1507474 (Refugee)

[2016] AATA 4868

1507474 (Refugee) [2016] AATA 4868 (27 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507474

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Symons

DATE:27 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2016 at 5:04pm

CATCHWORDS

Refugee – Protection visa – China – Imputed political opinion – One child policy – Routine pregnancy screening – Forced abortion – Separated from her husband – Economic reasons – Witness credibility ­– Implausible and inconsistent evidence

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 claims to be a citizen of China, arrived in Australia on [date] May 2014 as the holder of a [temporary] visa that was valid until [date] August 2014. On [date] July 2014, she was granted a Bridging visa in association with her application for a Protection visa. 

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa on [date] July 2014 and the delegate refused to grant the visa on [date] April 2015. On [date] June 2016, she applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 25 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.

5. The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.

   RELEVANT LAW

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.

   Refugee criterion

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).

   Complementary protection criterion

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’).

   Section 499 Ministerial Direction

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

10. The applicant’s claims in her application for a Protection visa are summarised as follows:

    ·She was born on [date] at Xiang Fan, Hubei Province in China. She is a Chinese citizen.

    ·She graduated from [University] in July 2006 and commenced employment in October 2009.

    ·She married her husband, [in] 2008 and had a daughter, [Child 1]. She and her husband wanted to have a son. [In January] 2014, she sensed that she was pregnant. On [date] January 2014, her husband sent her to live in the home of her cousin in [Village 1], Taiping town, to avoid routine pregnancy screening by Family Planning Officers.

    ·On [date] February 2014, there was a knock on the door. She sensed something was wrong and hid. People scaled the wall in the backyard and entered the house. They found her in the wardrobe. These people told her that they were there because she was requested to attend a routine pregnancy screening examination in the city. She was asked to get into a vehicle and was taken to hospital where she was screened and they confirmed that she was pregnant. She was taken to the operating theatre and her pregnancy was terminated. Her husband picked her up from hospital.

    ·She and her husband are determined to have a son. They planned to travel overseas to make their wish come true. Her husband made arrangements for her to come to Australia first. She is unwilling to return to China until it becomes a democratic country.  

11. The applicant has provided to the Department a copy of her Chinese passport.

12. The applicant was invited to attend an interview with the Department on [date] April 2015 and failed to do so.

    Nationality

13. The Tribunal finds that the applicant is a citizen of China, based on her Chinese passport and her evidence and will assess her claims on this basis. The Tribunal finds that she is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

    Does Australia have protection obligations to the applicant under the Refugees Convention?

14. The applicant gave evidence to the Tribunal that she does not understand English so she went to the library and found students who speak Mandarin. She stated that she asked them how to apply for asylum and what documents she was required to prepare. She stated that they helped her to complete her application for a Protection visa. She stated that her visa application was prepared on the basis of information she provided them. She stated that the information in her visa application is true and correct and she is satisfied that her visa application is accurate and complete.

15. The Tribunal asked the applicant why she did not attend the interview with the Department on [date] April 2015. She responded that she was living in [Australian City 1] for 8 months and did not receive the letter from the Department inviting her to the interview until after she returned to [Australian City 2].

16. During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in China, her travel overseas, her reasons for leaving China and why she fears returning to China. The Tribunal found aspects of her evidence to be implausible, inconsistent and unconvincing. The Tribunal has concerns in relation to her credibility and the veracity of her claims. The Tribunal’s concerns are discussed below.

17. In her visa application, the applicant claimed that she has a daughter and she and her husband wanted to have a son. She claimed that on [date] January 2014 she sensed that she was pregnant and her husband sent her to the home of her cousin on [date] January 2014 to avoid routine pregnancy screening by Family Planning Officers. She has provided to the Tribunal her passport which indicates that she was not in China on [date] January 2014. Her passport indicates that she left China on [date] January 2014 and returned to China on [date] January 2014. When the Tribunal raised this as an issue with her, she responded that it has been a long time and she cannot remember whether it was January or February. The Tribunal does not accept this explanation. The Tribunal is of the view that if she was uncertain of the dates she would have said so in her visa application and not been so precise with the dates. This raises concerns in relation to her credibility and the veracity of her claims.

18. The applicant’s passport indicates that she travelled to [Country 1] in January 2014. She gave evidence to the Tribunal that she went to [Country 1] with a friend to have some fun. The Tribunal is of the view that if she was aware that she was pregnant prior to her trip to [Country 1] and was also aware of China’s One Child Policy at that time, it is implausible that she would have travelled to [Country 1] with a friend to have some fun. When the Tribunal raised this as an issue with her, she responded that it was not clear that she was pregnant at the time, it was the beginning of her pregnancy and she was not having any reactions in her body. This is not consistent with her claim in her visa application that she sensed that she was pregnant on [date] January 2014. It is also not consistent with her earlier evidence to the Tribunal that she was 3 ½ months pregnant when her pregnancy was terminated on [date] February 2014. She would therefore have been 2 ½ months pregnant when she was in [Country 1]. When the Tribunal raised this as an issue with her, she declined to respond. These inconsistencies in her evidence raise concerns in relation to her credibility and the veracity of her claims.

19. In her visa application, the applicant claimed that she went to her cousin’s house in [Village 1] in Taiping town on [date] January 2014 and was located there by the Chinese authorities on [date] February 2014. At that time, the applicant was living in Xiang Fan city in Hubei Province. The Tribunal finds it implausible that the Chinese authorities would have located her in [Village 1] within a month. When the Tribunal raised this as an issue, the applicant responded that in China the Family Planning Policy is very strict. She stated that the Chinese authorities would have made enquiries in relation to her whereabouts with her relatives and friends. If that is the case, the Tribunal finds it implausible that, knowing that, she would have chosen to go into hiding at a relative’s house. This raises concerns in relation to her credibility and the veracity of her claims.

