1506015 (Refugee)

[2017] AATA 454

1506015 (Refugee) [2017] AATA 454 (23 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506015

COUNTRY OF REFERENCE:                  China

MEMBER:R Homan

DATE:23 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 February 2017 at 5:07pm

CATCHWORDS
Migration – Refugee – Protection visa – China – Particular social group – Victims of family violence – Sexual assault – Extortion – Psychological harm – Unable to find a suitable marriage partner – Several return visits to China – Internal relocation

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

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 the Tribunal accepts is a citizen of China, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] April 2015.

3. The issues in the review are whether the applicant has a well-founded fear of persecution in China for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk the applicant will suffer significant harm.

4. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

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.

   Visa application

10. According to information provided in the visa application, the applicant is a Chinese national born in Jiujiang, Jiangxi, China in [year]. The applicant claimed to belong to the Han ethnic group and indicated that she would require a Mandarin interpreter. The applicant made a combined visa application with a person identified as her de facto partner. That applicant subsequently departed Australia and was not the subject of the decision under review, nor has he applied for review

11. The applicant declared that she arrived in Australia in July 2013 as the holder of a [temporary] visa issued to her in [Country 1]. The applicant indicated that she had resided in Jiujiang, Jiangxi until January 2010. Between January 2010 and July 2013, the applicant was residing in [Country 1].

12. The applicant indicated that she had completed [number] years of primary and secondary education in China. The applicant had been employed as a worker in [a business] between 2003 in 2006. In January 2007, the applicant attended [an occupation 1 course] in Beijing and was subsequently employed as [an occupation 1] until her departure from China in January 2010.

13. The applicant claimed to fear harm in both China and [Country 1] although she answered in the negative in response to questions in the visa application regarding whether she was a national of any other country or had a right to reside in any other country. Submitted with the application was a certified copy of the identity page of the applicant’s Chinese passport.

    Written statement

14. The applicant’s claims for protection were set out in an unsigned, typed statement in the English language.

15. The applicant claimed that she was born in a small and poor village. Her father died when she was [very young] and her mother remarried. The applicant’s stepfather was very strict and harsh. He verbally and physically abused the applicant, did not allow her to eat, locked her out of the house and deprived her of sleep.

16. When the applicant was studying in [early] high school, her stepfather raped her. The applicant was afraid to tell anyone or the police. The applicant was also afraid that her stepfather would take revenge against her and her mother. The applicant’s stepfather took the applicant’s silence as encouragement and he would severely beat her if she resisted his advances.

17. The applicant left home and went out to look for a job but her stepfather followed her wherever she went. He made many attempts to rape her and demanded that she give him her savings. The applicant’s stepfather had a lot of addictions, including an addiction to gambling. The applicant’s stepfather threatened to kill all of the applicant’s family. The applicant went to Beijing and Guangdong but was still unable to escape her stepfather.

18. Eventually, the applicant travelled to [Country 1] as an overseas bride. Soon after her marriage, the applicant realised that her husband was a hypocrite and was divorced with [a child]. He also had gambling and drinking problems and verbally and physically abused the applicant whenever he lost his temper. The applicant was locked at home and forbidden from going outside.

19. Later, the applicant met her de facto partner who had also been suffering persecution from the [Country 1] government. The applicant’s de facto partner helped her escape from [Country 1] and they arrived in Australia together.

    Protection visa interview

20. The applicant was interviewed by an officer of the Department of Immigration [in] May 2014 and the Tribunal has listened to an electronic recording of the interview.

21. At the interview, a copy was taken of the applicant’s passport which included a multiple entry visa for [Country 1] indicating that it was issued to the applicant as the wife of [Mr A]. The visa permitted the applicant to remain in [specified parts of Country 1] until [a date in] September 2013. The stamps in the applicant’s passport indicated that she spent time in [Country 2] in April 2013, travelled to [another destination] in June and July 2013, and was in China in July 2013 before her arrival in Australia [later in] July 2013. The applicant gave evidence that she had travelled to [Country 2] in April 2013 to look for work. The applicant said her previous passport was expired and that she had left it in [Country 1].

22. The applicant gave evidence that she came to Australia with her boyfriend but said she did not really remember her boyfriend’s name although she had known him for over a year. The applicant stated that they separated in December 2013.

