1408941 (Refugee)

[2015] AATA 3297

1408941 (Refugee) [2015] AATA 3297 (11 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1408941

COUNTRY OF REFERENCE:                  China

MEMBER:Andrew Mullin

DATE:11 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 11 August 2015 at 12:12pm

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 claim to be citizens of the People's Republic of China and, respectively, wife, husband and [children].  The first-named Applicant arrived in Australia on a student Subclass 571visa [in] July 2007 and the second-named Applicant arrived [in] November 2007, also on a Subclass 571 visa.  The third-and fourth-named Applicants were born in Australia. 

3. Relevantly, the first-, second- and third-named Applicants applied for protection visas [in] February 2011 and [in] November 2011 a delegate of the Minister refused to grant the visas.  On 14 March 2012 the Tribunal, differently constituted, affirmed the decision.  The fourth-named Applicant (born in Australia [in] December 2011) applied separately for a protection visa [in] September 2012 and [in] February 2013 the delegate refused to grant the visa.  The Tribunal, differently constituted, affirmed that decision on 31 May 2013.  All four Applicants lodged a fresh protection visa application [in] December 2013, an application which was deemed to be valid as a result of the Federal Court's decision in SZGIZ v Minister for Immigration and Citizenship [2013] FMCA 215. The delegate refused to grant the visas [in] May 2014 and on 20 May 2014 the Applicants applied to the Tribunal, presently constituted, for review of the delegate's decision.

4. The Applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. As noted, the Applicants in the present case previously made an application for a protection visa in 2009 which was assessed under s.36(2)(a).  The application was refused and the Tribunal subsequently affirmed the decision.

11. The effect of the Full Federal Court's decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 is to confine the bar on making a further application for a protection visa contained in s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. The court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion.  However, the Court's reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application.

12. As the Applicants in this case have previously had their claims for protection assessed under s.36(2)(a) prior to the commencement of the complementary protection laws and have not left Australia since the final determination of their previous protection application, I consider that the Tribunal must confine its consideration to whether they satisfy the requirements of ss.36(2)(aa) and (c).

    CLAIMS AND EVIDENCE

13. The Tribunal has before it the Departmental and Tribunal files relating to the Applicants together with the material referred to in the delegate’s decision record.

14. Only the first named Applicant has made specific claims to fear harm in China, her husband and children relying on their membership of her family.  For convenience, therefore, I will refer to the first named Applicant as the Applicant.

15. In the protection visa application [in] December 2013 the Applicant claims, in summary:

    ·She was born in Fuqing, Fujian Province, China, in [date] and lived at an address in Fuqing from 2000 to July 2007.  She gives her ethnicity as Han and her religion as Christian.  She claims to have received a total of [stated] years of formal education in China, ending in June 2007.  She gives her marital status as engaged and, besides her spouse and children in Australia, lists her parents and [siblings] together with her spouse’s family members, as living in China.

    ·She came to Australia to study.

    ·She has not experienced harm in China. 

    ·She fears that on return to China she will be fined, ‘reviewed’ by police and may be detained.  The reason for this is that she has had two children while under the legal age for marriage.  Additionally, the police and government know she and her family have applied for protection visas and will see her as an enemy as they will know she said bad things about the government.

16. The Applicant provided photocopies of:

    ·Pages from her Chinese passport and those of the other family members.

    ·Australian birth certificates for her two children, the third- and fourth-named Applicants.

    ·A marriage certificate showing that she and the second-named Applicant were married in [Australia in] December 2013 by [Reverend A] according to the rites of [a certain] Church.

