land rights and property or environmental issues; labour rights; religious or ethnic issues; or legitimacy of central authorities and the CCP. The sensitivity of topics can change quickly and it is impossible to make a comprehensive list of sensitive topics.
3.80 Criminal punishment can include a period of deprivation of ‘political rights’, which might include denial of freedoms such as expression or assembly. These deprivations in practice make it difficult to find employment, to travel, or to obtain a residence or accommodation. The families of political activists may also find their rights similarly circumscribed…
Internet Freedom, Social Media Users and Bloggers
3.93 Social media is enormously popular in China with messaging apps like WeChat and Twitter-like microblogging site Weibo reportedly having more than a billion users. Like traditional media, social media is heavily censored. Algorithms, along with a large number of human staff, ‘patrol’ Chinese online media to identify and censor any mention of sensitive topics. Social media users in China must register with their real names and the content they create can be used against them in criminal proceedings.
3.94 As with traditional media, what is deemed sensitive on Chinese internet platforms can change quickly. Sexual content, promotion of extravagant lifestyles and celebrity gossip may be subject to censorship. Internet users have adopted oblique references to sensitive topics to avoid censorship. For example, children’s book character Winnie the Pooh is censored as his likeness may be used by critics to refer to President Xi, and images of candles are removed in the lead up to Tiananmen Square massacre anniversaries.
3.95 ‘Nationalism’ is a widely reported influence on Chinese social media. Officials encourage such views and censor contrary views. The very large number of internet users and lack of reporting on dissent makes assessment of risks to internet users difficult. DFAT assesses that people who use an internet platform to mobilise others in relation to politically sensitive issues face a high risk of official discrimination, but small scale discussion of political issues and even criticism is generally tolerated and the majority of social media users are able to use their platforms without incident.
The Tribunal considers that the relevant sections of the 2021 DFAT Report are broadly consistent with the information contained in the delegate’s decision (drawn from the 2019 DFAT Report), updated to take developments in practising Falun Gong and posting political opinion online.
The applicant signed his original application form and declared that the information supplied was complete and correct and up to date in every detail.
The applicant in the application for the protection visa claimed:-
a.He was born on [Date 1] in China in Anhui Sheng and was married on [Date 2] – which date is erroneous;
b.From 1 January 2019 to [August] 2019, he lived in [Village], in ZongYang County, in Anqing in Anhui Seng Provence ;
c.He completed High School in [Year 1];
d.He had not travelled to any other countries other than Australia in the last 30 years;
e.From [Birth] to [March] 2015, he claims he was unemployed, but he received incomed from farming and casual work;
f.From [March] 2015, he worked as [Occupation 1] at [Employer];
g.[In] August 2019 he arrived in Melbourne Australia on a tourist visa;
h.He is currently employed as [an Occupation 2].
The Claims essentially derive from the applicant’s conduct in:-
a.practising Falun Gong; and
b.publishing articles which he alleges are anti-China government policy and rule.
However, the applicant has not provided details or evidence of the publications and his practice of Falun Gong. He claims that the government is aware of his anti-government articles, as they removed the articles from the internet and the police would visit his home every day to monitor him and if he did not listen to them, they would beat him. There are no allegations or details that he was arrested or imprisoned or any threats of being arrested or imprisoned. There are no details of what monitoring occurred and what treatment he was subject to by the Police.
The applicant claims to fear harm on the basis that he will suffer harm if he returns to China as he will be sent to jail or a government camp and lose his freedom if he returns to China. Again, the applicant has not provided details or evidence that substantiates those fears.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason 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 sufficient 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: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant[5].
[5]MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
Applicant’s beliefs in Falun Gong
The Tribunal notes that the applicant has not provided any details or evidence in support of his claims that joined Falun Gong and that the Government told his to stop practising it.
There are no details or evidence how the applicant has practiced Falun Gong in China, how it was brought to the attention of the authorities and whether he continues to practice it.
Importantly as outlined in 2021 DFAT Report members of Falun Gong do not openly proselytise and there is no initiation ceremony due to the government actively searching and prosecuting practitioners, which can result in adherents being imprisoned for between 3 and 7 years[6].
[6][3.65] 2021 DFAT Report
Further practitioners in Falun Gong that are known to the authorities would find it difficult to obtain a passport[7].Furthermore the 2021 DFAT Report confirms that :-
a.Exit and entry into China is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list[8].
b.National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list[9].
c.If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China[10].
d.DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions[11]. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents
[7]Country Policy and Information Note China – Falun Gong, UK Home Office, 1 November 2020 p27, 20210104165139; page 3 Decision Record
[8][5.31] 2021 DFAT Report
[9][5.32] 2021 DFAT Report
[10][5.33] 2021 DFAT Report
[11][5.35] 2021 DFAT Report
The Tribunal finds that having considered the country information discussed above, together with:-
a.the lack of detail provided with the Claims;
b.the lack of evidence to support the Claims in the initial application,
c.the applicant’s failure to provide evidence in support of the application despite requested to do so to the Department; and
d.not providing any further details or evidence to the Tribunal in support of those claims; and
e.his ability to depart the country lawfully without any apparent problem, despite claims about him practising Falun Gong, which would make him of interest to the Chinese authorities;
the Tribunal is not satisfied that the applicant was practising Falun Gong, was known by the authorities for practising Falun Gong or that he had suffered any adverse treatment or harassment in China as claimed.
Applicant’s political opinion
The applicant in his Claims has raised various matters regarding his political opinion. The applicant claims essentially that:-
a.he published some articles that were ‘anti China government policy & rule’;
b.the articles were not acceptable to the government and removed from the internet, as the Chinese government ‘don’t want to see opposite voices’.
c.the police attended the applicant’s place of residence as a result of the articles. The police monitored the applicant and if he ‘did not listen to them’ he was beaten.
d.the applicant is on the ‘name list’ for writing against the government.
e.if the applicant was to return to China they will be arrested at the airport and will go to jail or a ‘horrible camp created by the Chinese government’.
Again the applicant has not provided any details or evidence in support of his Claims that he published articles that were anti-China, how they published, that they were removed from the internet or that the Police had attended his residence and beaten him. If the applicant had attended the hearing in this matter, he would have been questioned about these matters and asked to provide evidence to substantiate such Claims. The applicant has merely made unsubstantiated claims about his expressing political opinion and their dissemination.
While the country information confirms that protests on politically sensitive issues may risk punishment and deprivation of liberty[12], dissent on social media appears to be tolerated due to the very large number of internet users and lack of reporting on dissent, which makes assessment of risks to internet users difficult. DFAT assesses that people who use an internet platform to undertake small scale discussion of political issues and even criticism is generally tolerated and the majority of social media users are able to use their platforms without incident[13].
[12][3.79] – [3.80] 2021 DFAT Report
[13][3.95] 2021 DFAT Report
Further as discussed above, the applicant was able to depart the country without incident and with the knowledge of the authorities.
The Tribunal finds that having considered the country information discussed above, together with:-
a.the lack of detail provided with the Claims;
b.the lack of evidence to support the Claims in the initial application,
c.the applicant’s failure to provide evidence in support of the application despite requested to do so to the Department; and
d.not providing any further details or evidence to the Tribunal in support of those claims; and
e.his ability to depart the country lawfully without any apparent problem, despite claims about his political opinion, which would make him of interest to the Chinese authorities;
the Tribunal is not satisfied that the applicant had engaged in the conduct the subject of the Claims in relation to publishing anti-government articles, known to the authorities for publishing that material, he was subject to police monitoring and harassment for his conduct, that he was placed on a named list, or that he had suffered any adverse treatment or harassment in China as claimed.
Will the applicant face a real chance of persecution if he returns to China
As above, the Tribunal has not accepted the applicant’s Claims that he is a practising member of Falun Gong and that he has been involved in publishing anti-government articles, which has lead him to be placed on a names list and that he has been monitored and harassed by the Police. Accordingly the Tribunal has not accepted that the authorities have shown any interest in the applicant.
The applicant has in his Claims stated that if the applicant was to return to China he will be arrested at the airport and will go to jail or a ‘horrible camp created by the Chinese government’. There was no evidence provided in support of such claim. Moreover the applicant was able to depart China without any incident, which is inconsistent with such a claim. The Tribunal does not accept such a claim.
Further as discussed above, as the Tribunal has not accepted the applicant’s Claims, then it is not satisfied that the police have come to his house in China to monitor him and beat him. He has since travelled to Australia and the Tribunal does not accept that the authorities have shown any interest in the applicant. In such circumstances the Tribunal does not accept he well be arrested at the airport or that he will go to jail or a government camp.
The Tribunal finds both on the country information and the findings that it does not accept the Claims, that there is no real chance the applicant will be harmed by the authorities or anyone else for the reasons contained in the Claims if he returns to China.
Accordingly, the Tribunal finds that there is no real chance the applicant will suffer serious harm from the Chinese government authorities, local authorities or police or anyone else for reasons of his claimed actual or imputed political opinion or claims of being a practising member of Falun Gong or any other basis if he returns to China now or in the reasonably foreseeable future.
Is there a real risk the applicant will suffer significant harm if he is removed from Australia to China
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[14], the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act[15].
[14](2013) 210 FCR 505
[15](see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180])]

