1410183 (Refugee) - [2015] AATA 3675

1410183 (Refugee) [2015] AATA 3675 (10 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1410183
COUNTRY OF REFERENCE:                  China
MEMBER:Belinda Mericourt
DATE:10 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 10 November 2015 at 2:09pm

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

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).
The applicants, who claim to be citizens of China, applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] May 2014.
The applicants appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The primary applicant, hereafter referred to as the applicant husband, was born in Fuzhou city, Fujian province in China in [date]. He entered Australia on a false passport [in] January 1998. He lodged his first claim from protection using his true identity [in] March 1998. His application was refused by the Department [in] May 1998 and affirmed by the Refugee Review Tribunal (RRT) (differently constituted) on 20 January 1999. He remained in Australia as an unlawful non-citizen until [April] 2006 when he was granted a bridging visa. From April 2006 to 2008 the applicant made unsuccessful challenges in the Federal Magistrates Court and Full Federal Court and unsuccessful requests for Ministerial Intervention. His last bridging visa ceased [in] September 2008 and he remained in Australia as an unlawful non-citizen. He lodged the current application for protection under the provisions for complementary protection [in] November 2013.
The applicant’s spouse, hereafter referred to as the applicant wife, was born in Guangdong, China in [date]. She entered Australia [in] May 2002 on a transit visa. She lodged an application for protection [two days later] which was refused by the Department [in] July 2002. This decision was affirmed by the RRT (differently constituted) on 10 July 2003. Her bridging visa ceased [in] September 2003 and she remained in Australia as an unlawful non-citizen. She is included in the applicant husband’s application as a member of his family unit.
There are two child applicants born in Australia of the relationship between the applicant husband and wife - two [children] born [in] 2010 and [in] 2013. The applicant children have not previously made applications for protection. They are included in the applicant husband’s application as members of his family unit.
Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the noncitizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.
On the evidence before it, the Tribunal finds that the applicant’s first protection visa application was refused [in] October 2009 because the applicant did not satisfy the Refugee Convention criteria. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds it does not have power to consider the Refugee Convention criterion in s.36(2)(a) and has proceeded on the basis that it can only consider the first named applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Migration Act.
The applicant wife has made a previous claim for protection which was refused [in] July 2002 because she did not satisfy the Refugee Convention criteria. The Tribunal only considered her claims in relation to the member of a family unit criterion in s.36(2)(c) of the Act.
As the applicant children have not previously lodged protection visa applications the claims made on their behalf have been considered under both the refugee and complementary protection criteria under s.36(2)(a), (aa), (b) and (c).
The relevant law is discussed in Appendix 1 below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Requirement that the decision-maker be ‘satisfied’
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The issues in this case whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband and members of his family unit being removed from Australia to China, there is a real risk that they will suffer significant harm and whether the applicant children have a well-founded fear of persecution for one of the five Convention reasons. (see Appendix 1 – relevant law).
The Tribunal has before it the Department’s file relating to the applicant, which includes a certified copy of the applicant’s PRC passport issued [in] 2014 in Sydney, his application for a protection visa, his written statement of claims, the audio recording of his interview by the delegate [in] May 2014 and a copy of the delegate’s decision record. The Tribunal also has before it the applicant husband’s first protection application file which includes his application for a protection visa, his written statement of claims, a copy of the delegate’s decision record dated [in] May 1998, a copy of the Tribunal’s decision record dated 20 January 1999, a copy of the applicant wife’s first protection application file which includes her application for a protection visa, her written statement of claims, a copy of the delegate’s decision record dated [in] July 2002, and a copy of the Tribunal’s decision record dated 20 July 2003. The Tribunal has also referred to relevant country information as cited in this decision.
Claims in the previous protection visa applications
Applicant husband
In his first application for protection, the applicant husband claimed that he had taken part in the pro-democracy movement in the PRC in 1989 and had joined [a named group] to disclose the corrupt activities of government officers. [A number] of this group’s members were arrested, tortured and imprisoned and [others] were later sentenced to death. To avoid a similar fate he escaped to Australia. He claimed he would be arrested immediately by the Public Service Bureau (PSB) on his return to the PRC.
