1600617 (Refugee)

[2018] AATA 5972

1600617 (Refugee) [2018] AATA 5972 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600617

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:23 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2018 at 2:17pm

CATCHWORDS
REFUGEE – protection visa – China – domestic violence – physical, verbal and emotional abuse – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 424A

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 on 13 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 9 March 2015. In her application, the applicant stated

   My name is [Ms A], and I was born in Haerbin, Heilongjiang Province, China on [date]. I have been abused by my husband, [Mr B], both physically and mentally for a long time but I could not be protected by the Chinese government. In despair I came to Australia to visit my son who was currently studying in Australia. During my stay in Australia I came to know that according to the USDOS, government support in the Chinese law does not protect the victims of rape after married. The public safety usually makes people ignore the problem of family violence and partner abuse. The problem is a serious problem. According to the relevant report, at least one quarter family suffer from family violence and over 85% victims are women. Women suffer from the violence including languages and spirits abuse, freedom limited, economics control, physical abuse and rape. Hence according to the amendment in the definition of refugee by UN in 2013, I hope the Australian government could grant me protection visa to protect me from the family violence.

   When I graduated from Haerbin [at an educational institution] I began to work in Haerbin [product] factory. During that time, I met my husband, [Mr B]. He was [working] in one of the nation-owned companies. He was kind to me and always asked me out for dinner and movie. After getting along with him for a long time, I thought he was a perfect partner for me. Hence [in] June 1993 I got married with my husband and had our own son in the end of 1995. We did not earn much money at that time, but my husband and I lived happily and took care of our son together. Usually my husband would pick up my son after school while I would go shopping and do the cooking for the family. However, the happy and peaceful life changed since 2008. In 2008 I quit the position in Haerbin [product] factory and started to work as an [Occupation 1] in a local [workplace]. Hence, I had a leap in my career path and felt very satisfied. Meanwhile my husband did not achieve a lot in his career path. Having worked in the company for almost 20 years my husband was still in his original position. However, lots of my husband’s former classmates or co-workers were promoted in the company. Also some of my husband’s friends started to run their own business and became self-employed. Seeing what happened to his friends or classmates my husband could not balance his mind. Hence, he started to drink alcohol to get rid of this kind of mind imbalance after work. At the same time he started to pick on me and yell at me to vent his anger from his unsuccessful career path. I started to persuade my husband not to be depressed and said that it doesn’t matter if he could not be promoted in his career path. I told him he was still a good husband and father if he had a stable life and raise our son up. But my husband did not listen to me, and thought I was mocking him. Hence I did not dare to mention any working situation anymore, afraid that this would provoke my husband and he would yell at me again. With the passage of time my husband became more unsatisfied with his job. He stopped sharing the housework at home and had a habit of drinking alcohol after work. I had to do the cooking and taking care of our son by myself. Once when I returned home from work, prepared to do the cooking but found that my husband was drunk seriously. I took the alcohol bottle off the table and told him not to drink anymore. Unexpectedly my husband suddenly stood up and slapped me on the face. I was slapped to the floor and my husband began to kick me. He also yelled at me that his drinking was none of my business. I was bleeding from my mouth and nose, but my husband did not stop kicking me. He hit me more seriously and I was injured with bruise all over me. I felt so depressed and want to divorce with my husband. But thinking of my son, I gave up this thought and hoped that my son still had a family. So when my husband did the violence to me I did not call the police but behave as if nothing happened instead. However my husband began to have the habit of yelling me and abusing me. He almost yelled at me every day after work and complained that my cooking was not delicious or I did not do the housework carefully. Furthermore he even thought that I had an affair with other people outside. In despair I lost the love and emotion towards my husband. My husband and I became strangers to a certain extent but he still asked to have sex with me. I refused to have sex with him, he started to hit me, trying to unconscious me and force me have sex with him. After the sex I had lots of bite marks on my body. This time, I went to the local police to report that my husband raped me. But the police said that it was not their business. They also persuaded me that a few days later the conflict between my husband and I would be mitigated. I felt helpless when hearing what the policeman told me. Even the police departments in China could not help me from the family violence. The same time I contacted the agency for my son studying abroad in Australia, hoping my son would not see what happened to my husband and me. Also I applied for a visitor visa secretly through the agency when my son had come to Australia. On one hand I could visit my son. On the other hand I could get rid of the abusive treatment for my husband in both physical and mental ways. During my stay in Australia I came to make friends and lots of people. From talking with them I came to know that what I had suffered from my husband in China is qualified to apply for the protection from the Australian government. Hence I hope that the Australian government could protect me and grant me protection visa let me be away from the family abuse of my husband.