23. The applicant confirmed that she was from Jiangxi province in China. The applicant stated that she moved around a bit for work and had lived with her [Relative A] in Guangdong province. The applicant stated that her family included her parents and [specified relatives]. The applicant said her parents were unemployed farmers. The applicant then clarified that her birth father was deceased and that she had been referring to her stepfather. The applicant stated that her stepfather lived with her for [number] years, although she later corrected that to [number] years.

24. The applicant stated that she went to [Country 1] in 2010 because an ex-boyfriend whom she had met online had asked her to go there with him. The applicant had been planning to marry her ex-boyfriend but the marriage was called off after her stepfather asked for [amount] yuan. The request was made during a visit to China in which she had taken her ex-boyfriend to meet her parents. The applicant argued with her ex-boyfriend and then returned to China where they lost contact. The applicant stated that she had been travelling in and out of [Country 1] after her arrival there in 2010.

25. The applicant said she had met her husband, [Mr A], while she was in [Country 1] and married him in September 2012. The applicant had some difficulty remembering [Mr A’s] full name. The applicant stated that she had not formally divorced her husband but the relationship had broken down due to his gambling and because he had lied to her about having been married previously. The applicant said that during the first half of their relationship she was travelling back and forth between [Country 1] and China on a [temporary] visa until she obtained a spouse visa.

26. The applicant stated that she met her boyfriend at the end of 2012. It was only after her relationship with her husband broke down did the relationship become romantic. The applicant stated that she continued to reside with her ex-husband until her departure from [Country 1]. The applicant stated that she only began living with her boyfriend after they arrived in Australia. When it was noted that the applicant had declared in her visa application form that she had commenced a de facto relationship with her boyfriend [in] March 2012, the applicant stated that she had lived with him for a period of time whilst they were in [Country 2].

27. Asked about her purpose in coming to Australia, the applicant responded that it was to find employment. The applicant stated that after their arrival, her boyfriend found an agency to get them jobs. The applicant stated that she found out about protection visas when she was looking for a job. She was told she did not have a valid permit to work. Then an immigration solicitor told her that she was eligible for a protection visa.

28. Asked why she thought she was eligible for a protection visa, the applicant stated that it was because her relationship with her stepfather had been bad and because she was divorced in [Country 1] and did not maintain a good relationship with her ex-husband. The applicant stated that her stepfather had tortured her and subjected her to sexual abuse in the past and that she had experienced domestic violence at the hands of her ex-husband.

29. The applicant stated that she could no longer go back to [Country 1] unless her ex-husband sponsored her. The applicant stated that she would have to go back to China. The applicant said her stepfather feels that she owes him for having brought her up. The applicant said she would face continuous harassment which would prevent her from leading a normal life. The applicant said that her stepfather would not necessarily follow her and harass her every day but eventually he would come to her school or work to ask for money or a sexual relationship. The applicant stated that her stepfather raped her when she was in [early] high school. The applicant gave evidence that in 2008, her stepfather had gone to her place of employment to ask for money and, when she refused, said all sorts of bad things about her to her employers. The applicant’s stepfather had also caused the breakup with her former boyfriend in [Country 1] by asking for money and then saying bad things about her.

30. The applicant was asked whether her siblings experienced the same treatment from her stepfather. The applicant said her [specified siblings] were the natural children of her stepfather. The applicant’s [specified siblings] went out for jobs and had their own lives whilst the applicant was left at home.

31. The applicant stated that she was first raped by her stepfather when she was [age], in [year]. The applicant was ashamed to tell people what had happened to her. The applicant did tell her mother but she had also experienced domestic violence. The applicant’s mother then took her out to look for jobs. The applicant’s [relatives] supported her and gave her money to go to Beijing. The applicant’s stepfather came to Beijing and asked for money.

32. The applicant stated that she had not reported her stepfather to the police because it would adversely affect her younger siblings and her mother. The applicant said she could move to a different place to live but would not want to cut her ties with her mother and siblings.

33. The applicant stated that if she returned to China she would be harassed and living in fear and would be unable to find a good man to marry. The applicant stated that if she were to return to China it would only be a matter of time before her stepfather located her. The applicant stated that she had peace of mind whilst living in another country.

    Delegate’s decision

34. The delegate was not satisfied that the applicant had provided credible evidence and found that she had either embellished or entirely fabricated her material claims. The delegate found that the application was not supported by documentary evidence and that the applicant was not of adverse interest to the Chinese authorities. The delegate found that the applicant could access state protection in China and could relocate internally. The delegate also found that the applicant’s delay in applying for a protection visa after her arrival in Australia suggested that she did not have a genuine fear of harm in China.