Applicant wife
In her first application for protection the applicant wife claimed that her religion is Falun Dafa and she was a practitioner of Falun Gong. She claimed she would be jailed and mistreated should she return to the PRC as the government considered Falun Dafa to be an evil cult.
Claims in the current protection visa application
Applicant husband
In the current protection visa application, the applicant claimed that he left China and came to Australia for a better life and to avoid the conflict with the villagers who had intimidated and beaten him. He was in fear of persecution by the authorities and harm by the villagers. He had a dispute over the farmland before he left China. After coming to Australia in 1998 his entitlement of farmland was taken by the villagers with power and his hukou was deregistered by the authorities. As a result he had been deprived of access to social benefits. If he were removed to China, he would claim his right to the farmland, for his hukou to be re-registered and other social benefits which were contrary to both the authorities’ and the villagers’ interests and he would suffer harm and persecution if he continued to pursue such matters. The authorities had colluded with the villagers and thus would not protect him.
In the protection visa application, the applicant husband stated that he left China [in] January 1998. He departed through [an] airport illegally, by using a fraudulent passport. He had difficulties obtaining a travel document because he had paid a large sum of money to the corrupt officials and snakeheads. His travel document had not been extended by the authorities of his home country. He did not have his travel document with him now and the travel document he used to enter Australia was not valid for return to his home country because he never had his own passport at all in his life.[1]
[1] [File number deleted].
The applicant provided a Chinese passport in the name of [variant of his name] issued in Sydney [in] 2014.[2]
[2] [File number deleted].
The applicant wife and applicant children submitted Part D forms as members of the applicant husband’s family unit with no claims of their own.
Claims at the interview with the delegate
The applicant husband was interviewed by a delegate of the Department [in] May 2014. The Tribunal has listened to the recording and is satisfied that the summary of interview provided in the Decision Record is accurate.
The applicant told the delegate that he had received assistance in completing his protection visa application from a lawyer because he did not speak English. He had given the lawyer $[amount] “tea money” for his assistance. He also told the delegate he had passports issued by the PRC consulate in Sydney in 2006 and 2007. They are in slightly different names as the Chinese character for [his family name] can also be read as [a variant name]. He said that he had married his wife in 2009.
The applicant told the delegate that he was basing his claims in the current application on the complementary protection criterion. The applicant stated that he was undertaking a fresh application and the delegate should not worry about his previous claims.
The applicant’s parents have passed away and he does not have any siblings in China. He had occasional contact with an older cousin by telephone in China until about 2001 but no-one since then. He was educated to primary school level. The delegate noted that his previous application stated he had a Bachelor degree. He stated he had worked for a few years after school as [occupation] and did not have a university degree. He did not work in a [factory] as stated in his first application.
He told the delegate that he came to Australia in 1998 for a better life. At that time he was in dispute with some people in China and they were government officials so he came to Australia.
The delegate asked why he had come to Australia on a false passport. The applicant stated he came to Australia for a better life. The delegate suggested he had used a false passport because he could not get a visa in his own name. The applicant agreed that was also a reason. He paid [amount]RMB for the passport. He borrowed the money from friends. He obtained a new Chinese passport in Australia in 2006 because he had no identification.
He remained unlawfully in Australia for 4½ years because he got married and then he had children so he was afraid after that. He did not wish to return to China because the children had been born in Australia and lived here.
The delegate put the requirements of the complementary protection criterion to the applicant. The applicant responded that his land has been taken, his hukou had been cancelled and there was no social security so he could not return to China. The delegate put to the applicant that none of these issues met the criterion for complementary protection.
The delegate noted that the fact that he had approached the Chinese consulate for a new passport indicated that he did not have any fear of the Chinese authorities. The applicant stated he paid for the passport.

The delegate’s decision

The delegate’s decision was provided with the application for review. The delegate noted that the applicant husband had agreed when the delegate indicated the claims made in the applicant’s first application would be disregarded in light of the credibility findings by the first RRT.
The applicant claimed at the interview that his land had been taken, his hukou cancelled and he would not get social security. The delegate accepted that the applicant might not want to return to China for those reasons. The delegate found that the applicant’s claims were not Convention related and found that the claimed harm did not amount to significant harm.