    ·A letter dated [in] April 2014 on the letterhead of [Church 1] signed by [Reverend A] as Senior Minister.  [Reverend A] states that the Applicant’s family have been attending the church for three years.  They are very dedicated and attend every Sunday morning as well as at regular meetings for prayer and Bible study on Tuesday evenings and prayer meetings on Fridays.  The first- and second-named Applicants have played a strong role in the church community, including by leading the Friday prayer meetings.  He continues that they have both

    ..confessed that in their past in China, they were in an environment of oppression and distrust.  They were living a life under pressure with constant worry over the future and their security, and obstructions to their faith.  However, today, the [applicant] family has grown and has found peace, joy and encouragement through serving and living God, and sharing their faith with others…

17. The Applicant added to her claims at a protection visa interview [in] May 2014, stating relevantly that:

    ·She feared persecution in China because she has breached the family planning regulations by having two children, below the approved age. 

    ·Another reason was that her mother-in-law applied for protection in Australia and, on return to China, was questioned and detained for some time.  She might also be questioned and detained about her own application for protection.

    ·Asked if she feared persecution in China for any other reason she said she did not.

    ·It was put to her that her claim to fear harm as a result of breaching the family planning regulations had been explored in depth by the Tribunal, both in her own previous protection visa application and that of her [child].  She said did not agree with the Tribunal’s finding that the fines she would face would be in thousands of dollars (sic) or that the fines could be paid in instalments.  Many news reports from China state that some people have been fined very large amounts of money.  Some movie stars have even migrated to Hong Kong in order to have more children.  There are reports that the government encourages people to ‘dob-in’ those who have breached the regulations.  Asked how much she believed the fine would be she said she did not know but was sure it would be beyond her ability to pay.  Asked if she had made any enquiries about the amount of the fine she said she had not – she believed in taking one step at a time.

    ·Asked if she would pay the fee if she returned to China she said she would.

    ·It was put to her that the Tribunal had previously found she would have the ability to pay the fine and, once it was paid, her children could obtain household registration and have access to basic entitlements such as education, health care and other social services.  She said she had been asked if she would pay if she lost her case and she had said she would of course repay such a debt.  This had led the Department to the conclusion that if she had money for this purpose she would have the money to pay the fine in China.

    ·It was put to her that in the RRT hearing (in the case of her [child]) she agreed she had previously exaggerated her claim to fear harm for breach of the family planning laws.  She said she had agreed at the hearing that she had told some untruths about the possibility of being persecuted in China but what she had said about being persecuted for breach of the family planning regulations was true.  In China there are sometimes differences between policies adopted at high level and methods adopted by government at a lower level.

    ·It was put to her that she had stated previously to the Tribunal that her mother-in-law had been released from detention and that she did not believe anything would happen to her if she returned.  She said she believed a similar thing would happen to her – she would be locked up and questioned.  Asked why she would have stated that she believed nothing would happen to her she said her mother had approached relatives and friends and had used money and connections to obtain her mother-in-law’s release.

    ·It was put to her that her mother’s ability to gather money for this purpose could indicate she would be in a position to help pay the social compensation fee.  She denied this was the case.  Her father had died and her mother had paid a lot of money for his medical care.  [One sibling] was still studying and her [other sibling] had only just begun to work.  Her grandparents were in poor health.  It was put to her that she and her husband are young and able-bodied, and would be able to find employment in China.  She agreed they could do so but added that her [sibling], who was qualified as a [occupation], was earning only Rmb 2000 a month.  Neither she nor her husband was qualified and they could not earn more than Rmb 3000 per month.  They could not support their family on this amount, let alone pay the fine., allowing them to pay the

    ·She agreed she had stated in her previous Tribunal hearing that she attended a registered church in China.  She belonged to a very large church in [Fuqing], which was over one hundred years old.  She would also attend religious meetings in private homes and did not know if this would be regarded as illegal activity.  It was put to her again that she had claimed she attended a registered church.  She said she had also attended small-scale gatherings.

    ·Regarding the claim that the Chinese government knew she had claimed protection in Australia she said her mother-in-law had revealed this information to the authorities when she was detained.  She agreed she had previously made up the claim that her mother-in-law was tortured while in detention.  Asked about country information from DFAT indicating that applying for refugee status abroad does not necessarily expose a person to persecution on return, and that the treatment will depend on subsequent behaviour, she said she did not know if attending religious gatherings in homes would be seen as illegal.

