1500275 (Refugee)

[2016] AATA 3972

1500275 (Refugee) [2016] AATA 3972 (7 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500275

COUNTRY OF REFERENCE:                  China

MEMBER:David McCulloch

DATE:7 June 2016

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

STATEMENT MADE ON 07 JUNE 2016 AT 9:41AM

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, who claim to be citizens of China, applied for the visas [in] April 2014 and the delegate refused to grant the visas [in] December 2014.

3. The first named applicant (‘the applicant’) appeared before the Tribunal on 5 May 2016 to give evidence and present arguments. The second named applicant did not appear. The applicant indicated that the second named applicant was at home sick with a cough. No request was made for an adjournment.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing (Chinese) and English languages.

5. The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

   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. 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.

9. 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’).

10. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one told her person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children.  To be a dependent child the second named applicant, who is [age] years old, must be dependent on the applicant pursuant to Migration Regulation 1.05A.  That regulation essentially requires that the second named applicant be substantially reliant on the applicant for financial support to meet his basic needs for food, clothing and shelter.

11. 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. The Tribunal has before it DFAT Country Report – China, 3 March 2015.

12. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and complementary protection criterion only

13. The applicant arrived in Australia [in] December 2007 on a [temporary] visa. That visa expired on [a date in] December 2009. On [a date in] September 2009 that visa was considered for cancellation after the applicant was found to be working in breach of her visa conditions, but the visa ceased naturally on [the date in] December 2009. The applicant applied for a Protection visa [in] September 2009. That application was refused by the delegate of the Minister [in] December 2009 and the Refugee Review Tribunal affirmed that decision [in] March 2010.

14. A request was made by both applicants for Ministerial Intervention pursuant to s.417 of the Act. [In] July 2010 the applicants were notified of the Minister’s intention not to exercise this power. The current application for a Protection visa was made [in] April 2014.

15. The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).

    Claims

16. The application forms in respect of the first Protection visa application indicate that from 1999 until 2002 the applicant lived in one location in Fujian Province, [her home] village.  From March 2002 until December 2002 the applicant lived at a location in Zhejiang Province, and from January 2003 until December 2007, the applicant lived in three different locations in Fujian Province. 

17. The relevant application forms for the latest Protection visa make the following claims.

18. The applicant indicated that she came to Australia [on a temporary visa] to avoid further harm by her ex-husband. She indicated that she had been physically and mentally abused by her ex-husband. She feared experiencing the same trauma again and being unable to claim the right to property and land. She feared being unable to rebuild her own life if she were to return to China. The applicant indicated that she filed a divorce application in Australia which was granted by [a] Magistrates Court. She indicated that her property and land had been taken away by her ex-husband since then. She indicated that she will return to her home town and will ask for the property and land and will suffer trauma from her ex-husband. The applicant indicated that she reported abuse by her ex-husband. He has a strong connection with officials so that they will not intervene. The applicant has not received any protection from authorities. Authorities will not protect her from harm from her ex-husband.

19. The decision of the Refugee Review Tribunal of [March] 2010 records the claims made by the applicant as part of the first Protection visa application. The applicant feared harm on the basis that she would be required to undergo tubal ligation for breaching the one child policy. The applicant indicated that after having her first son she was taken by the government and had an intrauterine device placed in her uterus. Due to a malfunction of the device, the applicant became pregnant and was forced to have an abortion in 1993. After the abortion, the applicant lived with her husband where he [worked]. In late 1993, the applicant became pregnant again and her second child was born on [date]. In November of that year the applicant was forced to undertake tubal ligation. This was not performed correctly and the applicant became pregnant again in 2002. One month after the birth of the child, the applicant escaped from her home town and lived with her husband at various locations far away. The applicant asked her sister to look after the third child. Local authorities had discovered the breach of the one child policy and they were fined. The applicant was required to return to China for a second tubal ligation procedure. The applicant does not want the operation which is why she is seeking protection.