FINDINGS AND REASONS
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant confirmed that he speaks, reads and writes in Mandarin. His lawyer assisted him to write his protection application and read back to him what was in the application. He did not wish to correct anything in his protection application or add anything to his claims.
The Tribunal discussed the applicants’ backgrounds and current circumstances with the applicant husband and wife.
The applicant was born in [his home] village, [in his home] town, Fuzhou, Fujian province, China. He always lived in that village. His parents have passed away and he has no siblings. He has had minimal contact with one elderly aunt since he departed China.
The applicant wife was born in Guangdong province. Her parents are alive and she speaks to them occasionally by phone and [a messaging service]. She last had contact with her parents two weeks before the hearing. She also has contact with [a sibling] who has one child. She has [another sibling] who has two children. They all have rural hukous. The applicant wife described all her family members as being poor. Her parents know about her marriage and her two children and have seen photos of them.
The applicant husband stated that he is living with his wife and two children and his [relative] in a three-bedroom home. He does not have work rights so he is not currently working. Before his current bridging visa was granted he was working as a [occupation] from time to time when other people offered him work. He worked on and off. His wife works part-time as a [worker] in a [factory]. His [relative] works full-time and contributes to household costs. They have no assets or savings.
The Tribunal discussed the applicant husband’s claims that he would suffer significant harm from villagers and Chinese authorities if he attempts to re-register his hukou and claim his farmland. The applicant stated he did not wish the Tribunal to consider his previous claims for protection and had no evidence to provide to the Tribunal relating to those claims.
The applicant wife told the Tribunal that she is not making any claims of her own. She was unaware of the previous Tribunal’s (differently constituted) decision to affirm the Department’s decision not to grant her visa as her lawyer had not contacted her and he disappeared. She is unaware of the nature of the claim she made for protection at that time as her lawyer created her claims for her.
Claims related to fear of harm by villagers and Chinese authorities if the applicant attempts to re-register his hukou and claim his farmland
The Tribunal put to the applicant country information related to the hukou in China in an RRT background paper dated February 2013, that a hukou is permanent, does not expire and is not required to be renewed. An individual’s hukou status is inherited from either parent at birth and does not automatically change when a person moves or changes their employment.[3] The applicant should therefore be able to have his household registration book, (the legal copy of the household’s registration record) reissued if it had been lost.
[3] Australian Government Refugee Review Tribunal, Background Paper China; The Hukou, February 2013, p2-3.
The applicant stated that he thought his hukou was cancelled 10 years ago and as a result he has no benefits or access to employment, education, health - anything. He would have to re-establish his identity and ask for some land. He would then get into dispute with “those officers” and he would not get anything. When asked what he meant by “those officers” the applicant said he meant local officials. The villagers all have connections with local officials. As it has been such a long time since he was in China he would have no influence at all and consequently he would get nothing.
The Tribunal asked him how he knew his land had been allocated to other people in his village. He stated that in 2009 he had contact with an elderly aunt who had had a [medical condition]. When he married in 2009 he rang his aunt to tell her about his marriage and she told him that she had had a [medical condition]. She lives in [the] village a few kilometres away from his family home and she told him that his property and land were all gone. The Tribunal asked the applicant to clarify what he meant when referring to his property and he said his house with the land around it and a small piece of farmland.
The Tribunal put to the applicant that the complementary protection legislation referred to there being substantial grounds for believing the applicant was at real risk of significant harm if he were to return to China and told him the definitions of ‘serious harm’. The Tribunal asked the applicant what grounds he had for believing that he was at risk of significant harm and what harm he feared.
The applicant stated that it would be inevitable that he would come into conflict with the authorities and villagers in his village if he made demands for his land to be returned. He could not identify what specific harm he may face as a result of this conflict. The Tribunal put to him that it appeared to be speculation on his part that he would suffer significant harm as a result of returning to his village. The applicant denied this as he said that his aunt had told him his land had been reallocated and he believed that his demand for its return would lead to conflict.

The Tribunal put to the applicant that as he last spoke to his aunt over six years ago and was not even aware of whether she was still alive, the Tribunal had concerns that his claims of a potential dispute with local authorities resulting in harm were not well-founded. The applicant said “that is a fact” as he has been in Australia for so long that he would not be able to get anything. In his village the person who allocates the land had only allocated half the land he is supposed to allocate. He found this out from his aunt when he spoke to her in 2009.
