2112780 (Refugee)

2112780 (Refugee) [2022] AATA 5028 (9 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2112780
COUNTRY OF REFERENCE:                   China
MEMBER:L. Symons
DATE:9 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 09 December 2022 at 05:28pm
CATCHWORDS
REFUGEE – Protection visa – China – Falun Gong practitioner – Tribunal cannot be satisfied that the applicant is Falun Gong practitioner – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 September 2021 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, was granted a Maritime Crew visa on 4 November 2017. He arrived in Australia on [date] November 2017 and on [date] November 2017 he became a ship deserter. On 15 November 2017, he made an application for a Protection visa to the Department of Home Affairs (the Department). On 6 December 2017, he was granted a Bridging visa.
On 9 September 2021, the delegate refused to grant the visa to the applicant on the basis that he is not a person in respect of whom Australia has protection obligations. On 21 September 2021, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
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 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, 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.
CONSIDERATION OF Claims and evidence AND FINDINGS
The applicant’s claims in his application for a Protection visa filed on 15 November 2017 are summarised as follows:
·His best friend is [Mr A] and they have had a long-term relationship.
·[Mr A]’s parents are Falun Gong practitioners and he persuaded his parents to become Falun Gong practitioners as well.
·[Mr A]’s parents were detained by the Public Security Bureau (PSB) and disclosed other Falun Gong practitioners. They were therefore implicated.
·He came to Australia and hopes to get protection here.
The applicant provided the Department with a copy of the bio data page of his Chinese passport issued on [date] 2017 and valid until [date] 2027 and his statement of claims written in Chinese with an English translation.
On 18 June 2021, the delegate wrote to the applicant, pursuant to s.56 of the Act, requesting information in relation to his application for a Protection visa. He was given 28 days to respond. He did not respond. On 9 September 2021, the Department found that he is not a person in respect of whom Australia has protection obligations and refused his application for a Protection visa.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 9 September 2021 and his Chinese passport. Following the hearing, he provided the Tribunal with an English translation of a Certificate of Release dated 28 October 2016 without the original document.
Receiving country
The applicant claims to be a citizen of China and has provided a copy of the biodata page of his Chinese passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.
Third country protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Assessment of claims
The applicant gave evidence that his application for a Protection visa was prepared by the people who met him when he first arrived in Australia. When asked who these people were, he responded that it was his cousin’s friend. He provided her with the information to prepare his visa application and the information he provided her was true and correct. He is satisfied that his visa application and statement of claims are accurate and complete.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in China, his travel to [Country 1], why he left China, his travel to Australia and why he fears returning to China. The Tribunal found aspects of his evidence to be vague, implausible and unconvincing. He made significant new claims during the hearing. The Tribunal finds that he is not a reliable or credible witness for the following reasons:
First, in his Statement of Claims, the applicant claimed that the parents of [Mr A], his best friend, are Falun Gong practitioners and he persuaded his parents to become Falun Gong practitioners as well. (In his application for a Protection visa, he did not disclose that he had parents in China). The Tribunal discussed these claims with him during the hearing.
The applicant gave evidence that his friend [Mr A] was a Falun Gong practitioner so he was exposed to Falun Gong for a long time. He did not start practising Falun Gong until 2016 and then introduced his parents to Falun Gong. When asked why he started practising Falun Gong in 2016, he responded that the main reason was to help his parents. Before they started practising Falun Gong, they played Mahjong all the time and it was not good for their wellbeing. His parents did not have any hobbies and he wanted them to have some new hobbies. He needed to work to support his family so he did not spend a lot of time practising Falun Gong. It was mainly to help his parents start a new hobby.
The Tribunal asked the applicant what his friend, [Mr A], told him about Falun Gong. He responded that he told him it is a good hobby and good for your health and wellbeing. In China, farmers do not have much to do in their spare time. He was told that Falun Gong is good to make someone feel refreshed. Previously, when they ate together, his friend could drink a certain amount but after practising Falun Gong he could drink much more. When asked when Falun Gong was banned in China, he incorrectly answered that it was banned in 1995. The country information indicates that “Falun Gong has been illegal since 1999 and the government actively searches for and the prosecutes practitioners”.[1]
[1] DFAT Country Information Report on China, 22 December 2021.
The applicant claimed that he persuaded his parents to become Falun Gong practitioners. When asked how he did that, he responded that he tried to persuade them to pick up another hobby. They were struggling financially. At the beginning, they did not agree. After several conversations, they eventually agreed. They learned about the principles of Falun Gong and learnt the exercises. They started practising Falun Gong in April 2016.
