1418081 (Refugee)

[2016] AATA 3859

1418081 (Refugee) [2016] AATA 3859 (17 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418081

COUNTRY OF REFERENCE:                  China

MEMBER:Antoinette Younes

DATE:17 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2016 at 3:02pm

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, initially applied for the visa [in] October 1996 and subsequently [in] November 2013.  The delegate refused to grant the visa [in] October 2014. The second application for a protection visa was deemed valid as a result of the Federal Court judgment of SZGIZ v Minister for Immigration and Citizenship[1]. 

   [1] (2013) 212 FCR 235

3. The applicant appeared before the Tribunal on 29 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

4. 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.

5. 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).

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.

   SZGIZ v MIAC

8. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[2] That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.[3] 

   [2] Ibid at [38].

   [3] Ibid at [43]-[47].

   CLAIMS AND EVIDENCE

9. In the application for a protection visa lodged in November 2013, the applicant claimed that:

   a.She has been intimidated by villagers and assaulted by her ex-husband. She is in fear of harm and persecution by her former husband, the villagers and the Chinese authorities. She fears that if she were to return to China, she would be unable to re-register her hukou or have access to other social benefits.  She is in fear of being unable to access her matrimonial home in China, as well as being denied land rights by the Chinese authorities in case of her return to China almost after two decades.

   b.If she were to return to China, she would have nothing but she would ask for her rights to the matrimonial home and the farmland to which she was entitled previously. She would also ask for re-registration of her hukou, which no longer exists. If she were to take any of those actions, she would offend her former husband, the villagers and the authorities. She would therefore suffer harm, persecution and mistreatment.

   c.Since she left China in 1996, she no longer knows anyone in China except her elderly father. It is “obvious” that the authorities would be reluctant to protect her because she would be seeking her rights against the authorities.

10. In the delegate’s decision record provided by the applicant in support of the application for review, it is noted that:

    a.The applicant has previously claimed to have entered Australia on a false PRC passport, under the name of [name A], date of birth [date]. That passport was provided to the Department as part of the first application for a protection visa which was lodged [in] October 1996.

    b.In the subsequent application for a protection visa lodged [in] December 2013, the applicant provided the name of [name B], date of birth [different date] and stated that she was from Fujian. In support of this claimed identity, the applicant provided a certified copy of a PRC passport issued by the Consulate General of PRC in [Australia] [in] 2013.

    c.The applicant entered Australia on a tourist visa, [in] September 1996 using a false passport. [In] October 1996, she lodged an application for a protection visa which was refused by the Department [in] March 1997.  The RRT affirmed the decision on 24 July 1998. The applicant lodged a request for Ministerial Intervention [in] August 1998 and [in] April 1999, the Minister decided not to exercise discretion under section 417.

    d.In the first application, the applicant claimed she was married [in] February 1990 and her husband is a low-ranking officer of [name] Military Command.  On [date], she gave birth to her first child and under army restrictions, she was issued a single child certificate.  She gave birth to her second child [a few years later] but when she was [number] months pregnant, she hid at a relative’s home in the countryside and later left the child in their care.  She was expelled from farm work for violating family planning policy and was fined RMB 50,000.  If she were to return to China, she fears that she would not be able to find a job.  Her work unit would impose fines on her and her husband would be implicated. This would happen because she violated China’s family planning policy. She would be persecuted politically, economically and she would be sanctioned financially.

    FINDINGS AND REASONS

    Nationality

11. On the basis of the available information, the Tribunal finds that the applicant is a national of PRC.  The Tribunal finds that her claims should be assessed against China as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). 

    Is there a real risk of significant harm?

12. For the reasons explained below, the Tribunal is satisfied that the applicant has not suffered any of the claimed harm and there is not a real risk of significant harm occurring to the applicant if she were to return to China.

13. In the course of the hearing, the applicant gave evidence that she came to Australia in 1996 on a “business visa” but she later said that she was not sure about the visa subclass under which she came to Australia. She stated that she got her passport with the assistance of her [relative] [name] who introduced her to a male who obtained the false passport. The Tribunal asked the applicant why she used a false passport to enter Australia and the applicant stated she ran away from her family when she was [age]. She gave evidence that she was born in Fujian province on [date] and that she grew up in a small village in the countryside. She stated that she is an only child and that she went to school for about [number] years. She can read and write Mandarin. She stated that her mother died in 1987 when the applicant’s first child was about one-year-old. She stated that her father was a farmer, that he had a piece of land parts of which he sold and used another part as a grave. She stated that her father died [recently].