20. The Tribunal found that the independent information indicated that forced sterilisation had not taken place in Fujian province within the last 10 years other than in isolated cases. On that basis, the Tribunal concluded there was not a real chance of the applicant being forced to undergo sterilisation. The Tribunal also indicated that laws pertaining to a breach of the one child policy were laws of general application and were not discriminatory in their intent.

21. The Tribunal decision record also indicates the following information provided by the applicant in the hearing. The applicant indicated that ‘over 10 years ago’ the windows of the house were broken and her well destroyed.  This was because the house was built closer than 3 metres to the road. The windows were broken because she breached the one child policy. The applicant indicated that she had [an injury] when she was forced to have an abortion. The applicant indicated that a neighbour occupied her land and attacked her. She complained to the PBS but her neighbour had paid a bribe. PBS told her they would not pursue the complaint due to the breach of the one child policy.

22. The applicant gave evidence in the hearing with respect to the first application that her husband wanted to divorce her as the family had been separated for so long.

23. The Tribunal notes the following evidence given by the applicant in the interview with the delegate of the Minister with respect to the current application. The applicant referred to an incident where she was beaten by a neighbour due to a land dispute. She [had specified symptoms] after the attack. She indicated that this happened 12 or 13 years ago.  The applicant indicated that she needed medical treatment. There was a complaint to the police but they did not take action because the neighbour had connections with the PSB. At one point in the interview, the applicant appeared to fear future harm based on this incident.

24. The applicant indicated that it was this incident that was then the source of conflict between her and her husband. This was because the applicant teased her husband about not standing up for her. She indicated that her husband would beat her causing bruises. When asked if she ever reported her husband to the police, she said that is not possible in China. The delegate in response noted that independent evidence indicates that from 2008 there had been significant avenues for complaints of domestic violence in China.

25. In relation to land on which the family home was built, the applicant indicated that this was land allocated to her and her husband. She indicated that after the divorce (which was granted in September 2009) the land was given solely to the husband.

26. The delegate asked the applicant why she could not relocate to some other part of China to avoid any harm from her husband. The applicant indicated that she was only a housewife in China and had never worked. The delegate noted that the applicant had moved to Australia and was now in a different situation as to when she lived in China.

27. The applicant indicated that she had no land or home and would need to get a job. The delegate indicated that this was not the type of harm that would fall within the complementary protection criterion.

28. The delegate asked the applicant why she had made no reference to domestic violence as an issue in her first Protection visa application. The applicant indicated that this was because she was not eligible under the Refugees Convention criterion but is eligible under the complementary protection criterion. The delegate expressed surprise that the issue would not, nevertheless, have been included as a fear of harm.

29. The delegate asked the applicant why she waited 20 months from arrival in Australia to claim protection. The applicant indicated that she was ‘dumb’ and did not know about the process. The delegate indicated that if she held the fears that she claimed then it might be thought she would have made enquiries at an earlier point after arrival.

30. The following documents were provided to the Department as part of the current Protection visa application:

    ·‘Certification’ dated [in] September 2014 of [Person A] indicating that on [a date in June] 1999 a fight occurred between the applicant and another villager over a road traffic matter. The applicant was hit with [an object] and fist which caused multiple injuries to the applicant. Policeman went to the scene. The applicant was taken to hospital.

    ·‘Certification’ dated [in] October 2014 of Villagers’ Committee of [her home] Village indicating that on [the specified date in June] 1999 the applicant quarrelled with another villager because of road traffic matters causing them to fight and the applicant was injured causing multiple injuries to the applicant who was sent to hospital.

    ·Medical Institution of Fujian Province, Hospitalisation Fee Bill in respect of the applicant dated [in] June 1999.

    ·Divorce Order, Federal Magistrates Court of Australia, relating to the marriage between the applicant and [her husband] dated [in] August 2010.

31. Provided to the Department with respect to the current application are two ‘rental statements’ from two ‘owners’ indicating that both applicants have lived at two respective addresses for the periods January 2010 to January 2012 and from January 2012 to February 2014.

32. The second named applicant is not making his own claims for protection but is seeking protection on the basis of being a member of the same family unit as the applicant.