The Tribunal asked the applicant if he could not relocate to his wife’s village ([named]) in Guangdong province and seek to be placed on her household registration. He said he could not do that because his wife may not have a hukou either and he “could not get used to living there” and in any event he has his own hukou. The Tribunal put to him this was in direct conflict with his previous evidence. He stated that he meant that he could get his own hukou reissued and would prefer to live in his own village.
The Tribunal asked the applicant wife if she still had her hukou and she confirmed that she did. The Tribunal asked her if she thought her husband could relocate to her village and apply to be joined to her hukou as her spouse as a rural spouse moving from one rural area to another may obtain a new hukou without difficulty.[4] The applicant wife stated that she did not know anything about the possibility of her husband relocating to her village.
[4] Fan , C.C. 2008, ‘Migration, Hukou and the City’, in Yusuf, Y. & Saich, T (eds) China Urbanizes: Consequences, Strategies and Policies, The World Bank, p.75 cited in Australian Government Refugee Review Tribunal, Background Paper China; The Hukou, February 2013, p29.
Based on independent country information related to the permanency of hukous as cited above, the Tribunal finds that the applicant husband has a hukou. The Tribunal accepts that the applicant husband may have lost his household registration book and need to have it reissued if he returns to China. There is no information before the Tribunal which would indicate that requesting a household registration book be reissued would lead to any dispute with authorities. Moreover, independent country information indicates that the applicant has available the option of obtaining a new hukou as his wife’s spouse in her rural area.
The Tribunal accepts that there may be difficulties for the applicant husband to try to reclaim his land, particularly if it has been reallocated to another villager as he claims and that person has been using it for the past 10 years or more. The Tribunal had concerns about the credibility of the applicant’s evidence as he stated that he only knew about his land being reallocated after speaking to his elderly aunt in 2009 when she had recently had a [medical condition] and not spoken to her since then. He has not attempted to find out any further information about the land re-allocation. There is no evidence before the Tribunal that the land has been reallocated or that the local authorities in the applicant’s village would refuse to reallocate land to him if he returned to China.
For the sake of completeness, the Tribunal considered the possibility of relocation given the applicant fears he will suffer harm from local authorities or villagers if he attempts to re-establish his household in his own village.
According to Young in 2012, if a married couple wishes to establish a joint hukou the easiest option is to add a spouse to the existing hukou of their partner’s family and their partner to then become the new head of the household.[5] This process requires a marriage certificate to be presented at the local police station.[6] Alternatively, a new household with a separate hukou can be created if the couple is legally married and, in some cases, own their own home.[7] This usually requires presentation of a completed form to start a new hukou, identity cards, current hukous and in some cases a deed of property in the local area.[8]
[5] Young, J 2012, Email to RRT, Country Advice ‘RE: CHN40076 Request for assistance from Refugee Review Tribunal’, 12 March 2012
[6] Young, J 2012, Email to RRT, Country Advice ‘RE: CHN40076 Request for assistance from Refugee Review Tribunal’, 12 March 2012
[7] Young, J 2012, Email to RRT, Country Advice ‘RE: CHN40076 Request for assistance from Refugee Review Tribunal’, 12 March 2012
[8] Young, J 2012, Email to RRT, Country Advice ‘RE: CHN40076 Request for assistance from Refugee Review Tribunal’, 12 March 2012
Given the above information, the Tribunal is satisfied that the applicant has the option of relocating to his wife’s village in Guangdong where her family reside, have land and where he could be issued a joint hukou with his wife, establish his household and receive the benefits of household registration and seek employment.
The Tribunal understands the applicant’s reasons for not wishing to return to China, as it undoubtedly would be difficult for him to re-establish himself in China when he has been absent since 1998 and he has no family remaining there, few resources, no employment and no assets. However, the Tribunal is not satisfied that this amounts to significant harm as defined in s.36(2A): s.5(1) of the Act. The Tribunal accepts that there may be difficulties for the applicant husband to try to reclaim his land, particularly if it has been reallocated to another villager as he claims and that person has been using it for the past 10 years or more. However, the Tribunal is not satisfied that any dispute over land previously allocated to the applicant would lead to him suffering significant harm as defined in s.36(2A) and s.5(1) of the Act. Furthermore, the Tribunal is not satisfied that the applicant would suffer significant harm as defined in s.36(2A) and s.5(1) of the Act if his land was not reallocated to him.
