1514039 (Refugee)

[2019] AATA 5885

1514039 (Refugee) [2019] AATA 5885 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514039

COUNTRY OF REFERENCE:                   China

MEMBER:Angela Cranston

DATE:26 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 June 2019 at 10:25am

CATCHWORDS

REFUGEE – protection visa – China – imputed political views – brother and husband’s political spot – Tiananmen Square – political profile – unexplained return trips to China – sick husband – abortion – biggest influencers – not satisfied applicant is credible – alleged persecution – daughter’s probable persecution – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), 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 applicants who claim to be citizens of China, applied for the visas on 11 June 2014 and the delegate refused to grant the visas on 25 September 2015.

3.    In her application, the first named applicant said the following:

I was born on [date], entered by examination [School 1] in [year], graduate in [date], to be distributed for work in [Occupation 1] in August 1990, laid off in January 1998, after so many times looking for jobs and be refused and boycotted in 2000, handled study abroad in Australia visa, but it was refused, then I begin [a business], but the good time does not last long, owing to my so-called historical problems again, the business was closed in August 2003, then I concentrated my attention to take care of my kid, I began to operate [Business 1] in May 2008, before I came to Australia in May 2013, I was forced to withdraw by the black society, the normal business firm cannot get protection from the country, turbulent society, cause unsafe elements, this is make me lost the confidence again. This is the basic reason for me prepare to leave China.

I was graduated from junior middle school in [year], because my family support my [brother] study in University, my father discussed with me let me apply [to a] school after I graduate from junior middle school,  but owing to the affection of my [brother] has participated in the end of [year] students’ movement in the school, my political examination material fail to pass, failed enter the dreamful [school name deleted] and abounded to [School 1] directly, I remembered that I claimed my [brother] then, but after many years experiences told me, in the country such like in China, it’s not difficult to add criminal name to you even you have no guilty. After the 1989 Tiananmen affairs, classmates all concern of it, it’s coincident that my [brother] happened home from Beijing, many schoolmates came to our school to listen to my [brother’s] comments about the Tiananmen affairs, the police came to my home soon, this thing also booked in my files too, it directly affect my graduated distribution, according to my excellent school report, I completely have the ability to be distributed directly to [an agency] to work, while I was distributed to [Occupation 1]. I naturally kind and frank, to got along well with the [other employees] soon, the country that can directly interfere to enterprise systems, for me a female who has political examination problems, need to face lots of problems.

My husband [Mr A], joined the Army in [year], he was developed well in the troop, just because he did not obey superior’s order, in the 1989 put down student movement, he did not driven the truck to the students, and to be transformed in advance, he was rank in [rank deleted], finally to distributed as a soldier, he also became a person who has political spot.

Persons like us who has enterprise help and educated, supervised, from us fall in love, marriage even to give birth to be supervised carefully, we must report our thought regularly, we have no secret of private life. The harm begins on heart and soul, we were got to know each other in [1990], according to the marriage law at that time the person over 20 years old can registered to marry, but when I found I was [pregnant], came to the work unit apply for marriage introduction letter, both work unit refuse to handle it, the reason is that we did not fit to the rules of family plan regulations, in the case that they even knew I has already pregnant, to punish me for pregnant before marriage, either to resign, or to abortion, we were very young at that time we must consider our future development, lost job life will be difficult at that time, we dare not to think it and dare not to do, we have to abortion initially, so we lost our first kid. We feel we were very weak, hopeless in the enterprise, heartless inhumanity less of the government. It’s common phenomena in China at that time. We cannot struggle with the enterprise owing to our so-called political problems so we have to tolerate silently. After that for so many years we apply to the work unit for marry, finally in August 1992 the affections of the student movement became smaller under the situation of the government emphasis that to reform broadly, our application was approved, then we got our marriage certificate after one year when we lost our first kid, we did not reach the marriage law regulated late marriage age, from this, China is a country fail to abide by laws. The practice of the system, is not according to relevant laws, it is depend on the government’s attitude. We sorrow for us, the enterprise in fact we sorrowed for China.

The life after marriage is very happy, our second kid was born soon and smoothly, happy life made us fade from our memory of former harms, it seems our life enter to normal orbit. But the larger harms have already approached us, I was accidental pregnancy when my daughter [age] years old, in 1997, [details deleted], I was in vocation. The who family cherished the unexpected baby, my parents-in-law definitely show that I can give up my job for the baby, they can give support economically. But it was refused when we handle with the permit of birth in the factory,  and under the situation of I definitely show I can give up the job and pay the fines, the factory will not issue the permit birth certificate, the reason is they cannot destroy the family plan system. I declared the factory has the example who give up job for the second baby, the answer I got I remember clearly today, how can you compare with they, you are the person who has political problems. I said too, I don’t hope progress politically, I only need the right to birth as a human, their reason was they should not let a person like me who has political problem enter to the society to destroy China’s family plan basic policy. I under the supervise of the factory relevant personnel, to do 21 weeks abortion, then I lost my third kid. Normal marriage abortion has birth vocation, I was noticed that I must go to work after I was abortion one week later. I even have no normal abortion treatment either. My parents-in-law to argue with the factory till to [an agency], [an organisation], you can imagine the result, who can speak for the person who have political spot. The larger harm was in later 3 months, I was booked in the list of laid off worker, the reason is I against China’s family plan policy. I aborted my kid, I also aborted my kid and I also against family plan policy, not only lost kid, I also lost job. The factory was reluctant face us, they could come forward to do abortion for me after all, and I lost the job at last, the factory said it was the opinion of [an agency], they have no options.

My father and mother in law tried their best to appeal for help, they issued the laid off worker employee certificate till the fair postponed more than half year, in fact this for calm down more laid off worker’s opposite opinions, my treatment was end without explanations. Judging by appearance it was a factory that fail to keep faith, in fact I completely understood that it was a country that fail to keep faith to create such an unbelievable factory, society. I’m disappointed with my future, I only [age] years old, my [brother] was study abroad at that time, I have the idea to leave China for the first time, but the person like me was can’t get passport at all, I was laid off, the work unit should not issue the certificate, neighbourhood supervision should issue certificate either, much less the person like me is famous for appeal for help, many departments will far way from me, I was refused for looking for jobs everywhere.

Finally in 2000, China under the pressure of resolve laid off worker reemployed, relax restrictions the condition of dealing with passport, then I can deal with passport. But I missed the best opportunity study abroad and refused visa. It’s difficult to find a job, and it is hard to go abroad, under the help of my [brother], I open a [a business] by myself, mainly deal with [clients], [details deleted], my income up steadily, one time handle go abroad became a hot business, many people were jealous to me. I was paid more attention again, to be interfered by relevant departments, I was named suspended participated ‘peacefully evolution’, my [business] was forced to be closed. In fact that, I knew that it was the public security departments someone used my historical problem for something after I closed the centre, in fact there are someone want instead of me to do the business himself ,another [business] moved in my room after I closed the centre. From this, the China where there is no legal and laws, citizens can not enjoy the democracy, harms have already permeated into my daily life and work, you can be harmed owing to political historical problems at any time. If you want enjoy the real democracy you must left China.

