1412793 (Refugee)

[2015] AATA 3228

1412793 (Refugee) [2015] AATA 3228 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412793

COUNTRY OF REFERENCE:                  China

MEMBER:Andrew Mullin

DATE:24 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2015 at 11:15am

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 the People's Republic of China, applied for the visa [in] February 2014.  The delegate refused to grant the visa [in] June 2014 and [in] July 2014 the Applicant applied to the Tribunal for review of the delegate’s decision.

   RELEVANT LAW

3. 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.

4. 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).

5. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

6. 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’).

7. 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.

   CLAIMS AND EVIDENCE

8. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant together with the material referred to in the delegate’s decision record.

9. In his protection visa application and an accompanying statement in Chinese with an English translation prepared by a NAATI-registered translator the Applicant claims, in summary:

   ·He was born in Hanshou country, Hunan, [China].  He lived at an address in [Hanshou] County, from 2003 to 2006 and at another address in Wuhan City, Bubei (sic, Hubei) Province, from 2006 to November 2013.  He received [stated] years of formal education in China, ending in1998, and was employed variously as a cook and a manager from 1998 to November 2013.  He married in 2007 and lists his wife, daughter, parents and a [sibling] as living in China.  He arrived in Australia [in] January 2014.

   ·He and his wife were greatly disappointed that their first child was a daughter as it is a tradition in rural areas of China that a family must have a son to maintain the family name and be a breadwinner when the parents grow old.  His parents said they should have another child and [in Month 1] 2013 his wife told him she was pregnant again.  They decided that if the child was a girl his wife would agree to accept the directions of the family planning office to have an abortion; if it was a boy she would go into hiding until she gave birth.

   ·They visited a hospital where his wife’s [relative] was working as a nurse and, by paying a bribe, arranged for an ultrasound to be performed.  To the joy of the family the ultrasound revealed the child to be a boy.  His wife went into hiding at the home of her aunt in the mountains to escape the family planning officials.

   ·Early in the morning [one day in Month 1] 2013 the family planning officials came to the home to take his wife for a regular pregnancy screening.  He told them he had recently argued with her, that he had left the house to calm down and that he had found her absent when he returned.

   ·The officials returned to the house a week later.  He told them he was very worried about his wife and had asked all his relatives and friends for information about her, to no avail.  They accused him of making up a story about her and suggested she had gone into hiding because she was pregnant.

   ·When he came back to the house in the evening [in] November 2013 he found his wife lying in bed crying.  She told him that the family planning officials had arrived at her aunt’s house and had forcibly taken her to a hospital where, when her pregnancy was detected, she was forced to undergo an abortion.

   ·He was very sad at this but the officials would not excuse him from the requirement that he undergo a sterilisation.  The family had a discussion and decided they must not let the officials have their way.  He heard by chance that the Australian government protects human rights and came here to seek protection. 

10. Attached to the application were photocopied pages from the Applicant’s passport, issued [in] October 2013. 

11. The delegate’s decision record indicates that the Applicant was invited to discuss his claims at a protection visa interview to be held [in] June 2014.  He did not attend the interview and did not contact the Department to explain his failure to do so.

    TRIBUNAL HEARING

12. The Applicant appeared before the Tribunal on 11 June 2015 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

13. The Applicant’s evidence was, in summary:

    ·He and his wife had a daughter after their marriage.  In their family it was very important to have a boy but in China there is no chance to have a second child.  In [Month 1] 2013 he and his wife discovered she was pregnant once more and, through an ultrasound which she obtained surreptitiously with the aid of her [relative], found the child was male.  Asked when he had heard this he said it was at the end of [Month 1] 2013.  I asked if he meant his wife fell pregnant in [Month 1] and he had discovered the sex of the child at the end of that month.  He said he was working away from home and received a telephone call from his wife in [Month 1] advising him of her pregnancy.  Asked when it was that his wife had become pregnant he said it was perhaps four or five months before then, possibly in [an earlier month] 2013.  Asked if he meant she had not known she was pregnant for four or five months he said she had gynaecological problems which meant she had not realized it immediately.  Two months after she discovered it she had called him. 