14. The applicant gave evidence that she got married in 1986 and has been divorced since 2004. She stated that her former husband applied for a divorce because she left China. She stated that her former husband was asking her father for money. The Tribunal asked the applicant if she had telephone contact with her former husband and the applicant initially did not answer the question but subsequently stated that she had, several months after she came to Australia. The applicant stated that she had two children but the younger one died when [the child] was [young]. She stated that her other child is now [an adult], [is] unemployed, and [keeps] occasional contact with her over the telephone and online.

15. The applicant stated that when she initially got married in 1986, the marriage was going well but subsequent to the children being born, there was pressure on the family and her husband’s mood changed. He became superstitious and their small business was unsuccessful. He drank and he was physically abusive towards her. She hoped that he would change but his drinking worsened. She stated that he was physically abusive towards her when she was pregnant which led to the loss of the child. She stated in 1996, she locked him inside the house and he damaged her belongings. She stated that the neighbours smashed the door and saved her. Subsequent to this incident, she did not return home and went to her [relative] who helped her in obtaining the false passport. She stated that she missed her kids for many years but she did not have the courage to return to China. She stated that her former husband used to ask her father for money for the kids and if she were forced to return to China, the former husband would ask her for money and to repay what she owes. She stated that he was physically abusive towards her and she would be unable to get work in China. She stated that she used to send money to her father who gave some money to the former husband to assist in bringing up her child.  She stated that her former husband had threatened her father.  The Tribunal asked the applicant if the former husband had ever harmed her father and she confirmed that the husband did not physically harm her father.

16. The Tribunal indicated to the applicant that the Tribunal needs to further consider whether any harm that she could face on her return to China would amount to significant harm. The Tribunal indicated to the applicant that if she were to return to China, there does not appear to be any reason why she has to return to the village where she grew up. The applicant stated that her former husband would find her anywhere in China. The Tribunal indicated that China is a large country with a large population so it is difficult to accept that the former husband would find her anywhere in China. She stated that she is “old” which would mean that she would find it difficult to find work. She stated that she still has a lot of “I owe you” - meaning money owed to the former husband. She stated that her father had signed papers that the family owed money to the former husband. The Tribunal asked the applicant if she has any corroborative evidence of those papers and the applicant stated that she does not because her former husband has those documents. The Tribunal indicated that if many of those documents had been signed, it is difficult to understand why nothing happened to her father.  The applicant stated that her father had previously given the former husband some money when the father sold one of the rooms.

17. The Tribunal discussed with the applicant her claim that she fears the villagers. The applicant stated because in the village where she grew up there is only one water well, people had to wait in a queue to get water and that if she were to return she would have to wait. She stated that she does not know how much land is left from her father’s land. She stated that she does not know how much her father had sold off the land and what is remaining. She stated that subsequent to her divorce, she was supposed to have her share of the assets which she has not yet claimed. She stated that she is also concerned about the “I owe you” papers because she would have to repay money to her former husband. She stated that the key point about her fear in returning to China relates to being unable to find a place to stay and the money she would have to repay to her former husband. In relation to her claim of fearing the Chinese authorities, the applicant stated that because she has used another person’s passport, she could be harmed.

18. The Tribunal noted that the applicant new passport, a copy of which was provided to the Tribunal, was issued by the Consulate General of PRC in [Australia] [in] 2013, indicating, amongst other things that the applicant does not fear the Chinese authorities. She stated that if she were to return, she would not know if the Chinese authorities would do anything to her.

19. The Tribunal discussed with the applicant that the fact that she had entered Australia on a false passport and that she remained in Australia unlawful for a number of years, could raise doubts about her credibility and claims.  The applicant stated that she had to use a false passport because she had to leave China as a result of the violence that she faced at the hands of her former husband. In relation to her claim about the hukou, the applicant stated that her former husband had told people that she was dead and he cancelled her hukou. The Tribunal noted that the fact that she has managed to obtain a new passport in Australia indicates to the Tribunal that the Chinese authorities were satisfied of her identity and consequently there would not appear to be any issue relating to the hukou. The Tribunal further noted that country information indicates that the hukou can be restored.

20. The Tribunal discussed with the applicant the claims made in the first application for a protection visa. The Tribunal indicated to the applicant that in that application, she had claimed that her husband was a low ranking officer of [name] Military Command. The Tribunal asked her if that was correct and the applicant stated that her former husband never had an official position and that others had applied for the protection visa. She stated that her former agent had completed the application.