The Tribunal asked the applicant why he wanted his parents to practise Falun Gong when it was banned in China. He responded that they were very bored and did not have much to do. He thinks it is better for them to feel bored than to gamble. They were not doing well financially. He thinks they are much better off practising Falun Gong than gambling.
The Tribunal finds the applicant’s evidence to be implausible and unconvincing. The country information indicates that Falun Gong (also known as Falun Dafa) “is a spiritual movement that blends aspects of Taoism, Buddhism, and qigong (a traditional Chinese exercise)”.[2] If the applicant’s friend, [Mr A], and his parents have been Falun Gong practitioners for “a long time”, particularly after it was banned in China in 1999, this tends to indicate that they are committed Falun Gong practitioners. In these circumstances, it is implausible that [Mr A] would have told the applicant that Falun Gong “is a good hobby” and would “make someone feel refreshed”.
[2] DFAT Thematic Report, Unregistered religious organisations and other groups in the Peoples Republic of China, 3 March 2015.
The Tribunal also finds the applicant’s explanation for why he persuaded his parents to become Falun Gong practitioners to be implausible. If he was concerned that they were bored and needed another hobby other than playing Mahjong or if he was concerned that they were wasting money on gambling, the Tribunal would expect him to have encouraged them to take up a new hobby that did not involve doing something that was banned, considered illegal and put them at risk of coming to the adverse attention of the Chinese authorities and the judicial system.
The Tribunal raised as an issue with the applicant its doubts that he would have encouraged his parents to take up Falun Gong when it was illegal to practise Falun Gong instead of doing something else that was not banned. He responded that the Tribunal did not understand how things are in rural areas. People only do things that are practised by other people and they follow them. When he worked as a [Occupation 1], if there was a traffic offence the Police would intercept him. There were two possible outcomes; one was that the Police would issue a fine and the other was that he paid a bribe.
The Tribunal noted that it had difficulty accepting that the applicant would encourage his parents to do something that could get them into trouble instead of encouraging them to take up an activity such as Tai Chi. He responded that they were trying their luck. Tai Chi is something practised by people who have spare time and it is a “high end activity”. In rural China, people do not have exposure to such things. The Tribunal does not find his explanations to be convincing and does not accept them. These issues raise concerns in relation to his credibility and the veracity of his claims.
Second, during the hearing, the applicant gave evidence that he started practising Falun Gong in China in 2016. The main reason was to encourage his parents to start practising Falun Gong as well. He needed to work to support his family and did not spend a lot of time practising Falun Gong. When asked how he learned about Falun Gong, he responded that he did not feel much difference physically as he is still young. He felt he could be “occupied” more emotionally. He only practised Falun Gong for a short time from the beginning of 2016 until August 2016. When asked why he stopped practising Falun Gong, he responded that there was a severe government crackdown, people were being detained, beaten and deprived of food. They were required to report every few days. The other reason was that he needed to support his family.
The Tribunal asked the applicant how he practised Falun Gong during the short period he practised. He responded that he initially learnt the “theories” from his friend [Mr A] and watched other people perform “the moves”. He then practised the exercises. When asked where he practised the exercises, he responded that they met at different places each time because of government scrutiny. They did the exercises in the front yard of [Mr A]’s house or the front yards of other Falun Gong practitioners’ houses. He has not practised Falun Gong since coming to Australia. When asked why not, he responded that he needs to work hard to support his family. He has children and needs to work hard. (In his visa application, he did not disclose that he has any children).
The Tribunal finds the applicant’s explanation for why and where he practised Falun Gong in China and why he has not practised Falun Gong since coming to Australia to be implausible and unconvincing. If the applicant considered Falun Gong to be a good hobby for his parents and did not have the interest or the time to practise Falun Gong himself, it is implausible that he would have gone to the trouble of learning about the teachings of Falun Gong and the exercises particularly if the practise of Falun Gong was illegal. He could have encouraged his parents to join [Mr A]’s parents and practise with them without him having to be personally involved.
The applicant gave evidence that there was a “severe government crackdown” on Falun Gong and Falun Gong practitioners had to meet at different places each time because of government scrutiny. In these circumstances, it is implausible that he and other Falun Gong practitioners practised the Falun Gong exercises in the front yard of the home of [Mr A] and other Falun Gong practitioners where they could have been seen by other villagers and reported to the Chinese authorities.
The Tribunal accepts that the applicant works hard in Australia so that he can support his family in China. However, the Tribunal does not find this to be a convincing explanation for why he does not practise Falun Gong in Australia where he is able to do so in public with other Falun Gong practitioners without any problems.