    Hearing, credibility, findings and assessment

33. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA  (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases

34. The Tribunal is satisfied that the applicants are citizen of China, and accordingly their claims will be assessed against China.

    Dependency of second named applicant

35. The applicants have provided a copy of the decision of the delegate which sets out evidence given by the applicant in the interview relating to her son being dependent on her.  In the interview, the applicant indicated that she provides his food and clothes and they share a house where she pays the rent. Later in the interview, she indicated that her son has worked both while a student and prior to the current Protection visa application, working several days a week in a [business]. The applicant indicated that her son had not worked since lodging the second Protection visa application ([in] April 2014). The delegate put to the applicant that there were periods in which she had lived in Queensland and in which her son had lived in Sydney, suggesting that they were living apart. The delegate pointed out that her son had provided a different address than she had as part of the current Protection visa application. She responded that this is probably the address recorded on his car licence. A written request was provided to the second named applicant through his agent asking that he provide information that might assist in establishing that he is wholly or substantially dependent on the applicant. No response was received.

36. In the hearing with respect to the current application, the Tribunal noted to the applicant that on the Departmental file is a record of a person calling the Department [in] December 2014 indicating the fact that the second named applicant is working illegally as [an occupation] at different locations. The Tribunal also noted information from the interview with the delegate in which the applicant had indicated that her son had not been working since the lodging of the second Protection visa application. The Tribunal put to the applicant this information pursuant to the procedural requirements of s.424AA of the Act.  It noted that the information was relevant because it could suggest the second named applicant was working and therefore supporting himself and was not dependent on the applicant. It was also relevant because it was inconsistent with the applicant’s claim that her son had not worked since lodging the second Protection visa application. It was noted that the consequence of relying on this information could be to conclude that the second named applicant is not a dependent of the applicant, as well as to question the applicant’s credibility.

37. In response, the applicant indicated that her son did not work as [an occupation] at this time. She indicated that he does not have the build to do such work.

38. Following the hearing, the Tribunal wrote to the second named applicant pursuant to the procedural requirements of s.424A of the Act making reference to the same information provided to the applicant in the hearing under s.424AA.  It noted the information is relevant because it indicates that the second named applicant had been working for an income and the consequence of relying on this information is that the Tribunal may consider that the second named applicant is not reliant on the applicant for financial support which in turn would mean that he is not in a position to be granted a Protection visa on the basis of being a member of the same family unit as the primary applicant. No response was provided to the letter within the required time frame.

39. The applicant gave evidence in the hearing that she is not in fact working. The Tribunal asked how the second named applicant could be dependent on the applicant if the applicant had no income. The applicant qualified her evidence by saying she did do some [duties] and other work.

1. The Tribunal considers that it is most likely that [an age]-year-old male would be working cash in hand in Australia, notwithstanding lack of work rights status. The applicant has conceded that her son has worked in the past. The Tribunal is not inclined to accept the claim that he ceased working following the application for the current Protection visa.  This is reinforced by the information provided to the Department by a source. Although it has been provided by a source whose evidence cannot be tested by the Tribunal, the Tribunal considers the evidence that the second named applicant has been working is consistent with what is most likely, namely that the applicant continues to work cash in hand.

2. If the applicant’s initial indication to the Tribunal that she is not working is to be believed, or that she has limited income, that would also support the conclusion that the second named applicant is working to support himself.

3. The Tribunal notes that the second named applicant has failed to provide, when requested by the delegate, any information to support the fact that he is dependent on the applicant. The second named applicant did not appear at the Tribunal hearing. He did not respond to the s.424A letter sent to him following the hearing. Considering all of the evidence, the Tribunal is not satisfied that the second named applicant is dependent on the applicant and is substantially reliant on the applicant for financial support to meet his basic needs for food, clothing or shelter.

4. The Tribunal forms this view notwithstanding that it accepts that the applicant and the second named applicant have been living together. The Tribunal is not satisfied that the second named applicant is not contributing towards the rent and his own living expenses.

5. On that basis, the Tribunal is not satisfied that the second named applicant is a member of the same family unit as the applicant.