Feel my future is hopeless, I lay my hope on my daughter, from then on I take care my kids study and living completely, after her learning was stable in 2008, pressure from life, I applied [Business 1] in Haizhou district in Haicheng, meanwhile I opened [another business], the business is stable, the income is nearly RMB [amount] per year, my kid graduated from high school in [year], consider her future, I contacted others and apply military College for her, I hope she can enter the [defence force] when she graduated with a stable life. But her political examination did not passed owing to our historical problems, she was a student who less than [age] years old, even if it was true both us have problems, why it will effect her development, I was shocked, one political examination delayed two generations both the mother and the daughter, it seems that we were really have no hope in China. Our life was no hope in China either. I handled for my kid to study abroad in Australia in August 2012, the visa was got lucky in September, the kid went to Australia in November 2012.

Meanwhile my husband and I apply passport, prepare go to Australia through visit relatives, but my husband’s passport owing to his work unit character and the former historical problems did not approved, my passport was approved after the China’s 18 congress. We were numered that, many years experience, we have got used of to tormented silence. To be lucky, my Australian visa to be got smoothly in May 2013, thought I can meet my relatives abroad, I’m glad so much but the bad fortune come, our [Business 1] and our home to be attached and hint (sic) by the black society at same time, they let us closed [Business 1], otherwise they will not let my life stable, let me eat and sleep well. Consider the safe of our [clients], after talk with the police station, we surrendered, withdraw by our self. This is the so-called legal country, as citizens and normal business operator, our security and legal right cannot be protected, or there is no protection. I only put my hope of my daughter who stay in Australia. I have the idea to leave China for the second time, I arrived in Australia on June [date], 2013 I found I was pregnant, my husband and I enjoy the pleasure at same time at home and abroad, China family plan commission proposed new family plan policy on August 6, 2013 the dream for many years seems to be realised, I look like out of the bad fortune of closing the business, shuttle from Australia and China gladly, meanwhile we insist to handle my husband passport, we hope to meet together in Australia. I came back China who was pregnant for [number] months in December 2013, I was found pregnant by the community, after communicate with my husband’s work unit, we did not fit to the policy that issued on December 7, 2013, I was supervised by the community family plan department again, I was aborted for [number] weeks pregnancy on December [date], 2013, I lost my kids again, my fourth kid.

For this tolerance, we did not to struggle, in fact we lost the encourage to struggle, I must consider my husband’s work, meanwhile I hope he can get his passport, to get the visit visa in Australia as soon as possible. Till the I last go to abroad on May [date], 2014, his passport did not be approved yet, I have to go Australia by myself.

My daughter [Applicant 2] viewed our experience, her heart and soul were damage seriously, since our business closed, the kid bearing huge burden, she cannot put her heart and soul in learning and life she has terrible mind to domestic, this definitely clear my idea, after communicated with my husband, I get his support it was say the 20 years tolerance and harms we suffered made us feel lost the confidence to continue live in China, we are sure to get the real meaning democracy we must leave China.

Compared with the rules of protection visa, I feel I belong to it because my behaviour in the 1989 students movement, I was recognised as the person who thought and idea against the government, and I appeal for help after I was aborted in 1997 and laid off appeal for help in 1998, I was determine the nature of unstable elements who make the society unstable, and there are so many correspondents and connections with foreign from 2000 to 2003, and to be named suspend to participate ‘peaceful evolution’. It apparently my work unit, my community and the black society to harm me, in fact it was the government and the country that without laws and democracy, citizens and business firm’s legal rights without protection.

China’s government only gives me harm and damage, no protection. Finally I declare that seriously, the application of protection visa, is the my deep considerations result, I will bearing or legal responsibility for what provide evidence for my protection statement. I did not apply in the first entry Australia in 2013 mainly because I was waiting my husband to handle passport, after applied the Australian visa, the whole family to apply to Australia. But I feel my husband’s recent passport should has no hope so I formally applied to the Australian government for the protection visa application.

4.    Also on the departmental file were the following:

• Document stating it is a translation of Certificate of Discharge from active duty of [Mr A] dated [March] 1990.

• Document stating it is a translation of Certificate of Unemployment for the applicant dated [March] 1998

• Document stating it is a translation of a document from [a hospital] dated [December] 2013 saying the applicant had 3 pregnancies and 1 live birth and a single viable foetus at [number] weeks.  

• Statement from the secondary applicant talking about her relationship with her boyfriend

• Letter from [Applicant 2] stating that after the applicant was laid off, she looked after her, that when she applied for military school her parents history stopped her application, that in order to get rid of her parents’ history problems her parents decided to apply for a student visa for her to study in Australia,

• Letter from [a person] and [another person] stating that [Applicant 2] was dependent on the applicant.

5.    The applicants applied for review and on the Tribunal file were the following additional documents:

• The applicant’s same statutory declaration in her protection visa application but now dated 13 October 2015

• Document translated as Certificate of graduation dated [date]

• Document translated as certificate of marriage issued [in] September 1992

• Document translated as certificate of diagnosis dated [October] 1997 stating that the applicant had 2 pregnancies and 1 live birth and a viable foetus at [number] weeks.

• Translation of document from [Hospital] identified as pathological examination report for [Mr A] dated [March] 2018.

• Further translation of documents from [the] Hospital identified as imaging report for [Mr A] (the applicant’s husband) dated [March] 2018

• Promotion material for [Business 1]

• Receipts

• Photo of hospitalised patient  

6.    The first named applicant (the applicant) appeared before the Tribunal on 16 January 2018 to give evidence and present arguments.

7.    The Tribunal also received oral evidence from [Mr B] (the applicant’s [brother]), [M D] and [Ms E].

8.    The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant stated her protection visa application claims were done with the help of a paid translator but did not know if it was correct.

9.    The applicant stated she was forced to abort children three times.

1. The applicant stated her daughter had been in Australia since November 2012 and had worked since early 2014 after she stopped school. The applicant stated she herself worked [3] to 4 days a week since July/August 2014, was married in August 1992 and came to Australia in June 2013.

2. The applicant’s presented untranslated documents at hearing related to her [Business 1] and her [business].  

3. The applicant stated in China she had [Business 1] from 2008 until 2013. Before that, she owned [a business] from 2000 to 2003.

4. The applicant stated she returned to China twice after her initial trip to Australia because her multiple entry visa meant she had to leave every three months and she went home to have a look.