    Review application

35. The applicant was represented in relation to the review by a registered migration agent.

36. At the time she applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record. The applicant’s representative submitted a written submission, dated 21 October 2016, to the Tribunal on 7 November 2016.

37. According to the representative’s submissions, the applicant still faced serious harm from her violent stepfather. The applicant claimed that her stepfather could easily find her even if she was working in another city in China. The applicant’s stepfather beat her mother and would force her mother to give away her address. The applicant’s stepfather continuously threatened and beat her mother and the applicant feared physical and sexual abuse from him.

38. The submission stated that the applicant was unable to return to [Country 1] as she has lost contact with her husband and he would not help her to obtain a further visa. The applicant claimed that she was unable to remember details of her relationship with her husband including their marriage date as she was traumatised and suffered serious memory loss as a consequence of being abused by her stepfather.

39. The submission stated that the applicant’s [specified relatives] had transferred their household registration to other locations. The applicant claimed that the reason she had not identified her siblings in the visa application was owing to a misconception that they were not part of her family as they were now part of other families.

40. The submission stated that the applicant was unaware of protection visas until moving to Australia. When she first arrived in Australia she was working in a rural area where there was limited information available as to visa options. The applicant was misled by an agent who told her that she could work on her [temporary] visa.

    Tribunal hearing

41. The applicant appeared before the Tribunal on 17 November 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’s representative did not attend the hearing.

42. The applicant told the Tribunal that she had no additional documents she wished to submit and no corrections or changes to the evidence provided to the Department.

43. The Tribunal discussed with the applicant her claims to fear harm in both China and [Country 1]. The Tribunal noted that the applicant had brought with her a passport which was evidence of her Chinese citizenship. The passport contained a visa for [Country 1] which appeared to have expired. The applicant confirmed that she was not a national or citizen of [Country 1] that she did not hold a visa to enter [Country 1] at the present time. The Tribunal explained to the applicant that in those circumstances the only country of reference for the Tribunal would be China.

44. Asked about her marital status, the applicant told the Tribunal that she was still legally married to her husband in [Country 1] but they were separated.

45. The applicant gave evidence about her family composition that was consistent with her evidence to the Department. The applicant stated that her mother and stepfather were living in Jiangxi province at the residential address given her visa application form. The applicant’s [specified siblings] were living in [other regions] and had each been living there for more than [number] years. One [sibling] was living in [a named city] and [other specified siblings] were residing in her hometown.

46. Asked about her residential address history in China, the applicant stated that she had lived in Beijing in 2007-2008 and had lived in several places in Guangdong for more than a decade.

47. The Tribunal noted that the applicant’s passport showed that she had undertaken several trips abroad prior to her arrival in Australia, including trips to [a different destination] and [Country 2]. The applicant that she had transited through [that destination] when travelling between China and [Country 1]. The applicant also stated that she had spent time in [Country 2] with her de facto partner who had gone there for work.

48. The applicant claimed that she did not start primary school until she was [number] years old as her family was poor and did not have enough money to send her to school. The applicant confirmed that she completed [number] years of education. The applicant then went to work in [a business] for a year, worked as [a different occupation] and, in 2007, attended [an occupation 1] course in Beijing, after which she worked as [an occupation 1] in Beijing and later in [another region], before moving to [Country 1].

1. The Tribunal asked the applicant why she had applied for a protection visa. The applicant stated that she had nowhere to go and would not be able to survive in China as her stepfather would bring her trouble. The Tribunal asked the applicant about her relationship with her stepfather. The applicant said her stepfather was an ‘asshole’ and kept exploiting her. He had been violent towards her mother. When the applicant was young he raped her.

2. The applicant told the Tribunal that she was [age] years old when her mother married her stepfather. He never liked the applicant as she didn’t want to call him ‘father’. The applicant’s stepfather was violent towards her and her mother. He would refuse to give the applicant meals, push her out of bed and force her to sleep on the floor. The applicant was punished harshly for the little things and still had a scar on her back from when she was beaten after losing a key in the river. On one occasion the applicant fought with the neighbour’s kids and the applicant’s stepfather slapped her in the face and knocked her to the wall.