    ·It was put to her that the fact of her having attended a registered church together with country information indicating the authorities in Fujian exhibit a generally tolerant attitude to religious practice in the Province could lead to a conclusion that she would not suffer harm because of her religion if she were to return to China.  She indicated she had no comment to make on this. 

    Tribunal hearing

18. The Applicants appeared before the Tribunal on 23 April 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from [Mr B], an elder of the [Church 1].  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

19. The Applicant’s evidence was, in summary:

    ·Asked what she feared would happen to her if she returned to China she said the church she attends in Australia belongs to a charismatic denomination whose goal is to seek the fulfilment of the Holy Spirit.  This goal is not acknowledged by other religions in China and the church is regarded as an evil cult.  If she were to return to China and preach the Gospel she would be intercepted.  Her church, [Church 1], is Pentecostalist.  It subsidizes three sister churches in China which are often harassed and she has heard that two of its pastors were detained for holding underground gatherings the previous year in Shandong Province and Suzhou (Jiangsu Province).  Her church had prayed for them. 

    ·After arriving in Australia she had applied for a protection visa and it was not until March 2012 that she began attending [Church 1], discovering Christ and following God.  She had learned about the church and if she returned to China she would like to preach the Gospel.  She participates in various services in her church, including in a choir, hymn singing and other religious activities.  She is a genuine follower of God.

    ·In the past she eagerly wanted a protection visa and lied to her migration agent.  After attending the church she learned that God abhors lies.  She has changed greatly and wanted to apologize for lying previously.

    ·Asked if she feared harm in China for any other reason she said she was expecting a third child in July and was concerned that if she and her family returned they could not survive as they would have to pay fines for breaching the family planning laws.  She and her husband had been out of China for so long that they had no skills.  She would have to remain at home and her husband would have to go away to find work.  This was no way to raise a family.  She did not fear harm in China for any other reason.

    ·Regarding her biographical details she said she was born in [date] in Shenzhen, Guangdong Province.  She then said her actual date of birth was [another date].  I noted this was different from the information provided in her protection visa application indicating she was born in Fuqing, Fujian, on [the first date].  She said her parents had been doing business in Shenzhen at the time.  She was not placed on their household registration (hukou).  Her parents had problems with the birth control authorities as her mother was pregnant with her [sibling] and they remained in Shenzhen without registering their hukou there.  The whole issue was reported to the authorities and their grandfather was detained.  Her parents pretended that she and her [sibling] were twins, in order to reduce the fines they would have to pay.  Asked why she would have given her birth place as Fuqing in her protection visa application she said she had simply followed what was in her passport; all her documents showed her place of birth as Fuqing.  To the observation that she had provided incorrect information to the Australian authorities about her date and place of birth she repeated that she had followed the information in her documents – she had thought this would be acceptable.

    ·She confirmed she had lived at the same address in Shenzhen for her last ten years in China.  This was in a house owned by her parents.  Her maternal grandparents and her [sibling and spouse] are living there now.  Her mother lives in [Fuqing], where she owns and runs [an organisation].  Her father, who is deceased, had worked in various [businesses].  He also had a truck licence and drove for an employer.  He had no other business.  Reminded of her previous claim that he had operated a [certain business] she said this was written by her migration agent.  Everything she had told her migration agent was wrong.  Asked if she meant she had lied about this to her migration agent she then said she accepted the lies in the documents prepared by her migration agent whom she had contacted after her husband was arrested in [an Australian city] for working illegally.  The agent made up the whole story for her.  The agency was later closed down. 

    ·I noted that in her original protection visa application she had claimed her parents were devoted Christians and her mother was a priest; they attended unregistered churches in their own and surrounding villages; her father owned a [certain business] and the family was well-to-do; her parents and many other members of her church were arrested in 2005; because she believed in God her parents were worried about her and sent her to Australia to study.  Asked if all of this information was incorrect she said it was true that her parents were Christians.  Her mother studied theology and is a preacher in a church, although not a pastor.  She herself began to believe in God when she was young, following her family, although her belief is not as deep as theirs.  All the other details were made up by the migration agent.  The information she was now giving was all true.

