1410535 (Refugee)

[2015] AATA 3135

1410535 (Refugee) [2015] AATA 3135 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410535

COUNTRY OF REFERENCE:                  China

MEMBER:Chris Thwaites

DATE:6 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2015 at 9:01am

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] May 2014.

3. On 13 June 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had regard to the delegate’s decision record provided to the Tribunal by the applicant.

5. The applicant’s written claims are attached to his visa application form in a document headed Protection Claim, which states:

   I was born in this land of Australia in [2013] and my mother is [Ms A], an overseas student from the countryside of China. I have never seen my father. Mum told me she and my father had parted before I was born. In years of hardship, Mum had received humanitarian economic assistance from Australian Red Cross.

   I am now an infant who can't even speak, so Mum is applying on behalf of me. I hope the Australian Government and the immigration department can grant us humanitarian protection we need.

   As Mum and I can't go back to China and my parents' marriage can't be approved by both families, it's impossible for us to receive the care and help we're supposed to get from our families and the government. If we choose to go back to China, we are doomed to a deplorable flight, in which we will be living as second-class citizens. As a baby born out of wedlock, I will be demanded to pay a penalty for violating the birth control policy before I can get my residence permit. The penalty will exceed RMB 50,000, which is far beyond my mother's economic means.

   If we fail to pay the penalty in time, I will become a "black boy" without a legal residence permit. Without this permit, I will be discriminated against by conservative provincial guys in my hometown and become a member of the disadvantaged group, whose social benefits, such as the medical care, will be greatly affected. The local government of our Fujian Province is particularly tough towards the people who have violated the birth control policy. It's inhumane measures include setting up illegal courts secretly and levying high taxes arbitrarily. In some places, the penalty will be as high as more than one hundred thousand Yuan.

   I have another graver anxiety on my mind. My mum was a Christian and attended the family church when she was in China. Her church, which had never been sanctioned by the Chinese government, was sometimes called "[Name 1]" or "[Name 2]". It always kept to the gospel of the Bible and called on its followers to live as a true Christian in the last days. But the Chinese Government claimed it a cult and this had made the church hesitate in publicizing its identity in China and remain underground for quite a long time. My mother and her mother (i.e. my maternal grandmother) were suffering so great persecution for attending this church that they often rushed into hidings.

   However, my grandma didn't succumb to the political pressure; but instead, she encouraged my mother to keep to her faith. They often attended congregations and exchanged witnesses on-line. In 2012, my grandma was arrested by plain-clothed policemen when she was distributing the gospel leaflets in the street and was detained for a month. From the year of 2013 on, grandma's church was inspected over and over and the services of congregations and sermons were repeatedly cracked down.

   Shortly before the Easter Day of 2013, when I was sending gospel materials of the church to my grandma in China, my personal computer was attacked by unidentified "hackers". Later, my grandma was summoned by the police for further investigation. That greatly shocked my mother. If she chose to go back to China, she would go on attending my grandma's church and she would be at great risk. I have to worry about her safety because in case there was something wrong with her safety, I would be done for.

   Since Mum came to Australia at the end of 2007, she had persisted in her faith. As she couldn't find her original church in Australia, she had to go to [Church 3] instead, and there she was baptized on the Christmas of 2008. During the lonely days when she had no church to attend, she connected herself with the church in China and attended their sermons on line.

   My mother is an overseas student who depended on her family for the financial assistance. Later, she lost financial supply from her family. Meanwhile my grandma was put on the black list of the government. In order to cut off the church's economic sources, the government officials began to make so much trouble by abusing policies that our family could never make a living by farming, though we had a small piece of land of our own. That brought about unbearable mental pressure on my mother who was pursuing her education. She had to quit school, which led to the expiration of her visa.

   Mum is now eager to resume her education and at the same time keep to her faith. The economical and psychological pressures on her are becoming heavier with every day. She is looking forward to being granted her protection visa by the Australian Government.

6. The applicant provided his birth certificate to the Department as well as a copy of his mother’s baptism certificate from [Church 3].

7. The delegate’s decision record indicates the applicant attended an interview [in] May 2014, and given his young age, his mother spoke on his behalf. According to the decision record adverse information was put to him about his mother’s protection visa application of 2011, and that her Christian religious claims were refused by the Department and the Refugee Review Tribunal (differently constituted) and her application to the Federal Court was dismissed. The delegate found the applicant’s mother’s responses to questions about who in the family were members of the [Name 2] Church evasive, and note she did not know the basic tenets of the [Name 2] religion. The delegate accepted the applicant’s mother had found a new religion/church in Australia and that the applicant would follow his mother in that religion and therefore would be a Protestant Christian. The delegate found the applicant’s mother is now a Protestant by religion and is prepared to attend the Three Self Patriotic Movement Church in China. The delegate was not satisfied the applicant’s mother was originally a member of the [Name 2] religion, or that she or the applicant would be harassed or persecuted as being members of the [Name 2] religion.