The applicant’s evidence raises the issue of whether he was a Falun Gong practitioner in China. When the Tribunal raised this issue with him, he responded that he mainly did it so that his parents could pick up a new hobby. They were gambling and that was not good for them. He was young and healthy so there was no need to practise Falun Gong. He only practised for a short time. In view of his evidence that there was a “severe government crackdown” on Falun Gong and Falun Gong practitioners who were under government scrutiny, it is implausible that he would have encouraged his parents to practise Falun Gong or practised Falun Gong himself. This raises issues in relation to his credibility and the veracity of his claims.
Third, in his Statement of Claims, the applicant claimed that [Mr A]’s parents were detained by the PSB and disclosed other Falun Gong practitioners. They were therefore implicated. He came to Australia and hopes to get protection here. The Tribunal discussed these claims with him during the hearing.
The applicant made a number of significant new claims during his evidence to the Tribunal. He claimed that after [Mr A]’s parents were detained, they disclosed that he and his parents were Falun Gong practitioners and they were arrested in October 2016. They were taken to the Police Station where they were questioned about their practise of Falun Gong. When asked what he told the Police, he responded that they told them the truth. He wanted his parents to be occupied and kept busy with a hobby and it was good for their wellbeing. The Police asked them why they were practising Falun Gong when it was banned and they said it benefitted their wellbeing.
The applicant claimed that he got into a heated argument with the Police and was beaten. He was locked in a dark room and not given food for 20 days. He and his parents told the Police that they would not practise Falun Gong anymore and were released. The Police have a record of them. He was charged with ‘disrupting social order’. His penalty was detention, beating and a fine of 20,000 RMB. He borrowed money from someone to pay the fine. He is required to report to the Police every three days. They were given Release Certificates from the Court. He is able to provide his Release Certificate.
The applicant claimed that his parents were only detained for 3 to 5 days and were then released as they are elderly. They were not fined. His parents continued to practise Falun Gong in secret after their release from detention.
The Tribunal asked the applicant what he thought would happen if he returned to China. He responded that he will be questioned often. The job market is not good in China. It would be difficult for him to find a decent job if he returns to China. If he tells the Police he is no longer practising Falun Gong they will not listen to him. If they say he is a Falun Gong practitioner he will always be a Falun Gong practitioner.
The Tribunal is of the view that the applicant’s failure to mention in his statement of claims that he and his parents were arrested, questioned and detained because they were Falun Gong practitioners, he was beaten, locked in a dark room, deprived of food for 20 days, charged with ‘disrupting social order’, fined 20,000 RMB and required to report to the Police every three days after his release from detention to be significant. These are not matters that he would have forgotten to mention when seeking protection and explaining why he feared returning to China.

Further, if the applicant was required to report to the Police every 3 days as claimed, had failed to do so and had left the country, the Tribunal would expect that he would be concerned that he would be arrested and detained again upon his return to China. However, when asked what he thought would happen if he returned to China, he responded that he would be questioned often.
The applicant’s failure to mention these new claims in his application for a Protection visa raise concerns in relation to his credibility and the veracity of these claims. When the Tribunal raised this as an issue with him, he responded that he thought the other reasons were enough. He was not asked those questions then. The Tribunal asked him questions and he answered. The Tribunal does not accept this explanation. In his application for a Protection visa, there were the following questions to which he provided the answers below:
Question: Provide reasons why this applicant left that country (China) or those countries:
Answer:    Please read my statement
Question: Did this applicant experience harm in that country or those countries?
Answer:    Yes
Give details including:
·The type of harm this applicant experienced
·The person/people responsible for the harm
·Why they harmed this applicant
Answer:    Please read my statement
The applicant was therefore on notice that he was required to provide this level of detail in his visa application form or in his attached Statement of Claims but failed to do so. The Tribunal does not accept his explanation for why he failed to do so.
Fourth, on 18 June 2021, the Department wrote to the applicant, pursuant to s.56 of the Act, requesting more information about his application for a Protection visa including the following:
The date when [Mr A]’s parents were detained by authorities in China, and reasons why you would be implicated.
You have also not provided any evidence in support of these claims. Your lack of detail or evidence raises concerns about the genuineness of your protection claims. Therefore, to assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and documentary evidence about what happened to you in China in regards to the points mentioned above.
This letter was sent to the applicant by email on 18 June 2021 to the email [address]. He was requested to provide a response within 28 days and failed to do so. The Tribunal asked him why he did not reply to that letter. He responded that the agent who lodged his application for a Protection visa did not notify him. In his application for a Protection visa, he indicated that he did not receive any assistance completing the form and he did not disclose any details of an agent. He also stated that he did not have an authorised recipient and provided the above email address for correspondence.