    ·Asked why she would have waited so long to tell him of her pregnancy he said she feared it was another daughter, meaning she would face a dilemma – she would not know whether to keep the child or have an abortion.  He confirmed he meant that if the child had been female she might have aborted it although he himself had been opposed to an abortion, whatever the child’s sex.

    ·When he and his wife discovered the child was a boy he decided to send her to her aunt’s home in a mountain village.  As she had avoided the required regular gynaecological examination, officials from the local family planning office came to their home.  He told them he did not know where his wife was. 

    ·Asked to which home the officials came he said he was in Wuhan (Hubei Province) while his wife was in Hanshou County, Hunan Province.  Asked again he confirmed that it was to the house in Hanshou that the officials came.  Asked what he was doing there he said that at the time he was in Hubei Province.  Asked again why he was in the Hanshou house he said he was not there.  I noted that in his statement he claimed he had been there.  He said his wife had called him and told him about the incident, after which he returned to the home.  I noted that in the statement he claimed that early in the morning [on a day in Month 1] 2013 the family planning officers came to the home to take his wife to the hospital for a regular pregnancy screening, and that he told them he had had recently argued with her and did not know where she was.  He said his mother had been living at home with his wife and telephoned him.  After I put to him, a number of times, that this was not consistent with the information in his statement to the effect that he had spoken to the officials he then said he had spoken to them by telephone when his mother called him.

    ·I noted that in his statement he claimed that the officials came to the house a week later and spoke to him once more, after which they accused him of making up the story about her absence.  He agreed he had been in the house then and said that he had had a holiday at the time and returned to help his daughter with her studies.  Asked how long he had spent in the house in Hanshou at this time he said his company had not been very busy at the time.  He did not know how long he was Hanshou but it was ‘pretty long.’  Asked again he said it ‘should be’ at least one to two months.

    ·Asked what had happened when he came back to the house he said his wife returned there, probably [in] November 2013, having had an abortion.  After the abortion there had been another incident, which was not recorded in his written statement because it might not be reliable.  Asked what he meant by this he said it was not about his wife but his family.  Asked what this incident was he said he has a [brother] who wanted to marry.  His father, a contractor, took out a loan of about Rmb 1 million at a high rate of interest.  His creditors asked his father to repay the loan and also asked the Applicant to do so.  As his father could not do so, the creditors’ parents wanted to drink pesticide.  Their son is very sad and asked members of the underworld to find him.  As a result he had a psychological fear.

    ·Asked why his father had borrowed this sum he said he is a gambler, sometimes involving large amounts.  He had needed to provide a house for his [son] and borrowed money from many people including relatives.

    ·Neither his father nor his [brother] have suffered harm in relation to this loan.  Asked if the money has been repaid he said the problem is that his father disappeared, leaving it up to him to repay the amount.  Asked why no harm would have occurred to his [brother] he said they cannot find his father, his [brother] or him.  They would not come after his mother.  I suggested that if criminals wanted to recover their money by force they might be expected to try to kidnap his mother, his wife or his child as a means of pressuring him.  He said his father had not borrowed the money from just one person.  I put to him again that if criminals are being used to recover the money they could be expected to target his family members.  He said it was not a criminal group which was involved but it was a matter of personal behaviour.  His house in the countryside was damaged, the windows were broken and he dared not return there. 

    ·Reminded of his claim that a son of the creditors had contacted members of the underworld he said the son is a member of the underworld and found underworld figures to help him.  He then agreed that criminals are involved.  Asked again why these criminals would not have taken action against members of his immediate family he said his mother was ill with rheumatic arthritis and can only care for herself.  His father often borrowed money but repaid the loans.  On this occasion his father had disappeared and his brother would return home only once a year.  The criminals could only find him.  Asked if they could not find his mother, wife or child he said they do not harm such people. 