   Domestic violence and harm from husband

6. The Tribunal has credibility concerns with claims made by the applicant that she suffered domestic violence at the hands of her husband, that this was a reason for her coming to Australia, and that she fears returning to China on this basis.

7. The Tribunal acknowledges that the initial Protection visa application was on the basis of the Refugees Convention criterion only and it could be the case that domestic violence would not contain the necessary Convention nexus, and that could be a reason the issue was not mentioned as part of that application.  Nevertheless, the applicant has now indicated that a key reason for her travelling to Australia was to escape her husband. In that context, the Tribunal finds the failure of the applicant to make any reference either in the written application, the interview with the delegate, or in the Tribunal hearing, to being a victim of domestic violence and fearing returning to China on that basis as not consistent with the applicant suffering such harm or holding such a fear.

8. The Tribunal notes that the decision of the Tribunal with respect to the first application records that the applicant gave evidence of a wide-ranging nature of her circumstances over a number of years in China, including issues relating to her husband, yet there is no mention of domestic violence.  The decision also records that the applicant indicated in the hearing that, after her arrival in Australia, it was her husband who wanted to divorce her as they had been separated for so long. The decision also records the applicant giving evidence of other harm that was faced other than for a convention reason, particularly the harm inflicted by her neighbour due to a land dispute.

9. The Tribunal put this information to the applicant in the hearing with respect to the current application pursuant to the procedural requirements of s.424AA of the Act. It noted that the information is relevant because there was no mention as part of the first Protection visa application of domestic violence, or a fear of returning to China based on domestic violence by her husband, despite many opportunities to mention this. The evidence given by the applicant that it was her husband who wanted the divorce does not seem consistent with the applicant claiming that she left her husband and fled to Australia due to the fear of harm from him. The information is relevant because the fact that the applicant disclosed to the first Tribunal hearing other harm which had no Convention nexus undermines a claim that there was a deliberate failure to mention harm based on domestic violence for this reason. The Tribunal noted that the consequence of relying on this information could be to question the credibility of the applicant’s current claims of domestic violence.

10. In response to the issue as to why no mention of domestic violence was made as part of the first Protection visa application, the applicant said that the lawyer involved was not capable and that the issue was written down. She said that she told the lawyer about the issue and he said it was not necessary to include it, and the delegate never asked her about the issue.

11. In terms of who instigated the divorce, the applicant indicated that it became apparent that her husband was seeing another woman after the applicant came to Australia and, after mutual discussion, a divorce was agreed. The applicant provided no indication in response to this issue that domestic violence was the cause of the divorce.

12. In the context of all of the evidence and questioning as part of the first Protection visa application, the Tribunal considers that the applicant would have mentioned domestic violence issues with her husband, had that been a significant difficulty. It considers this, acknowledging that domestic violence may not have constituted a relevant Convention ground. The applicant provided a full account of issues arising in China, including harm on other non-Convention grounds, particularly the land dispute. The Tribunal draws an adverse inference from the failure of the applicant to make any mention of domestic violence issues as part of the whole process of the first Protection visa application.

13. In terms of the reason for the divorce, and who initiated it, the evidence by the applicant in the hearing did not indicate that this was as a result of domestic violence issues. The evidence in the hearing points towards the cause being the applicant being apart from her husband in Australia, and her husband seeing another woman after the applicant came to Australia.

14. The applicant has given inconsistent evidence as to whether she reported domestic violence by her husband to authorities. The Tribunal put to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act information contained in the interview with the delegate with respect to the current application in which the applicant indicates that she never reported domestic violence by her husband to authorities, because authorities would have taken no interest or action. It noted that this information was relevant because it was inconsistent with the applicant’s written claims that she did report the abuse to police but that they took no action as her husband had a connection with the authorities. It noted that the consequence of relying on this information could be to question the credibility of the applicant concerning claims of domestic violence, and her credibility generally.

15. The applicant in response indicated that she did not report the issue to authorities.  She did not otherwise explain why she had said in the written statement that she had reported domestic violence to authorities. The Tribunal draws adverse inference as to the applicant’s credibility based on this inconsistent evidence.