8. The decision record also indicates the delegate spoke to the applicant and his mother about the family planning policies in China and their application in Fujian province. The delegate notes that country information indicated Fujian was considered to be one of the most lenient provinces in regards to the birth control policy and that the social compensation fees are not excessive and families experiencing hardship are given additional time to make the necessary payments. In cases of severe hardship parents may be exempted from paying the fee. The delegate noted the applicant’s mother was [not an only child] in her own family and was fully aware of the consequences of having a child out of wedlock, and therefore the delegate was of the opinion she was well aware of her actions and the possible consequences of a social compensation fee and therefore had no concerns about returning to China. The delegate was not satisfied the applicant has any genuine concerns about returning to China and found the applicant’s claims not credible.

9. The applicant’s mother, [Ms A], appeared before the Tribunal on 14 April 2015 to give evidence and present arguments. She explained the applicant was born [in] 2013 and was too young to appear and was being looked after at home, and that she would be giving evidence on his behalf. [Ms A] told the Tribunal she was pregnant and provide a copy of a pelvic ultrasound report from [a] Medical Imaging dated [in] April 2015 confirming a single live intrauterine gestation consistent with a gestational age on ultrasound of [deleted] and an EDD of [2015]. [Ms A] told the Tribunal she felt well enough to proceed with the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, and a number of short breaks were taken during the hearing to lessen any stress on [Ms A], who assured the Tribunal on a number of occasions she was well enough to proceed.

10. At the hearing [Ms A] also provided a copy of a letter from [Church 3 dated in] April 2015 certifying that she has come to the church since the end of 2007 and was baptised on 25 December 2008 and attends Sunday services and cell group meetings quite regularly, and has also attended their equipping courses to learn more about Jesus, and had become a small group leader in the Church.

    FINDINGS AND REASONS

    Nationality

11. On the basis of [Ms A]’s oral evidence and the copy of the applicant’s Birth Certificate provided to the Department, the Tribunal finds that the applicant was born [in] 2013 and is the child of [Ms A and her partner], who are both a citizen of China, and therefore the Tribunal finds the applicant is a citizen of China[1]. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than China. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of China, the Tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    [1] Nationality Law of the People’s Republic of China 1980. According to this legislation, nationality is acquired primarily through one’s parents, and a child can acquire Chinese nationality at birth even if only one of its parents is Chinese.

    Credibility

12. During the hearing the Tribunal discuses with [Ms A] her background and experiences in China and in Australia and her fears on behalf of her son in relation to returning to China. During the hearing [Ms A] confirmed she had signed the written statement on behalf of her son and understood the contents of that document at the time of signing. During the hearing the Tribunal raised its concerns about the credibility of the evidence provided on behalf of the applicant. These concerns are discussed below.

13. First, during the hearing, when asked if anything happened to her or her mother because of their involvement with the Church in China, [Ms A] told the Tribunal that there was only one occasion that occurred before [Ms A] left China, where her mother received a warning, although it was not serious. She told the Tribunal this had occurred when [Ms A] was a teenager. The Tribunal raised its concern that this oral evidence was inconsistent with the written statement which states the applicant’s mother ([Ms A]), and her mother, were suffering so great persecutions for attending this Church that they often rushed into hidings. In response [Ms A] told the Tribunal she was very young at the time, and her mother would not tell her the things that happened during the gathering. She told the Tribunal when she attended Church in China she was a minor and not an adult and the adults intentionally wanted to protect them. The Tribunal does not accept [Ms A]’s response explains why her oral evidence is very different to the written statement. The Tribunal considers this reflects poorly on [Ms A]’s credibility and the reliability of her evidence.

14. Second, during the hearing [Ms A] told the Tribunal that since she has left China her mother had been arrested by police in 2012 for spreading the good news on the street, and was detained for over a month. When asked if anything else had happened to her mother since that time [Ms A] told the Tribunal that around Easter 2013 her mother was detained for over one week and fined for not telling them where she had obtained a video clip about Jesus (which [Ms A] had sent her a link to via QQ). When asked if anything else had happened to her mother since that time, [Ms A] told the Tribunal that she thinks not, that she had not heard that anything else had occurred, and that she seldom had contact with her mother since that time. The Tribunal raised its concern that [Ms A]’s oral evidence was different to the written statement. The Tribunal notes the written statement states that from the year 2013 grandma’s ([Ms A]’s mother’s) Church was inspected over and over and the services of congregations and sermons were repeatedly cracked down. The Tribunal raised its concerns that [Ms A] had failed to mention this in her oral evidence. In response [Ms A] told the Tribunal that since she fell pregnant she has really not been very familiar with what has been happening with her family. She had a fall out with her mother over her first pregnancy and did not have much contact with her. [Ms A] told the Tribunal that when they had a gathering, it was usually seven or eight people, and if they see seven or eight people gathering they would, every so often, come in and inspect and harassed the Church and members. The Tribunal does not accept [Ms A]’s response explains why she failed to mention in her oral evidence the inspections and repeated crack down referred to in the written statement. The Tribunal considers this reflects poorly on [Ms A]’s credibility and the reliability of her evidence.