    ·Asked about her hukou registration in China she said it is currently in Fuqing City and is an urban hukou.  However, if she were to return to China she would transfer to her husband’s home [area], about thirty minutes by bus from Fuqing.  This is a rural area and it meant she would have a rural hukou.

    ·Regarding her academic record in Australia she said she had studied for up to two years.  Her husband completed only one month of a language course.  Asked if he had ever genuinely intended to study in Australia she said she was not sure.  She agreed she would have needed to demonstrate access to as much as AUD 30,000 for her first year of study in Australia, and possibly to twice this amount over two years.  She said she came to Australia with the help of a migration agent in China, spending more than Rmb 100,000 to do so.  Her tuition fees for the first year were prepaid.  Later she stopped studying when she found that her study did not guarantee permanent residency.  I put to her this seemed to indicate she and her husband had access to considerable financial resources.  She said her parents had some savings and were willing to pay for her to have a good education, permanent residence and a better future.  Asked why they had spent all their money on her rather than on her [sibling] she said she was old enough to obtain the visa at the time and had gained good results in English.  The visa application was lodged [while she was still a minor] and her mother’s plan was to obtain a guardianship visa which would allow her to work overseas.  Although her mother was unsuccessful it was expected that the Applicant would obtain permanent residency after studying [a certain trade], allowing her siblings to come to Australia.

    ·She confirmed that on return to China she would have three children and would have to pay a social compensation fee for having more than one child.  To the observation that information before the Tribunal indicates those on a rural hukou are permitted to have two children - meaning she would have only one child above the quota - she said she did not know about this.  Asked if she had made any enquiries about the matter she said that as far as she knew she would have to pay a fine to have her children registered on her hukou.  She had done some research online and had read that the policy is strict and that a child cannot gain hukou registration unless its mother produces a certificate showing she has been sterilised.  I put to her that this did not accord with the information before the Tribunal.  She said this was what she had read but if the Tribunal had different information she had no means of disputing it.

    ·Asked if she had investigated the actual amount of the fine she might be required to pay she said she was not sure but it could be tens of thousands of Yuan Renminbi.  I noted that information before the Tribunal indicates the fine for having one child above the quota, born in 2013, was between Rmb 19,934 and 29,901.  Although these figures might be somewhat greater for children born in 2015, they would still not represent very large amounts.  The information also indicates that the fine is able to be paid off in instalments.  I put to her that on the basis of this information it seemed hard to believe she would be unable to pay the fines.  She said she did not believe she would be permitted to pay in instalments – this might be information from official sources but the situation is different for ordinary people. 

    ·I put to her that it also seemed hard to understand why, given the large amounts which had been provided by her family and her husband’s family to send both of them to study in Australia, the two families would not support them by paying the fines.  She said her husband’s parents borrowed the money for him to come to Australia.  Her husband worked to pay off the debt.  Her mother-in-law has returned to China and is now unemployed.  Her father-in-law works in various jobs but she has rarely spoken to him.  Her mother does not have a stable income and could not be relied on for support.

    ·Summarising the information before the Tribunal I put to her that she would not be required to pay a very large amount of money in fines, that this could be paid in instalments, that she would not be required to undergo sterilisation and that her children could be placed on her hukou once the fines were paid.  Further, she had a husband who could work and families which, at least in the past, had been able to access considerable sums to send her and her husband to Australia.  She said their families would not be able to provide the security necessary to obtain a loan.  Asked why they could not put up their property as surety she said this would mean her family would have nowhere to live.  To the observation that they would not be giving their property up she said she had not thought about this and had no idea.