5. The applicant stated she came to Australia because her daughter was here. When asked if there were any other reasons she stated when she first left China she didn’t know she was pregnant until she arrived in Australia. She also stated when she came she wanted to get a passport for her husband. She also stated her husband had refused to fire on the 4 June protesters. Her brother who was studying at Beijing University was also there.

6. The applicant stated they refused to register her marriage because she was pregnant before marriage. She stated she lost her job and they then did the abortion. She stated she did not want her daughter to face forced abortions. The applicant also confirmed she became pregnant again and the Tribunal asked why she returned to China if pregnant. She stated she was alone and without her husband in Australia, and she dared not raise a child on her own. The Tribunal put to her that she had previously been forced to have an abortion which she did not want her daughter to go through but had returned to China when pregnant. She stated she wanted her husband to come to Australia and they had property which could be sold but required her signature. She also stated that because of her husband’s mistake he could not obtain a passport.

7. When asked what would happen if she returned to China, she stated from 2003 people had to tell the authorities if they wanted to go overseas since it was sensitive. She also stated the Chinese police saw that their business which had operated since 2000 was good and did not want them to continue. The Tribunal put to her that was a long time for a business to operate if the PSB didn’t like it. She stated at the beginning they conducted the business out of a [location] but they didn’t allow her business and she was forced to move to another place. She also stated the PSB didn’t like her making money and shut down her business. After that she stayed home. From 2008 until 2013 she worked in [Business 1]. She stated that the shop had been targeted that is, the door had been smashed and there were words written on her door saying that they would have to close the shop. The Tribunal put to her that her shop had been closed in May 2013 which coincided with when she came to Australia and it seemed that the shop closed because of her departure for Australia. She stated she came to Australia to see her daughter and wanted to continue the business but the shop staff were too afraid to continue. The applicant stated her shop started getting targeted at the end of 2012. The Tribunal confirmed that they had threatened her father and daughter. She stated they gave people money who wrote “if you don’t care what we say, be careful about your family” and they had reported that to the police. The Tribunal asked why none of that was in her statement and she stated she had mentioned been threatened by gangsters.

1. The applicant stated she could not return to China because she would be unable to find work and that she was very tired in the heart. She stated that given her background, if she returned to China they would ask what she had been doing overseas and she could only imagine the charges against her as to what she had done outside. The Tribunal put to her that she had returned twice to China after she arrived in Australia in 2013 and asked if anything happened to her then. She stated this was just about having a second baby. The applicant confirmed she had not been asked questions at the airport on her return but stated that the problem would not occur at the airport but later when local authorities would check to see if she had a ring.  The Tribunal put to her that the family planning laws applied to everyone in China and not just to those with an adverse political background. She stated the laws did not apply to all people such as famous people or those who had money to pay. The Tribunal put to her she was [age] and doubted she wanted more children anyway.

2. The applicant stated she feared returning to China because she thought the decisions surrounding her pregnancies were related to the local government. She also stated that with her background if she returned she would be targeted because people might stop her from doing something such as [a certain work] because that was how it was. She stated her brother and husband were related to the 4 June incident and things like getting married or giving birth were not normal for her. The Tribunal put to her that she had consistently worked since 1990 with the exception of a break from 1998 to 2000 and from 2003 to 2008 when she raised her daughter, had run an organisation [and] had also had [Business 1], had sent her daughter to Australia to study and she too had gone overseas and wondered why she considered that she had been persecuted given that she seemed to have had a relatively good life. The Tribunal put to her she said she had lost two children but that would have been because of the family planning laws in China and was not sure that was because of her claimed political background. She stated she was not allowed to have a baby because of politics, that is in 1997 you could give up your job and if were willing to pay the fine, you could have a baby and even though she was willing to do both, they still did not allow her to have a child.

3. The applicant stated it took a year for her to apply for a protection visa because she was trying to get her husband to come and to this day he could not get a passport. She also stated that young people like her daughter were not suitable to stay in China because you could not remain normal and had to do what they said even if you were reluctant to do so and Australia was good for them. She also stated that if her daughter returned to China then she did not know if something would happen to her like it had happened to the applicant.

4. The applicant stated that the witnesses were friends she knew when she had the [business] and they could tell the Tribunal that she had been targeted by the PSB because of her political background. She confirmed that at the beginning when there was no profit they had allowed her to operate but after that said she could not promote other countries. They first approached her after one year, she moved and was able to continue for a year. When asked why she could continue at all, she stated the business was a sensitive topic.  

5. The Tribunal then spoke to [Mr C] who obtained his permanent residence in 2009. He stated he was the applicant’s friend for 10 years, and had arranged for him and his child to come to Australia. When asked about her problems in China, he stated that when the applicant came in [year] she was pregnant, had wanted to keep the baby but when she returned to China maybe due to family planning and other problems she couldn’t keep the baby. When asked about other problems with the government, he stated in 2003 his son came to Australia and maybe because her business was good, the government forced her not to continue so she did the business at home. He did not know why the government forced her not to continue. When asked how he knew the government forced her to close, he stated he knew she had gone from the [location] to her home which was unusual but did not know the details.

6. The Tribunal then spoke to [Ms E] who stated her daughter was studying in Australia which was arranged by the applicant who had been working from home when they met through [Mr D]. She stated she thought it was unusual to work from home but that the applicant was professional and good. She stated she knew the applicant owned [Business 1] and was not allowed to have a second baby and needed to hide for those problems and could not continue to care for kids. When asked if the applicant could return to China, she stated she did not know if there were any penalties or fines for a second pregnancy and was not very clear about that. She stated previously people were removed from their positions at work.

7. The Tribunal then spoke to [Mr B], the applicant’s brother who stated he had applied for a protection visa in January 2013 which he had obtained because of his political opinion against the government. He stated he participated in student activities in 1989 when he was in Beijing studying. When asked how this was relevant to the applicant he stated he posted flyers to the applicant’s school in May.  He also stated after Tiananmen Square he returned home and probably talked too much and told people he had participated in at Beijing. He stated this probably impacted the applicant who organised a gathering for him at her school in June 1989. When asked if he was saying that she suffered as a result of his political involvement in Tiananmen Square, he stated not just her but the police went not only to his father’s home but also his uncle’s home. When again asked if she had suffered because of him he stated that there were problems, her academic results were good and she should have been given office work but was given factory work instead. He also stated his brother-in-law was at Tiananmen Square and was one of the troops and that because she had ‘two influences’ it was bigger for her. When asked how she had suffered he stated before they married they wanted to have a baby but were forced to terminate. When asked if there was any other way she suffered because of his and her husband’s political profile he stated she was forced to stop pregnancies not just once and was considered a secondary citizen. He also stated that normally if you gave up your job you were allowed to have a second baby but she was not allowed. He also stated she was forced to leave her job in 1998 even though she had terminated her second pregnancy.  He also stated he left the country in 1998, came to Australia to study and in 2000/2001 (he could not remember) the applicant owned a [business] which was quite good. In November 2002 he returned to China to help her. He stated the business suddenly closed in July or August 2003. He stated at that time overseas visas had to go through the PSB and after their business closed, another one exactly the same opened. He stated in 2002 when he returned he opened a similar [business] in AnShan and was interviewed by border control and other authorities, because he had studied overseas and was also involved in 1989. The Tribunal put to him she was able to do the business for three years.