15. Third, during the hearing the Tribunal raised its concerns that [Ms A]’s oral evidence was different to the written statement. The Tribunal noted [Ms A] had told the Tribunal that around Easter 2013 her mother had been detained for over one week and fined. The Tribunal noted the written statement failed to mention this. In response [Ms A] told the Tribunal she does not know why she did not mention this in the statement. She told the Tribunal she does not have a very clear recollection of what happened in her childhood. The Tribunal notes the incident is alleged to have occurred in 2013, and not in [Ms A]’s childhood. The Tribunal does not accept [Ms A]’s response explains why her oral evidence is different from the written statement or why the written statement fails to mention [Ms A]’s oral claims that her mother was detained for a week and fined in 2013. The Tribunal considers this reflects poorly on [Ms A]’s credibility and the reliability of her evidence.

16. Fourth, during the hearing the Tribunal raised its concerns that [Ms A]’s oral evidence was different to the written statement. The Tribunal noted the written statement states [Ms A]’s mother was put on a black list of the government. The Tribunal raised its concerns that [Ms A] had failed to mention this in her oral evidence. In response, [Ms A] told the Tribunal her mother often attended the meetings and gatherings and if the police inspected those gathering her mother would always be among the people who were there. The Tribunal does not accept [Ms A]’s response explains why she failed to mention in her oral evidence that her mother had been placed on a government black list, as claimed in the written statement.  The Tribunal considers this reflects poorly on [Ms A]’s credibility and the reliability of her evidence.

17. Fifth, during the hearing the Tribunal raised its concerns that [Ms A]’s oral evidence was different to the written statement. The Tribunal noted the written statement states “In order to cut off the Church’s economic sources, the government officials began to make so much trouble by abusing policies that our family could never make a living by farming, though we had a small piece of land of our own”. The Tribunal raised its concerns that [Ms A] had failed to mention this in her oral evidence. In response, [Ms A] told the Tribunal she remembers when she was a child her mother was farming on a large piece of land and gradually the land her family was allocated became smaller and smaller. The Tribunal does not accept [Ms A]’s response explains why she failed to mention in her oral evidence that in order to cut off the Church’s economic sources, the government officials began making so much trouble by abusing policies that her family could not make a living on their farm, as claimed in the written statement.  The Tribunal considers this reflects poorly on [Ms A]’s credibility and the reliability of her evidence.

18. Sixth, during the hearing the Tribunal raised its concern that [Ms A]’s oral evidence was different to the written statement. The Tribunal noted that during the hearing [Ms A] had told the Tribunal due to the family planning policies in China she thought she would be fined over 10,000 RMB for having given birth to the applicant out of wedlock. The Tribunal noted that the written statement states the penalty will exceed 50,000 RMB. In response [Ms A] told the Tribunal she had said tens of thousands and the translator did not translate it right. While the Tribunal has taken [Ms A’s] response into account it remains concerned the applicant’s oral evidence is different to the written statement. While the Tribunal accepts a sum exceeding 50,000 could also be a sum of tens of thousands, the Tribunal is not persuaded by the explanation, and considers the amount referred to in [Ms A]’s oral evidence is significantly different to the amount stated in the written statement. The Tribunal considers this reflects poorly on [Ms A]’s credibility and the reliability of her evidence.

19. While in isolation the Tribunal may not give much weight to an inconsistency between a written statement and oral evidence, the Tribunal finds the above concerns so numerous and significant that it is not satisfied [Ms A] has told the truth. The Tribunal has concluded that [Ms A] has only a superficial knowledge of the contents of the written statement, and the Tribunal considers this reflects poorly on the credibility of the claims made. The Tribunal finds [Ms A], on behalf of her son the applicant, is not a witness of truth and the Tribunal is not satisfied she has told the truth in relation to critical aspects of the claims.

    Does the applicant have a well-founded fear of persecution?

20. The Tribunal finds [Ms A] is not a witness of truth and the Tribunal is not satisfied she has told the truth in relation to critical aspects of the claims.