20. In her visa application, the applicant claimed that after the Chinese authorities located her at her cousin’s house on [date] February 2014 she was taken to a hospital where her pregnancy was terminated. During the hearing, she gave evidence that she returned home after she was discharged from hospital. She stated that it took her over one to two months to physically recover from the medical procedure. She stated that she stayed at home during this period. In her visa application, she stated that she worked as a [occupation] from September 2006 until March 2014. This includes the period when she claims she was in hiding at her cousin’s house and the period when she claims she stayed at home to recover from the medical procedure. Her evidence to the Tribunal is that her visa application was prepared on her instructions and that she was satisfied that her visa application is accurate. When the Tribunal raised this as an issue with her, she responded that her timing is wrong and it has been a long time. The Tribunal does not accept this explanation. This inconsistency in her evidence raises concerns in relation to her credibility and the veracity of her claims.

21. In her visa application, the applicant claimed that she and her husband were determined to have a son and they planned to travel overseas to make their wish come true. She claimed that her husband made arrangements for her to come to Australia first. The country information indicates that China has now changed its One Child Policy to a Two Child Policy.[1] The Tribunal asked the applicant why she did not return to China after the change in the One Child Policy so that she and her husband could have a son. She responded that she has got used to living in Australia. She stated that she has a lot of job opportunities in Australia and can make the lives of her family members better. She stated that her father died of [a medical condition] shortly after her arrival in Australia. She stated that her family did not have enough money for him to get medical treatment. She stated that she does not want something similar to happen again. She stated that she wants her mother and child to have a better life. She stated that she wants to make money in Australia so that her family can have a better life. She stated that that was the most important reason why she came to Australia.

    [1] China officially ends one-child policy, signing into law bill allowing married couples to have two children, ABC News, 27 December 2015. (

22. In her visa application, the applicant claimed that she and her husband were determined to have a son and they planned to travel overseas to make their wish come true. She claimed that her husband made arrangements for her to come to Australia first. She came to Australia on [date] May 2014. She stated that her husband is in China and she has not claimed that she was pregnant at the time she arrived in Australia. During the hearing, she gave evidence that she and her husband separated on [date] May 2014. This tends to indicate that she did not come to Australia for the purpose of having a son with her husband as they were already separated at the time she arrived in Australia and they thereafter lived in two different countries.

23. The Tribunal asked the applicant how she and her husband were planning to have a son together if she was in Australia and he was in China. She responded that if she is able to live in Australia permanently, she will apply for him and their daughter to immigrate to Australia. This is not consistent with her earlier evidence to the Tribunal that she and her husband have separated. In her visa application filed on [date] July 2014, she stated that they are still married. These inconsistencies in her evidence raise concerns about her credibility and the veracity of her claims.

24. In her visa application, the applicant claimed that she is unwilling to return to China until it becomes a democratic country. In her visa application, she stated that she has previously travelled to [four other Asian countries]. [Three of these] have democratically elected governments. However, the applicant did not seek to remain in any of these countries and voluntarily returned to China after her visits to these countries. This raises concerns in relation to her credibility and the veracity of her claims.

25. The applicant gave evidence to the Tribunal that she came to Australia because there is more freedom here and it is more peaceful. When asked whether that was the only reason why she came to Australia, she responded that there is a better education system in Australia and she wants her child to have a better education.

26. The Tribunal asked the applicant what she thought would happen if she returned to China. She responded that she does not know and her life would be difficult. When the Tribunal raised as an issue with her its concerns that she did not satisfy the requirements for this visa, she declined to respond.

    Findings

27. Having considered all the applicant’s claims and all the evidence, the Tribunal finds that she is not a reliable or credible witness. The Tribunal formed the view that she was prepared to say anything to obtain a Protection visa without any regard for the truth. The Tribunal finds that she fabricated her material claims for the purpose of obtaining a Protection visa. 

28. The Tribunal accepts that the applicant was born on [date] at Xiang Fan, Hubei Province in China. The Tribunal accepts that she graduated from [University] in July 2006. The Tribunal accepts that she commenced employment in October 2009 and continued to work until March 2014. The Tribunal accepts that she married her husband, [in] 2008 and had a daughter, [Child 1], on [date]. The Tribunal accepts that she and her husband subsequently separated.

29. The Tribunal does not accept that the applicant was pregnant in January 2014 or sensed that she was pregnant on [date] January 2014. It follows that the Tribunal does not accept any of her claims that flow from that. The Tribunal does not accept that she came to Australia for the reasons claimed in her visa application.

30. The Tribunal accepts that the applicant’s father passed away in 2014 from [a medical condition] and her family could not afford to obtain medical treatment for him. The Tribunal accepts that she came to Australia because she has better job opportunities here and is able to earn more money in Australia to support her mother and daughter and give them a better future. The Tribunal accepts that she would like her daughter to be educated in Australia. The Tribunal accepts that she does not wish to return to China and would prefer to live in Australia.

31. In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of her actual or implied political opinion if she returns to China now or in the reasonably foreseeable future. 

32. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of her actual or imputed political opinion or any other ground under the Refugees Convention if she returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary       protection criterion?

33. The Tribunal has considered the applicant’s claims under complementary protection. 

34. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to China now or in the reasonably foreseeable future.

35. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to China now or in the reasonably foreseeable future.    

36. Accordingly, the Tribunal is not satisfied that 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 as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

37. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

38. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

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

Linda Symons
         Member