8. When asked what he thought would happen to the applicant if she returned to China he stated due to their history she would be a secondary or tertiary citizen and would have no ability to oppose the government. When asked to elaborate, he stated she had not been allowed to have a second baby. He stated her daughter was not allowed to go to a school where others went and after the single child policy ceased the applicant was still forced to terminate her pregnancy.

9. The Tribunal put to him that he had applied for a protection visa on the basis that he had political issues yet she had chosen to return to China when pregnant and asked why. He stated in August 2013 the Chinese government opened up the single child policy and in December when she returned she was happy to give birth in China. The Tribunal also put to him that she worked in business from May 2008 to May 2013, came to Australia, returned to China twice, it took her one year to apply for a protection visa all of which questioned whether their claims that she had been imputed with his political opinion were true.  He stated his influence on her situation was not continuous but was recorded in her profile. When asked what she would suffer, he said it would not be every day and when you made a comparison with others, they were second class citizens and she would be forced to leave her work. The Tribunal put to him that she had been at her last job for five years which did not sound like she was leaving in a hurry. The Tribunal also put to him that she stopped working in May 2013 and came to Australia in June 2013 which sounded orderly and did not sound like she had lost her job because she had been compared with others. He stated you could not predict what was going to happen and that the unfair treatment would increase from time to time. He stated the most obvious thing was when her daughter was not allocated to the school that the applicant wanted her to go to. He also stated the applicant didn’t apply for a protection visa because she was waiting for her husband to get a passport and every time she returned to China she hoped they would come to Australia together.  

10. The Tribunal held another hearing on 21 May 2019 and took evidence from the applicant and her brother.

11. The applicant confirmed she had returned to China for three weeks and stated it was because her husband had [a medical condition] and [had a procedure]. The Tribunal put to her that she had returned to China three times after she had entered Australia and she agreed. She stated she had no choice because her husband had been sick and she returned to appease him.

12. When asked if her husband had other family in China she stated he had their daughter and a younger sister and brother.

13. The Tribunal again referred to her returns to China in 2013. She stated she held a multiple entry visa and every three months had to return and also wanted her husband to get a passport. The Tribunal put to her that she had previously stated she was pregnant and thought the government had changed the law. The Tribunal asked what she understood the policy had changed to and she said she just had a feeling and after the last trip she thought she could return to Australia if the situation was not good. She stated she was afraid if she gave birth in Australia and her husband was in China she did not have the capability to raise the child. The Tribunal again asked whether she understood whether the policy had changed or not in 2013. She stated from the newspaper and TV she knew the policy had changed. When asked what she thought the policy had changed to she stated other people had given birth to two children. The Tribunal again asked.  The applicant stated she knew the government was more tolerant towards a second child unlike previous years. The Tribunal asked her if she knew the policy change. She said it was not like in 2016 where there was a publication. The Tribunal put to her that in 2013 the law changed and said a couple could have two children if one of them was a single child but on the basis of her evidence, she and her husband did not meet that criterion.

14. The Tribunal then spoke to [Mr B]. He stated that since he had been granted a protection visa he had departed Australia and gone to [other countries]. The Tribunal put to him that he first came to Australia in 1998 and had returned to China in 1999 and in 2002. The Tribunal put to him that he had not applied for a protection visa in 1998-2002 and had returned to China for eight years. The Tribunal asked why had he returned to China if he had a political profile because of Tiananmen Square. [Mr B] stated he came to Australia to study and returned to China to visit his parents and wanted to apply for his wife and children for the dependent study and returned in 1998, 1999, 2000 and 2002. During that stage he helped the applicant work [in her business]. He stated he also started his [business] in China and during that stage the Department of Immigration in China and the Public Security Bureau and the State Security Bureau investigated him because of his involvement in Tiananmen Square and also his experience abroad. He was interviewed twice by the PSB and could not run his business in a smooth way and felt he had been persecuted.

15. The Tribunal put to him that he was in Australia and returned to China in April 1999 where he remained until [June] 1999 which was during the 10 year Tiananmen Square anniversary which seemed odd given that he was in Australia and returned to China at a time when China would have been on heightened alert for anyone who had participated in the Tiananmen Square protest. He stated he didn’t consider lodging a protection visa application when he first came to Australia because he had grown up in China, could come and go with his Australian visa and why should he not return to China. The Tribunal put to him that he put in an application said he had been persecuted. He stated his real persecution had not started then.

16. The Tribunal put to the applicant that it was struggling to believe her case because she kept returning to China and her daughter who was also an applicant for the visa was in China. The applicant stated she was born in China and her father and husband were still there and because of that she still had some connections. She stated if her family was not in China she would not have returned and her daughter returned to China because she had no choice because her father was sick. 

17. The applicant stated she also returned to China because she wanted to appease her father. When asked when she went to appease her father, she stated every trip.

18. Following the hearing, the Tribunal wrote to the applicants’ as follows:

    [Mr B’s] movement records

    Movement records indicate that [Mr B] arrived in Australia [in] October 1998 and departed [in] April 1999. He again arrived [in] June 1999 and departed [in] August 2000. He again arrived [in] November 2000 and departed [in] February 2002. He again departed [in] November 2002 and arrived [in] May 2011.

    This is relevant because he claimed to be targeted by the Chinese government because he actively participated in student movements and was involved in political activities against the government in 1986, 1987 and 1989 yet continued to return to China where he remained for years after his initial entry into Australia in 1998. This is relevant because his repeated return and stay in China may cast doubt on whether he feared being persecuted in China. This is relevant because it may cast doubt on whether you fear being persecuted in China because of your relationship with him.

    If the Tribunal finds that it does not accept that [Mr B] has been persecuted in China then subject to your comments it would affirm the decision under review.

    [Applicant 1’s] and [Applicant 2’s] movement records

    Movement records indicate [Applicant 1] entered Australia [in] June 2013 and departed [in] September 2013. She again entered [in] September 2013 and departed [in] December 2013. She again arrived [in] March 2014 and departed [in] April 2018. She again entered [in] May 2018.

    [Applicant 2] entered Australia [in] November 2012 and departed [in] April 2018.