    Claims in relation to religion

21. Due to the Tribunal’s concerns about [Ms A]’s credibility and the reliability of her evidence, as discussed above, the Tribunal does not accept [Ms A] or her mother were involved in, or members of, the Church “[Name 1]” or “[Name 2]” in China prior to [Ms A] travelling to Australia. The Tribunal does not accept [Ms A] or her mother attended gatherings of that Church or that they were persecuted and went into hiding. The Tribunal does not accept [Ms A] and her mother exchange witnesses on-line or that [Ms A]’s mother was arrested in 2012 and detained for a month or that she was detained for over one week and fined in 2013. The Tribunal does not accept [Ms A] has sent gospel materials to her mother in China or any links to videos, or had any concern her computer was hacked. The Tribunal does not accept that in an attempt to cut off the Church’s economic sources, government officials in China made trouble so that [Ms A]’s family could not make a living by farming. The Tribunal does not accept [Ms A] was a Christian or a member of the Church “[Name 1]” or “[Name 2]” at the time she left China. The Tribunal does not accept [Ms A] or the applicant would join or be involved in the Church “[Name 1]” or “[Name 2]” if they returned to China.

1. During the hearing the Tribunal discussed with [Ms A] her religious activities in Australia. She told the Tribunal she was unable to find the [Name 2] Church in Australia and her [relative] introduced her to [Church 3]. She told the Tribunal it was a Protestant Church and she initially attended that Church every time she visited [City 4] from [Town 5]. Since she moved to [City 4] from [Town 5] when her son was [very young], she has attended the Church weekly. [Ms A] told the Tribunal she was baptised on 25 December 2008 and although she has not attend Church in the last month because she has felt unwell, prior to that, she would attend weekly. The Tribunal has also taken into account the letter from [Church 3] provided at the hearing, and accepts [Ms A] has attended [Church 3] regularly since she moved back to [City 4] from [Town 5] when her son was [very young], therefore since around September 2013. While the Tribunal is concerned about [Ms A]’s credibility and the motivations of her religious activities, the Tribunal is prepared to accept she is a Protestant Christian who has been Baptised and who attends church regularly. There is no suggestion that the authorities in China would be aware of, or have any adverse interest in, [Ms A]’s religious activity in Australia, and the Tribunal does not accept there is a real chance [Ms A] or the applicant would suffer serious harm due to [Ms A]’s religious practices in Australia, if they were to return to China, now or in the foreseeable future. 

2. When questioned why [Ms A] could not attend a State recognised and registered Protestant Church in China, she told the Tribunal registered Churches in China are under the management of the government and Church members are not allowed to spread the gospel. When asked what is meant by spreading the gospel [Ms A] told the Tribunal it was in the Bible that God will come back to save people so you should spread around the good news. When asked what that meant, [Ms A] told the Tribunal the Bible recalls what happened in the past and currently and in the future, and when the holy spirit is in you, people speak in tongues and maybe someone can understand them even if they don’t speak the language. On further questioning about what spreading the gospel means, [Ms A] told the Tribunal it meant spreading the good news to more people who do not believe in God. She told the Tribunal it is even on the news that Noah’s ark existed. When questioned further about how [Ms A] spreads the gospel [Ms A] told the Tribunal God said anyone who did not spread around the good news does not deserve his son, so she tells anyone she meets there is this God, and we should believe in him, and he will come back to save us and bring us eternal life. [Ms A] told the Tribunal that in Australia she handed out leaflets before her son was born, sometimes on Sunday afternoons, and then stopped, and since that time she has sometimes put leaflets in letterboxes. On further questioning about her activities in Australia [Ms A] told the Tribunal she has invited some people to her church and encouraged her friends to attend group meetings.

3. The Tribunal found [Ms A]’s oral evidence vague and confused in relation to what spreading the gospel means to her, and the activities she has undertaken in order to spread the gospel. The Tribunal notes the written statement, and the letter from [Church 3], do not mention any spreading the gospel activities in Australia. While the Tribunal accepts [Ms A] is a Christian who attends a Protestant Church regularly, given the concerns about [Ms A’s] credibility noted above, and [Ms A]’s vague and confused oral evidence in relation to spreading the gospel, and the absence of any corroborating evidence, the Tribunal does not accept spreading the gospel is an activity [Ms A] undertakes in Australia and does not accept it is part of her religious practice.

4. While the Tribunal accepts [Ms A] may continue her Christian Protestant religious practices if she were to return to China, and may influence the applicant to be involved, the Tribunal does not accept spreading the gospel would be part of those practices.

5. During the hearing [Ms A] told the Tribunal she would not attend a registered Church in China because they did not believe in the trinity. The Tribunal noted during the hearing that country information indicated that in Fujian Province there are many unregistered Christian Churches who don’t attract the adverse attention of the authorities. [Ms A] told the Tribunal that nowadays even small gatherings of three or four people attracted attention.