21. The Tribunal indicated to the applicant that in the first application for a protection visa, there is no mention of the claim of violence at the hands of the former husband. The Tribunal indicated to the applicant that the fact that the claim that she had left China because of the violence was not mentioned in the first application for a protection visa could raise serious doubts about the claim and her credibility generally. The applicant stated that she told her former agent about the claim that he advised her that the claim does not fall within the refugees Convention. The Tribunal indicated to the applicant that in the first application for a protection visa, she had claimed that she was expelled from farm work for violating the family planning policy and was fined RMB 50,000, a claim that she has not made in the subsequent application for a protection visa. She stated that her representative did not tell her to mention the claim.

22. The Tribunal has the following concerns about the applicant’s claims:

    a.The applicant has applied for a protection visa on two occasions. Her first application for a protection visa was refused and affirmed by the then RRT. She unsuccessfully requested Ministerial Intervention. She remained in Australia unlawfully for many years and later lodged a second application for a protection visa. The second application for a protection visa relies fundamentally on her claim that her former husband was violent towards her. This claim was never made in the first application for a protection visa which was lodged [in] October 1996 soon after her arrival in Australia in September 1996. The applicant almost 2 decades later is now claiming that she fears harm at the hands of her former husband who was violent. It is difficult to accept that such a significant and fundamental claim was not made in the initial application for a protection visa. Her explanation that she was advised by a former representative that the claim does not fall within the Convention is not convincing. The Tribunal is of the view that this is evidence that the applicant’s main interest was to lodge an application for a protection visa, based on claims perceived to be beneficial in terms of being capable of falling within the Convention, rather than being truthful about her claims. The Tribunal is satisfied that the fact that the claim of violence was not made in the initial application for a protection visa suggests fabrication and brings into question the applicant’s credibility. This is not a peripheral claim but a central and significant aspect of the applicant’s current protection visa claims.

    b.The applicant has claimed that she travelled to Australia using a false passport. Her explanation that she had to because of the violence is unconvincing.  The fact that the applicant has used a false passport and misled the Australian authorities indicates to the Tribunal a willingness on the part of the applicant to mislead for personal benefit and gain, raising doubts about her credibility.

    c.The evidence before the Tribunal indicates that she has subsequently been able to obtain a passport issued by the PRC authorities in [Australia], suggesting to the Tribunal that the applicant does not fear the Chinese authorities and that she does not have any problems in proving her identity with the Chinese authorities, or that she would have difficulties in relation to the hukou. The fact that the applicant has managed to obtain a new passport raises doubts about her claims.

    d.The applicant has not provided any independent corroborative evidence of her claim that there are “I owe you” documents and that she would have to repay money to her former husband. Whilst the Tribunal acknowledges that if indeed the former husband is in possession of such documents, it would be difficult for the applicant to have copies of them ought to be able to produce any before the Tribunal. Nevertheless, the fact that there are no corroborative documents means that the Tribunal has difficulties accepting the applicant’s claims.

    e.The applicant has remained in Australia for many years.  She lodged a second application for a protection visa, based on complementary protection claims. The Tribunal is of the view that the applicant has tailored the claims in the second application so that they could fall under complementary protection, suggesting the capacity to mislead for personal gain.

    f.In the course of the hearing, the applicant gave evidence which was somewhat confused and she required substantial prompting to clarify the claims. The Tribunal appreciates that this aspect does not necessarily mean fabrication and it could be due to a number of factors, however when this is considered in light of either concerns that the Tribunal has about the applicant and her claims, the Tribunal is of the view that the confusion also raises doubts about her credibility. 

1. The Tribunal notes that the delegate had accepted a number of the applicant’s claims made in the second application for a protection visa, however, the Tribunal has reached different findings.