3. The delegate refused to grant the visa and the applicant applied for review.

4. The Tribunal hearing was conducted on 10 July 2018 with the assistance of a NAATI professional interpreter in the Mandarin and English languages. The applicant stated that she came to Australia [in] December 2014 and applied for a protection visa in March 2015 with the help of her neighbour and friend who translated the forms, wrote her answers and story in English. She stated it should be correct and she did not need to change anything. The applicant also stated that after her husband left Australia, he had harassed her mother who was her only relative in China because the applicant had not returned.

5. The applicant stated that her last address in China before she came to Australia was in Nan Gang District, Haerbin City where she lived for 3 years with her son and sometimes her husband. She then stated she was not there a lot and between 2011 and 2014 she had lived at another address at [Street 1], Haerbin City with her son and sometimes her husband and at [Street 2] with her husband while her son lived on campus. Before that she lived at the same address in Nan Gang District for 3 years or between 2008 and 2011 with her husband, son and no one else.

6. The applicant stated she lived with her husband and mother up until 2008 when her mother moved to Daling city. She stated at that time her father ran a factory where her husband also worked.

7. The applicant stated she was a [workplace] [Occupation 1] since 2008. Before that she was a factory [Occupation 1] for two years and before that, [another occupation].

8. The applicant stated that she divorced last year.

9. The applicant stated she had lived in [Suburb 1] since November 2016. Before that she lived at [Suburb 2] for 1 and a half years and before that she was at another address in [Suburb 2] by herself for 4 months.

10. The applicant stated when she came to Australia she was initially in Canberra for 10 days and then [Suburb 2], Sydney at a house she found via the internet. She also stated that she currently worked casually in a [workplace] and before that, as [another occupation] for one year, [another occupation] for four months and before that she had lived [in a location] for half a year.  

11. The applicant stated she came to Australia because of her son and planned to return to China to celebrate the Chinese New Year with her mother. She stated her husband also came to Australia, they were altogether and initially she was happy about that but that after he came he made trouble because he said she had come to Australia with other people. She stated the neighbour saw him shouting and hitting her, said it was against the law and that he could be deported.

12. The applicant stated her husband asked her to return to China and knew she planned to return around February. She stated after he returned to China he told everyone that she had cheated on him and he also went to her mother’s place and made trouble.

13. The applicant stated that her husband’s violence towards her commenced after her mother and father sold their factory and her husband was unemployed. She stated he was very unhappy, drank, hit her and burned her with a cigarette. She stated he first hit her roughly 6 months to one year after he lost his job. She also stated she called the police once in 2012 when she was in [Street 2] where she had lived together with her husband and his father (who she said had always lived with them). The Tribunal put to her that in her statement she had said that was when she started to secretly organise for her Australian visa and she agreed. The Tribunal asked if her husband knew at that time she was planning to come to Australia and she stated at the beginning he did not know however she needed to submit paperwork so he found out while she was still in China. She then stated he agreed for their son to come to Australia but only found out about her own visa application (which was granted within two days of applying) after she left China because they had used the same agent [and] her husband had asked that agent where she had gone.