Claims related to the payment of a social compensation fee in respect of the applicant’s children
The Tribunal asked the applicant if his children had claims of their own. The applicant said they did not as his children’s well-being was dependent on his being able to get his own hukou and hukous for his children.
The Tribunal put to the applicant that he had two children and asked again if his children had any claims of their own. The applicant then said he believed he would have to pay a social compensation fee for his second child which he could not afford as he is not currently working, his wife is only working part-time and they have no savings or assets.
The Tribunal put to the applicant that country information relating to the Population and Family Planning Regulations of Fujian Province revised on 29 March 2014 stated that parents were eligible to have a second child if either parent is a single child, both parents have rural hukous, and their first child is a girl. As the applicant met all these conditions the Tribunal was of the view that the applicant wife and husband would not be subject to a social compensation fee.[9] [10] The same situation applied if the applicant moved to his wife’s village in Guangdong. [11]
[9] Immigration and Refugee Board of Canada, “China: Family planning laws, enforcement and exceptions in the provinces of Guangdong and Fujian, 1 October 2012, pp.2-5 (accessed 28 October 2015)
[10] Fujian Family Planning Fines 1991-2013, RRT Research & Information, Updated January 2014
[11] Population and Family Planning Regulations of the Province of Guangdong, chap 3, promulgated 28 November 2008 (effective 1 January 2009), Westlaw <
The applicant repeated that he believed he would have to pay a social compensation fee which he could not afford. In addition, he would find it very difficult to get hukous for his children because the government took away his land.
DFAT information indicates that if a child is born overseas, the parents may obtain a travel document for the child from a Chinese mission abroad.[12] Once back in the parent’s hometown or village where the parent’s hukou is registered, they can then apply for their child’s hukou at the local Public Security Bureau (PSB).[13] Children inherit their hukou classification from their mother and it is not dependent on allocation of land. They can apply for their children’s hukous at either parents’ registered location[14].
[12] Department of Foreign Affairs and Trade 2011, DFAT Report No. 1261 – China: RRT Information Request: CHN38360, 30 March 2011
[13] Department of Foreign Affairs and Trade 2011, DFAT Report No. 1261 – China: RRT Information Request: CHN38360, 30 March
[14] Fan, CC 2008, ‘Migration, Hukou, and the City’, in Yusuf, Y & Saich, T (eds), China Urbanizes: Consequences, Strategies, and Policies, The World Bank, Chapter 3 <
Based on the country information before it relating to eligibility rules for parents who have a second child as cited above, the Tribunal finds that the applicant’s second child would be able to obtain household registration (a hukou) and would therefore have access to health, education and other social benefits as any other citizen of China. Furthermore, the Tribunal is satisfied that the husband and wife applicants would not be subject to a social compensation fee as a result of having a second child.
Based on the above information, the Tribunal is satisfied that the husband and children applicants would all be able to legally obtain hukous without payment of social compensation fines and there are no substantial grounds for believing that there is a real risk that the applicants would suffer significant harm on the basis of being unable to pay fines or being unable to obtain hukous.
Applicant wife’s claims
The applicant wife told the Tribunal although there were no reasons related to protection that meant she could not return to China, she did not think they could return as they would have no accommodation and no resources in China. Her husband has not worked much in Australia and so they have no assets. Her own family are very poor and have no resources of their own and her parents are both aged and have illnesses, so none of them could help her and her own family re-establish themselves in China. The applicant wife confirmed that she is still in possession of her hukou.
The Tribunal put to the applicant husband and wife that the economic difficulties they may face if they return to China would not constitute significant harm as defined in the Act. The applicant husband and wife had no comments or response to this.
The Tribunal accepts that the applicant and members of his family unit may suffer some economic hardship on their return to China, given their lack of assets and resources. However, it is not satisfied on the basis of any evidence before it that any economic harm that they would suffer would constitute significant harm as they would not be arbitrarily deprived of their lives, subjected to the death penalty, subjected to torture, subjected to cruel or inhuman treatment or punishment (which requires an intention by someone to inflict that harm and there is no credible evidence to suggest that anyone intends to harm them) or subjected to degrading treatment or punishment (which also requires an intention by someone to inflict that harm).