    This is relevant because [Applicant 1’s] repeated return and stay in China may cast doubt on whether she feared being persecuted in China. In addition, [Applicant 2’s] return to China [in] April 2018 may cast doubt on whether she fears being persecuted in China.

    If the Tribunal finds that it does not accept that [Applicant 1] or [Applicant 2] feared being persecuted in China, then subject to your comments it would affirm the decision under review.

19. The Tribunal received the following response from the applicant:

    In fact, I had already explained why I left Australia twice in 2013 during the interview at immigration office and in the 1^st hearing. However it seems to me now that I did not have myself clarified and there must be some misunderstanding about my case. The reason why I left Australia is sourced from different aspect.

    First of all, as you probably know both my husband and I had political problem in China. Because of this we believe that we should apply for the protection visa while our families are all onshore to feel more sense of security. But the fact is that my husband could not obtain a passport to come to Australia at that time. Meanwhile because my [brother] was caught at the end of 2012 and my daughter has arrived Australia for just a month I really had to apply for my passport in a hurry to come to Australia regardless of the situation of my husband. I did get my visa and successfully came to Australia and later I had no choice but to go back China due to my visa condition (maximum three months onshore stay each time) because I did not dare to have any bad record in the immigration system which may affect my husband’s visa application. This is the main reason why I left Australia and went back China for the first time. Then I had an unplanned pregnancy while I was in China. Therefore I cannot wait for my husband at China to come to Australia together because the routine medical check in China will detect my pregnancy and I do not want to be forced to accept abortion operation one more time. So I came to Australia again very soon. The reason why I left Australia and went back China the second time knowing that I could be exposed to potential risks is solely because I had fluke mind at that time because my family all thought going to another country alone with seven-month pregnancy is not safe (I did think if flying to another country instead of China and then flied back Australia at that time) because I thought the puff winter coat would cover the side of my pregnancy and I had little chance to be detected and because I thought my situation may not be that severe due to the introduction of second child policy in China at that time. However the ruthless government and facts proved to me that I was wrong completely. I was found pregnant by the government and was forced to accept inducing abortion at my [pregnancy]. This is my third time of forced abortion. So if someone asked me why I still went back China it in that situation I can only say that my fluke mind harmed myself.

    In addition I would like to explain why my daughter and I went back to China in 2018. This is because that my husband has been diagnosed [with a medical condition] in March 2018 (bridging B visa application material attached) and had [an] operation [in] March 2018. Hearing of it both my daughter and I felt so desperate and worried about him so much. After discussion my daughter gave up waiting here in Australia and went back to China to look after her father and I also flied back China after receiving my bridging B visa. My daughter and I just could not leave him dying in China alone. My husband was so comfort and encouraged because of our present and his after operation recovery was very good. Having his biological daughter accompanying with him, I could put my heart into my stomach and flied back Australia. My friends are all surprised that I can fly back China by applying for a bridging B visa under the protecting visa and enter into Australia against smoothly. I think this is what you could achieve in Australia than anywhere else.

    While living in Australia these years I can freely exhibit my personality and live in the way that I like. No one could imagine the level of democracy and freedom unless they live here for some time. While living in Australia I was entitled with the same medical benefit as local people and I also asked myself to behave like a local citizen. Although my income is not high I pay tax on time. I have a feeling that I have already been part of Australia’s local life. Five years earlier my only purpose to apply protection measures to get rid of China but now I make this statement is more because I am so reluctant to leave this place.

    It would be extremely appreciated that if you could take consideration of my unfair treatment and experience in China for the first half of my life and my struggle in psychological activities after coming to Australia in 2013 to give out a justice conclusion which will determine the destiny of the second half of my life.

1. The Tribunal also received the following statement from the applicant’s brother:

   First of all, thank you very much for giving me the opportunity for explanation. I would like to make the following statement although it seems that there is little connection with my sister’s case.

   I came to Australia for the first time [in] October in 1998 holding a student visa. While I was living here in Australia, I always pay close attention to the comments of local media on Chinese current political affairs and also the Beijing June Fourth Incident in 1989. The reason why it is my interest point is because I went through that incident and it brought me too much trouble during the university and after graduation, receiving a lot unfair treatment both at work and in my life. For my time after coming to Australia, I remember that I was busy at everyday studying and working. Sometimes, I also helped my relatives and friends preparing all sorts of documents applying for student visa to Australia. That was really an easy time that I know nothing about the protection visa. I also remember that every time when I flied back China to see my relatives, without any concern, I described to them what I had seen and experiences in Australia, mainly involving the opinions of Australia’s social media on Chinese political affairs and June Fourth Incident. Now I feel that my word was so emotional and I was so unprotected, which I did not realise at that moment.

   Under my arrangement, my daughter and wife went back to China in July 2002 before the expiry date of their visa. Later, I flied back China immediately after accomplishing my final examination in [date], at which time I still got 4 months’ time left before my visa expired. I could say I never thought that I would step in Australia again since I was so ambitious of my own career in China. However, within a few days after I went back China (which is the time when the 16th CPC National Congress was in progress and foreign media were all discussing about the June Fourth Incident) some people from National Security Bureau came to me again (the first time they came to me was during the 15th CPC National Congress in 1997) because of my involvement in that incident. They asked me about my political thoughts and did asked my real purpose of going back China while studying in Australia. They warned me that I should pay attention to my own words and deeds. Until that time, I still didn’t realise the dangerous situation that I was already in. but things happened in later years, which still made me feel horrible now, was indeed terrified, and relevant facts has already been provided to the immigration officer and to the court hearing, which could be reviewed at any time.

   It is my experience that told me how hard to live in China if a person ever had political problem. They would have little political right. They would have unfair treatment both at work and in their lives. Their rights of living and working as a normal citizen would be deprived because of their historical political problem. Even worse, they would receive threats and extortion from the people of government. It is indeed a torture of being constrained from everywhere, and that is the reason why I made every effort trying to come to Australia in 2011 and applying for a protection visa in 2012.

   I hope that my statement could, to some extent, assist you in my sister’s case for uncovering any puzzle in your mind, understanding my sister’s mental status in different stage, judging my sister’s case in an objective way, so as to give out a justice conclusion.

Country Information

1. According to DFAT’s Country Information Report People’s Republic of China 

Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy freedom of speech, the press, assembly, association, procession and demonstration. China’s National Human Rights Action Plan 2016-2020 outlines the Government’s plans to advance the right to expression ‘giving more space to public opinion, […] improving the check and supervision system for the operation of power, and protecting in accordance with the law the citizens’ rights of free expression and democratic supervision’.

In practice, however, laws and regulations enforcing these constitutional rights are not well developed. China’s law requires all gatherings of people numbering more than 200 persons to obtain approval from public security authorities. The 1989 Law of Assemblies, Demonstrations and Processions puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges.

The CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule and other topics which authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include commentary on serious economic, health and environmental concerns, financial risks, land and property issues, ethnic and religious unrest, labour disputes and official responses to natural or anthropogenic disasters. The Party and government may, in limited circumstances, tolerate commentary on corrupt local officials, particularly those already under investigation by the CCDI (see Corruption). What the authorities deem sensitive can change with no warning.

Pre-emptive detention of activists and rights defenders is common around sensitive political anniversaries and other high profile political or ‘sensitive’ events (see Arbitrary Arrest and Detention, and Acronyms for list of dates). Those publicly advocating greater human or civil rights, including the ‘709 Lawyers’ (see Human Rights Defenders (including Lawyers)), have also been detained and charged under public order offenses or accused of state subversion. Duihua’s Political Prisoners Database, which records information about political and religious prisoners incarcerated in China since 1980, contained 34,910 entries at the end of 2016.

In recent years, several people charged with political offences have appeared on Chinese state television making public confessions to alleged crimes. In some cases, the public confessions have taken place before trial and conviction. Recent examples include several ‘709’ lawyers (see Human Rights Defenders (including Lawyers)), journalists who have exposed official abuse of power, and two registered refugees who were returned from Thailand (see Involuntary and enforced disappearances). Those confessing commonly express regret for having sought to sow instability and work against the authority of the CCP, and have often included alleged admissions of colluding with ‘foreign forces’ to destabilise the country. Some have subsequently claimed their confessions were forced.

Political prisoners can legally be deprived of political rights (freedom of speech, assembly, association, procession, demonstration, vote and holding a position in a state organ) after completing a prison term. In many cases, individuals have been placed under house arrest for extended periods of time after official release from prison (see Arbitrary Arrest and Detention). Those deprived of political rights can face difficulties finding employment, renting property, travelling freely, and accessing social services. Prisoners and their families have reported harassment or intimidation, including police surveillance, telephone wiretaps, property and body searches.

Families of dissidents, including children, have also been subject to movement restrictions, exit bans and other forms of harassment by Chinese authorities. The 16-year-old son of a ‘709’ lawyer was placed under effective house arrest from 2015 until late 2017 (see Involuntary and enforced disappearances). Children of other ‘709’ lawyers have been denied entry to primary school and pre-school, and the spouses of some detained lawyers have reported being evicted from their apartments. Chinese authorities have also reportedly harassed family members in China of overseas dissidents. Overseas Uighur activists have reported police harassment of their China-based families, including jail terms (see Ethnic Uighurs). Other high profile critics of the Chinese government’s human rights record have also reported harassment of their China-based families and some have publicly severed ties with their families in order to protect them from further harassment. DFAT is aware of claims that authorities have confiscated ID cards or hukou of families of dissidents, limiting their ability to access medical care, education and social services.

1. A research request in 2011 by the RRT in relation to the treatment of 1989 activists that have since been inactive found as follows:

   No evidence was located that indicates the PRC authorities target ordinary participants and low-level organisers of the 1989 pro‑democracy protests who are no longer politically active. Recent information about the Government interest in 1989 pro-democracy activists is very limited. Available information indicates that although the PRC Government is sensitive about the 1989 protests, it only targets high level organisers who remain politically active.[1]

   The Government continues to silence debate and supress commemoration of the1989 protests.[2] In the 2007 China Profile of Asylum Claims and Country Conditions report, the US Department of State wrote that “[i]ndividuals suspected of ongoing involvement in activities commemorating those killed in the Tiananmen Square massacre are subject to harassment and sometimes detention”.[3]  There are also recent cases of authorities arresting high levels organisers who are still engaged in pro-democracy activities; for example, in 2010, the Government detained a prominent 1989 pro-democracy activist when he released a photograph of the Tiananmen Square protests. [4] This is consistent with advice from DFAT from the 1990s and early 2000s. In 1990, DFAT reported that although many 1989 activist were initially detained, those not considered “major key players” were released after interrogation.[5] In March 2002, DFAT advised that 1989 activists who return to China are likely to be of interest to the Government if they have since remained politically active and high profile.[6] According to the report:

   As far as we are aware, the likely treatment of Tiananmen-era returnees would depend to a large degree on their behaviour on return, as well as on the nature and extent of their involvement in protest activities abroad. Individuals who took a leading role in protests overseas would likely be monitored by local public security authorities on return (provided, of course, that they were aware of the individual's return). Official interest would be ongoing if those authorities assessed that an individual was likely to continue political agitation while in China.[7]

   Of relevance to the applicant, a 2007 US Department of State report states the participants in 1989 protests in Guangdong were subject to less Government harassment than those involved in protests in Beijing.[8] The report says “these local demonstrations were smaller and less dramatic than those in Beijing, and appear to have been closed down by local authorities – as generally was the case elsewhere in China outside of Beijing – less forcefully, i.e., and without violence or widespread retribution”.[9] Based on this, people involved in the Guangdong 1989 protest may be of lower interest to the Government.

   [1] US Department of State 2007, China Profile of Asylum Claims and Country Conditions, May – Accessed 2 May 2011

   [2]US Department of State 2007, China Profile of Asylum Claims and Country Conditions, May – Accessed 2 May 2011

   [3] US Department of State 2007, China Profile of Asylum Claims and Country Conditions, May – Accessed 2 May 2011

   [4] DFAT 2002, “CIR 61/02 Treatment on return of demonstrator”, 12 March – Accessed 2 May; Amnesty International 2010 “China urged to release activist detained over Tiananmen photography”, 1 December – Accessed 2 May 2011

   [5] DFAT 1990, Cable BJ 44445 – DORS applications, 7 December, Accessed 2 May 2011

   [6] DFAT 2002, “CIR 61/02 Treatment on return of demonstrator”, 12 March – Accessed 2 May;

   [7] DFAT 2002, “CIR 61/02 Treatment on return of demonstrator”, 12 March – Accessed 2 May;

   [8] US Department of State 2007, China Profile of Asylum Claims and Country Conditions, May – Accessed 2 May 2011

   [9] US Department of State 2007, China Profile of Asylum Claims and Country Conditions, May – Accessed 2 May 2011

2. According to China's Family Planning Policies: Recent Reforms and Future Prospects Stuart Basten and Quanbao Jiang Studies in Family Planning Vol. 45, No. 4 (December 2014), pp. 493-509https:// November 2013, China announced reforms to its family planning policies whereby couples would be allowed to have a second child if either parent is an only child. The announcement garnered worldwide media coverage, and stimulated academic and popular discussion.

3. According to the Los Angeles Times, 10th Anniversary of Crackdown Ignored in Tiananmen Square, 4 June 1999

   Police questioned and detained scores of dissidents ahead of the anniversary to head off trouble, according to a Hong Kong-based human rights group.