    ·Regarding her claim to fear harm in China as a member of a Christian church designated an evil cult she said they emphasized fulfilment of the Holy Spirit.  This was different from some other Christian churches and she thought it would be taken as an evil cult.  Asked when she had become a Christian she said her whole family had believed in Christianity.  In China, she attended Bible study with her parents every Sunday.  She knew the stories from the Bible, it was not until 2012, when she was in Australia, that she became a Christian and learned about God.  Before that she considered herself as a Sunday believer.  After that she fully engaged in studying Christianity, reading the Bible and preparing materials for one to two hours every day.  Asked if she had been baptized in China she said was anointed with water in a registered church but in Australia she was baptized in [Church 1].

    ·She confirmed that she did not begin attending [Church 1] until 2012, five years after her arrival in Australia and at a point after she had first applied for protection.  Asked what she had been doing during this period she said she attended some churches at various times but did not fully engage herself in Christian belief.  I put to her it seemed possible to believe that the reason she and her husband had begun attending this church was to strengthen their protection visa claims.  She said that, to be honest, she was introduced to the church by a friend.  Later she developed a genuine belief in God.  In her first protection visa application she followed the advice of the migration agent.  Since coming to know God she was happy to leave everything in His hands.  She denied that the migration agent had advised her to attend church to demonstrate that she was a Christian – his advice had been to apply for protection on the basis of breaching China’s One Child Policy.

    ·She confirmed her claim that she attends worship services at [Church 1].  The Church does not have its own premises but operates from the hall of a public [school].  Its leader is [Reverend A], who would have given evidence at the hearing but was too ill to do so.

    ·Asked how she knew the Church would be regarded as an evil cult in China she said that since it is Pentecostal it is considered to be charismatic.  As a charismatic church it is equivalent to the Shouters, who are considered an evil cult.  She referred once more to the arrests of two Pastors.  I put to her that the Shouters sect is not equivalent to the Pentecostalist church and that there did not seem to be information indicating that the Pentecostalist church has been declared an evil cult in China.  She said she understood Pentecostalism is not the same as being a Shouter and is not an evil cult.  Her church received the Holy Spirit during its ceremony, something the other churches do not accept, and they would definitely stop this.  I put to her that receiving the Holy Spirit during worship would not appear to set her church apart from the beliefs of many other Christian denominations.  She said religion in China does not believe in the Holy Spirit or that illnesses can be cured by prayer.

    ·I put to her that she appeared to be basing her fear of harm in China on supposition or guesses, and that there did not seem to be information indicating that Pentecostal churches in China are regarded as evil cults or that Pentecostalists are unable to worship as they wish.  .  She said she had read of persecution in Shandong and Shansan.

    ·I put to her that information before the Tribunal indicates the authorities in Fujian adopt a tolerant attitude toward religious practice and there has been a rapid growth in the number of Christians in the Province, in both the official recognised churches and in house churches.  There is no information indicating that Pentecostalists are being targeted.  Taken together, this information could indicate that she would not be harmed for practising her religion if she returned to China, whether she continued to worship in the official church or did so in her new Pentecostalist church.  She said she had not thoroughly researched the subject.  If it was true that there was tolerance toward religion in Fujian she would be very happy.  If she and her husband had to return to China they would continue to preach the Gospel.

1. In his witness evidence [Mr B] said he first met the Applicants two or three years ago, in [Church 1].  They still attend the Church, at group meetings on Tuesdays, prayer meetings on Fridays and regular Sunday services.  He was present when they were baptized but said he could not remember when this was.  He was not aware of the details of the history of the Church as he had joined it only two or three years previously, but confirmed the leader is [Reverend A].

2. Asked if he had any knowledge of Christianity in China he said any sincere Christian would know what is happening all over the world.  He had gained an understanding from listening to preachers and had also returned to his home town of Harbin for a vacation and attended a number of churches there.  Asked if there was anything to indicate that people are being harmed on account of being Pentecostalists he said that some are members of underground churches and are being persecuted.  Other underground church members are persecuted as well.  Asked about the information indicating that there is tolerance displayed toward Christianity in Fujian, and the numbers of Christians are growing rapidly, he said he was aware that some are still being persecuted, including those who are members of the officially recognised churches.  He did not have any direct information about conditions in Fujian but recounted a recent incident in which local officials had demanded that members of an official church remove the cross from their church building.