3. The applicant told the Tribunal that when her [specified siblings] moved away for work, the applicant was left at home with her stepfather. There were two rooms in the house. At night time, the stepfather would come to the applicant’s room and rape her. This continued for about [time period] until the applicant left school and went to Guangdong for work. The applicant did not tell anyone what was happening at the time but later told her mother.

4. The applicant’s stepfather found her and threatened that if the applicant did not give him money, he would tell everyone what they had been doing. The Tribunal put to the applicant that the consequences of her stepfather revealing this information could be more detrimental to him than the applicant. The applicant said he didn’t care. The applicant said she wanted to live a normal life and have a boyfriend and would be embarrassed if people knew what had been happening, so she took the threat seriously. The applicant said her stepfather would call or text her and ask for money. When she refused, he would come to Guangdong in person. The applicant said this happened more times than she could remember.

5. The applicant told the Tribunal that her stepfather visited her twice in Beijing. On the first visit, the applicant was at school and did not have much money. The applicant’s stepfather forced her to spend the night with him at a hotel or else he would tell everyone what had happened. The second time the applicant was doing an internship and had some money. The applicant gave all her money to her stepfather so he left.

6. The applicant told the Tribunal that her mother told her stepfather where she was living as he would beat her mother.

7. The applicant told the Tribunal that she continued to have visits from her stepfather when she returned to Guangdong and that he was sometimes living in Guangdong for work, although he did not live with the applicant. Every time he saw the applicant, the stepfather wanted her money or for her to sleep with him. The applicant’s stepfather continued to sexually assault her.

8. The applicant told the Tribunal that her stepfather continued to call or send text messages after she moved to [Country 1], asking the applicant to send money back to her mother.

9. The Tribunal noted that the evidence suggested that the applicant was travelling back and forth between [Country 1] and China and asked the applicant where she was staying when she returned to China. The applicant said she always stayed in her [relatives’] homes.

10. The applicant told the Tribunal that she had not had direct contact with her stepfather since her arrival in Australia, although she called her mother once every couple of months. The applicant told the Tribunal that her stepfather continues to ask for money through her mother.

11. The Tribunal asked the applicant whether she had ever reported her stepfather’s behaviour to the police. The applicant said she had but had been told that she had no evidence and that the matter was regarded as a domestic affair. The applicant said she had made reports to police in her hometown and in Guangdong. The applicant’s stepfather was given an oral warning but no further action was taken.

12. The Tribunal noted that the applicant’s evidence to the Department suggested that she had not reported her stepfather to the police. The applicant told the Tribunal that she had not told the police that he raped her, just that he had beaten her. The Tribunal asked the applicant why she had not given evidence that she had gone to the police previously. The applicant stated that in fact she had gone to the village committee in her home town rather than the police. On the second occasion, the applicant’s work colleagues called the police after witnessing her stepfather beating her. As the applicant did not suffer serious injuries, the police just came then left without doing anything.

13. The Tribunal noted that, as set out in the delegate’s decision record, there had been a discussion at interview about whether the applicant could seek the protection of the police against the conduct of her stepfather. The applicant’s evidence in the context of this discussion was that if she had reported the matter, her younger siblings would not have a normal life and her mother was dependent on her stepfather. The applicant’s evidence to the Tribunal was different in so far as it suggested that the police had been called. The applicant repeated that the police did not do anything.

14. The Tribunal asked the applicant what she thought would happen if she returned to China now, or in the reasonably foreseeable future. The applicant stated that her life would never be peaceful and her life would always be under threat. The Tribunal asked the applicant what part of China she would return to. The applicant said that she had never thought about this. The applicant said her hukou was registered in Jiangxi and that she had never applied to transfer her hukou. The applicant said she did not know whether her [siblings] had ever transferred their hukou. The Tribunal put to the applicant that her written submission indicated that her [siblings] had transferred their hukou. The applicant told the Tribunal that her [siblings] were married but she did not know whether they had transferred their hukou. The Tribunal asked the applicant whether she ever experienced any particular problems in Beijing or Guangdong as a consequence of not having a hukou permitting her to live in those locations. The applicant said she was not sure. The applicant confirmed that she had worked in Beijing and Guangdong and said that she was not really affected because she was single at the time. When the applicant applied for a passport, she had been required to return to her home town. If the applicant had wanted to get married or give birth she would have to return to her home town.