RELEVANT LAW

1. 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

1. 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).

2. 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.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

6. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

8. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

1. 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

1. The issue in this case is whether the applicants have a well-founded fear of being persecuted for a Refugee Convention reason and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that they will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. The applicant stated in a long and somewhat confusing statement that accompanied her protection visa application that because of her historical problems her [business] closed in August 2003, that before she came to Australia in May 2013 she was forced to withdraw from [Business 1] that had been operating since May 2008, that owing to the affiliation with her brother who had participated in the [student] movement she failed to pass her political examination, that after her brother’s comments about Tiananmen the police came which directly affected her graduation because she was sent [Occupation 1] as opposed to [an agency] to work. She also stated her husband disobeyed an order to put down the students in 1989 and became a person with a political spot. She stated that she was unmarried and pregnant in May 1991, did not fit family plan regulations and was told to either resign or abort and she had an abortion, She also stated she applied to the work unit to marry which was approved in August 1992, that her child was born, that in 1997 and under the supervision of the factory personnel she underwent another abortion and after 3 months, was laid off because she was against China’s family planning policy. She also stated that she could not get a passport and was refused jobs but that in 2000, she got a passport, opened a [business] but because people were jealous, her business was interfered with by the relevant departments and her [business] was closed in part because of her historical problems.  She also stated that in 2008 she opened [Business 1], her daughter was blocked from entering military college and she handled her child’s study abroad in Australia in August 2012, She also stated that her husband was unable to obtain a passport, owing to his work unit character and former historical problems, that she obtained her Australian visa in May 2013 but her [Business 1] and home were hit by the black society which led to its closure, that when she arrived in Australia [in] June 2013 she was pregnant but returned to China because of a proposed new family plan policy on 6 August 2013, but that she was forced to again abort the pregnancy. She also stated she did not apply for a protection visa during her first entry into Australia in 2013 mainly because she was waiting for her husband to be handed a passport.

Does the Tribunal accept that the applicant’s brother and husband were involved in Tiananmen Square

1. The applicant has essentially argued that she has a well-founded fear of persecution because her brother was involved in Tiananmen Square and her husband who was in the army refused to fire upon protestors. She claims that this has impacted upon her life and her ability to marry, have children and work and that her daughter will be similarly affected.

2. The Tribunal has some concerns about the applicant’s brother’s claims given that he returned to China [in] April 1999 and remained there until [June] 1999 despite reports that police questioned and detained scores of dissidents ahead of the 10 year Tiananmen Square anniversary on 4 June 1999. When asked about this at hearing, he failed to address the issue and stated that because he had a student visa, he was allowed to return to China. After hearing he stated that it was not until 2002 that some people from the National Security Bureau came to him again because of his involvement in Tiananmen however given the country information, it is difficult to understand why he would not have also been at least questioned ahead of the 10^th anniversary when he was in China and if in fact he was involved in Tiananmen Square.

3. Despite this, and based on the Refugee Review Tribunal’s [decision], the Tribunal accepts that the applicant’s brother obtained a protection visa on the basis that he participated in protests from April to June 1989,  that after 4 June 1989 he returned to Haicheng, informed friends about what had happened in Beijing, returned to Beijing and did not resume his political activities. The Tribunal also accepts that in about September 1989 he commenced employment, was interrogated about his political opinions and activities and was again interrogated whenever there were major political events. The Tribunal also accepts that he left China in 1998 and first came to Australia via a student visa, returned to China in 2000 and again in 2002 and that he last arrived in Australia in 2011 and since then has only been to [one country].  The Tribunal also accepts that in 2002 he was warned by government officials against expressing his political opinions, and in 2003 set up a business [information deleted], that they operated that business without incident for about 12 months and then in 2004 or 2005 were questioned about whether they were qualified to provide such services and whether they had received money without carrying out the relevant work for a client, that after that he opened a new business and that in about January 2006 [a person] from the PSB approached the applicant, searched his office, took some documents including a video tape of the applicant participating in the Tiananmen protest which the applicant would show his customers, that his business was targeted and he was continually interrogated which caused problems as his clients began to lose faith in the business. While it is somewhat more difficult for the current Tribunal to accept that the applicant’s brother organised events for the 20^th Anniversary of the Tiananmen Square demonstration or that his teacher stopped him given the applicant’s apparent lack of involvement or harassment during the 10^th Anniversary, the Tribunal is prepared, on the basis of the Tribunal decision [file deleted] to accept that this is the case.

4. Having said that, the issue in this case is whether the applicants have a well-founded fear of being persecuted for a Refugee Convention reason and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that they will suffer significant harm and the Tribunal does not accept that is the case for the following reasons.

5. The applicant has stated that she fears returning to China because she was previously forced to have an abortion however she arrived in Australia [in] June 2013, found out she was pregnant, did not apply for a protection visa during her first or second entry into Australia, returned to China of her own volition [in] September 2013 and again [in] December 2013. She again returned to China [in] April 2018 and did not return to Australia until [May] 2018. When her movement records were put to her at hearing on 16 January 2018, she stated that her Australian multiple entry visa meant she had to leave Australia every three months and she did not apply for a protection visa during her first entry into Australia in 2013 mainly because she dare not raise a child on her own in Australia and was waiting for her husband to be handed a passport however she was then unable to explain how her presence in China would make any difference as to whether her husband obtained a passport or not.  While she also stated in her application that there was a new family planning policy on 6 August 2013, the country information before the Tribunal indicates that it wasn’t until November 2013 that China announced reforms to its family planning policies whereby couples would be allowed to have a second child if either parent was an only child. The applicant’s evidence is that neither the applicant nor her husband are from an only child family and when asked at hearing on 21 May 2019, the applicant was unable to discuss the reform to the family planning policy announced in 2013 in any detail. The applicant’s lack of understanding as displayed at hearing in relation to the announced reform of the family planning policy in 2013 does not suggest to the Tribunal that the applicant investigated the announced reform or that she returned to China so that she could have a second baby.  Accordingly, the Tribunal finds that the applicant was unable to explain why she returned twice to China when allegedly pregnant and when she allegedly feared a forced abortion.