3. The Tribunal also received evidence from the second-named Applicant, [who] said he belonged to a Pentecostalist church and believed in the Holy Spirit.  In China this would be seen as an evil cult.  Asked how he knew this he said his friends in China have the same belief.  Asked what has happened to them he said it is not safe for them and they are placed under monitoring every day.

4. Asked if there was anything she wished to add the Applicant said there was not.

   FINDINGS AND REASONS

5. On the basis of the photocopied pages of their passports submitted at the hearing I accept that the Applicants are citizens of the People's Republic of China and that their identities are as they claim them to be.

6. The Applicant claims to fear harm in China at the hands of the authorities because of her Christian religion, her breach of China’s family planning laws and the fact that she has claimed protection in Australia.

7. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at451.

   Breach of family planning laws

8. As put to the Applicant at the hearing, the information before the Tribunal indicates that under a recent amendment to China’s family planning laws, parents with a rural family registration (hukou) are permitted to have two children if their first child is female.[1]  The Applicant’s evidence was that if she and her family were to return to China they would live with her husband in his home town in Fujian Province and would be placed on his rural hukou.  Given that they and their children would be registered on a rural hukou and their first child was a girl the effect of this would be that she has not breached the law and would not be fined over the birth of their second child. 

   [1] See, for example: ‘Why is China Relaxing its One Child Policy?’ The Economist, 10 December 2013; ‘China Plans Further Changes to One Child Policy, International Business Times, 15 March 2015,

9. At the hearing the Applicant claimed she is expecting a third child and, although she produced no medical evidence to support the claim, I accept it to be true.  This yet-unborn child was, of course, not included in the review application and there is no suggestion that the Tribunal has jurisdiction to consider its case.  I accept, however, that the birth of this child would appear to mean that on return to China the Applicant would be seen as having breached the family planning laws and that she could face a fine for doing so.  The information available to the Tribunal indicates that the fine for having one child above the quota born in 2013, for those on a rural hukou in Fujian Province, is between Rmb 19,934 and 29,901 (or about AUD 4,400 to 6,600 at current rates of exchange)  I accept that these amounts will have increased somewhat for a child born in 2015 and, assuming the increase were at the rate of ten percent per annum, this would mean the Applicant might be faced with a fine equivalent to about AUD 5,700 to 8,000 for this third child.  It also appears possible that she would be fined for having children out of wedlock and while under the prescribed age for child-bearing, in respect of her first and second children.  The information before the Tribunal indicates that, cumulatively, the fines for this breach would be between Rmb 8,864 and 14,107 or AUD 2,000 and 3,100.[2] 

   [2] Under Article 14 of the Population and Family Planning Regulation of Fujian Province 2002, it is forbidden to have a child out of wedlock.  A fine is imposed under Article 39 of this law for each child born out of wedlock, equal to 60 to 100 per cent of the average annual disposable income of urban residents or the net average annual income of rural peasants in the previous year.  If the parent’s income exceeds the average annual income of urban or rural residents, the actual income is used as the base to calculate the social compensation fee.  According to government statistics of the average incomes for Fujian Province the fines imposed for a child born out of wedlock in 2011 (the birth year of the fourth-named Applicant) would be a minimum of Rmb 4,456 and a maximum of Rmb 7,427 for those on a rural household registration (Population and Family Planning Regulation of Fujian Province 2002 (China), Promulgated 26 July 2002, (Effective 1 September 2002), UNHCR < China Statistical Yearbooks 1996-2012, National Bureau of Statistics of China, China Statistical Press – Online site >

   In considering these possible fines I note there is also information indicating that family planning authorities have a considerable degree of discretion in determining the actual amount payable in any individual case, and that in practice those who are self-employed and on rural hukous are often able to evade the regulations.  The Applicant’s evidence at the hearing was that her own parents had been able to do just this, allowing them to have [children].  There is also information to indicate that couples who have children while living abroad are exempted, in whole or in part, from the Fujian family planning laws.  However, given that there is some inconsistency in the information before the Tribunal on these matters I accept that the Applicant could be faced with fines, in total, equivalent to between AUD 7,700 and 11,100.  I do not accept the claims which have been advanced by her at other points in the process of seeking protection that she would be fined far larger amounts.  Her evidence for this at the hearing was, apparently, that she had read or heard of very large fines being imposed on film stars such that they were forced to move to Hong Kong.  She herself had not researched the subject in any depth.

