SZTBO v Minister for Immigration and Border Protection

The Tribunal decision 2 At [14] of its decision record, the Tribunal described the applicant's claims: In summary the applicant's claims are he lost his job at a state owned enterprise after he reported the corrupt practices of his supervisors. Since then, he has difficulty finding work. In 2001, he befriended some Falun Gong practitioners at a park in which he exercised. He gradually joined their group and began practicing what he initially was qigong but eventually realised was Falun Gong. In 2003, after the arrest of some practitioners, he ceased practice of Falun Gong in a park and began practicing underground. In 2004 he was arrested while posting anti-government flyers which were printed by Falun Gong. He was tortured and detained for 1 month, being released after paying a RMB5,000 guarantee. He unsuccessfully attempted to go to Japan in 2005 and China in 2009. During the Chinese New Year period of 2012, he decided to leave China after learning of information he may soon be arrested for practice of Falun Gong and slandering the government. He then applied through an agent for visitor visas to come to Australia, with his wife, leaving their daughter to remain in China. After arriving in Australia, the applicant's wife returned to China. She was harassed by local police looking for the applicant and relocated with her daughter to live at the school in which she is a teacher. The applicant's wife has been discriminated too because of the applicant by her school reducing her teaching hours. He claims he has suffered mental torture in China in the past and fears he will be arrested and detained in a labour farm by the Chinese police because of his Falun Gong practice if he returns to China. This is because he had been arrested before. 3 There is no challenge to the correctness or adequacy of that summary. 4 The Tribunal considered that the applicant had fabricated his claims. It found that: the applicant was not a credible witness; his responses at the hearing before it were often vague and evasive, and there were substantial and material inconsistencies and variations in his claims, in his written statement and in his oral evidence given to the Tribunal. 5 These matters were raised with the applicant at the hearing before the Tribunal. The applicant was informed that his credibility was in issue. The Tribunal considered the applicant's responses in that regard to be: implausible or unconvincing, or unsatisfactory attempts to change his evidence once inconsistencies and implausibilities had been put to him. 6 The Tribunal rejected the following evidence given by the applicant: He was a practitioner of Falun Gong. He practised Falun Gong in China. He was arrested, detained or tortured for posting Falun Gong flyers. Injuries to the applicant's arm and hand were caused by police because the applicant was a Falun Gong practitioner. He attempted to go to Japan or Canada because he was a Falun Gong practitioner. He was warned during the Chinese New Year period in 2012 by a friend who was an auxiliary police officer that he (the applicant) had been reported to the police for being a Falun Gong practitioner and for slandering the government. He learned of the disappearance or arrest of fellow Falun Gong practitioners. His wife had been harassed by police since her return to China. His wife had been discriminated against by her employer because of the applicant. 7 The Tribunal concluded that the applicant had fabricated these claims as a means to remain in Australia. 8 With respect to the claim that the applicant had lost his job after complaining about workplace corruption, the Tribunal (at [20]) said: The Tribunal has considered the claim the applicant lost his job after complaining about corruption in his workplace, that he and his parents were threatened and thereafter had difficulty finding work. On the basis of the above findings he was not a genuine practitioner of Falun Gong, the Tribunal finds any difficulty he had finding work was not related to his practice of Falun Gong. Although the claim was not made by him expressly, on its face, there is an implied claim related to an anti-corruption political opinion. The Tribunal is not satisfied however, the applicant has suffered serious harm because of his anti-corruption political opinion. He provided no detailed evidence regarding the threats to him or his family and on the basis the Tribunal has found the applicant not to be a credible witness, it rejects those threats occurred. Moreover, the applicant has been able to accumulate funds to travel to Japan and to Australia. This indicates he had access to income sufficient to fund that international travel. Furthermore, he gave evidence of working in another province. The Tribunal considers the applicant has exaggerated the claims he had difficulty finding work as a means to remain in Australia. 9 The Tribunal was not satisfied that, if returned to China, the applicant would face a real chance of persecution by the Chinese police or any other authorities because he is a Falun Gong practitioner, or that he would face a real chance of harm because of his political opinion, or for any other Convention reason now, or in the reasonably foreseeable future. The Tribunal concluded that the applicant had not satisfied the requirements of s 36(2)(a) of the Act. 10 The Tribunal considered the application of the complementary protection provisions of s 36(2)(aa) of the Act to the applicant's circumstances, but was not satisfied that the requirements of that provision had been made out. In that connection, the Tribunal (at [25]-[26]) said: The applicant has claimed he and his parents were threatened and he has had difficulty in finding work in China because he reported the corrupt practices of his former supervisors at a state owned enterprise. For the reasons discussed above, the Tribunal rejects the applicant or his family were threatened. Additionally, as noted above, the applicant worked in another province and has been able to accumulate funds to travel to Japan and to Australia. This indicates he had access to income sufficient to fund that international travel. In any event, the Tribunal considers the applicant having difficulty finding employment does not amount to significant harm. On the basis of the Tribunal's findings set out above that he is not a practitioner of Falun Gong, the Tribunal too rejects the applicant's claims give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to China, there is a real risk that he would suffer significant harm in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa).

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)

Cited By (5)