16. The Tribunal asked the applicant on the number of occasions in the hearing whether her husband had physically assaulted her. It was difficult obtaining from the applicant a clear response to this question. She referred to quarrels and issues about her husband seeing other women, and she said that the main problem was when he did not return home. When the Tribunal asked the applicant if she feared physical harm from her husband if she returned to China, she said she did.

17. Considering all of the evidence, and the difficulties identified with it, the Tribunal is not satisfied that the applicant was subject to ongoing domestic violence in China or that she came to Australia to flee her husband for that reason, or that the divorce between them was for this reason. The Tribunal accepts that the applicant and her husband had marital disputes, as do most couples. The Tribunal is not satisfied that those disputes led to ongoing domestic violence in the marriage. The Tribunal is not satisfied that the applicant genuinely holds a fear from her husband of a physical attack based on past treatment of her, or for any other reason.

18. The Tribunal is not satisfied that there is a real risk of the applicant suffering significant harm from her husband as a result of residual difficulties from their marriage, or for any other reason.

    Land dispute in village and assault

19. Based on the applicant’s evidence in the hearing, and the documentary evidence, the Tribunal is prepared to accept there was a dispute with a villager resulting in the applicant being attacked and hospitalised. In the Tribunal hearing, the applicant was not clear when this had occurred. The documentary evidence indicates that it occurred in 1999, which the Tribunal accepts. The applicant indicated that she and her husband left the village after this incident and lived in other places. The information provided by the applicant in the first Protection visa application form indicates that the applicant left the village in March 2002 and did not return.

20. In the hearing, the Tribunal explored with the applicant why such an incident, which occurred 17 years ago, would create difficulty for the applicant in China today. The applicant said that the family would return to the village for Chinese New Year and that this would create problems. The applicant referred to a coroner’s investigation in relation to the injuries she suffered.

21. The applicant referred to wanting to continue to fight in relation to the issue. The Tribunal indicated that no evidence had been provided that she fought the issue after she left the village in 2002 until she left for Australia. The applicant said that the person with whom she had the conflict had significant connections with authorities and this made it difficult to take action.

22. The Tribunal is not satisfied that this event, which occurred 17 years ago, would lead to a real risk of the applicant facing significant harm if she were to return to China today. The Tribunal is not satisfied that the applicant continued to fight the issue during her period in China from 2002 until 2007, or that she would fight the issue on her return. The Tribunal is not persuaded that this is because of a fear of the connections of the person to whom she was in dispute. The Tribunal considers that the applicant would not take action in relation to this issue because it is an event that happened many years ago and events have moved on.

23. In the event that the Tribunal is wrong, and that this individual remains living in [her home] village, and this person would seek to harm the applicant if she were to return to the village, the Tribunal considers that the applicant can avoid any harm by relocating to some other part of China. The Tribunal considers that any risk of harm would be localised to this village and is not satisfied that there would be a real risk of significant harm in other parts of China. As it is, the applicant has not lived in that village since 2002. She has given evidence that she owns no property (which has now been given to her husband). The Tribunal does not accept that the applicant has a desire to challenge decisions relating to the allocation of land to husband, as discussed further below. The Tribunal is not satisfied that the applicant has any strong connection with this particular village. The Tribunal considers that it would be practicable or reasonable for the applicant to relocate elsewhere, in the circumstances.

    Land owned by her husband and economic issues

24. A key source of harm claimed by the applicant is the fact that two pieces of land have been allocated to her husband post the separation, that she will ask for this property, she has no property, and she would have nowhere to live and will have difficulty coping economically in China. She indicated that she is illiterate and would have difficulty obtaining a job.

25. The Tribunal noted to the applicant that she had lived and survived in an expensive city, Sydney, not speaking the local language. The applicant indicated that she is able to work in areas that only required her own language, such as [a different occupation].

26. The Tribunal pointed out that the definition of significant harm for the purpose of the complementary protection criterion would generally not include harm due to economic difficulties as a result of her own particular circumstances, or the economic situation in China.