15. The Tribunal discussed with the applicant country information set out in the March 2015 DFAT Country Report on China indicating that millions of people live in urban parts of China without an urban hukou. The applicant agreed that many people work in other cities in China. The Tribunal explained to the applicant that in order for Australia to owe her protection obligations, the Tribunal would need to be satisfied that there was no part of China in which she could safely and reasonably reside. It seemed to the Tribunal that the applicant could return to another part of China and it would be very difficult for the applicant’s stepfather to find her. The Tribunal noted that Guangdong appeared to have a population of about 80 million permanent residents and Beijing had a population of about 21 million permanent residents. The Tribunal asked the applicant how she thought her stepfather would be able to find her if she went back to China and wanted to avoid him.

16. The applicant responded that perhaps she could hide for a day or two or maybe even a couple of months but she would want to contact her mother and siblings and the alumni network from her hometown and other friends. The applicant said she would want to live as a normal person.

17. The Tribunal put to the applicant that if she was genuinely fearful for her safety, it seemed unlikely that she would tell people who might inform her stepfather where she was living. The applicant responded that it was unrealistic to expect her to live in a place in China that was unfamiliar to her. It was unlikely that she would have no contact with her mother, siblings and friends. The applicant said her life might not be at risk but she would not have the dignity of living like a normal person. The applicant told the Tribunal that her stepfather might discover her workplace and come and rape her. If the applicant found a man that she wished to marry it would be hard for her to continue to satisfy her stepfather’s requirements. This would make it very difficult for the applicant to find a suitable partner. The Tribunal put to the applicant that it was still having difficulty seeing how there would be a real risk or a real chance of the applicant’s stepfather finding her if she were to reside in another part of China.

18. The applicant stated that she thought that she would suffer psychological torture if forced to return to China. The Tribunal explained the applicant that the Tribunal had to be satisfied that someone would intentionally cause her to feel that way. The Tribunal explained that the applicant’s past experiences might cause her to feel psychologically tortured, but it was not clear that there was a real chance or risk that the applicant’s stepfather would behave in a way that would cause her psychological suffering she were to return now. The Tribunal explained that it was difficult for the Tribunal to accept that he would be able to find the applicant in order to behave in such a way. The applicant stated that she had lived in China for more than two decades and was never able to get away from him. The applicant said she could only avoid him if she never contacted her family but said this would be unrealistic for her because she would definitely want to have contact with them. The Tribunal asked the applicant whether she would have to reveal her location if she were to contact her family. For example, they could have contact over the Internet or her relatives could visit her in another place without revealing her place of residence to her stepfather. The applicant stated that this was how she made contact with her family whilst she was in Australia.

19. The Tribunal noted that the applicant’s passport indicated that she had been travelling back and forth between China and [Country 1] during the period in which she held a visa permitting her to remain in [Country 1]. The Tribunal asked the applicant why, if she had a right to remain in [Country 1], she continued to travel back to China. The Tribunal explained to the applicant that it seemed that if she were genuinely fearful for her safety in China she would be unlikely to travel back there if this could be avoided. The applicant responded that prior to her marriage she only had one month travel visas to stay in [Country 1]. The applicant stated that she was married in September 2012. The Tribunal asked the applicant if she returned to China after September 2012. The applicant said she recalled returning to China in June 2013. The applicant said that at the time she knew she would be going to Australia and wanted to see her mother. The Tribunal asked the applicant where she went to in China on this occasion. The applicant said she met her mother in Xiamen and remained there for three or four days. The Tribunal asked applicant whether she had felt any concern for her safety when travelling back to China in June 2013. The applicant said it was a short trip, she just wanted to see her mother quickly and then leave.

20. The Tribunal noted that the applicant had given evidence to the Department that she had taken a former boyfriend back to China to meet her parents. The applicant agreed and stated that this was a boyfriend she had before her marriage. The applicant stated that she introduced the man to her mother and siblings. The applicant denied introducing the man to her stepfather but said he just found out about the relationship. The Tribunal noted that the applicant had given evidence that her stepfather had asked for a large dowry in order for her to marry this person. The applicant agreed that he had asked the boyfriend for a sum of money in order to marry the applicant. The Tribunal explained to the applicant that her evidence that she had taken a boyfriend back to China to meet her family, whether or not her stepfather was there, caused the Tribunal to question whether she was genuinely fearful of her stepfather at the time. The applicant repeated that she only took the boyfriend to meet her family not her stepfather.