14. The Tribunal put to her that in her statement she said that after she reported her husband to the police she applied for a visitor visa secretly through the agency when her son had come to Australia but that her visa was obtained in November 2014. She stated she had tried to secretly get her son a [Country] visa. The Tribunal said that it was trying to understand how she secretly made arrangements if her husband discovered where she was through the travel agent. She stated during that two-year period she did not tell her husband that she was trying to get her son a student visa however when they submitted the paperwork he found out.

15. The Tribunal also put to her that her husband had visited her in Australia. She stated he did that because her son did not know they were fighting. She also confirmed that her husband had stayed with her in Sydney. When asked why if she had fled China to be away from him, she stated at the beginning she did not plan to flee China but just wanted to visit her son and did not know that after her husband came to Australia he would argue with her. The Tribunal said that her statement suggested that he had been violent towards her in China. She agreed but stated that they had a child together and when he hit her in Australia she could not bear it anymore. She also stated he had harassed her mother who had been hospitalised.

16. The Tribunal put to her that when the Department had spoken to her she had said he threatened her brother and not her mother. She stated he also went to her mother’s place and her brother did not want to talk to anymore. The Tribunal also put to her that earlier she said that her mother was her only relative in China. She stated that was because there was no contact between her and her brother who had scolded her. The Tribunal put to her that she had told the Department that her husband had stayed with her in Australia and spent his days fishing. She stated she had encouraged him to do that. The Tribunal also put to her that she had also told the Department that he came to Australia to take her home but because he had spent his days fishing then it did not appear that way to the Department. She stated he was not fishing every day and she had asked him to go fishing

17. The applicant stated her husband’s Australian visa was cancelled and he went crazy. When asked how she knew it was cancelled, she stated [the agent] had asked her why her son’s father’s visa had been cancelled and had done so because [the agent] did not know of the fight between them and had helped with all of their visa applications. The Tribunal put to her that it was perplexed as to why she knew so many details relating to her husband’s visa if she had secretly tried to leave China.  She stated the agent was happy to have obtained the visas for her family.

18. The Tribunal put to her that her husband’s tourist visa application said that he and the applicant and the applicant’s mother lived together at yet another address and had also included in his application her 20 October 2014 bank statement and her identification card and asked how he managed to obtain those documents if she had not assisted him in that visa application. The applicant stated the three of them had applied through the same agent and all of the documentation would have been consistent.

19. The Tribunal put to her that at Departmental interview she said that her husband was first violent towards her in 2010 not 2008. She stated in 2012 he used a cigarette butt to burn her and she called the police and the violence had increased gradually. The Tribunal put to her that in her written statement she had said that she had bite marks on her body but not cigarette burns. She confirmed she had been burned by a cigarette and indicated a mark was still on her face and said maybe the translator made a mistake. She also stated she bit him and not the other way around.

20. The Tribunal put to her that a lot of what had happened could be consistent with her family’s orderly departure from China based around her son’s study, that is her son had arrived, she had followed and found a job outside Canberra and then her husband had used exactly the same agent to visit and that after he had arrived she had applied for a protection visa and because of that her husband’s multiple entry visa had been cancelled. The Tribunal also put to her that the agent had rung her and asked why her husband’s visa had been cancelled which seemed a strange thing to do if she did not assist her husband in that visa application and she had been able to tell the agent what had happened.  The Tribunal also put to her that it may not accept what she was saying was true, that is she had stated that her husband went to her mother’s place and had been violent however in his tourist visa application he had stated that she and her mother were living with him, that her details at hearing in relation to why she stated she had gone to the police may not be consistent with her protection visa application statement, that she told the Tribunal he was first violent against her in 2008 but told the Department he was first violent in 2010. She said that it had all been a long time ago and she did not have a good sense of time.