6. The Tribunal does not accept that the applicant’s return to China in 2013 is the action of a person who underwent a forced abortion in 1991 and again in 1997. In reaching this conclusion, the Tribunal has considered the applicant’s submission after hearing on 21 May 2019 which states that because her tourist visa allowed a maximum 3 months onshore stay each time and because she did not dare have a bad immigration record which may affect her husband’s visa application, she returned to China the first time. She also stated that because she had an unplanned pregnancy while in China and did not want a routine medical check in China to detect her pregnancy (and thereby risk a forced abortion), she returned to Australia. The Tribunal finds that this submission differs from her previous statement at hearing on 16 January 2018 which was that she knew she was pregnant after she arrived in Australia [in] June 2013 which was before her return to China. Neither does the Tribunal accept that if the applicant truly feared a forced abortion that she would return to China because of a ‘fluke mind’ or because her tourist visa only allowed a maximum 3 months onshore stay.  Indeed, the applicant’s references to her tourist visa and her initial statements at hearing on 16 January 2018 that she returned to China twice after her initial trip to Australia because her multiple entry visa meant she had to leave every three months and she ‘went home to have a look’ suggest that she prioritized compliance with that visa’s conditions over any other considerations. In the Tribunal’s mind, this is not consistent with her alleged fear. Neither does the Tribunal accept that the applicant’s signature on documents would necessitate her physical presence in China.

7. In reaching these conclusions, the Tribunal has considered the medical evidence that suggests the applicant had 3 pregnancies and 1 live birth and a single viable foetus at 29 weeks and the earlier medical evidence dated [October] 1997 that suggests the applicant had 2 pregnancies and 1 live birth and a viable foetus at 21 weeks. The Tribunal does not accept the applicant was pregnant in 2013. Neither does the applicant accept that the applicant is credible or her assertion that the medical evidence presented is evidence that any of her pregnancies resulted in forced abortions.

8. The applicant has also stated at hearing that as a result of her brother and husband’s political spot, her businesses have been interfered with, that is her [business] which opened in 2000 and operated until 2003 was forced to close and [Business 1] which opened in 2008 until 2013 was targeted.  In her statement, she said many people were jealous of [business], that she was interfered with by relevant departments, that she was named ‘suspended participated peacefully evolution’ and her business was forced to close. At hearing she stated that the Chinese police saw that her business was good and did not want it to continue and shut it down. The Tribunal finds this evidence vague, unconvincing and difficult to accept. In her statement, she also said [Business 1] and home were attacked and hit by the black society. At hearing she initially said that the door was smashed and words were written on the store door saying that they would have to close the shop. She then said that her shop was repeatedly targeted at the end of 2012, her family threatened and she gave money and reported the matter to the police but none of that was in her long winded statement accompanying her protection visa application. If the applicant and her family had been repeatedly threatened by gangsters in the manner described at hearing then that is something the Tribunal expects would have been detailed in the her statement. The applicant’s closure of her shop in 2013 also conveniently coincides with her arrival in Australia and the Tribunal does not accept that the applicant’s [Business 1] or home has been targeted as described. It also adds to the Tribunal’s perception that the applicant was making orderly plans to depart China rather than fleeing in response to any alleged government threat or threat from anyone else.

9. While the Tribunal accepts that the applicant’s brother obtained a protection visa on the basis that he participated in protests from April to June 1989, the Tribunal does not accept that the applicant has faced three forced terminations or that her businesses have been targeted. In reaching this conclusion, the Tribunal has considered not only the applicant’s initial delay in applying for a protection visa but also her return to China on three occasions after her initial entry into Australia [in] June 2013 including her most recent return to China [in] April 2018.  In reaching this conclusion, the Tribunal has also taken into account that the applicant was unable to explain how her return trips to China would make any difference as to whether her husband obtained a passport or not. When her last trip to China was put to her at hearing, she stated that she returned because her husband had [a medical condition] and that her daughter who had departed Australia [in] April 2018 was still with him. She also stated she repeatedly returned to China to see her father. Based on the medical records, the Tribunal accepts that the applicant’s husband is sick and also accepts she misses her husband. In addition, the Tribunal considers that her and her daughter’s return to China under such circumstances, without more, may not necessarily mean that the applicant is not telling the truth about her experiences in China. However, given all of its other articulated concerns, including the applicant’s delay in applying for a protection visa and her other unexplained return trips to China, the Tribunal is not satisfied that the applicant is credible or that she has been telling the truth about her alleged persecution and/or her daughter’s probable persecution.  Accordingly, while the parties have argued that because the applicant had ‘two influences’ and the persecution was bigger for her, the Tribunal does not accept that the applicant has suffered past harm and therefore does not accept she has suffered because of her husband’s political profile. Neither is the Tribunal satisfied that the applicant has been targeted because of her husband’s alleged political spot against his name for disobeying an order during Tiananmen Square or that he has been unable to obtain a passport.

10. In summary, while the Tribunal accepts that the applicant’s brother may have had political problems in the past, the Tribunal does not accept that the applicant has suffered the past alleged harm or that she has been identified as having her brother’s same political problems. Neither does the Tribunal accept that the applicant has been identified as having political problems and given factory rather than office work, told to have abortions, lost jobs or refused passports or jobs as a result.  Neither does the Tribunal accept that historical problems meant that the applicant’s [business] was targeted or closed or that [Business 1] and home were attacked by gangsters, the black society or by anyone else. Neither does the Tribunal accept that her family was threatened. Neither does the Tribunal accept that the applicant’s daughter was targeted because of the applicant’s historical problems or that she was unable to attend military school as a result.

11. In reaching these conclusions, the Tribunal has considered the statement from [Applicant 2], the oral evidence from [Mr D] and [Ms E] and the oral and written evidence from [Mr B] however the Tribunal does not accept that the applicant is credible and does not accept that their repeated assertions of the applicant’s claims is evidence that those claims are true. Neither does the Tribunal accept that [Mr B’s] claims that the applicant has been identified as a secondary or tertiary citizen are true.  

12. Neither does the Tribunal accept that the applicant’s background means that if she returns to China she will be asked what she has been doing overseas or that there will be charges against her because of what she has done.  

13. While the Tribunal accepts that the applicant has experienced democracy and freedom in Australia and clearly enjoys being in Australia, the Tribunal does not accept that the applicant has political views including about human rights and freedom of expression or imputed political views which have meant that she has previously suffered harm in China. Neither does the Tribunal accept that she has political views which mean she will suffer harm in the future.

14. While the applicant has also claimed that she will be unable to find future employment in China, the Tribunal does not accept that given her history of aptitude, resilience and past employment that is the case.

15. After considering the applicant's articulated claims, the Tribunal finds that if the applicant returns to China now or in the reasonably foreseeable future, there is no real chance that she will be persecuted for the reasons of her political opinion, membership of a particular social group or for any other Convention reason. Neither does the Tribunal accept that the applicant’s daughter has or will be similarly affected or that it is reasonably foreseeable that the applicant’s daughter will face forced abortions.

16. 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). On the basis of the applicant’s lack of credibility, the Tribunal has rejected the applicant's claims of past harm. Given these findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants removal from Australia to China, there is a real risk they will suffer significant harm. Accordingly, the applicants are not persons in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Angela Cranston
Member