1412726 (Refugee)

[2016] AATA 3209

1412726 (Refugee) [2016] AATA 3209 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412726

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Symons

DATE:27 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 27 January 2016 at 12:21pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, first arrived in Australia on [a date in] July 2012 as the holder of a [temporary] visa. She departed Australia [the next day]. She arrived in Australia on a [temporary] visa for a second time [later in] July 2012 and departed [later again in] July 2012. She arrived in Australia on a [temporary] visa for a third time [in] October 2013. This visa was valid until [January] 2014. [In] December 2013, she was granted a Bridging visa in association with her application for a Protection visa.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] December 2013 and the delegate refused to grant the visa [in] June 2014. On 23 July 2014, she applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 12 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.

   RELEVANT LAW

6. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

   Refugee criterion

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Complementary protection criterion

8. 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 a Protection 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 the applicant 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’).

   Section 499 Ministerial Direction

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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

10. The applicant’s claims in her visa application are summarised as follows:

    ·She met her ex-husband in 1983 and got married in 1986. [Number] years after their marriage he had an affair with another woman. He did not come home regularly and, when he did, he removed things from their house.

    ·In the beginning of 1995, he stole their bank book. Her savings from her [business] were in that bank account. She had planned to divorce her ex-husband when her child was older but after he took their bank book she went looking for him.

    ·In September 1995, she obtained the address where her ex-husband was living with another woman. She went there with a friend one morning. Her ex-husband answered the door and he was drunk. They had an argument over the money in the bank account and he beat her and her friend, said he did not have the money and wanted a divorce.

    ·In November 1995 she and her ex-husband were divorced. Their [child] lived with her in the family home. Not long after the divorce, her ex-husband and his new partner moved into the family home. They beat her, the other woman pushed her outside and her ex-husband hit her with a beer bottle on her back. He threw the bottle on the wall next to her and her hand was bleeding because of the broken glass. Her ex-husband and his new partner threw her things out.

    ·Her neighbour took her to hospital and helped her to tidy up her belongings and her [child]’s belongings. She and her [child] moved into her parents’ home and then rented a place nearby.  Her [shop] was doing well and she subsequently purchased the rented property.

    ·In mid-1997 her ex-husband started coming to her shop and staring at her female customers “indecently”. Her customers stopped purchasing [at] her shop. Her ex-husband broke up with his partner and wanted to reconcile with her. She did not wish to do so. A friend introduced her to a nice man. Her ex-husband saw her speaking to him in the street, followed them to her house, broke into her house and threw out the man. He tried to force her to jump out of the window of her [upper] floor apartment. She agreed to give him money and gave him [amount] yuan. Her ex-husband threatened her that if she had a boyfriend he would throw her out of the window. She was afraid he would kill her.

    ·Her ex-husband threatened her with her [child] every month so she gave him money. It affected her business and in [2010] she closed down her shop. Her ex-husband asked her to marry him. She later realised that he was addicted to gambling and drinking and wanted her to support his expenses.

    ·When her [child] started Junior High School she put [him/her] in boarding school. Her ex-husband moved into her house. She changed the locks but he broke in. She called the Police and he told them he was her ex-husband and they had a “small argument”. The Police did not do anything. Her ex-husband became angry every time she reported him to the Police and he beat her. On one occasion he threw a glass ashtray at the glass coffee table and broke it. Her right foot was hurt and she needed four stiches.

    ·She applied for a passport and hid it from her ex-husband. He saw it and burnt it. He harassed her every day, threatened her with her [child] and forced her to have sex with him. After he found her passport he locked her up for weeks.

    ·A friend applied for a passport for her secretly. In [2012], she received a new passport. During 2012 and 2013, she travelled to [Country 1], [Country 2] and Australia several times. When she returned to China her ex-husband found her each time and beat her up. He also locked her up. A friend told her about protection for women. She was encouraged to escape from her “evil ex-husband”. She came to Australia in October 2013.

    ·She left China to avoid being killed. She does not think the Police can protect her. Her ex-husband may kill her if she returns to China.

11. The applicant provided the Department with a copy of her passport.

12. The applicant was invited to attend an interview [in] June 2014. The invitation to the interview was sent to her migration agent. She failed to attend the interview.

13. The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated [in] June 2014.

    Does Australia have protection obligations to the applicant under the Refugees     Convention?   

14. The Tribunal finds that the applicant is a citizen of China based on her passport which is before the Tribunal and will assess her claims on this basis. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than her country of nationality.