    ·Asked if the criminals had ever approached him he said they damaged his house.  The son of his creditors told several people to stab him.  They threatened him several times in telephone calls, asking him to repay the money or he would not have a peaceful life.  He had been very afraid of them.

    ·Asked why he had left China in January 2014, he said it was because the government had telephoned him to tell him that his wife had had an abortion.  They wanted him to have a vasectomy and gave him an ultimatum to accept the operation before the Spring Festival, otherwise he would be forced to have it.  Asked how they conveyed this ultimatum he said it was through letters and a telephone call.  This was the only option they had given him.  He had feared being discovered and forced into having the vasectomy, preventing him having another child.  He was also afraid he would be found by his father’s creditors.  He had not feared harm in China for any other reason.  He feared that if he returned to China he would be harmed for the same reasons and might be stabbed by someone.

    ·Regarding his biographical details he confirmed that he had two addresses in China, in [Hanshou] County and in Wuhan.  He owned both properties and lived at the Wuhan address by himself.  Asked the telephone area code for Wuhan City he said he did not know as he did not use it.  I put to him that I found this hard to believe.  He said he only used mobile telephones.  Asked the postcode of Wuhan City he said he did not know.

    ·He confirmed that his passport, which he submitted at the hearing, is genuine and that it contains his photograph and correct biographical details.  Asked how he obtained the passport he said he had applied at the police bureau in his county.  Asked why he obtained it he said that sixty per cent of people in his country have a passport.  Asked again he said he wanted to hide from the government and the person who had loaned money to his father.  The government wanted to give him a vasectomy.  He agreed he meant that he obtained the passport in order to escape from China.  I put to him this was hard to understand, given that the passport was issued [in] 2013 and his wife did not have an abortion until November 2013.  He said that after his wife had the abortion the officials telephoned him about his vasectomy.  I put to him again that the passport was issued a month before the abortion.  He said that after they were married his wife was required to undergo regular gynaecological examinations.  If a couple have a child, whether it is a boy or a girl, the government asks the husband to have a vasectomy.  I indicated I had great difficulty in believing the truth of this claim. 

    ·I noted that he claimed he had fled China in part because he feared harm - including being stabbed - from members of the underworld over his father’s unpaid debt but that he had no mention whatsoever of this matter in the protection visa application he had completed a month after arriving in Australia.  I put to him that his having raised the claim for the first time at the hearing could cast doubt over its credibility.  He indicated he had no comment on this.

    ·I noted his claim in the protection visa application that his family had held a meeting and decided that they must not allow the family planning officials to have their way.  I put to him I did not believe it was very likely that, at a point when his wife had just undergone a forced abortion and his daughter was only [a young child], they would have believed the best thing was for their husband and father to run away to Australia.  He said that at the time he was worried not just about his vasectomy but his personal safety, as a result of his father’s debts.  I noted this suggested he was leaving his wife and child in possible danger from this source as well.  He said his wife had already returned to her mother’s home and only his mother remained in the house.  Asked if he meant the criminals could not track his wife he said it was not possible – they did not know where she lived.  Asked if they would not have had ways to find her he said he did not know. 

    ·I asked why, if he was confident that the criminals could not track down his wife, he could not have moved with her to some other part of China, for example to Wuhan City where he had been living for some years.  He said if the government had put him on a blacklist and no company would employ him.  Asked why the government would do such a thing he said they had called him for a vasectomy.  If he did not accept after the third call and could not be found he would be blacklisted.

    ·Asked how he obtained the money to leave China he said he had savings from his employment.  Asked how he obtained his Australian visa he said he used an agency.  Asked when he had started to apply for the visa he said it was, maybe, in June or July of 2013.  I noted that this was well before he heard that his wife had become pregnant for the second time.  He said he had been worried about the debt owed by his father.  His departure for Australia was delayed, after the visa was issued, because he had to make arrangements for his wife and family.

    ·Asked if there was anything he wished to add he said there was not.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. On the basis of the photocopied pages of his passport on the Departmental file I accept that the Applicant is a citizen of the People's Republic of China and that his identity is as he claims it to be. 