6. As noted above the Tribunal does not accept [Ms A] or the applicant would join or be involved in the Church “[Name 1]” or “[Name 2]” if they returned to China. On the country information before it[2], the Tribunal finds there are registered and unregistered Protestant Churches in China. The Tribunal notes the DFAT Thematic Report indicates Christian house churches can be found across China in varying sizes and religious practices. The report notes that unregistered Protestant Churches tend to have more theological freedom than registered churches but risk adverse treatment by the authorities, and gives some examples of unregistered church crosses being removed in Zhejiang Province and police raids on Guangzhou and church closures in Shandong, Inner Mongolia and Xinjiang. As noted during the hearing, country information specifically referring to Fujian Province[3] indicates that that province is generally noted as a more liberal and tolerant in relation to religion. It is rarely mentioned in reports on breaches of religious freedom by the US Department of State, the United States Commission on International Religious Freedom, Amnesty International, Human Rights Watch or the various Christian NGOs. On the evidence before it, the Tribunal does not accept [Ms A]’s oral evidence that even small gatherings of three or four people attract adverse attention in Fujian. While the Tribunal has some doubts about the reliability of [Ms A]’s oral evidence, the Tribunal accept she would not attend a registered Church for doctrinal reasons, and the Tribunal finds she would attend an unregistered Protestant Church in Fujian. On the evidence before it the Tribunal finds the chance [Ms A] and the applicant would come to the adverse attention of the authorities in Fujian due to their religious practices is remote. The Tribunal does not accept there is a real chance [Ms A] or the applicant would suffer serious harm or persecution if they returned to Fujian and [Ms A] continued her Protestant religious practices and the applicant was involved and followed her into that faith.

   [2] DFAT Country Report (3 March 2015) and the DFAT Thematic Report Unregistered religious organisation and other groups in the People’s Republic of China (3 March 2015).

   [3] Schak, David 2011, ‘Protestantism in China: A Dilemma for the Party-State’, Journal of Current Chinese Affairs, Vol 40, No 2; US Commission on International Religious Freedom 2012, ‘China’, Annual Report 2012, March, p.146 Lambert, T. 2006, China’s Christian Millions, Monarch Books, Oxford; Immigration and Refugee Board of Canada 2000, CHN34099.E ‘China: Report of a fact finding mission to Fuzhou by political counsellor, Canadian Embassy, Beijing’, Global Chinese Ministries 2009, ‘The Protestant Church in Fujian Province’, OMF (Overseas Missionary Fellowship) relating to being born while parents not married, and being a “black child”.

7. During the hearing the Tribunal discussed with [Ms A] the concerns about the application of the Family Planning regulations and the claims that the social compensation fee for violating the Family Planning policies is beyond [Ms A]’s means, therefore the applicant will become a “black boy” without a legal residence permit.

8. During the hearing [Ms A] told the Tribunal that she was not married when she gave birth to the applicant and that his father had left the relationship prior to the birth. She told the Tribunal she regained contact with the applicant’s father several months after the applicant was born and while they are officially not back together yet, they have been close in recent months and [Ms A] is now pregnant again. She told the Tribunal that since the birth of his child he has changed and improved a lot and they may marry in the future, but noted their families do not approve of the relationship. [Ms A] told the Tribunal she had worked in a [workplace] in Australia prior to getting pregnant and now receives money from the applicant’s father for their living expenses. He pays for their rent of $100 a week and gives her $50-$60 a week for food. [Ms A] told the Tribunal the applicant’s father has not told her how much he gets paid but she told the Tribunal he works with [deleted] and works often and she believes he is paid OK. On the evidence before it the Tribunal finds [Ms A] is in an ongoing relationship with the applicant’s father and that he supports [Ms A] and the applicant financially. The Tribunal also finds [Ms A] and the applicant’s father may marry in the future.

9. The Tribunal accepts the applicant was born while his parents were not married. During the hearing the Tribunal discussed with [Ms A] what the social compensation fee would be in order to have the applicant’s Hukou registered, if she returned with him to her home in the rural area of Fujian. As noted above, [Ms A]’s evidence in relation to the amount varied from tens of thousands RMB in her oral evidence to exceed 50, 000 RMB in the written statement. During the hearing the Tribunal noted that country information[4] indicates the social compensation fee in rural Fujian would be approximately 2000 AUD. Country information indicates the fee amount ranges between 60% to 100% of the districts average annual income and according to statistics for the average incomes for the rural areas in Fujian province[5] the fee imposed for a child born in unmarried circumstances would be in the range of 5980 to 9967 Yuan or approximately $1234 to $2058 AUD. County information also indicates that if the parent is unable to pay the sum in full they may apply to pay the fee by instalments[6].