15. During the hearing, the Tribunal discussed with the applicant her background, her family, her relationship with her ex-husband, where and with whom she lived in China, her reasons for leaving China and why she fears returning to China. The Tribunal did not find her evidence to be convincing or persuasive. There were a number of inconsistencies and contradictions between her written and oral evidence and within her oral evidence to the Tribunal. Some aspects of her evidence were vague and lacking in detail. The Tribunal has serious concerns in relation to the applicant’s credibility and the veracity of her claims for the following reasons.

16. The applicant gave evidence to the Tribunal that her application for a Protection visa was prepared by her migration agent on her instructions which were true and correct. She stated that she was satisfied that her application for a Protection visa  is accurate and complete except for the year of her divorce which should be 1996. She stated that she did not wish to make any other changes to her application for a Protection visa. When the Tribunal subsequently pointed out to her inconsistencies between her written and oral evidence, she stated that she did not know what was in her application for a Protection visa.

17. In her application for a Protection visa, the applicant claimed that her ex-husband “threatened her with her [child]” every month so she gave him money. She claimed that this affected her business and in [2010] she had to close down her shop. During the hearing, she gave evidence that her ex-husband went to her shop and asked her for money but she did not give him any money. She stated that the building in which her shop was located was being demolished so she closed down her shop. She also stated that when she closed down her business she had [amount] yuan in savings and was thereafter able to live on her savings and travel overseas on a number of occasions. These inconsistencies in her evidence raise concerns in relation to her credibility and the veracity of her claims.

18. In her visa application, the applicant claims that she applied for a passport and hid it from her ex-husband. She claimed that he saw it and burnt it. She claimed that after he found her passport he locked her up for weeks. She claimed that a friend secretly applied for a passport for her which she received in [2012].

19. The Tribunal asked the applicant a number of questions in relation to the passports she has held. She stated that she has had two passports. She stated that she first applied for a passport over 20 years ago. She stated that when she was married to her ex-husband she went on a tour to [Country 3] and [Country 4]. She stated that she went without her ex-husband as he did not wish to travel with her. She stated that her first passport thereafter expired. She stated that her second passport is the passport she currently holds. She has provided the Tribunal with her current passport which indicates that it was issued [in] 2012 and expires [in] 2022.

20. The applicant subsequently gave evidence that her ex-husband found her passport and tore it up. When asked whether he tore up her first passport, she answered no. She stated that she had a second passport which he tore up and she then applied for her current passport which is her third passport. This is inconsistent with her earlier evidence to the Tribunal. When the Tribunal noted that in her visa application she claimed that her ex-husband burnt her passport which is different to her evidence to the Tribunal that he tore up her passport, she responded that she did not know that her written claims were different. These inconsistencies and contradictions in her evidence raise further concerns in relation to her credibility and the veracity of her claims.  

21. Question 34 of the application for a Protection visa states ‘Did you ever travel outside your home country or country of residence before your current journey to Australia?’ The applicant answered ‘no’ in response to this question. Her passport indicates that she has travelled to [Country 1] twice (once in 2012 and once in 2013), [Country 2], [Country 5] and Australia on three occasions. She gave evidence to the Tribunal that she has also travelled to [Country 3] and [Country 4] on her previous passport. When the Tribunal raised this as an issue with the applicant, she responded that she stated that she had travelled to [Country 1] and Australia in her visa application. In a written statement attached to her visa application, the applicant stated “during 2012 and 2013, I went to [Country 1], [Country 2] and Australia for several times.” She made no mention of also having travelled to [Country 3], [Country 4] and [Country 5].

22. The Tribunal asked the applicant a number of questions in relation to where and when she lived at various addresses in China. She stated that she lived at a particular address in [a] city for over 10 years until she left China in October 2013 to travel to Australia. She stated that initially she lived there with her [child] but after [he/she] went to boarding school she lived there on her own. She stated that prior to that she lived at a different address in [the] city with her ex-husband while they were married. This is consistent with her visa application in which she states that she lived at the same address in [the] city from October 1996 to October 2013. She gave evidence to the Tribunal that she applied for a divorce from her ex-husband in [1996].

23. The applicant subsequently gave evidence to the Tribunal that her ex-husband went to her home in 2012 and told her that he wanted to change and to reconcile with her. She stated that he did not leave that evening and stayed the night. She stated that after that night she “quietly” went to the home of her mother and [sibling] and stayed with them from 2012 until she came to Australia in October 2013. She stated that no one lived in her home and she left it vacant. She stated that she did not dare return to her home. This inconsistency in her evidence in relation to where she lived in China raises concerns in relation to her credibility and the veracity of her claims.