10. At the hearing the Applicant rejected the suggestion that she would be able to pay off these fines by instalment.  It was clear from her responses, however, that she had not made any particular enquiries about this aspect of her claims and had no information to support the claims. As put to her, the information before the Tribunal, which I prefer, indicates that such an arrangement would be available to her.

11. The Applicant claims that neither she nor her husband would be able to earn sufficient in China to allow them to support themselves and their children, let alone pay off the fines they will face for breach of the family planning laws.  However, there is nothing in the information before the Tribunal to explain why this would be the case, given that they are both young and apparently able-bodied.  Even if they have not proceeded very far with their education in Australia, there is nothing to indicate that they could not find employment or, like many other millions of young couples in China raising a family, make their way in the world.  In this context I also note that both their families were able to raise the large sums of money required to enable them to travel to Australia with student visas and there is no suggestion that either family would be unwilling to help them if they were to return to China.  When this was put to the Applicant she claimed that the situation had changed since she first arrived in Australia in 2007, with the death of her father, and that her and her husband’s families are generally less secure financially.  To the suggestion that they could borrow money to pay off the fines she would face she said they could not do so without security but she did not offer any substantive comment to the observation that they could provide their houses as security for such a loan.

12. The Applicant also suggested that she would be unable to obtain household registration for her children unless she could provide a certificate showing that she had undergone a sterilisation.  As put to her, however, there is nothing in the information before the Tribunal to support this claim and I do not accept it is true.  The information indicates instead that once the relevant fines have been paid for breach of the family planning laws, children are able to be registered and gain access to social services, including education and health care, enjoyed by the rest of the population.

13. Taking together all the information before the Tribunal on this aspect of the Applicant’s claims I accept that if she returned to China she would face a fine for breach of the family planning laws in respect of her third child and, possibly, for having her first and second children out of wedlock and below the prescribed age for child-bearing.  I am not satisfied that the amount she would be required to pay, in instalments, would be excessively high in her circumstances or that she and her husband, with the support of their families, would not be able to pay it.  I consider that she would be able to register her children on her family hukou, putting them on the same footing as other children in China and I do not accept that she would be required to undergo a sterilisation for this purpose. 

14. I am not satisfied that the imposition of these penalties under China’s family planning laws could reasonably be seen as rising to the level of significant harm in the Applicant’s individual circumstances or that she would suffer any other form of harm at the hands of the authorities for this reason.

    Christian religion

15. The Applicant claims to fear that on return to China she would be harmed by the authorities for her Christian religious practice.

16. At the hearing the Applicant said that her parents were Christians and that when she was living in China she would go to Bible study with them.  She attended a registered church and was baptised (‘anointed with water’) there.  She would also attend small-scale religious meetings in private homes.  Her mother had studied theology and was a preacher.  She indicated that other claims she had made previously about her experiences in China, including that her parents and other family members suffered harm because of their Christian religion were not true.  She claims that since arriving in Australia she and her husband have joined [Church 1] and that, as this is regarded in China as an evil cult, she would be punished for involvement in it, including through her work in preaching the Gospel.