On 9 September 2021, the Department wrote to him again and notified him that his application for a Protection visa was refused. This letter was also sent to him to the above email address and he then made an application to the Tribunal for a review of that decision. This tends to indicate that he received correspondence at the above email address.
The Tribunal wrote to the applicant on 25 October 2022 and invited him to attend a hearing before the Tribunal on 15 November 2022. He was requested to provide all documents he intended to rely on to support his case by 8 November 2022. On 7 November 2022, the Tribunal received a Response to Hearing Invitation from the applicant. In response to the question Do you intend to rely on any documents at the hearing, e.g. written witness statements, written submissions, country information, or other evidence? he responded No.
During the hearing, the applicant stated that he had a Release Certificate from the Court and requested additional time to provide that document to the Tribunal. The Tribunal gave him an additional 2 weeks to provide that evidence. The Tribunal also raised as an issue his failure to provide that document to the Department or to the Tribunal prior to the hearing.
Following the hearing, the applicant requested and was granted a recording of the hearing. On 23 November 2022, the Tribunal received a document titled ‘Certificate of Release’ dated 28 October 2016. It indicated that he was convicted of ‘disturbing public order’, fined 20,000 yuan with administrative detention of 20 days from 8 October 2016 to 28 October 2016. He was released after his sentence was served. It was issued by [a] Detention Centre.
The Tribunal has a number of issues in relation to the late filing of this document and the authenticity of this document. First, the Tribunal would expect that if this document was issued to the applicant when he was released from detention on 28 October 2016, he would have mentioned it in his visa application or Statement of Claims and provided it to the Department at the time he filed his visa application. However, he failed to do so. Second, if for some reason he was not able to file this document with the Department at the time he lodged his visa application, the Tribunal would expect him to do so when the Department wrote to him on 18 June 2021 and requested further information and evidence. However, he failed to do so.
Third, after his application for a Protection visa was refused by the Department, the Tribunal would expect the applicant to provide this document to the Tribunal at the time he filed his application for review to ensure that all relevant evidence was before the Tribunal. However, he failed to do so. Fourth, if for some reason he was not able to file this document with the Tribunal at the time he lodged his application for review, the Tribunal would expect him to do so when the Tribunal invited him to attend a hearing and requested that he provide all documentary evidence at least 7 days prior to the hearing. However, he failed to do so.
Fifth, when the applicant completed and sent the Response to Hearing Invitation to the Tribunal, he responded to a question in relation to Documents to be relied on at the Hearing and indicated that he had no documents. The Tribunal would expect that this would have again alerted him to the importance of providing this document to the Tribunal. However, he failed to do so. Sixth, during the hearing, he gave evidence that the Certificate of Release was issued by the Court. However, the document indicates that it was issued by [a] Detention Centre. Seventh, he has not provided the Tribunal with the original document and has only provided an English translation.
The applicant’s conduct leads the Tribunal to the conclusion that the Certificate of Release did not exist prior to the hearing and was fabricated after the hearing to support his case. For the above reasons, the Tribunal is not satisfied that the Certificate of Release is an authentic document. Therefore, the Tribunal places no weight on this document.
Fifth, the applicant gave evidence that he applied for a passport in 2016 after his friend suggested that he go overseas to avoid any further beatings or convictions. He travelled to [Country 1] by aeroplane at the end of 2016 but he and several other people were refused entry. They were detained in [City 1] for a couple of days and then returned to China. In his application for a Protection visa, he was asked the question Has this applicant ever applied to enter any country other than Australia? and he answered No. He was also asked the question Has this applicant ever been refused entry, excluded, asked to leave, deported or removed from any country? and he answered No.
The applicant then applied for and was granted another Chinese passport on [date] 2017. He used this passport to depart China by seaport on [date] October 2017 and enter Australia on [date] November 2017.
Country information indicates that the Chinese 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] The country information also indicates that exit from China and entry into China is strictly regulated. “The government knows when people enter or leave the country through air and seaports. 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”.[4]
[3] DFAT Country Information Report on China, 22 December 2021.
[4] Ibid.
