1419444 (Refugee)

[2016] AATA 4015

1419444 (Refugee) [2016] AATA 4015 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419444

COUNTRY OF REFERENCE:                  China

MEMBER:Antoinette Younes

DATE:16 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 16 June 2016 at 4:38pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants initially applied for protection visas which were refused. The second application for protection visas 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 applicants who claim to be citizens of China, applied for the visas [in] March 2014 and the delegate refused to grant the visas [in] November 2014.

4. The second-named applicant appeared before the Tribunal on 18 May 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 applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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).

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’).

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.

   SZGIZ v MIAC

10. 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] 

    CLAIMS AND EVIDENCE

    [2] Ibid at [38].

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

    The first-named applicant’s migration history

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

    a.[In] December 1996, the first-named applicant was granted a [temporary] visa in Beijing.  He arrived in Australia [in] December 1996 using a Chinese passport issued in his name, and noting his date of birth to be [date]. The visa allowed the applicant to enter and remain in Australia for a period of one month from the date of his arrival.

    b.He lodged his first application for a protection Visa [a date in] January 1997 and on that date he was granted an associated bridging visa A. His protection application was refused [in] April 1997 and the RRT affirmed the delegate’s decision on 12 May 1998. His bridging visa ceased [in] June 1998 and he subsequently remained in Australia as an unlawful noncitizen. He lodged a request for ministerial intervention and the Minister decided not to exercise discretion.  He lodged an application for a bridging visa E which was refused [in] January 2001.

    c.The applicant lodged his second application for a protection visa [in] March 2014.

    The first-named applicant’s protection claims

12. In the first application for a protection visa, the applicant claimed that China was ruled by a dictatorship communist party and that there was no democracy or human rights. The Chinese authorities are always criticised by the American and Australian authorities. Human rights activists are sentenced to lengthy terms of imprisonment. The economic reform in China had caused corruption, bribery and anger. He stated that he fears returning to China because he would be imprisoned as a human rights activist, a person who had been influenced by western culture, and for seeking multi-party democratic elections.  After arriving in Australia, he joined the China democracy human rights federation that sought to overthrow the communist party and consequently he would be persecuted.

13. In the second application for a protection visa, he claimed that:

    a.He is in fear of being unable to claim compensation for the residential unit which was demolished for redevelopment by the Chinese authorities. He fears being unable to obtain household registration (hukou) and being denied the opportunity to return to his previous work.

    b.Since he left China, the authorities have deregistered his hukou and demolished the building in which he had a unit. The authorities did not allow his family to claim compensation because he has been deregistered. If he were to return to China, the authorities would deny him his right to claim compensation or access a new residential unit. He will become homeless and he would harmed for pursuing his rights. The Chinese authorities would deny him the right to return to his previous work. He would be unable to re-register his hukou and consequently his rights to social and other benefits would be denied.

14. In the course of an interview with the Department in relation to his protection claims, [in] November 2014, it is noted in the delegate’s decision record that the first-named applicant provided an outline of his migration history and made the following claims:

    a.He did not know the claims made in the first application for a protection visa and at that time, he had no fear in returning to China. He remained in Australia in order to pay $[amount] to the lawyer, [named], who acted for him. He met his current de facto wife (second-named applicant) in 2001, however he is still married to his first wife.

    b.He has supported himself working in Australia since 1996 as [an occupation] and from 2007, he and his de facto started their own business. He is now frightened to return to China because he lost his job and property in China. He does not have any property, or superannuation, or insurance, or any form of income. It would be unable to survive because he would not be able to get a job because of his age. He does not have a place to live because his property was demolished in August three years ago. His mother and brother told him that the building was demolished and the government provided a small compensation. The developer paid the money to his mother because she and his brother were living in the unit. His brother does not have any property because of his physical condition.

    c.He does not have any money to pay rent because the money was spent on his brother to see a doctor. For the last three years, his brother and mother have temporarily lived in a friend’s place while they are overseas.  He cannot return to China, where the quality of the air is poor, because he has [medical conditions]. There was no other reason why he could not return to China. He has no evidence to support his claims.