17. I have some concerns about the credibility of the Applicant’s claimed Christian involvement in Australia.  In particular it seems difficult to understand why, if she was a regular church-goer in China, she would lapse after arriving in Australia and then, some five years later, suddenly decide to join [Church 1].  I also note that she is said to have joined this church in about March 2012, shortly before the Tribunal began a review of the decision to refuse her original protection visa application.  As put to her at the hearing, these circumstances can suggest that her reason for associating with this church, at least in the beginning, was to strengthen her claims for protection.  I have, however, considered the oral evidence of [Mr B] and the supporting letter provided by [Reverend A], both of which point to the Applicant as being a committed member of the church.  On this basis I am prepared to give her the benefit of the doubt by accepting that she is a Christian and that she and her husband do worship in [Church 1] as she claims.

18. At the hearing the Applicant provided some vague and generally confused evidence about the significance her membership of [Church 1] would have for her if she were to return to China.  She suggested it is connected with three churches there and is regarded by the authorities as an ‘evil cult.’  Asked how she knew it is viewed in this light she cited the case of two pastors who she said were arrested early in 2015, in Shandong and Jiangsu Provinces.  She suggested as well that Pentecostalist churches are charismatic and that, as a charismatic church, her church is equivalent to the Shouters.  Challenged about this she then suggested that her church differed from others because it received the Holy Spirit during worship, and that as a result the other churches could not accept it.  As also put to her, however, I am not satisfied that this aspect of her church’s religious beliefs would distinguish it from those of a broad range of established churches in China. 

19. The information before the Tribunal indicates that Christianity is rapidly gaining new adherents in Fujian and that the Provincial authorities have adopted a notably tolerant attitude toward religious practice.  Beyond the Applicant’s vague references to the arrest of two pastors, there is nothing in the information to indicate that in this generally liberal climate Pentecostal churches in general, or churches affiliated in some way with [Church 1] in particular, are either viewed as an ‘evil cult’ or suppressed in Fujian Province.  Given this information I am not satisfied that if the Applicant were to return to China she would be prevented from practising her religion, either in a registered church (as she did before coming to Australia) or in an unregistered church which was either directly connected with [Church 1] or was otherwise of the Pentecostalist religious faith.  I am not satisfied there is a real risk that she would face significant harm for such a reason.  Nor am I satisfied that her husband or her children would be prevented from worshipping in this way or would be at risk of harm for doing so.

    Harm for claiming protection

20. In her protection visa application the Applicant claims the Chinese authorities will regard her as an enemy for applying for a protection visa in Australia because they will know that in doing so she has criticised the government.  In her protection visa interview she said her mother-in-law had been questioned and detained when she returned to China after unsuccessfully seeking protection here.  She did not refer to this matter at the hearing, however, and identified only her Christian religion and her breach of the family planning laws as reasons why she would be harmed on return.

21. As noted in the delegate’s decision record, information from DFAT indicates that if the Chinese authorities are aware that a returnee has claimed protection abroad they may monitor him or her, but that their further interest would largely depend on the returnee’s subsequent behaviour.  Given the Applicant’s circumstances I consider this information indicates that, even if the authorities were to learn that she and her family members had applied for protection in Australia, the treatment she would receive would not extend beyond questioning and, perhaps, monitoring.  I am not satisfied that she would suffer any other form of punishment or harm.  Nor am I satisfied that this treatment could reasonably be seen as rising to the level of significant harm.

    Summary – complementary protection claims

22. Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk she would suffer significant harm in terms of s.36(2)(aa) of the Act because of her breach of the family planning laws, her Christian religion or the fact that she has claimed protection in Australia.  Specifically, I am not satisfied there is a real risk she would be arbitrarily deprived of her life, the death penalty would be imposed on her, she would be subjected to torture, or she would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.  She has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in her case.

23. 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).

24. As noted, the second-, third- and fourth-named Applicants have not made their own claims to fear harm in China, relying instead on the claims of the first-named Applicant.  As the first-named Applicant does not satisfy the criterion in s.36(2) it follows that the other Applicants also do not satisfy s.36(2) on the basis of their membership of the same family unit as the Applicant.

25. As the Applicants do not satisfy the criteria for a Protection visa, they cannot be granted the visa.

    DECISION

26. The Tribunal affirms the decision not to grant the Applicants Protection visas.

    Andrew Mullin

    
    

    Member