For the reasons given above, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the mother applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Having considered her claims individually and cumulatively, the Tribunal is not satisfied that the mother applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given in this decision the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore it follows that the mother applicant is unable to satisfy the criterion set out in s.36(2)(c). As she does not satisfy the criteria for a protection visa, she cannot be granted the visa.
Child applicants’ claims
The applicant husband and wife made the following claims on behalf of the children:
·the children were born in Australia and have always lived here and will therefore have difficulties in China;
·the applicant husband and wife have no accommodation, resources or help in re-establishing themselves in China;
·The applicant husband would have difficulties getting hukous for the children as he does not have a hukou himself.
As discussed above, the Tribunal is satisfied that the children would be able to obtain hukous despite their father’s loss of his own household registration book, given their mother has a hukuo and they are able to be registered using her hukou. Moreover, there would be no social compensation fine to pay for the applicant’s second child.
The Tribunal accepts that the child applicants will undergo a period of adjustment to a new culture, location and lifestyle. The Tribunal also accepts that the applicants will have difficulties re-establishing themselves in China after so many years living in Australia as the applicant has no close family members remaining in his village and the applicants have few assets and resources with which to establish a household in China. However, the applicant wife has close family members living in China with whom she has maintained contact, and as discussed above, the Tribunal is satisfied that all members of the family will be able to obtain hukous without payment of fines. Accordingly, the Tribunal is satisfied that the child applicants will have access to the benefits associated with household registration, including health care and education.
The Tribunal accepts that the applicant and members of his family unit may suffer some economic hardship on their return to China, given their lack of assets and resources. However, for the reasons given above, the Tribunal is not satisfied that the economic hardship that the child applicants may suffer as a result of their return to China would constitute serious harm as defined in s.91R(2) of the Act. The Tribunal finds that the child applicants do not satisfy the criterion set out in s.36(a) of the Act.
The Tribunal is not satisfied that the economic hardship that the child applicants may suffer as a result of their return to China would constitute significant harm as defined in s.36(2A): s.5(1) of the Act. The Tribunal is therefore finds that the child applicants do not satisfy the criterion set out in s.36(aa) of the Act.
For the reasons given in this decision, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore it follows that the child applicants are unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted visas.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. The Tribunal finds that the applicant husband does not satisfy the criterion set out in s.36(2)(aa) for a protection visa. It follows that the wife and child applicants are also unable to satisfy the criterion set out in s.36(2)(b) or (c). The Tribunal also finds that the child applicants do not meet the criterion set out in s.36(2)(a) or (aa).
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Belinda Mericourt 10 November 2015
Member

APPENDIX 1 - RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Refugee criterion
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 for Immigration and Border Protection (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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Particular social group
The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …
Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person’s membership of the particular social group.
It is well established that a family is capable of constituting a particular social group within the meaning of the Convention.
Laws of general application
It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[15] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[16] As Brennan CJ stated in Applicant A:
… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[17]
[15]Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.
[16]Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20].
[17]Applicant A v MIEA (1997) 190 CLR 225, at 233.
Consistently with Australian law, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:
56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.[18]
[18]UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, 1992) (Handbook) at [56].
The principle that, ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution applies whether or not a particular law is oppressive or repugnant to the values of our society.[19] In Applicant A Dawson J agreed with the observations of the Full Federal Court in that case that:
Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.[20]
[19]See eg, Zheng Jia Cai v MIMA (unreported, Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA (1999) 57 ALD 613 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620 (Branson, Sackville and Kiefel JJ, 19 November 1999); and Alamdar v MIMA [2001] FCA 1244 (Emmett J, 30 July 2001).
[20]Applicant A v MIEA (1997) 190 CLR 225, at 245 citing with apparent approval MIEA v Respondent A and B (1995) 57 FCR 309 at 319.
Whether a law is properly characterised as a law of general application turns on identifying those members of the population to whom it applies.[21] In some circumstances, it may be necessary to look behind a law that is generally expressed, to establish whether the law itself is in truth discriminatory in its intent or whether it has a discriminatory impact on members of a group recognised by the Convention.