    d.He wanted to change his passport but he could not because he had been out of China for more than 10 years and he has lost his ID. He applied for a new passport two years ago without his household registration. He wanted a passport because he was thinking for a long time that his mother was now over [age] years old and he wanted to return to visit. He was prepared to return to China two years ago because his mother was very sick but he had no choice. He applied for his passport at the Chinese Consulate in [Australia] and they requested his ID number which he could not provide because it had been cancelled.

    e.He has close relationships with his clients in Australia and they are almost like his family.  They have integrated into the Australian society. He does not have criminal records and he pays his taxes. They have earned $[amount] in the business between the two of them last year. He likes Australia and he wants to continue to contribute. He hopes that the Australian authorities would allow him to remain in Australia because he is used to be here.

    The second-named applicant’s migration history

15. In the delegate’s decision record, it is noted that the applicant entered Australia [in] July 1998 on a [temporary] visa, using a false [Country 1] passport issued [in] 1997 in the name of [Alias 1], date of birth [different date], bearing the applicant’s photograph.

16. The applicant lodged a protection visa in the name of [Alias 1] [in] July 1998 and she was granted an associated bridging Visa A which came into effect [in] October 1998. The application for a protection visa was refused [in] October 1998 and [in] May 1999, the RRT affirmed the decision not to grant the applicant a protection visa. Her bridging visa ceased [in] June 1999 following which the applicant remained in Australia as an unlawful noncitizen.

17. The applicant lodged her second application for a protection visa in her claimed true identity of [applicant’s name].

    The second-named applicant’s protection claims

18. In the first application for a protection visa lodged [in] July 1998, the second-named applicant claimed that:

    a.She is an [Ethnicity 1] Chinese. The Chinese Communist Party is a dictatorship and discriminates and suppresses minority nationals. Her father was [an Ethnicity 1] [occupation] and was classified as ninth grade by Mao Zhedong. She hated the Chinese Communist Party and their suppression of minorities. There are no human rights or freedom.

    b.She was investigated by her farm and was punished for having spoken about the pro-democracy student uprising in 1989.  She was made to do five months labour work with no pay. Despite this treatment, she still wanted to do something for China. She escaped China to seek asylum and came to Australia which is a democratic and free country.

19. In the second application for a protection visa, she claimed that:

    a.She came to Australia as a tourist. She is [Ethnicity 1] and she was unable to get a job in China. She was unable to access further education.

    b.She fears that if she were to return to China, she would be mistreated and discriminated against by the Chinese authorities. She fears that she would be unable to claim her right to the land which was expropriated by the authorities. This would happen to her because the authorities have taken her farmland without fair compensation.

    c.If she were to return to China, she would not have land to work on. As [an Ethnicity 1], it would not be possible for her to find suitable employment in China to support herself.

    d.She would seek fair compensation or the return of the farmland. If he were to pursue this matter, she would be mistreated by the authorities who have denied her rights to the land.

20. The second-named applicant was interviewed [in] November 2014 in relation to her protection claims.

21. The delegate’s decision record provides a summary of the applicant’s claims in the course of that interview. In essence, the applicant claimed that:

    a.She arrived in Australia using a [Country 1] passport. Her family was poor and she was introduced to a person selling passports. The initial aim was to make money and she worked as [an occupation] for two years. She got a high interest loan to come to Australia. She came to Australia with another person but she does not know the name of that person or the name of the person who sold her the passport. Within two months of her arrival in Australia, she found a job and has since supported herself. She found a migration agent in the newspaper and asked him to lodge a protection visa application. She told him she had borrowed a lot of money and she wanted to work legally. She did not know the claims that were made in the application. She remains married to her first husband in China.

    b.When she came to Australia, she lost her land and property. Her property was demolished without her consent in 2005 when the land was occupied. Her husband was in China and he was paid around [amount] compensation but it was worth around [higher amount]. If she were to return to China, she would not have a place to live and she would not have any land. She has not paid the high interest loan because she owed money elsewhere. She borrowed money from people in her town who would threaten her. She sent money to her husband but maybe he did not repay the money which is now at least [even larger amount].