   [4] Canada: Immigration and Refugee Board of Canada, China: Family planning laws, enforcement and exceptions, particularly in the provinces of Guangdong and Fujian; reports of forced sterilization of men and women; consequences to officials who force women to have an abortion; whether family planning authorities interact with the Public Security Bureau in enforcing their decisions (October 2012-September 2014) Background Paper

   [5] Per Capita Annual Income of Urban and Rural Households, Fujian Statistical Yearbook 2014, Population and Family Planning Regulation of Fujian Province (Promulgated 26 July 2002, Effective 1 September 2002), UNHCR website >

   In response [Ms A] told the Tribunal that the information before the Tribunal is from the official source and the calculation of the fee may be provided by that, but in China, public officers, who are paid a small wage, are buying expensive properties overseas, therefore how the fees are implemented is different. The Tribunal noted there had recently been a lot of media reporting about the government crackdown on corruption in China and asked if [Ms A] could refer the Tribunal to any sources that indicated corrupt officials routinely increased the amount required to pay in this situation. [Ms A] told the Tribunal she had not been in China for eight years and did not know the current circumstances, but recalled her mother told her she was required to pay an amount of money when she was pregnant. [Ms A] had previously told the Tribunal her mother had [children] and paid fees for the [younger] children. The Tribunal noted [Ms A] had also told the Tribunal her mother’s family was very poor yet were able to pay the fees.

10. The Tribunal finds that the Population and Family Planning Regulations of Fujian Province are a law of general application designed to meet the purpose of controlling China’s population growth. While the Tribunal has considered [Ms A]’s oral evidence in relation to corrupt officials and demands for larger amounts, the Tribunal is concerned about the reliability of this evidence. The Tribunal prefers the country information which indicates the fee amounts imposed are much lower than claimed. The Tribunal is concerned that [Ms A] has exaggerated this in order to support the application. The Tribunal does not accept, as stated in the written statement, that Fujian Province is particularly tough towards people who have violate the birth control policy. It does not accept the province undertakes inhumane measures including setting up illegal courts secretly and levying high taxes arbitrarily, or that in some places the penalty is as high as, or more than, one hundred thousand Yuan.

11. The Tribunal finds it is likely that the applicant’s father will continue to financially support [Ms A] and the applicant, and while the Tribunal accepts there are corrupt officials in China, it does not accept that [Ms A] would be unable to pay the social compensation fee given her current financial circumstances and the option to pay the amount by instalments. There is no reliable information that indicates that such a fee would be imposed on the applicant in a discriminatory fashion or that it could reasonably be seen as excessive. The Tribunal also notes that according to the regulations, the fee could be waived if [Ms A] and the applicant’s father were to marry within three months of receiving the notification of a social compensation fee.

12. The Tribunal accepts there is a real chance [Ms A] will give birth to a second child and therefore have an additional fee payable under the Family Planning Regulations. While the Tribunal accepts it may be difficult financially for the applicant and his mother, given her current ongoing relationship with, and financial support from, the applicant’s father, the Tribunal does not accept [Ms A]’s ability to pay the social compensation fee for the applicant and have his Hukou registered, and to ensure his ongoing subsistence, would be critically effected.

13. Therefore, while the Tribunal accepts that it may be difficult financially for [Ms A] and the applicant if they return to China, the Tribunal is not satisfied [Ms A] is unable to pay the social compensation fee for the applicant to be registered, or that the payment of that fee would constitute serious harm including significant economic hardship that threatens [Ms A] and the applicant’s capacity to subsist. The Tribunal is satisfied that once the applicant was registered he would have access to state provided education and healthcare available to all other registered Chinese citizen.  Article 25 of the Marriage Law of the People’s Republic of China stipulates:

    Children born out of wedlock shall enjoy the same rights as children born in wedlock.  No one may harm or discriminate against them.

14. The Tribunal has also considered whether the applicant would face harm in the form of persecution until such time as he is registered (if the fee is paid by instalment) for reason of his status as an unregistered child. 

15. The Hukou (household registration system) records a child’s birth, testifies to its citizenship, and registers its permanent residence. The Hukou registration is one of the most important components of the household management system in China. A child cannot acquire most of his or her rights without their Hukou registration. Without a Hukou registration, an unregistered child would not be entitled to either government funded public education or subsidised health care.[7] The parents of an unregistered child would have to arrange and pay for private education and medical services. According to DFAT advice, if a non-government school exists in the area, an unregistered child would be able to attend but may be charged higher fees than a registered child.[8] DFAT has advised that there are many private schools in Fujian that will enroll unregistered children and that their fees are not excessive by Chinese standards.[9] It should however be noted that DFAT advice of August 2007 states that China does not have a national health insurance system for children so a child’s registration status is not relevant to accessing medical services.[10] Apart from health and education an unregistered child would only be denied welfare payments to the unemployed and elderly, many of the other services that the local government would have normally provided in the past to a registered individual, have now been outsourced to privately run entities.[11]

    [7] Wang, F.L. 2005, ‘Brewing Tensions While Maintaining Stabilities: The Dual Role Of The Hukou System In Contemporary China’, Asian Perspective, Vol. 29, No. 4, pp. 85-124, – Accessed 20 April 2011. \\NTSSYD\REFER\Research\2011\Web\Brewing Tensions While Maintaining Stabilities The Dual Role Of The Hukou System In Contemporary China.pdf