21. The applicant stated she submitted her protection visa application after her husband returned to China. The Tribunal pointed out that it may have been a multiple return visa that had been cancelled. The applicant stated that if she had planned to migrate with her husband, then it made more sense for her husband to travel to Australia because she had a stable job in China with a good income, that if she lived with her mother then it should be her taking care of her mother and that even though she and her mother had the same hukou, it did not mean they lived together. She also stated her brother lived in a city that was far away from her own.

22. The Tribunal also put to her that in her statement she said she made arrangements to leave China after the 2012 incident and that she had applied through the agency secretly and obtained the visa two days after application but she did not get an Australian visa until November 2014 which did not sound like it was straight after the 2012 incident. She stated she secretly applied for her son’s student visa and during that time she was constantly discussing with her agent which country her son should go to.

23. Following the hearing, the Tribunal asked for evidence that she was divorced and also sent the following letter pursuant to section 424A:

    When the violence first occurred
    At interview on 24 February 2015, the following conversation occurred between you and the Department of Immigration.

    Q. When did the violence with your husband start?
    A. 2010

    This is relevant because at hearing when asked the same question, you stated that your husband was violent towards roughly 6 months to one year after he lost his job in 2008.
    If the Tribunal finds your answers inconsistent, then subject to your comments, it would affirm the decision under review.

    Movement records indicate your visitor visa to come to Australia was issued on 19 November 2014 
    This is relevant because when asked at hearing about when and why you called the police in China, you stated you called the police in 2012 and that your husband had used a cigarette butt to burn you. The date your visitor visa was issued and your statement at hearing may be inconsistent with your written statement which was that you rang the police because you refused to have sex with your husband and he started to hit you and after sex you had lots of bite marks on my body. You also stated that at that time you contacted the agency for your son studying abroad in Australia, hoping your son would not see what happened to you and your husband and that you also applied for a visitor visa secretly through the agency when your son had come to Australia.

    Your husband’s visitor visa application contains your bank account statements dated up until 26 October 2014 and your identification card and states that he and your mother were living together.
    At interview on 24 February 2015, you told the Department that your husband threatened your brother.

    This is relevant because at hearing, you stated that your mother who did not live with you or your husband and who was your only relative in China had been living at another place and was harassed by your husband when you did not return to China. This is relevant because your husband’s application that contains your bank statement dated 26 October 2014 and your identification documents does not suggest to the Tribunal that your husband did not know your plans to travel to Australia or that you applied for a visitor visa secretly.
    The Tribunal may also find that your statement to the Department that your husband threatened your brother is not consistent with your statement at hearing which was that your only family in China was your mother and that it was she who your husband threatened. In addition, your husband’s visitor visa application does not suggest to the Tribunal that your mother was independently living away from your husband or that your husband sought her out after you failed to return to China in order to threaten her.

    This is relevant because subject to your comments, the Tribunal would find you not credible and would affirm the decision under review.

1. The Tribunal also sent a further 424A letter stating that her son lodged a student visa application on 11 September 2014 and that the date of her son’s student visa application may be inconsistent with her written statement which was that she rang the police and at that time contacted the agency for her son’s studying abroad in Australia and that if the Tribunal found her son’s application inconsistent with her statement, then subject to her comments it would affirm the decision under review. 

2. The applicant responded as follows:

   About the starting time of abuse

   My ex-husband lost his job in 2008. After one year of resting at home, he had big difference in his personality and temper than before. He started to drink a lot, alongside with the frequency and degree of his domestic violence on me, from verbally abuse me to hit me. The trauma of his abuse began my nightmare for ten years. I have been lacking sleep for ten years. The exact time may slightly different because of my bad memory. I am suffering from insomnia for more than five years. Recently, I am taking [medication] prescribed by [a doctor]. Please refer to the Past Prescription for [the applicant].

   About my bank statement

   When my ex-husband applied for his tourist visa, the agency used my bank

   statement in my tourist visa application file in their computer system without my

   permission.