21. The Tribunal discussed with the applicant the fact that she had given evidence to the Department that her purpose in travelling us to Australia had been to find employment. The applicant’s evidence had also been that she had travelled to [Country 2] looking for work before coming to Australia. The Tribunal explained that this evidence caused the Tribunal to question whether the applicant was genuinely fearful about going back to China or whether she had applied for a protection visa simply in order to obtain permission to work in Australia. The applicant responded that if she was to live in Australia she would need to work in order to survive.

22. The Tribunal put to the applicant that other aspects of her evidence to the Department caused the Tribunal to question whether her evidence was completely truthful. The Tribunal noted that the applicant was unable to recall her husband’s full name was also unable to recall the name of the person she had identified as her de facto partner. The applicant had also given contradictory evidence with regard to when she was married and when her relationship with her de facto partner commenced. The applicant had given information in her visa application form indicating that she commenced a de facto relationship with her partner about six months before her marriage to her husband. The Tribunal explained that this evidence caused the Tribunal to question whether the applicant had provided truthful evidence about her relationship history, which in turn caused the Tribunal to question whether other evidence the applicant had given was truthful.

23. The applicant said she always called her husband [Mr A] and knew that his Chinese name had three characters but she could not recall them. The applicant stated that her de facto partner was also known in daily life by a nickname. The Tribunal put to the applicant that it was hard to accept that she could be married and living with someone for about a year or be living with someone in a de facto relationship without knowing their proper name. The applicant said she knew the names previously but because of the passage of time had forgotten them.

24. With regard to the discrepancy in relation to when the applicant’s relationship with her de facto partner commenced, the applicant said she knew her partner before marrying her husband. The Tribunal asked whether she was in a relationship with her partner before she was married. The applicant said she was not in a relationship before her marriage but after the marriage, commenced a relationship with him. The Tribunal asked the applicant why, in that case, the applicant indicated that her relationship with her de facto partner started in March 2012. The applicant said this is when she got to know him, although the relationship did not start until later. After her marriage breakdown, the applicant went with her partner to [Country 2] and then Australia.

25. The Tribunal asked the applicant whether there was anything else she wished or the Tribunal to take into account whether there was any other reason why she did not want to go back to China. The applicant said that there was not.

    Findings and reasons

26. Several circumstances cause the Tribunal to question the credibility of the applicant’s evidence.

27. The Tribunal is seriously troubled by the applicant’s inability to recall the full names of either her husband in [Country 1] or the de facto partner with whom she travelled to Australia, as recorded in the delegate’s decision record. The Tribunal also finds on the basis of that record that inconsistent evidence has been given with regard to the timing of the commencement of the applicant’s de facto relationship. Whilst these circumstances do not have a direct bearing on the Tribunal’s consideration of whether the applicant faces a real chance or real risk of serious or significant harm in China, the unsatisfactory nature of the applicant’s evidence on these issues does cause the Tribunal to question whether the applicant has provided truthful evidence regarding her personal circumstances in [Country 1], the genuineness of her claimed relationships, the applicant’s purpose for being in [Country 1] and the purpose of her travel to Australia. This in turn causes the Tribunal to question whether other evidence given by the applicant relating to her circumstances in China may also be untruthful.

28. The Tribunal is concerned about the applicant’s evidence to the Department, also recorded in the delegate’s decision, that her purpose in travelling to Australia had been to look for work. Although the Tribunal is prepared to accept that an interest in working in Australia is not necessarily inconsistent with an interest in obtaining protection, the Tribunal finds it significant that work was foremost in the applicant’s mind. This causes the Tribunal to question the genuineness or at least the level of the applicant’s concerns about returning to China.

29. In considering this issue, the Tribunal also considers it relevant that the applicant continued to return to China after relocating to [Country 1]. Although the Tribunal accepts that some of the trips were necessary in order to renew her [Country 1] visa, the evidence indicates that at least one trip was made after the applicant obtained a visa permitting her to remain permanently in [Country 1]. Although the applicant has claimed that this was a short trip in order to see her mother, the applicant’s willingness to return to China at all sits uneasily with her claims to fear harm from her stepfather and that her stepfather would pressure her mother to reveal her location in order to harm the applicant.

30. Similarly, the Tribunal has difficulty with the evidence that the applicant returned to China with a former boyfriend. Although the applicant suggested at hearing that she had only intended to introduce the boyfriend to her mother and siblings, her evidence to the Department, as set out in the delegate’s decision, was that she had introduced the boyfriend to her parents and that there had been difficulties with her stepfather when he requested a large dowry. The Tribunal finds the applicant’s conduct in returning to her home area with her boyfriend extremely difficult to reconcile with her evidence that she feared being raped and extorted by her stepfather and that she feared she would be unable to find a suitable partner as a consequence of her stepfather’s behavior towards her.