24. In her visa application, the applicant claimed that she left China to avoid being killed and that she fears that her ex-husband may kill her if she returns to China. However, despite these claims she voluntarily returned to China after each of her overseas trips (other than her last trip to Australia) and continued to reside at the same address (based on both versions of her evidence). When the Tribunal raised this as an issue with her and noted that this was inconsistent with her claimed fears, she responded that everything she said was the truth. She stated that she told her migration agent her experiences and he wrote them down. She stated that every time she returned to China from overseas she lived at her [sibling]’s home and occasionally took things from her home. This is not consistent with her earlier evidence to the Tribunal in relation to where and with whom she lived in China. When the Tribunal noted that this was also inconsistent with her visa application in which she stated that she lived at her home from October 1996 to October 2013, she responded that she does not know what her migration agent wrote in her visa application.

25. The Tribunal does not accept this explanation. It is inconsistent with her evidence to the Tribunal that her visa application was prepared on her instructions which were true and correct and that she was satisfied that her visa application was accurate. These contradictions in the applicant’s evidence raise further concerns in relation to her credibility and the veracity of her claims.

26. In her visa application, the applicant claimed that each time she returned to China from travelling overseas her ex-husband found her and beat her up. She also claimed that he locked her up. The Tribunal asked the applicant a number of questions about her relationship with her ex-husband particularly after they divorced in [1996] but she did not mention him beating her up when she returned from her travels or locking her up. The Tribunal raised this as an issue with the applicant and noted that if she was living at the same address from 1996 to 2013, as she claimed in her visa application and her initial evidence to the Tribunal, her ex-husband did not have to find her as he knew exactly where she lived. The Tribunal also questioned how she was able to travel as much as she did if her ex-husband had locked her up.

27. The applicant responded that what she told the Tribunal was the truth. When the Tribunal noted that there were contradictions in her evidence to the Tribunal, she responded that she did not know that. She stated that her migration agent told her to just tell him the important points. This explanation does not address the issues raised with the applicant. Further, if the applicant was living with her mother and [sibling] from 2012 until she left China to come to Australia in October 2013, it is implausible that her ex-husband beat her up each time she returned from an overseas trip and locked her up in the home of her mother and [sibling].

28. In her visa application, the applicant claimed that she left China to avoid being killed and that she fears that her ex-husband may kill her if she returns to China. However, despite these claims she did not claim asylum during her two trips to [Country 1], during her trips to [Country 2] and [Country 5] and during her two previous trips to Australia. This is inconsistent with her claimed fears. When the Tribunal raised this as an issue with the applicant and noted that these countries are signatories to the Refugees Convention, she responded that she went to these countries with a tour group. She stated that her [sibling] got married in [Country 1] and she went to [Country 1] twice and stayed with her [sibling].

29. The Tribunal does not accept this explanation. The Tribunal is of the view that if the applicant lived with her [sibling] in [Country 1] twice and she feared for her life if she returned to China, she would have obtained some legal advice on her options for remaining in [Country 1] and not returning to China where her life was at risk. The applicant’s failure to seek asylum during her travels to other countries that are signatories to the Refugees Convention and her failure to seek asylum in Australia until her third visit here raises further concerns in relation to her credibility and the veracity of her claims.

30. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] June 2014. It indicates that she travelled to Australia for the third time [in] October 2013 on a [temporary] visa which was valid until [January] 2014. She lodged her application for a Protection visa [in] December 2013. When the Tribunal raised the delay in applying for protection as an issue with her, the applicant responded that she travelled to Australia with her [sibling] and their original plan was to go on a tour and do some shopping. She stated that they had a chat with their landlord who told them that Australia provides protection to women and they decided to stay here.  

1. The applicant’s response raises further concerns in relation to her credibility and the veracity of her claims. Her response that she came to Australia to go on a tour and do some shopping is inconsistent with her visa application in which she claims that she left China to avoid being killed. The Tribunal is of the view that if the applicant fears that her ex-husband may kill her if she returns to China, as she claims in her visa application, she would have obtained some legal advice on her options for remaining in Australia and not returning to China soon after her arrival here.

   Findings

2. Having considered all the evidence, the Tribunal is of the view that the applicant is not a witness of truth and that she fabricated her material claims for the purpose of obtaining a Protection visa. The Tribunal finds that the applicant is not a credible witness and was prepared to say anything to obtain a Protection visa without any regard for the truth.