    [8] Department of Foreign Affairs and Trade 2007, DFAT Report 691 – RRT Information Request CHN32173, 31 August Department of Foreign Affairs and Trade 2004, DFAT Report No. 327 – China: RRT Information Request: CHN17017, 7 October

    [9] Department of Foreign Affairs and Trade 2004, DFAT Report 287 – RRT Information Request: CHN16609, 22 April

    [10] Department of Foreign Affairs and Trade 2007, DFAT Report No. 691 – China: RRT INFORMATION REQUEST: CHN32173, 31 August. \\ntssyd\REFER\Research\DFAT\chn32173.dfr.doc

    [11] Saich,T. 2004, ‘The Changing Role of Government’ Background Note for the World Bank Report on China’s 11^th Five Year Plan Kennedy School of Government, Harvard University, August - \\NTSSYD\REFER\Research\2011\Web\The Changing Role of Government.pdf

16. Given the applicant’s young age it is likely that he would be registered by school age even if [Ms A] paid by instalments. However, even if he was not, the Tribunal notes the independent information referred to above in respect of education indicates that higher school fees would be applicable for an unregistered child but there are a number of reasonably priced private schools which can be accessed.  The Tribunal is not satisfied that the implications of not being eligible in the interim period for state funded education and/or health benefits as an unregistered child constitutes harm of such a nature or extent as to amount to persecution (having regard to the example of ‘serious harm’ referred to in s.91R(2)).

17. Therefore the Tribunal does not accept the claims that [Ms A] will be unable to pay the social compensation fee, or that the applicant will not be eligible to apply for household registration and unable to access medical insurance or medical care, or a normal education. The Tribunal does not accept [Ms A] and the applicant will be doomed to a deplorable plight in which they will be living as second-class citizens.

18. The Tribunal has considered independent information about the treatment of children born out of wedlock.  DFAT provided advice in 2004 on the treatment of children born out of wedlock (in Guangdong), noting that ‘being a child out of wedlock still attracts some degree of social stigma’.[12] However, the DFAT report also advised that the children ‘might be subject to bullying or teasing at school, but are unlikely to suffer serious social disadvantage’.[13]

    [12] Department of Foreign Affairs and Trade 2004, DFAT Report 330 – RRT Information Request: CHN16967, 15 October –

    [13] Department of Foreign Affairs and Trade 2004, DFAT Report 330 – RRT Information Request: CHN16967, 15 October –

1. In 2010 Dr. Alice de Jonge provided additional advice to the RRT on the treatment of children born out of wedlock in China. Dr. de Jonge advised:

   Such children are still regarded with pity and disdain. They are teased at school. Single mothers are subject to discrimination when it comes to accessing housing, education and medical services.[14]

   [14] de Jonge, A. 2010, Email to RRT Country Advice ‘RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060)’, 15 January

2. Regarding the treatment of such children in Fujian specifically, Dr. de Jonge advised:

   Fujian is a relatively prosperous province in SE China. It is not the worst place to be a child born out of wedlock. Nor the best. The private sector is active in Fujian so that access to employment is at a reasonable level, even for single mothers, depending upon qualifications.[15]

   [15] de Jonge, A. 2010, Email to RRT Country Advice ‘RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060)’, 15 January

3. While the Tribunal accepts that the applicant may be subject to some social stigma and ostracism, and while acknowledging this may be distressing, in light of the country information set out above the Tribunal is not satisfied on the evidence before it that he will face societal discrimination, stigma or ostracism that is sufficiently serious to constitute ‘serious harm’ (having regard to the examples provided in s.91R(2) of the Act) or ‘significant harm’ (having regard to the exhaustive definitions in in s.36(2A) and s.5(1) of the Act.

   Conclusion

4. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied there is a real chance that he will suffer serious harm or persecution due to his or [Ms A]’s religion and religious practices, or the implementation of the Family Planning Regulations and the imposition of a social compensation fee, if the applicant returned to China now or in the reasonably foreseeable future.

5. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied that the applicants has a well-founded fear of persecution for a Convention reason, if he were to return to China now or in the reasonably foreseeable future. Therefore the Tribunal finds the applicant does not satisfy the criteria in s.36(2)(a).