[21]See Weheliye v MIMA [2001] FCA 1222 (Goldberg J, 31 August 2001), at [50].
The High Court in Chen Shi Hai v MIMA confirmed that laws or policies which target, or only apply to, or impact adversely upon, a particular section of the population are not properly described as laws or policies of general application:
Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, “black children”, as distinct from children generally - cannot properly be described in that way. … To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory.[22]
[22]Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19] – [21].
While the implementation of laws of general application does not ordinarily constitute persecution, there is no rule that the implementation of such laws can never amount to persecution. A law of general application is capable of being implemented or enforced in a discriminatory manner.[23]
[23]Ibid at [21], Applicant S v MIMA (2004) 217 CLR 387 at [42].
Where laws of general application are selectively enforced, in that the motivation for prosecution or punishment for an ordinary offence can be found in a Convention ground, or the punishment is unduly harsh for a Convention reason, then Convention protection may be attracted.
In ‘Z’ v MIMA[24] Katz J pointed to selective prosecutions for a Convention reason, or the imposition of greater punishments for a Convention reason, as features which would render enforcement of a generally applicable criminal law persecution for a Convention reason. Noting that the Full Federal Court in Applicant A did not identify the additional features which would render enforcement by a country of one of its generally applicable criminal laws persecution for a Convention reason, his Honour inferred that:
what they had in mind was either selective prosecutions under the relevant law, the criterion of selection of persons for prosecution being those persons’ race, religion, nationality, membership of a particular social group or political opinion, or the imposition of punishments on persons convicted under the relevant law, such punishments being greater than they would otherwise have been by reason of the convicted persons’ race, religion, nationality, membership of a particular social group or political opinion.[25]
[24](1998) 90 FCR 51.
[25]‘Z’ v MIMA (1998) 90 FCR 51 at 58; and see MIMA v Darboy (1999) 52 ALD 44; Lama v MIMA [1999] FCA 1620 (Branson, Sackville, Kiefel JJ, 19 November 1999); AA v MIMA [2000] FCA 13 (Lindgren J, 12 January 2000).
Even if a law or its application results in discriminatory treatment, such treatment will not necessarily constitute persecution. It is settled law in Australia that where a law or policy results in discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group, the question of whether the discriminatory treatment constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.[26]
[26]Applicant A v MIEA (1997) 190 CLR 225, at 258 per McHugh J; Chen Shi Hai v MIMA (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [45].
Whether a law or its enforcement is ‘appropriate and adapted’ to achieving a legitimate object involves consideration of proportionality of the means used to achieve that object.[27] A legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. Thus, enforcement of a generally applicable criminal law, or the enforcement of laws designed to protect the general welfare of the state, would not ordinarily constitute persecution.[28] Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.[29]
[27]See Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]. In MZQAP v MIMIA (2005) 85 ALD 41, the Full Federal Court held the test of ‘appropriate and adapted’ involves the nature and reach of the law itself and the actual manner of its application: at [20].
[28]Applicant A v MIEA (1997) 190 CLR 225, at 258.
[29]Applicant S v MIMA (2004) 217 CLR 387 at [44], referring to Applicant A v MIEA (1997) 190 CLR 225, at 258.
Complementary protection criterion
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’).

100. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
101. MIAC v SZQRB [2013] FCAFC 33 is unanimous Full Federal Court of Australia authority for the proposition that the ‘real risk’ element of the test in s.36(2)(aa) is the same as for s.36(2)(a): namely, is there a ‘real chance’ an applicant will suffer significant harm if returned to their country of nationality? A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).
102. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Member of the same family unit
103. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses and children.
Section 499 Ministerial Direction
104. In accordance with Ministerial Direction No.56, made under s.499 of the Act, I am 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
105. I accept the difficulties of proof faced by applicants for refugee status and complementary protection. In particular there may be statements that are not susceptible of proof. It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations.
106. However, I am not required to accept uncritically any or all allegations made by an applicant. Moreover, I am not required to have rebutting evidence available to me before I can find that a particular factual assertion by an applicant has not been made out. In addition, I am not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.