2. On the basis of the available information, and in consideration of the evidence as a whole, whilst the Tribunal accepts that the applicant had used a false passport to enter Australia and that her true identity is the one in the passport obtained from the Chinese authorities in Australia, the Tribunal does not accept that the applicant came to Australia because she had a violent partner. Whilst it is plausible that the applicant had a husband, for those reasons, the Tribunal is satisfied that the applicant has fabricated this claim in an attempt to meet the criteria for a protection visa. For those reasons, the Tribunal does not accept that any partner to whom the applicant was married,  was violent, or that he had a drinking problem, or that the partner was ever violent towards her, or that she fled China because of the violent partner, or that she fears harm at the hands of the former partner, or that the former partner had demanded money from her late father, or that there are any documents with the former husband that the applicant’s family owe him money, or that the applicant had two children one of whom died when [young], or that the applicant was expelled and fined for breaching China’s family planning policy, or that the applicant’s family experienced harassment from other people in the village, or that waiting in the queue in the village to get water amounts to significant harm, or that there is a real risk that she would face significant harm because she violated the one child policy, or that she was intimidated by villagers, or that she has not yet claimed her share of any assets, or that she is of any adverse interest to the Chinese authorities, or that she would be unable to re-register her hukou or have access to social benefits, or that she would be unable to access her matrimonial home or farmland, or that she no longer knows anyone in China, or that the authorities would not protect her. In essence, the Tribunal and for the stated reasons does not accept that the applicant has suffered, or that there is a real risk that the applicant would suffer, any significant harm on her return to China.

3. The Tribunal has accepted that the applicant travelled to Australia using a false passport. The evidence before the Tribunal indicates that the applicant obtained a passport in her claimed real identity from the PRC authorities in [Australia].  

4. The Department of Foreign Affairs and Trade (DFAT) has reported that:

   5.22 According to the Passport Law of the People’s Republic of China (2006), ordinary passport applicants are required to apply in person to the Entry-Exit Control Department of the Ministry of Public Security or their designated bureaus where hukou is registered. Applicants must provide their resident identification card, resident household registration book, recent photos and other materials related to the reasons for their application. Approved applications are generally issued within 15 to 30 days. If a passport application is refused, reasons for the refusal must be provided in writing and the applicant is to be informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passport processing vary according to location but are generally considered affordable.

   5.23 The items to be registered in an ordinary passport consist of the holder's name, sex, date and place of birth, the date of issue, term of validity and place of issue of the passport and the issuing authority. The term of validity of an ordinary passport varies according to age of the passport holder. Passports are both readable visually and by computer and contain anti-forgery properties. Those who sell or use forged passports can be subject to criminal charges.

   5.24 Authorities can refuse to issue passports for people who are believed “will undermine national security or cause major losses to the interests of the State”. According to the US Congressional-Executive Commission on China, in 2013 an estimated 14 million people were affected by restrictions on foreign travel and acquiring passports, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish figures on those who have been denied passports.

   5.25 Uighur and Tibetan applicants are required to obtain approvals from provincial authorities and the applicant’s hometown public security bureau; a process which can take longer than the standard 15 to 30 days. Similarly, Uighur and Tibetan students require approval by university administrators. DFAT is aware of cases where human rights activists, lawyers, Uighurs and Tibetans have had their passports confiscated as punishment for their political activities or in an effort to limit the risk of such individuals causing potential embarrassment to the Chinese government when overseas.

5. The Tribunal is satisfied that the fact that the applicant has obtained the new passport indicates that the applicant did not have any difficulties in satisfying the Chinese authorities of her true identity. The fact that she approached the Chinese authorities in Australia to obtain her passport also indicates to the Tribunal that the applicant does not fear the Chinese authorities. In consideration the evidence as a whole than on the basis of the available information, whilst it is plausible that on arrival to China, the applicant may be asked questions by the Chinese authorities, the Tribunal finds that the applicant does not have an adverse profile with the PRC authorities which would mean that there is a real risk of significant harm occurring to the applicant on her return to China on the basis of her using a false passport to enter Australia, or for any other reason.

6. The applicant has claimed that she would not find a place to stay in China.  The Tribunal acknowledges that if the applicant were to return to China and after two decades of being in Australia, she may encounter practical difficulties in finding a place to stay and work.  The Tribunal is of the view that the applicant is a resourceful person who has managed to stay in Australia for almost 2 decades, demonstrating a degree of resilience and resourcefulness.  The Tribunal is satisfied that and such practical difficulties would not amount to significant harm as contemplated by the Act.

7. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied that there is not a real risk of the applicant suffering significant harm on the basis of the situation in China, in case of her return. For the same reasons, the Tribunal is satisfied that there is nothing in the applicant’s profile or personal circumstances that would mean that there is a real risk of any such harm.

8. For those reasons, the Tribunal finds that the applicant’s claims do not give rise to 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 would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act. Therefore she does not satisfy the requirements of s.36(2)(aa).

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 visa.

    Antoinette Younes
    Senior Member