    c.Her husband has told her that he has spent the money and that did not pay the lender. He was not harmed by the moneylender for 10 years whilst he was living in China. The money lender believes that she is the person who is responsible for repaying in the money. She has no corroborative evidence that her land and property had been reclaimed but her [siblings] told her that she did not have anything left in China.

    d.She cannot return to China to work because she has no property and her land has been occupied. She has been living in Australia for more than 15 years and she has gotten used to the Australian lifestyle. She has established close relationships with her clients. She is a minority ethnic and she would suffer discrimination.  The age gap between her mother and father is 20 years and her mother is unwell. She grew up in a discriminated environment and she suffered discrimination in her life and her work.

    e.When asked about why she applied for a passport in Australia, she stated that at that time her mother wanted her to go back but she found out that her household registration was cancelled. She was issued with a passport despite her household registration being cancelled but it took four years to get the passport through illegal channels. She had to pay money to her [relative] in China who arranged for the documents so that the applicant could be issued the passport in Australia. She paid [amount] yuan to get the documents for the issuing of the passport. 

    f.She did not return to China when the passport was issued because Australia is a country with human rights. She does not have any criminal records and she paid her taxes. She is aware that her partner has applied for a passport but thinks that he was not issued with one. She stated that after the expiry of her partner’s passport, he did not apply for a new passport.

22. In essence, and for reasons of adverse credibility, the delegate decided that the applicants do not meet the criteria for the grant of the visa.

    FINDINGS AND REASONS

    Nationality

23. On the basis of the available information, and for the purposes of this decision, the Tribunal finds that the applicants are nationals of PRC. 

24. The Tribunal finds that their claims should be assessed against China as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). 

    Invitation to a hearing

25. On 8 April 2016, the Tribunal sent to the applicants an invitation to a hearing scheduled on 18 May 2016 at 10:30 AM. The Tribunal advised the applicants that the Tribunal has considered the available material but has been unable to make a favourable decision on this information alone. The Tribunal further advised the applicants that if they do not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before it, or it may even dismiss the application for review without any further consideration.

26. The second-named applicant appeared before the Tribunal on 18 May 2016. She advised the Tribunal that the first-named applicant is unwell and is not attending the hearing. On 18 May 2016, the Tribunal sent to the first-named applicant a letter advising him that the Tribunal requires medical evidence to support his non-attendance at the hearing on the day. The Tribunal requested him to provide medical evidence by 19 May 2016 and advised him that if no such evidence is provided, the Tribunal will proceed to make a decision without inviting him to another hearing.

27. The Tribunal did not receive a response from the first-named applicant. In those circumstances, the Tribunal has decided to make a decision in relation to that applicant on the basis of the available information.

    Findings in relation to the first-named applicant

28. The Tribunal advised the applicant that it was unable to make a favourable decision on the basis of the available information and he was therefore invited to a hearing. He did not attend the hearing and when asked to provide medical evidence to support his claim that he was unwell, he did not provide any such evidence.  The Tribunal is satisfied that the applicant has had a fair opportunity to put his case in full before the Tribunal.

29. On the basis of the available information and without having had the opportunity to discuss and explore with the applicant his claims, the Tribunal is not satisfied that he has suffered any of the claimed harm. Specifically and for those reasons, the Tribunal is not satisfied that the applicant fears returning to China, or that he would be imprisoned for any reason, or that he was ever a human rights activist, or that he has been influenced by western culture, or that he has ever been involved in the China democracy human rights federation, or that there is a real risk of significant harm for any reason, or that he would be unable to claim compensation for any residential unit, or any such unit was demolished by the Chinese authorities for redevelopment, or that the family received a disproportionately small compensation, or that he would be unable to obtain the hukou, or that he would be denied the opportunity to return to his previous work, or that he does not have property in China, or superannuation, or insurance, or any other income, or that he would be unable to survive, or that he would not have a place to live, or that the air in China would aggravate or cause any illness, or that he has suffered any of the claimed harm, or that there is a real risk that he would suffer any significant harm if he were to return to China.

    Findings in relation to the second-named applicant

1. For the reasons explained below, the Tribunal is not satisfied that there is a real risk of the second-named applicant suffering significant harm on her return to China.