15. The Applicant claims to fear that he and his wife breached family planning regulations in China and as a result he will be subjected to a forced sterilisation if he returns.  He also claims to fear serious physical harm from criminals over a gambling debt incurred by his father.

16. In the present case I note that the Applicant’s claims about his experiences in China are unsubstantiated from any external source and, both in the written statement and in his oral evidence at the Tribunal, are notably brief, vague and lacking in circumstantial detail.  I believe there are good reasons to doubt the credibility of these claims, for the following reasons.

1. First, as put to him at the hearing, there is a basic inconsistency between his written submission and his oral evidence concerning the circumstances in which local family planning officials are said to have come to take his wife for a pregnancy screening.  His evidence at the hearing was that he was living and working in Wuhan City at the time while his wife was living with their daughter in their house in Hanshou County, in another province.  He confirmed he meant that the officials came to the Hanshou County house.  When it was put to him that this was inconsistent with the claim in the statement to the effect that he spoke to the officials when they came to the house in Hanshou he responded with a number of obfuscatory remarks then claimed, in my view quite implausibly, that he had not spoken to the officials face-to-face but by telephone from Wuhan.  I consider that the plain and obvious meaning of the information in his written statement is that he was physically present in the house at the time and I am not satisfied that his explanation that he spoke to the officials by telephone was more than an improvisation. 

2. When he was asked about the further information in the statement to the effect that he had spoken to the officials once more when they returned to the house a week later he claimed he had returned there on holiday – he could not remember how long this holiday was but it was at least one or two months – in order to help his daughter with her studies.  This, he said, had been possible because his company was not very busy at the time.  I find this claim inherently implausible and, once more, I believe it was simply an improvisation adopted by him in an attempt to reconcile his oral evidence with his statement. 

3. I consider the most likely explanation for these inconsistencies is simply that by the time of the hearing the Applicant had forgotten what had been claimed in his statement.  I find that this casts strong doubt on the truth of his account of family planning officials attempting to take his wife to a pregnancy screening, a central element of his claims.

4. Second, the Applicant’s evidence at the hearing was that he began the process of applying for an Australian visa in mid 2013 – he thought it was in June or July of that year – by supplying his documents to an agent.  His passport was issued [in] 2013.  As put to him, this indicates that he was preparing to leave China for Australia before he had any idea that his wife was pregnant once more, given that he was not told of it until [Month 1] 2013, before the alleged abortion and obviously long before the alleged pressure placed on him by officials to have a vasectomy.  I have considered his response on this point – to the effect that he knew all Chinese husbands are required to have a vasectomy following the birth of a first child – but there is nothing in the information before the Tribunal to support such a claim and I am not satisfied it is true.  I note in this regard, as well, that there is no suggestion of his having been pressured to have a vasectomy following the birth of his first [child].

5. Third, the Applicant’s claim at the hearing that he feared harm from criminals as a result of unpaid gambling debts incurred by his father gave every appearance of improvisation and development in response to further questions about it.  As put to him, he made no mention at all of this issue in his written statement, despite his alleged fear that he would suffer major physical harm by these unidentified people on return to China, and he offered no explanation for its sudden emergence at the hearing.  I am not satisfied that the claim is at all credible and I find that the Applicant’s preparedness to advance it casts strong doubt over the credibility of his claims in general.

   SUMMARY

6. Taking these considerations together I am not satisfied that the Applicant is a witness of truth and I do not accept that his claims to fear harm in China are credible.  In particular, I am not satisfied that his wife was forced to abort a second child, that he came under pressure to have a vasectomy, that he was blacklisted by the government or that he was ever threatened by criminals or anyone else over debts owed by his father.  He does not claim to fear harm in China for any other reason and no other reason is apparent on the face of the information before the Tribunal.

7. In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to China, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

8. Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).  However, on the basis of all the information before the Tribunal I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to China, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

9. 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 criterion in s.36(2).]

   DECISION

10. The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

    Andrew Mullin

    
    

    Member