Country information also indicates that “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. If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China”.[5]
[5]
The applicant’s evidence is that he was a known Falun Gong practitioner, was arrested, detained, charged, convicted of ‘disturbing public order’, fined 20,000 yuan and released after 20 days detention on the condition that he report to the Chinese authorities every three days. The country information indicates that he was likely to be monitored thereafter. Despite this, he was granted a passport after his release from detention on 28 October 2016 and was able to leave China (for [Country 1]) at the end of 2016, even though he was required to report to the Chinese authorities every three days, and then returned to China without suffering any consequences. He was thereafter granted a second passport on [date] 2017 and was allowed to depart China on [date] October 2017.
The Tribunal raised as issues with the applicant that it was unlikely that the Chinese authorities would have issued him with a passport in 2016 and a second passport in 2017 if he was a known Falun Gong practitioner who had been detained, charged and convicted. He responded that that is how the Chinese government does things. The Tribunal is not persuaded by this response. The Tribunal raised as issue with him the fact that he was not prevented from departing China and its doubts that he is of adverse interest to the Chinese authorities. He responded that he departed China by ship (as crew). He then referred to how he obtained a visa for Australia.
The Tribunal is not persuaded by the applicant’s response. He was able to depart China twice after his release from detention, once by air and once by sea, without a problem. He was also able to return to China by air without any problem. The country information indicates that the Chinese authorities would have been aware of each time the applicant departed and entered China irrespective of whether he did so by air or sea. This raises issues in relation to his credibility and the veracity of his claims.
Sixth, during the hearing, the applicant gave evidence that he was not aware that he was travelling to Australia when he boarded a ship in (Shanghai) China and thought he was travelling to [Country 2]. The ship was bound for [Country 2] but changed route after he was enroute. The owner of the ship organised visas for the crew and he left the ship in Australia. He disembarked in Tasmania and caught a flight to Sydney via Melbourne. After arriving in Sydney, he had accommodation in [Suburb 1] and a job was organised for him. He started working as a [occupation] two or three days after his arrival in Australia. His cousin’s friend made the arrangements. This was the same person who also helped him with his application for a Protection visa.
The Tribunal finds the applicant’s evidence to be implausible and unconvincing. It is not plausible that the ship would have been bound for [Country 2], changed its destination enroute and the company that owned the ship would have been able to organise Australian visas for the crew in these circumstances. It is also not plausible that applicant’s cousin’s friend would have been willing and able to organise transport, accommodation and a job for the applicant at short notice including transport from the seaport to the airport in Tasmania, the purchase of airline tickets from Tasmania to Sydney via Melbourne, transport from the airport in Sydney to [Suburb 1], accommodation in [Suburb 1] and a job in Sydney which he commenced two or three days after he arrived in Tasmania.
The applicant’s conduct in organising and commencing employment in Sydney prior to applying for a Protection visa tends to indicate that this was his priority. His evidence that he works hard in Sydney to support his family in China and his reluctance to return to China because “the job market is not good in China” and “it would be difficult to find a decent job” if he returns to China raises issues in relation to his motivation for coming to Australia and the veracity of his claims for protection. When the Tribunal raised these issues with him, he responded that he came to Australia by accident. The ship was supposed to go to [Country 2]. If it had gone there, he would have got off there. The Tribunal does not find this response to be persuasive and does not accept it.

Other considerations

The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] [in] Hebei Province in China. The Tribunal accepts that he had 10 years of schooling in China. The Tribunal accepts that he initially worked in [an] industry and then as a [Occupation 1] in China. The Tribunal accepts that he has travelled to [Country 1]. The Tribunal accepts that he was married on [date] September 2009 and has two children of his [marriage]. The Tribunal accepts that his parents and two older brothers also live in China.
The Tribunal does not accept that the applicant has a friend in China named [Mr A] who is a Falun Gong practitioner and whose parents are also Falun Gong practitioners. The Tribunal does not accept that the applicant or his parents practised Falun Gong in China. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal accepts that the applicant left Shanghai in China by ship on [date] October 2017 as a member of the crew. The Tribunal does not accept that the ship was bound for [Country 2], changed its destination enroute and travelled to Australia. The Tribunal does not accept that the applicant believed he was travelling to [Country 2] when he boarded the ship.
The Tribunal does not accept that the applicant was or is of adverse interest to the Chinese authorities. The Tribunal does not accept that he left China for the reasons claimed or that he fears returning to China for the reasons claimed.
In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant fears being persecuted for reason of his actual or implied religion or any other reason set out in s.5J(1)(a) of the Act and that there is a real chance that if he returns to China he would be persecuted for one or more of those reasons and that the real chance of persecution relates to all areas of China. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution.
The Tribunal is not satisfied that the applicant is unable or unwilling to avail himself of the protection of China owing to a well-founded fear of persecution and finds that he is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
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 5028

9 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing