1511984 (Refugee)

[2018] AATA 1301

1511984 (Refugee) [2018] AATA 1301 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511984

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Symons

DATE:26 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 April 2018 at 9:19am   

CATCHWORDS

Refugee – Protection visa – China – Members of the same family unit – First named applicant – Severely injured somebody in a road accident – Death threats – Compensation dispute with a road accident victim claims outside the scope of the Refugees Convention – Second named applicant – Sexual abuse victim Credibility concerns – Student visas expired – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 36, 65, 424AA, 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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, who claims to be a citizen of China, arrived in Australia on [date] April 2008 as the holder of a [Student] visa. This visa expired on [date] March 2010 and he thereafter remained in Australia as an unlawful non-citizen. On [date] September 2014, he was granted a Bridging visa in association with his application for Protection visas. He was granted a further Bridging visa on [date] October 2014.

3. The second named applicant, who claims to be a citizen of China, is the wife of the first named applicant. She first arrived in Australia on [date] March 2008 as the holder of a [Student] visa. She departed Australia on [date] September 2009 and returned on [date] November 2009. Her Student visa expired on [date] March 2010 and she thereafter remained in Australia as an unlawful non-citizen. On [date] September 2014, she was granted a Bridging visa in association with her application for Protection visas. She was granted a further Bridging visa on [date] October 2014.

4. The third named applicant, who claims to be a citizen of China, is the daughter of the first and second named applicants. She was born in Australia on [date]. On [date] September 2014, she was granted a Bridging visa in association with her application for Protection visas. She was granted a further Bridging visa on [date] October 2014.

5. The applicants applied to the Department of Home Affairs (the Department) for Protection visas on [date] September 2014 and the delegate refused to grant the visas on [date] August 2015. On 1 September 2015, they applied to the Tribunal for a review of that decision.

6. The applicants appeared before the Tribunal on 25 January 2018 to give evidence and present arguments.

7. The issues that arise on review are whether the applicants are owed Australia's protection under the Refugees Convention or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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).

10. 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.

11. 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’).

    Mandatory considerations

12. 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

    First named applicant’s claims

13. The first named applicant’s claims in his application for Protection visas filed on [date] September 2014 are summarised as follows:

    ·He left China because his parents wanted to protect him from being killed by somebody.

    ·10 years ago he drove a truck while unlicensed and ran over someone who was seriously injured and hospitalised for nearly a year. His parents paid the medical bills by using their savings and getting a loan from their siblings.

    ·The injured person was not satisfied and kept threatening his life. He constantly broke into their home and broke their windows. He was threatened and punched constantly. His parents were worried that he would be killed so they helped him to leave China.

    ·The injured person is aware that he is not in China and keeps spying on his house. Sometimes his family are harmed and threatened that if he returns to China he will be killed. His parents reported this to the Police but they are not efficient.

    ·He fears harm from the injured person and his family and their friends who are gang members.

    ·The Chinese authorities will not protect him. They should have stopped them from harming his family but did not. His family is being threatened that he will be killed by gangs if he returns to China.

14. The second and third named applicants have not made any claims in their own right in their visa applications. They claim to be members of the same family unit as the first named applicant.

15. The applicants have provided to the Department copies of the first and second named applicants’ Chinese passports and the third named applicant’s Birth Certificate.

16. The applicants were invited to attend an interview with the Department and failed to do so. The delegate found that they are not persons in respect of whom Australia has any protection obligations.

17. The applicants have filed with the Tribunal a copy of the Department’s Decision Record dated [August] 2015, copies of the first and second named applicants’ Chinese passports and the first named applicant’s Drivers Licence.

    Country of reference/Receiving country

18. The applicants claim to be citizens of China and have provided copies of the bio data pages of the first and second named applicants’ Chinese passports and the third named applicant’s Birth Certificate to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of China. The Tribunal finds that China is the country of reference for the purpose of assessing the first named applicant’s claims for protection under the Refugees Convention and the receiving country for the purpose of assessing his claims under the complementary protection criterion.

    Third country protection

19. There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Membership of the same family unit

20. In the absence of any evidence to the contrary, the Tribunal finds that the second named applicant is the wife of the first named applicant and the third named applicant is their daughter. The Tribunal finds that second and third named applicants are members of the same family unit of the first named applicant.

    Assessment of claims

21. The first named applicant gave evidence that a friend of his helped him to prepare his application for Protection visas. He stated that he provided his friend with the information to prepare his visa application and that the information he provided him was true and correct. He stated that he is satisfied that his visa application is accurate and complete.

22. During the hearing, the Tribunal discussed with the first named applicant his background, his family, his education, his employment, where he lived in China, his overseas travel, his relationship with the second named applicant, his reasons for leaving China and why he fears returning to China. The Tribunal found aspects of his evidence to be vague, implausible and unconvincing. There were inconsistencies in his evidence and he made new claims during the hearing. The Tribunal formed the view that he was fabricating some of his evidence as he was giving it. The Tribunal is of the view that he is not a credible witness for the following reasons.

23. In his visa application, the first named applicant claimed that 10 years ago he drove a truck while unlicensed and ran over someone who was seriously injured and hospitalised for nearly a year. He claimed that his parents paid the medical bills by using their savings and getting a loan from their siblings. He claimed that the injured person was not satisfied and kept threatening his life. He claimed that the injured man constantly broke into their home and broke their windows. He claimed that he was threatened and punched constantly. He claimed that his parents were worried that he would be killed so they helped him to leave China.

24. During the hearing, he gave a different version of events. He gave evidence that he was helping his father by driving a truck in 2004. He stated that he was [age] years old at the time and was unlicensed. He stated that he did not see a man standing in front of the truck, hit him and ran over his legs. He stated that they called an ambulance and the Police. He stated that the injured man was taken to hospital and the doctors told them that his lower limbs would not function anymore. He stated that the injured man was in hospital for almost one year. He stated that he appeared before a Court and pleaded guilty. He stated that he was required to pay for the injured man’s expenses and compensation of [amount] yuan. He stated that his parents paid the expenses and the compensation in the second half of 2005 or 2006. He stated that, at the time of the accident, the man was about [age] years old and had [dependent] children.  

25. The Tribunal asked the first named applicant what happened after the injured man was discharged from hospital. He stated that the man is now able to walk with crutches but cannot work. He stated that the injured man wanted to kill him. When asked how he knows this, he responded that on one occasion the injured man saw him, had a knife in his hand and slashed his arm. He stated that he called the Police. He stated that the Police made a record of this incident and mediated between them. When asked if this was the only problem he had with the injured man, he responded no. He stated that every time the injured man saw him he wanted to kill him. He stated that he went to his aunt’s home and hid there for 1 ½ years. He stated that his aunt lived 30 minutes away from his home.  

26. The first named applicant made no mention of the injured man slashing him arm with a knife or the Police being called in relation to this in his visa application. The Tribunal is of the view that if something this serious had occurred he would have mentioned it in his visa application. During the hearing, he made no mention of the injured man punching him “constantly” as claimed in his visa application. He has not provided the Department or the Tribunal with any evidence to support his claims. These omissions in his evidence raise concerns about his credibility and the veracity of his claims. 

27. In his statement of claims in his visa application, the first named applicant made no mention of hiding at his aunt’s home for 1 ½ years. He made this claim for the first time before the Tribunal. He gave evidence to the Tribunal that he is satisfied that his visa application is accurate and complete. In his visa application, in answer to question 36 – Previous addresses, he stated that he lived at one address in China from the time of his birth in [date] until he left China to come to Australia in April 2008. This is not consistent with him living with his aunt for 1 ½ years from 2005 until the second half of 2006. His new claim that he lived with his aunt in hiding for 1 ½ years is also not consistent with his earlier evidence to the Tribunal that he always lived with his parents in his hometown in the village where his parents still reside.

28. The Tribunal raised these inconsistencies in his evidence as an issue with the first named applicant and noted that it raised concerns in relation to his credibility and the veracity of his claims. He responded that his aunt’s house is also located in Fujian Province and that is why he did not mention it. The second named applicant responded that he is stressed and has been diagnosed with [a medical condition] and may not remember clearly. When the Tribunal noted that his application for Protection visas was lodged on [date] September 2014 well before he was diagnosed with [a medical condition], she responded that he was diagnosed with [a medical condition] in January 2015. The Tribunal does not accept this explanation or these claims.

29. During the hearing, the first named applicant gave evidence that the injured man is a neighbour and he therefore cannot return to his parents’ home in China. (This is despite his evidence that he returned to his parents’ home at the end of 2006 and continued to live there until he left China in April 2008).The Tribunal discussed with him the possibility of moving somewhere else. He responded that he could not do that because the injured man told him that he would find him no matter where he moved to. When asked how he could find him in China when it had a population of 1.4 billion people, he responded that he would definitely find him. When the Tribunal pointed out that he did not find him when he was living with his aunt 30 minutes away from his home, he responded that he did find him. He stated that the injured man found him once he stepped out of the house. When asked how he found him, he responded that he saw him through the window. He stated that he saw him coming and going with friends. He stated that he would have been killed if he stepped out of the house.

30. The Tribunal raised as an issue with the first named applicant the new claims he made and the implausibility of his claims that a semi paralysed man walking with crutches was searching the country looking for him. He responded that the injured man hired someone and got help from his friends. The Tribunal raised as an issue the implausibility of a semi paralysed man who could not work, who had  [dependent] children and was not satisfied with the compensation payment he received, using part of that money to hire someone to find him. He then responded that he may not have hired someone. He stated that he may have had friends who were willing to help him. The Tribunal finds this evidence to be implausible and farfetched. The second named applicant declined to respond. The Tribunal does not accept these claims.

31. During the hearing, the first named applicant gave evidence that after hiding at his aunt’s home for 1 ½ years he returned to his family home in the second half of 2006. He stated that his mother and younger brother also lived at his aunt’s home during that time. He stated that his father was working somewhere else. He stated that when they returned to their home they found the windows, doors and everything “smashed into pieces”. When asked whether his mother called the Police, he answered yes. He stated that when the injured man saw the Police he ran away. When asked whether the Police went to the injured man’s home and spoke to him, he responded “maybe not”.

32. The Tribunal finds this evidence to be inconsistent and implausible. Firstly, the first named applicant initially claimed that the house was already smashed up when they returned in 2006. He then implied that the injured man was at or near their home when they returned and ran away when the Police arrived. Secondly, it is implausible that an injured man who was semi paralysed and walked with crutches could run away from the Police and evade them. Thirdly, if the injured man was a neighbour they could have told the Police where he lived and the Police would have spoken to him. Fourthly, it is implausible that the Police would respond to a call, attend his home and then not speak to the alleged perpetrator who was a neighbour. It is also implausible that he would not know if the Police went to the injured man’s house to speak to him. The Tribunal does not accept these claims.

33. Further, the first named applicant’s evidence to the Tribunal that his home was smashed up on one occasion is not consistent with his claims in his visa application that the injured man constantly broke into his home and broke the windows. This inconsistency in his evidence raises further concerns about his credibility and the veracity of his claims.

34. The first named applicant’s conduct in China is not consistent with his claims. He gave evidence to the Tribunal that after hiding at his aunt’s home for 1 ½ years he returned to his family home in the second half of 2006. This is not consistent with his claims that the injured man was a neighbour, had threatened to kill him, had attempted to kill him, wanted to kill him every time he saw him, had located him when he was in hiding at his aunt’s home and would definitely kill him. He then continued to live at his family home until April 2008 when he left for Australia. He lived in China for 4 years after the accident and was not killed despite his claims that he will definitely be killed if he returns to China. He made new claims that, after he came to Australia, the injured man went to his home in 2009 and in 2012 looking for him and checking if he had returned. He stated that the injured man has not been to his home since then. 

35. When the Tribunal raised these issues with the first named applicant, he responded that the injured man found him even though he was in hiding at his aunt’s home but he did not have a confrontation with him. When the Tribunal reiterated that he was not killed between 2004 and 2008 when he lived in China, he responded that if the injured man sees him he will kill him. He stated that since he has been in Australia the injured man is unable to get to him and kill him. When the Tribunal re-iterated that the injured man has not been to his home since 2012, he responded that he did not return to China during that period. The second named applicant responded that if the first named applicant returns to China he will be psychologically stressed and she will have the same fear. She stated that he will have to work hard to support his family and his parents. She requested that the Tribunal consider his personal safety and the personal safety of the whole family.   

1. The first named applicant’s responses do not address the issues raised with him and do not alleviate the Tribunal’s concerns. The Tribunal has considered the second named applicant’s evidence that the Tribunal consider the personal safety of the whole family to be an implied claim for protection made by her on her behalf and on behalf of the third named applicant.

2. The Tribunal asked the first named applicant what he thought would happen if he returned to China. He responded that he “would die for sure”. He then stated that if he was single he could return to China. He stated that now that he has children he does not want to cause trouble for them. When asked how many children he has, he responded that he has one child (the third named applicant) and the second named applicant is [pregnant]. When asked how he could cause trouble for his child, he responded that it is never too late “to carry out revenge within 10 years.” He stated that the future generation would be involved. His evidence that he was prepared to return to China if he was single is not consistent with his claims and raises further concerns about his credibility and the veracity of his claims.  

3. The first named applicant’s conduct in Australia is not consistent with his claims. The records of the Department indicate that he arrived in Australia on [date] April 2008 on a Student visa. His Student visa expired on [date] March 2010 and he thereafter became an unlawful non-citizen. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that during the time he was living in Australia unlawfully he could have been deported to China. The Tribunal noted that if he was at risk of being killed if he returned to China it would expect him to have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia and prior to the expiry of his Student visa. The Tribunal noted that his delay until [date] September 2014, some 4 ½ years after his arrival in Australia, to apply for protection raised concerns about his credibility and the veracity of his claims.

4. The first named applicant responded that he lived in fear during those 4 ½ years. He stated that he was afraid to apply for protection prior to [date] September 2014. He stated that he did not have anyone to give him immigration advice. When asked why he did not ask the Pastor at his Church to refer him to a migration agent, he responded that he did not ask him. He stated that he has not sought immigration advice from a migration agent. The second named applicant responded that they have been attending Church since the birth of their daughter but did not dare to tell anyone that they are “refugees” because they were afraid they would be arrested. She then stated that after the birth of their daughter she was stressed and told their Pastor their circumstances.

5. The Tribunal does not accept this explanation. The first named applicant has lived in Australia since April 2008 and has studied here. He has had the capacity to find accommodation, employment and live here without any family support. The Tribunal is of the view that, if he genuinely feared that he would be killed if he returned to China, he would have found out where to get immigration advice and consulted a migration agent prior to the expiry of his Student visa. His delay in applying for protection raises serious concerns about his credibility and the veracity of his claims.

6. The second named applicant gave evidence to the Tribunal. She stated that the first named applicant told her a bit about what happened in China. She reiterated some of his claims. She stated that she does not want to return to China because she was “sexually harassed” for 2 years. She stated that when her cousin’s husband got into her bed her parents chose to stay silent about [it]. She stated that she was [age] or [age] years old at the time. She stated that her parents think that boys and not girls are the most important thing in the world. She stated that she asked her parents if they would remain silent if the same thing happened again and they said they would. She stated that she does not want her daughter to have the same experience she did.

7. When the Tribunal asked the second named applicant whether she would now, as an adult, report the perpetrator to the Police, she responded yes. She stated that she does not want to see him again. She stated that at the time he abused her the perpetrator was living in the same premises as her family but he no longer lives there.

8. The second named applicant gave evidence that she and the first named applicant have been attending Church since the birth of the third named applicant. Neither she nor the first named applicant made any claims in relation to religion.

9. The first named applicant gave evidence that he was diagnosed with [a medical condition] in January 2015. He stated that he received [treatment]. He stated that he is required to have medical check-ups for a certain period. Neither he nor the second named applicant made any claims in relation to him having had [a medical condition]. There is no evidence before the Tribunal to indicate that he will be refused or prevented from having medical check-ups in China and treatment in the future, if required, for a Refugees Convention reason.    

10. The Tribunal raised as an issue with the first named applicant the fact that his claims for protection had no nexus to the Refugees Convention. He responded that he is aware that his case is not within the scope of the Refugees Convention but he needs protection. He stated that he is aware that it is a civil dispute but his life is at risk and he does not want to return to China and wait for his death. When the Tribunal pointed out that he did not have to live at his parents’ home and could live elsewhere, he responded that even if they live elsewhere he cannot disconnect from his parents. He stated that even if his parents went to visit them the injured man would be able to trace his parents and find out his whereabouts. The Tribunal is of the view that the chance of this happening is remote.

11. The second named applicant stated that there is pollution in China, the food is bad and it is not good for the first named applicant’s health. She stated that she does not want her daughter (the third named applicant) to grow up in such an environment and live in fear like they do. She stated that she does not want her daughter to suffer the same indifference that her parents showed her. The Tribunal pointed out that she and the first named applicant are bringing up the third named applicant and obviously care for her and value her. She responded that she is aware that China is changing but her village is “retarded” and her parents want them to have a boy.

12. In assessing the first and second named applicant’s credibility, the Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility and the case law. The Tribunal has also had regard to the Department’s policy guidelines and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Findings

13. Having considered all the claims and all the evidence, the Tribunal finds that the first named applicant is not a witness of truth. The Tribunal finds that he embellished some of his claims and fabricated others for the purpose of enhancing his prospects of obtaining Protection visas.

14. The Tribunal accepts that the first named applicant was born on [date] in Fujian Province in China. The Tribunal accepts that his parents and [brother] live in Fuqing in Fujian [Province]. The Tribunal accepts that his mother works in a factory and his brother works for a [business]. The Tribunal accepts that he came to Australia on [date] April 2008 on a Student visa and studied [for] almost a year. The Tribunal accepts that he has worked in various jobs in [Australia].

15. The Tribunal accepts that in 2004 he drove his father’s truck whilst unlicensed, hit a man, ran over his legs and caused him severe injuries. The Tribunal accepts that the injured man lost the use of his legs, was paralysed and unable to work. The Tribunal accepts that the injured man was about [age] years old at the time of the accident and had [dependent] children. The Tribunal accepts that he was required to pay for the injured man’s medical expenses and pay him compensation of [amount] yuan. The Tribunal accepts that his parents raised the money and paid for the injured man’s medical expenses and the compensation. The Tribunal accepts that the injured man was angry with him and felt that the compensation was inadequate.

16. The Tribunal does not accept that the injured man threatened to kill the first named applicant, that every time he saw him he wanted to kill him, that he threatened and punched him constantly, that he attempted to kill him and slashed his arm with a knife. The Tribunal does not accept that the first named applicant hid at his aunt’s home for 1½ years. The Tribunal does not accept that the injured man located him at his aunt’s home, or, alternatively, that the injured man hired someone to locate him or, alternatively, that the injured man’s friends located him at his aunt’s home. The Tribunal does not accept that he returned to his family home in the second half of 2006 and found the windows, doors and everything smashed in the house. Alternatively, the Tribunal does not accept that when he returned to his family in the second half of 2006 the injured man was there, the Police were called and the injured man ran away and evaded the Police. Alternatively, the Tribunal does not accept that the injured man constantly broke into his home and broke the windows.

17. The Tribunal does not accept that the first named applicant’s parents were worried that he would be killed so they helped him to leave China. The Tribunal does not accept that after he came to Australia the injured man went to his house looking for him and keeps spying on his house. The Tribunal does not accept that the injured man sometimes harms his family and threatens them that if he returns to China he will be killed. It follows that the Tribunal does not accept that his parents reported this to the Police but they are not efficient. The Tribunal does not accept that the injured man will kill him or subject him to any other serious harm or significant harm if the returns to China now or in the reasonably foreseeable future. It follows that the Tribunal does not accept that the injured man will subject the second and/or third named applicants to serious harm or significant him if they return/go to China now or in the reasonably foreseeable future.

18. The Tribunal accepts that the first named applicant was diagnosed with [a medical condition] in January 2015, has undergone [treatment]. The Tribunal accepts that he is required to have regular medical check-ups for a certain period. There is no evidence before the Tribunal to indicate that he will be refused or prevented from having medical check-ups in China and treatment in the future, if required, for a Refugees Convention reason. The Tribunal notes that he has not made any claims in relation to having had [a medical condition].    

19. The Tribunal accepts that the first and second named applicants have attended Church in Australia since the birth of the third named applicant. They have not made any claims in relation to their religion.

20. The Tribunal accepts that the second named applicant was born on [date]. The Tribunal accepts that she came to Australia on [date] March 2008 as the holder of a Student visa. The Tribunal accepts that she lived in Australia unlawfully from [date] March 2010 until [date] September 2014. The Tribunal accepts that she married the first named applicant in Australia and that the third named applicant is their child. The Tribunal accepts that she was [pregnant] at the time of the hearing. The Tribunal has considered her evidence in relation to the first named applicant’s claims. She has no direct knowledge of the circumstances surrounding his claims and her evidence is based on what he has told her. She is not an independent witness, is a member of his family, is an applicant in these proceedings and has a vested interest in the outcome of this application. The Tribunal places no weight on her evidence in relation to the first named applicant’s claims for protection.

21. During the hearing, the second named applicant stated that she wished the Tribunal to consider the first named applicant’s personal safety and the personal safety of the whole family if they return to China. In view of the Tribunal’s findings in relation to the first named applicant’s claims for protection, the Tribunal is not satisfied that the personal safety of the second and third named applicant is at risk if they return/go to China now or in the reasonably foreseeable future.

22. The Tribunal accepts that the second named applicant was sexually abused as a child by her cousin’s husband. The Tribunal accepts that her parents remained silent about the abuse. The Tribunal accepts that she does not wish to have any contact with her cousin’s husband and that he no longer resides at the same residence as her parents. The Tribunal accepts that she is now willing and able to report him to the Police. The Tribunal notes that besides being able to protect herself she now also has the protection of the first named applicant.

23. The Tribunal accepts that the second named applicant does not want her daughter (the third named applicant) to be exposed to the abuse that she suffered. The Tribunal is confident that she and the first named applicant will do their best to care for and protect the third named applicant. They are able to obtain their own Hukou (household registration) and establish their own household if they do not wish to live with either of their parents.  

24. The Tribunal finds that the claims made by the first named applicant have no nexus to the Refugees Convention. In any event, the Tribunal does not accept that the first named applicant is at risk of serious harm or significant harm, for any of the reasons claimed, if he returns to China now or in the reasonably foreseeable future. It follows that the Tribunal does not accept that the second and third named applicants are at risk of serious harm or significant harm because of him if they return/go to China now or in the reasonably foreseeable future.

25. The Tribunal accepts that the first and second named applicants wish to live in Australia permanently and do not wish to return to China.

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

    Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that the applicants would be at risk of persecution on any grounds under the Refugees Convention if they return/go to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act.

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

26. As the Tribunal has found that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether they may nevertheless meet the criterion for the grant of Protection visas pursuant to the complementary protection criterion.

27. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm for any of the reasons claimed if they return/go to China now or in the reasonably foreseeable future.

28. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that they will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return/go to China now or in the reasonably foreseeable future.    

29. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that they do not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

30. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

31. There is no suggestion that the applicants satisfy 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 (aa) of the Act and who holds a Protection visa. Accordingly, they do not satisfy the criterion in s.36(2) of the Act.

DECISION

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

Linda Symons
         Member