As above, the Tribunal has not accepted the Claims of the applicant that he is a practising member of Falun Gong and that he has been involved in publishing anti-government articles, which has lead him to be placed on a names list and that he has been monitored and harassed by the Police. Accordingly the Tribunal has not accepted that the authorities have shown any interest in the applicant.
The applicant has in his Claims stated that if the applicant was to return to China he will be arrested at the airport and will go to jail or a ‘horrible camp created by the Chinese government’. There was no evidence provided in support of such claim. Moreover the applicant was able to depart China without any incident, which is inconsistent with such a claim.
Further as discussed above, as the Tribunal has not accepted the applicant’s Claims, then it is not satisfied that the police have come to his house in China to monitor him and beat him. He has since travelled to Australia and the Tribunal does not accept that the authorities have shown any interest in the applicant. In such circumstances the Tribunal does not accept he well be arrested at the airport or that he will go to jail or a government camp if he is removed from Australia and sent to China.
The Tribunal finds both on the country information and the above findings that it does not accept the Claims, that there is no real risk the applicant will be harmed by the authorities or anyone else for the reasons contained in the Claims if he is removed from Australia and returned to China.
Accordingly, the Tribunal finds that there is no real risk the applicant will suffer serious harm from the Chinese government authorities, local authorities or police or anyone else for reasons of his claimed actual or imputed political opinion or claims of being a practising member of Falun Gong or any other basis if he removed from Australia and returned to China now or in the reasonably foreseeable future.
CONCLUSION
Taking the applicant’s claims individually and cumulatively, they do not meet the required thresholds under either the refugee assessment criteria or the alternative complementary protection assessment criteria.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Biviano
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.

[2022] AATA 4568

7 November 2022

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