3. The Tribunal accepts that the applicant got married in 1986 and thereafter lived with her ex-husband in a house owned by her ex-husband’s [relative]. The Tribunal accepts that her [child] was born on [date]. The Tribunal accepts that in 1992 her ex-husband moved out and started living with his mistress. The Tribunal accepts that in 1995 her ex-husband went to her home and took her bank book without her consent. The Tribunal accepts that she subsequently found out where he was living and went there with a friend. The Tribunal accepts that she asked for her bank book back, they had an argument and he hit her. The Tribunal does not accept that he beat her friend. The Tribunal accepts that he told her he wanted a divorce.

4. The Tribunal accepts that the applicant applied for a divorce in [1996] and was granted a divorce [a month later]. The Tribunal accepts that after the divorce her ex-husband assaulted her, forcibly evicted her from their former marital home and then moved in with his partner. The Tribunal accepts that she thereafter lived with her parents for a short period before moving into rented premises close by. The Tribunal accepts that she subsequently purchased those premises and lived there until she left China to come to Australia in October 2013. The Tribunal does not accept that she lived with her mother and [sibling] from 2012 until she left China to come to Australia in October 2013 because she was fearful of her ex-husband.

5. The Tribunal accepts that in mid-1997 the applicant’s ex-husband went to her shop, told her that he had separated from his partner, wanted to reconcile with her and marry her. The Tribunal accepts that she told him that she did not wish to do so. The Tribunal does not accept that he started coming to her shop and staring at her female customers “indecently” or that her customers stopped purchasing [at] her shop for this reason. The Tribunal does not accept that her ex-husband followed her to her house, broke in and threw out the man she was dating. The Tribunal does not accept that he tried to force her to jump out of the window of her [upper] floor apartment or that he threatened her that if she had a boyfriend he would throw her out of the window. The Tribunal does not accept that she gave him [amount] yuan.

6. The Tribunal does not accept that after their divorce the applicant’s ex-husband went to her shop or her home and asked her for money. The Tribunal does not accept that she gave him any money after their divorce.  It follows that the Tribunal does not accept that he “threatened her with her [child]” every month so she gave him money, that this affected her business and she had to close down her shop in [2010] for this reason. The Tribunal accepts that she closed down her shop in [2010] because the building was being demolished.

7. The Tribunal does not accept that after the applicant’s [child] started attending boarding school her ex-husband moved into her house or, alternatively, that he broke into her house. It follows that the Tribunal does not accept that she reported him to the Police or that he beat her up for doing so. The Tribunal does not accept that he threw a glass ashtray at the glass coffee table, broke it, her foot was injured as a result and she needed four stiches.

8. The Tribunal accepts that the applicant has held two passports. The Tribunal accepts that she obtained her first passport when she was married to her ex-husband and used that passport to go on a tour of [Country 3] and [Country 4] without her ex-husband.

9. The Tribunal does not accept that the applicant subsequently applied for a passport and hid it from her ex-husband. The Tribunal does not accept that he found it and burnt it or, alternatively, that he tore it up. It follows that the Tribunal does not accept that after he found her passport he locked her up for weeks. The Tribunal does not accept that he harassed her every day, “threatened her with her [child]” and forced her to have sex with him. The Tribunal does not accept that a friend of the applicant applied for a passport for her secretly.

   The Tribunal accepts that the applicant obtained a passport in [2012]. The Tribunal accepts that she thereafter travelled to [Country 1] on two occasions to visit her [sibling]. The Tribunal also accepts that she went on a tour to [Country 2] and another tour to Australia and [Country 5]. The Tribunal accepts that the applicant has travelled to Australia on two occasions prior to her third and final trip to Australia. The Tribunal does not accept that each time she returned to China from her overseas travels her ex-husband found her, beat her up and locked her up. The Tribunal does not accept that she was encouraged to escape from her “evil ex-husband”. The Tribunal does not accept that she left China to avoid being killed. The Tribunal does not accept that she fears that her ex-husband may kill her if she returns to China.

10. In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons put forward by her.

11. Having considered all of the applicant’s claims, singularly and cumulatively, the Tribunal finds that there is no real chance that she would be at risk of persecution on the grounds of membership of a particular social group or any other Refugees Convention reason if she returns to China now or in the reasonably foreseeable future. The Tribunal finds that she does not have a well-founded fear of persecution for a Refugees Convention reason. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) of the Act.  

    Are there 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     she will suffer significant harm

12. The Tribunal has considered the applicant’s claims under complementary protection.

13. In view of the above findings, 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 she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment as defined.

14. Therefore, 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 she will suffer significant harm as defined in subsection s.36(2A) of the Act.

15. Accordingly, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

CONCLUSION

1. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

2. 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 s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Linda Symons
   Member