   About the address on my ex-husband's identification card

   My ex-husband's identification card was under my mother's address in 2014, but they never lived together. In China, the address on the identification card links to the Housing Registration System. People usually do not change their addresses in the Housing Registration System for moving home. They only change their addresses when they need to prove that they live in the address for a particular reason. It's also hard to change the address in the Housing Registration System. People are required to provide their reasons of moving in and out. In most of the cases in China, people are required to acquire permission from the government and police department for changing their address in the Housing Registration System. A good example for the address is that my current identification card is still under my mother's address, but we are not living together as we are living in two different countries.

   About my relatives

   Before the year of 2015,I had very good relationship with my brother and our identification cards were under the same address. However, my brother was very angry for affected by my matter. He firmly disconnected with me and moved our from the address in the identification card system. Therefore, I stated in the hearing that my mother was the only relatives of me. She is still living in Harbin and she told me that my brother is living in Qingdao.

   The explanation of calling the police in 2012

   In 2012, my ex-husband burned my face and my [body] and beaten me because I refused to have sex with my ex-husband. I called the police for this. This is still my nightmare. I did not state this fact in a different ways in the hearings and in my statement. If there is any inconsistence, it should be interpreter’s fault for delivering wrong information to the court.

   Why my ex-husband know my plan to travel to Australia

   My son had good relationship with my ex-husband back to 2014. They communicate

   a lot. It is not strange that my son told my ex-husband about my plan to Australia.

   About the time of divorce

   I applied for divorce on 06/06/2016. The Family Court of Australia ordered for my

   divorce with [Mr B] on [date]/9/2016. Please refer to my divorce application and

   my divorce order.

3. She also stated that in 2012 her son was [a certain age] and that the agency told her it was better to send her son to Australia once he finished high school so it was only then that they started to apply for university in Australia and lodged his visa application on 11 September 2014.

CRITERIA FOR A PROTECTION VISA

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, he or she 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.

2. 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 because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

5. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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 applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.

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

3. Central to the applicant's case is her claim that she has suffered domestic violence at the hands of her husband.

   The applicant stated in her statement accompanying her protection visa application that because her husband was not promoted in his career path, he started to pick on and yell at her and had the habit of drinking alcohol and became violent towards her. She also stated that she did not call the police until one incident in which he forced her to have sex and there were bite marks on her body. She also stated that at the same time she contacted the agency for her son studying abroad in Australia, and that in despair, she came to Australia to visit her son who was currently studying in Australia and applied for a visitor visa secretly through the agency when her son had come to Australia. However, records indicate that the applicant’s son lodged a student visa application on 11 September 2014 and the applicant’s own visitor visa was issued on 19 November 2014 and she stated at hearing that she obtained the visa two days after applying. She also stated at hearing that she called the police in 2012 after her husband had used a cigarette butt to burn her and the mark was still on her face. While the applicant has stated that maybe the translator made a mistake, she also initially stated at hearing that her statement should be correct and she did not need to change anything. The Tribunal finds the applicant has provided inconsistent evidence in relation to the nature of the alleged violence and her statement at hearing that the violence occurred in 2012. Neither is her written statement that when the violence occurred in 2012, she contacted the agency to organise either her son’s study abroad or for her own travel abroad in Australia consistent with either when her tourist visa application or when her son’s student visa application were lodged in 2014 which is some two years after the alleged violence in 2012. It is also inconsistent with her husband’s visitor visa application which contains her bank account statements dated up until 26 October 2014 and her identification card and does not suggest to the Tribunal that her husband did not know of her plans to travel to Australia or that she secretly applied for a visitor visa.

4. When the date of her son’s student visa application was put to her, she stated that it was the agent’s advice that he should finish high school before studying in Australia. While the Tribunal has considered this, the applicant’s initial statement that she contacted the agency to organise her son’s study abroad because of the family violence in 2012 does not sit well with her son’s student visa application some two years later or her alleged lack of action in 2012 and the Tribunal’s overall impression is that the applicants and her son’s travel has in fact occurred because of his studies rather than because of any family violence.