2. The applicant gave evidence that she came to Australia in 1998 using a fake [Country 1] passport. She stated that she did so because she was in a hurry to leave China and that she did not know that the passport was fake, nor did she know that it was a [Country 1] passport. She stated that an agent did all for her. The Tribunal asked and the applicant confirmed that she is able to read and write in Mandarin and that she has had [a number of] years of education in China. She confirmed that she is a Chinese national of [Ethnicity 1]. She stated that she was about [age] years old when she got married and that she has one adult child. She stated that she and her husband are still married but she has been in a de facto relationship with the first-named applicant. She stated that in China she was a [different occupation] but subsequently she explained that she had a rural house registration and her husband had an urban house registration. She stated that she had land but she did not work in the land.

3. The Tribunal indicated to the applicant that it is difficult to understand how she did not know that the passport was not a genuine passport. She stated that the two people who helped her and to whom she paid money, “snake hats” gave her the fake passport after her arrival to Australia. She stated that prior to that, she did not look at the passport. She stated that those people wanted to use the passport to bring other people into Australia. The Tribunal asked her how she managed to get through Australia’s customs and she stated that those people handed over the passports to customs. The Tribunal indicated to the applicant that it was concerned about her coming to Australia on a false passport which could suggest a willingness and ability to mislead the authorities, as well as raise doubts about her claims and credibility. The applicant responded by stating that where she was in China was a very small country side town and it was impossible to travel overseas unless a person used a false passport. She stated that she was telling the truth and that many people in her area have fake passports.

4. The Tribunal has considered the applicant’s explanations but finds them a persuasive. The Tribunal finds it difficult to accept that the applicant did not know that she would be travelling using a false passport. The Tribunal finds it difficult to accept that the applicant never saw the passport, or never questioned how she would be able to get a passport. On the evidence before it, the Tribunal is satisfied that the applicant knew she was travelling on a fake passport. When considered it cumulatively and in the context of the applicant’s claims, the Tribunal is satisfied that the use of a false passport was not for the claimed reasons, essentially fear of harm, but it is rather an indication of a willingness to mislead the authorities about her identity, raising doubts about her credibility.

5. The Tribunal asked the applicant why she came to Australia and she stated that she wanted to change her situation. She stated that life was hard in China and they had no income. She stated that her husband had a rural house registration and land was taken from him. The Tribunal noted her earlier evidence that her husband had urban registration and now she stated that his rural registration became urban after the land was taken in 1984, or after 1987. The household registration is a significant issue in China and the Tribunal is of the view that the inconsistency in the applicant’s evidence in relation to this matter raises some doubts about her claims. 

6. The Tribunal discussed with the applicant her first application for a protection visa lodged in 1998. She stated that a migration agent assisted her with the application using the false passport because she had no other identity documents. She stated that she did not understand the seriousness of not being truthful. She stated that the migration agent completed the application and did not tell her what passport she had. The Tribunal is not persuaded by her explanations. The Tribunal is satisfied that the applicant knew she was lodging a protection visa application on the basis of a false passport and name, suggesting a willingness and ability to be untruthful.

7. The Tribunal asked the applicant about her parents' [ethnic] origin and she stated that she thought that they were from [Country 2] because [reason]. She stated that they fled during the war but she did not know which war. The Tribunal asked the applicant what her father did in China and she stated he was a [different occupation]. The Tribunal pointed out that in that application, it is claimed that he was an [certain occupation] to which the applicant replied that she had never stated so.

8. The Tribunal asked the applicant if she had suffered any harm in China and she responded by saying that she got married when she finished school and after she came to Australia, her land was taken away. The Tribunal repeated the question whether she had suffered any harm and now the applicant stated “you can put it in that way”.  The Tribunal referred to the first application for a protection visa in which she had claimed that she was punished for having spoken about the pro-democracy student uprising in 1989 to which the applicant replied that this was written by her former agent. The Tribunal asked the applicant why she had left China and she stated to change her life.

9. The applicant’s explanations that she did not know about the claims made in the first application for a protection visa as this was completed by the agent, are unconvincing. The Tribunal is satisfied that the inconsistencies in the claims made as highlighted above suggest fabrication and a willingness to make untruthful claims, raising serious doubts about the applicant’s credibility.