   Complementary protection

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

   Claims relating to religion

7. As noted above, the Tribunal finds [Ms A] is not a witness of truth and it does not accept she has told the truth in relation to critical aspects of the claims. The Tribunal does not accept [Ms A] or her mother were involved in, or members of, the Church “[Name 1]” or “[Name 2]” in China prior to [Ms A] travelling to Australia. The Tribunal does not accept [Ms A] or her mother attended gatherings of that Church or that they were persecuted and went into hiding. The Tribunal does not accept [Ms A] and her mother exchange witnesses on-line or that [Ms A]’s mother was arrested in 2012 and detained for a month or that she was detained for over one week and fined in 2013. The Tribunal does not accept [Ms A] has sent gospel materials to her mother in China or any links to videos, or had any concern her computer was hacked. The Tribunal does not accept that in an attempt to cut of the Church’s economic sources, government officials in China  made trouble so that [Ms A]’s family could not make a living by farming. The Tribunal does not accept [Ms A] was a Christian or a member of the Church “[Name 1]” or “[Name 2]” at the time she left China. The Tribunal does not accept [Ms A] or the applicant would join or be involved in the Church “[Name 1]” or “[Name 2]” if they returned to China.

8. While the Tribunal accepts [Ms A] is now a Christian who attends a Protestant Church regularly, the Tribunal does not accept spreading the gospel is an activity [Ms A] undertakes in Australia and does not accept it is part of her religious practice. For the reasons noted above, the Tribunal does not accept there is a real risk [Ms A] or the applicant would suffer significant harm due to [Ms A]’s religious practices in Australia, if they were to return to China, now or in the foreseeable future. While the Tribunal accepts [Ms A] may continue her Christian Protestant religious practices if she were to return to China, and may influence the applicant to be involved, the Tribunal does not accept spreading the gospel would be part of those practices. The Tribunal accept [Ms A] will attend an unregistered Protestant Church in Fujian and finds the chance [Ms A] and the applicant would come to the adverse attention of the authorities in Fujian due to their religious practices is remote. The Tribunal does not accept there is a real risk [Ms A] or the applicant would suffer significant harm if they returned to Fujian and [Ms A] continued her Protestant religious practices and the applicant was involved and followed her into that faith.

   Claims relating to being born while parents not married, and being a “black child”

9. While the Tribunal has accepted that a social compensation fee may be imposed and the payment of that fee may cause some financial hardship, in the circumstances of this case, the Tribunal finds the imposition of such a fee, and payment and resulting financial hardship if any, would not constitute ‘significant harm’ as defined in ss.36(2A) and 5(1) of the Act. It would not constitute the arbitrary deprivation of life and has no association with a death penalty. The evidence before the Tribunal indicates, and the Tribunal finds, that it would not constitute 'torture' as it would not involve severe pain or suffering of the type contemplated in the definition: s.5(1). While a fee/fine may be considered punishment, the Tribunal does not consider, on the information before it, that the imposition of such a fee would be intended to cause or causes extreme humiliation which is unreasonable (as stipulated by the definition of degrading treatment or punishment in s.5(1)) or that the imposition of a fee would cause (or was intended to cause) severe pain or suffering, or pain or suffering where the act or omission could reasonably be regarded as cruel or inhuman in nature or that the imposition of a fee in these circumstances could be regarded as cruel or inhuman (within the meaning of the definition of 'cruel or inhuman treatment or punishment' in s.5(1)).

10. As discussed above, the Tribunal is not satisfied that [Ms A] is unable to pay the social compensation fee for the applicant to be registered.  The Tribunal is satisfied that if the applicant was registered he would have access to the benefits associated with household registration. Therefore the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.

11. The Tribunal has accepted that it is possible that the applicant may face some societal discrimination as a result of the applicant being born outside of marriage. However, the Tribunal is not satisfied that such bullying, teasing, pity and disdain would constitute ‘significant’ harm as defined in ss.36(2A) and 5(1) of the Act. It would not constitute the arbitrary deprivation of life and has no association with a death penalty. The evidence before the Tribunal indicates, and the Tribunal finds, that it would not constitute 'torture' as it would not involve severe pain or suffering of the type contemplated in the definition: s.5(1). The Tribunal does not consider, on the information before it, that such discrimination would be intended to cause or would cause extreme humiliation which is unreasonable (as stipulated by the definition of degrading treatment or punishment in s.5(1)) or would cause (or was intended to cause) severe pain or suffering, or pain or suffering where the act or omission could reasonably be regarded as cruel or inhuman in nature or that the discrimination in these circumstances could be regarded as cruel or inhuman (within the meaning of the definition of 'cruel or inhuman treatment or punishment' in s.5(1)).

12. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.

    CONCLUSION

13. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

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

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Chris Thwaites
    Member  6 July 2015

    ATTACHMENT - RELEVANT LAW

16. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa.’

    Refugee criterion

17. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

18. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

19. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

20. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

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

    (b)significant physical harassment of the person;

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

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

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

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

21. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

    ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

22. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

    ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

23. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provides that Article 1A(2) does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

24. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

    ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

25. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

    ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

    Complementary protection criterion

26. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    
    

China: Family Planning Per Capita Annual Income of Urban and Rural Households, Fujian Statistical Yearbook 2014,