31. The Tribunal is also deeply troubled by the inconsistency in the applicant’s evidence with regard to whether she reported her stepfather’s behavior to the police. In a detailed discussion at the departmental interview, which is set out in the primary decision, the applicant denied having ever reported her father’s conduct to the police claiming that she was unwilling to do so because it would place her mother and siblings at risk. In contrast, the applicant initially claimed at the Tribunal hearing that she had reported the matter to police both in her home town and in Guangdong. When the discrepancy in her evidence was put to her, the applicant changed her evidence, saying her work colleagues had reported her stepfather to the police and she had made a report to her village committee. These explanations were unconvincing in view of the previous evidence.

1. The Tribunal also has great difficulty accepting that if her stepfather’s abuse of her was as serious and prolific as the applicant’s evidence suggests, and that her mother was aware of it, that the applicant would be unable to avoid her stepfather during the periods in which she was residing in other parts of China, including the periods in which she was in Beijing and Guangdong. Although the applicant has suggested that her stepfather coerced her mother into revealing the applicant’s whereabouts, it remains unclear to the Tribunal why, if the applicant was genuinely fearful, she would reveal her whereabouts to her mother.

2. Against this, the Tribunal notes that much of the applicant’s evidence has remained consistent over time. The applicant’s emotional demeanor at the hearing was consistent with her claimed experiences. As a consequence, the Tribunal is prepared to accept that the applicant has a troubled relationship with her stepfather and that she may have been verbally, physically or sexually assaulted by him in the past. For the reasons given above, however, the Tribunal is not satisfied that the applicant has provided truthful evidence regarding the extent of her father stepfather’s abuse or the frequency or period over which this abuse took place. Nor is the Tribunal satisfied that the applicant has provided truthful evidence with regard to her fears about his future behavior. The Tribunal is not satisfied that the applicant had a genuine fear of harm from her stepfather from the time she moved to [Country 1] or that she has a genuine fear of harm from him at the time of this decision.

3. If the applicant wished to avoid her stepfather, the Tribunal is satisfied that it would be safe and reasonable for the applicant to relocate to a part of China away from her stepfather’s residence. The Tribunal is not satisfied on the evidence that her stepfather has in the past sought her out in Beijing or Guangdong in order to harm her or that there is a real chance or risk that he would do so now. The applicant has in the past lived and worked in Guangdong and Beijing, notwithstanding that her household registration is in Jiangxi province. The country information before the Tribunal indicates that millions of Chinese have relocated to urban parts of China without holding urban hukou registration. The applicant has expressed an unwillingness to be separated from her family and friends but agreed that she is able to communicate with them electronically or meet them in other locations, and that she has maintained contact with them in this way in the past.  In all the circumstances, the Tribunal considers internal relocation to be a safe and reasonable option for the applicant should she hold any concerns in relation to her stepfather.

4. In view of these findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution from her stepfather, should she return to China now or in the reasonably foreseeable future. The Tribunal is also not satisfied that there is a real risk that the applicant will be significantly harmed by her stepfather.

5. The applicant has additionally claimed that she fears psychological harm, should she return to China arising from her past experiences. The Tribunal has some difficulty reconciling this claim with the evidence of the applicant’s return visits to China after relocating to [Country 1]. However, as the Tribunal has accepted that the applicant may have been verbally, physically or sexually assaulted by her stepfather in the past, it also accepts that this would understandably be traumatic and may lead the applicant to be unwilling to return. The concepts of persecution and “significant harm”, however, require an intentional or discriminatory act or omission by the perpetrator of the harm.  The ongoing effects of past conduct are insufficient to meet the criteria for the visa. As indicated above, the Tribunal is not satisfied that there is a real chance or risk of the applicant’s stepfather acting in a way that amounts to serious or significant harm now, or in the reasonably foreseeable future.

6. For similar reasons, the Tribunal is not satisfied that any inability on the applicant’s part to find a suitable partner for marriage or a stable job, if she returns to China, constitutes persecution or “significant harm”.

7. The applicant has not claimed to fear harm in China on any other grounds.

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

    R Homan
    Member