5. In addition to these concerns, the Tribunal finds that at Departmental interview, the applicant stated that the violence with her husband started in 2010 but at hearing she stated her husband was violent towards her roughly 6 months to one year after he lost his job in 2008. She also stated that her husband threatened her brother however at hearing the applicant initially stated that her only family in China was her mother and that it was she who her husband threatened. While the applicant has stated that she said at hearing that her mother was her only family because her brother was angry for being affected by her matter, the Tribunal does not believe that she would have failed to mention that at hearing if in fact her brother was threatened by her husband and that as a result, her brother stopped talking to her. In addition, her husband’s visitor visa application does not suggest to the Tribunal that the applicant’s mother was living away from her husband or that her husband sought the applicant’s mother out by going to her mother’s place after the applicant failed to return to China in order to threaten her. In reaching this conclusion, the Tribunal has considered the applicant’s statement at hearing which was that if her mother was living with them, then she should be looking after. She also stated post hearing that her ex-husband and her mother were never living together and that the address on the identification card links to the housing registration system however when specifically asked for information about his family, the applicant’s husband has independently completed a family composition form that has he, the applicant and the applicant’s mother living together. In the Tribunal’s view, there is no reason for the applicant’s husband to have said this in his visa application unless it was true.

6. The applicant’s ever changing evidence means that the Tribunal's overall impression is that she was not recalling events that had actually happened. In reaching this conclusion, the Tribunal has considered the applicant’s post hearing statement which was that she had a bad memory and had been suffering from insomnia for more than five years. The Tribunal does not accept that the applicant would provide inconsistent details such as when the violence started if in fact the loss of her husband’s job in 2008 was the cause of the violence and the applicant’s time marker as to why and when he became violent. Neither does the Tribunal accept that the applicant would not have remembered whether a cigarette butt was used to harm her on the only occasion she allegedly called the police in 2012. While the applicant stated in her post hearing submission that her ex-husband burnt her face and [body] and beat her and that if it was stated differently, it was the interpreter’s fault, she initially stated at hearing that her statement should be correct and she did not need to change anything. Given the Tribunal’s overall impression of the applicant’s evidence, it does not accept that there was an interpreter error. The Tribunal does not accept that her husband would use the same migration agent or that this migration agent would ring the applicant in order to find out why her husband’s visa was cancelled if the applicant’s travel to Australia was secret or the applicant was not involved in her husband’s visa application. In the Tribunal’s view, the use of the same agent by the applicant and her husband and the agent’s continuing communication with the applicant about her husband’s visa is not consistent with her alleged claims that her travel plans were secret or that she continued to fear her husband.

7. Given all of the above concerns, neither is the Tribunal persuaded by the applicant’s submission at hearing which was that if she planned to migrate to Australia with her husband then it made more sense for her husband to travel because she had a stable job in China with a good income.

8. While the Tribunal notes the divorce certificate dated [September] 2016 and that the applicant is therefore legally divorced, given the above credibility concerns, the Tribunal does not accept that the applicant is in fact separated from her husband, or that he has assaulted her, or that any mark on her face is evidence of the said assault or that she has complained to the police or fled to Australia as a result.

9. For the reasons above, the Tribunal does not accept that the applicant has suffered any previous harm in China, nor that there is a real chance that she will suffer serious harm from her husband, or anyone else in the reasonably foreseeable future. The Tribunal does not accept that she has suffered harm from her husband either in China or in Australia or that she has a well-founded fear of being persecuted for one or more of the refugee reasons if she returns to China now or in the reasonably foreseeable future. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

10. 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 applicants' lack of credibility, the Tribunal has rejected the applicant's claims. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Angela Cranston
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:    For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:    For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

2. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

3. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA  Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36Protection visas – criteria provided for by this Act

…

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…