27. The applicant has displayed resilience in travelling to Australia and supporting herself here for many years. The Tribunal is not satisfied that the applicant would not be in a position to gain employment and find somewhere to live in China, even if she lacks education and literacy. In any event, such difficulties would not fall within the definition of significant harm for the purpose of the complementary protection criterion. Relevant defined categories of significant harm include degrading treatment and punishment and cruel and unusual treatment or punishment. These require an intentional act to cause harm. Difficulties gaining employment or somewhere to live are a product of the state of the economy and are not as a result of an intentional act by any entity or person to cause harm. No other defined categories of significant harm are relevant.

28. The Tribunal is not satisfied that the applicant faces a real risk of significant harm due to not owning land in China, employment difficulties, finding somewhere to live or otherwise sustaining herself.

29. The applicant’s written claims indicate that she would fight for the land now allocated to her husband, and this would create difficulties. In the Tribunal hearing, the applicant indicated that the divorce arrangements have been finalised, and provided no indication that she would seek to challenge property allocation. The Tribunal is not satisfied that the applicant has an intention to seek to reclaim land in her husband’s name. Even if she did, the Tribunal is not satisfied that such action would constitute significant harm.  In light of the Tribunal’s adverse findings of credibility concerning claims of domestic violence, the Tribunal is not satisfied that any action by the applicant to reclaim land would result in a reaction from the applicant’s ex-husband that would lead to a real risk of the applicant facing significant harm.

    Forced sterilisation, breach of one child policy

30. In the Tribunal hearing, multiple questions were asked of the applicant as to harm that she feared in returning to China. No mention was made in response to any of these questions of fearing forced sterilisation. When the Tribunal pointed out such claims as part of the first Protection visa application on this basis, and asked if she still had a fear of forced sterilisation, she said that she did. The applicant, however, said that this situation in relation to the one child policy is now much more relaxed than it was when she was in China (implying that she would not be at as much risk).

31. There is something of an inconsistency in the applicant’s evidence on this issue. The Tribunal is not inclined to consider that the applicant has a genuine fear of forced sterilisation given her failure to articulate this as an issue in response to many questions asked by the Tribunal.

32. In any event, the Tribunal is not satisfied that there is evidence before it which indicates that forced sterilisation happens routinely either in China in general, or in Fujian Province in particular.  The Tribunal acknowledges that there are isolated instances forced of sterilisation but is not satisfied that there is evidence before it of this occurring with a frequency which would create a real risk of it happening to the applicant. The Tribunal also considers it unlikely that a women of the applicant’s age, [age], being sterilised given the unlikelihood of a woman of such an age giving birth.

33. The Tribunal is not satisfied that claims made by the applicant in the Tribunal hearing with respect to the first application relating to windows being broken and a well destroyed, many years ago, which were claimed as being related to breaching the one child policy, which the applicant made no specific mention of in the current application, would lead to a real risk of significant harm to the applicant if she were to return to China today.

34. The Tribunal is not satisfied that there is a real risk of the applicant suffering significant harm due to forced sterilisation.

35. The applicant gave evidence that she had been subject to fines for breaching the one child policy but that these had been paid. On that basis, the Tribunal is not satisfied that the applicant faces a real risk of significant harm as a result of any other penalties or issues for breaching the one child policy.

    Conclusion

36. 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 due to: past or future domestic violence from the applicant’s ex-husband; the residual impact of an assault on the applicant by a villager in 1999 or other property damage; owning no land and economic difficulties including obtaining employment; seeking to reclaim land in the husband’s name following the divorce; forced sterilisation or any other penalties or issues for breaching the one child policy; or for any other reason.

37. In the event that the Tribunal is wrong, and that there is a real risk of significant harm in the village that the applicant lived in until 2002 from the person who assaulted her in 1999, the Tribunal is of the view that this harm is localised to the vicinity of the village and it would be reasonable for the applicant to relocate to an area of China where she would not be at a real risk of significant harm (s.36(2B)(a)).

38. 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)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    David McCulloch
    Member