10. The Tribunal discussed with the applicant the claims made in the second application for a protection visa. The Tribunal asked the applicant about the claim that she was unable to get a job in China or access education and she stated that this was not true. The Tribunal asked the applicant about her claim that she would be mistreated and discriminated against by the Chinese authorities and she stated that because she belongs to an ethnic minority group she would be discriminated against. She stated because her mother has been unable to speak, she was discriminated against. The Tribunal asked her how she was discriminated against and she stated that they took advantage of her and swore at her.

11. The Tribunal asked the applicant about her claim that she had lost the farm and she stated that after she came to Australia which was later changed to prior to 1989 and then to within 8 to 9 years of coming to Australia, her land was taken. The Tribunal asked the applicant if she had any evidence to corroborate her claim that her land was lost and she stated that she does not and that within one year of her arrival in Australia, her hukou was deregistered.

12. The Tribunal found the applicant’s evidence in relation to harm she claimed she had suffered, to be vague, inconsistent and lacking in details. She required substantial prompting to clarify what she fears and what she claims to have happened, raising doubts about the veracity of the claims. She has not provided any corroborative evidence about the loss of land.

13. The Tribunal discussed with the applicant the new Chinese passport she has obtained in Australia [in] 2012 as noted in the delegate’s decision record. The Tribunal indicated that the fact that she was able to obtain a Chinese passport indicates that she was able to satisfy the Chinese authorities about her identity, raising some doubts about her claim in relation to the deregistration of the hukou. She stated that in China if one pays money, one can get what they want. She stated that her [relative] knows someone in the public service bureau in China. She stated she does not know whether her [relative] bribed someone or not but she has managed to get her Chinese passport. The Tribunal is not persuaded by the applicant’s explanations.

14. On the basis of the available information and given the lack of clarity in the applicant’s responses to this issue, as discussed above, the Tribunal is not satisfied that the applicant’s parents were from [Country 2], or that they had fled to China during a war. Whilst the Tribunal has some doubts but for the purposes of this decision, the Tribunal has however decided to assess the applicant’s claims on the basis that she is an [Ethnicity 1] ([from Country 1]). 

15. On the basis of the available information, in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.  For those reasons, the Tribunal does not accept that the applicant has suffered, or that there is a real risk of her facing any discrimination or any other form of harm on the basis of being an [Ethnicity 1], or that her father was [an Ethnicity 1], or that he was classified as ninth grade, or that she hated the Chinese Communist Party, or that she was investigated by her farm, or that she was ever punished for having spoken about pro-democracy or for any other reason, or that she was made to do any labour work, or that she escaped China to seek asylum, or that she was unable to get a job in China or access education, or that she was ever discriminated against or mistreated in China, or that her land was ever taken from her, or that her land was expropriated by the Chinese authorities, or that if she were to return to China she would not have any work or she would not be able to find suitable employment or that she would seek compensation for her farm, or that she would be ill-treated by the authorities or would be denied her rights to land, or that her property was demolished without her consent or that her husband was paid an inappropriate amount of compensation, or that she had borrowed money from anyone in China whom she has to repay, or that her husband did not pay the money back to the lender, or that she is responsible for repaying any amount, or that she has no property or land in China, or that she had any of the claimed difficulties in obtaining her Chinese passport in Australia, or that she or anyone on her behalf bribed anybody or paid anybody inappropriately in order to get the passport.

16. Accordingly and for the stated reasons, the Tribunal does not accept that the applicant suffered any of the claimed harm.

    Is there a real risk of significant harm on other grounds?

17. The Tribunal accepts 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]. 

18. 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…..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.

19. DFAT’s information above sets out the procedures for obtaining a passport and is indicative of a degree of scrutiny by the Chinese authorities in considering the issuing of a passport. 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 represented in Australia, of her true identity. The fact that she approached the Chinese authorities in Australia to obtain her passport also indicates that the applicant does not fear the Chinese authorities. In consideration the evidence as a whole and 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.

20. 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 almost 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.

21. 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.

22. 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).

23. There is no suggestion that either 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 applicants do not satisfy the criterion in s.36(2).

24. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa) for a protection visa. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Antoinette Younes
    Senior Member