1410896 (Refugee)

[2015] AATA 3522

1410896 (Refugee) [2015] AATA 3522 (12 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410896

COUNTRY OF REFERENCE:                  China

MEMBER:Paul Millar

DATE:12 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2015 at 3:33pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).  The applicants, who the Tribunal finds to be citizens of China, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] May 2014.[1]    The first named applicant appeared before the Tribunal on 10 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.  The applicants were represented in relation to the review by their registered migration agent.  The representative attended the hearing.

   [1] The Tribunal's finding as to citizenship with respect to the first named applicant is based on her Chinese passport which she produced at the Tribunal hearing.  With respect to the second named applicant, her son, who was born in Australia, the Tribunal’s finding as to citizenship is based on copies of pages from his Chinese passport at folio one of the Tribunal file.

   RELEVANT LAW

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

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

4. 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.

5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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’).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration (‘the department’) – 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.[2]

   [2] In this respect, the Tribunal took account of DFAT Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China dated 3 March 2015 and DFAT Country Report People’s Republic of China dated 3 March 2015.

   FINDINGS

7. The Tribunal has concluded that the decision under review should be affirmed.  The first named applicant is a [age]-year-old woman from Guangdong province (‘the applicant’).  The second named applicant is her son who applied for protection as a member of his mother’s family unit who did not have his own protection claims.  In her evidence to the department and the Tribunal, the applicant claimed protection on the grounds that she and her son will suffer harm in China because her son was born in breach of family planning laws.[3]  The applicant also claimed protection on the ground that she and her son have become Christians in Australia and cannot freely practice their religion in China.  The Tribunal holds the following concerns about the applicant’s credibility, but, before discussing those concerns, it is necessary to set out the background to this Protection visa application.

   Background to the application

   [3] The applicant’s evidence to the department and the Tribunal comprised the contents of the Protection visa application forms; statement dated [in] January 2014 from the applicant; evidence presented in submissions dated 30 June 2015 from the representative and the applicant's evidence at the Tribunal hearing.  She declined an invitation to attend an interview with the delegate. 

8. With the application for review, the applicants provided a copy of the decision of the delegate to refuse their Protection visa application.  The decision of the delegate contains the following account of the applicants’ migration history.  The applicant arrived in Australia in February 2002 as the holder of a Tourist visa with her husband who is also a Chinese national.  Before they came to Australia, their first child, a daughter, was born in China and they left her there.  In March 2002 her husband made a Protection visa application and the applicant was included in that application as a member of her husband’s family unit.  In April 2002 the department refused that application, a decision affirmed by this Tribunal (differently constituted) in August 2003.  From September 2003 the applicant remained in Australia without a valid visa. 

9. In late 2004 her husband was returned to China when the applicant was pregnant with her son who was born in Australia in [year]. In September 2010 the applicant was granted a Bridging visa pending the outcome of an application to the Minister for intervention she made at that time. In December 2011 and in March 2012 she attempted to lodge further Protection visa applications which the department refused to accept pursuant to s.48 of the Migration Act. In January 2013 the Minister refused to intervene and in January 2014 the applicant made this current Protection visa application. The department accepted this application pursuant to the decision of the Federal Court in SZGIZ v MIAC [2013] FCAFC 71. Consequently, both the department and this Tribunal are restricted to considering whether the applicants meet the complementary protection criterion.

   Credibility concerns

   Failure to advance at an earlier stage claims about conflict with family planning officials in China 

10. When asked by the Tribunal why she and her husband came to Australia in 2002, the applicant related an account of family planning officials forcing her to have inserted in her body a birth control device after she had given birth to her daughter in 2000.  This device caused her stomach pain and interfered with her menstrual cycle.  She asked the officials to have it removed but they refused.  Because this device caused her health to deteriorate, in approximately September or October 2001, she had a private doctor remove it.  Not long after she again fell pregnant and in fear of the family planning officials she aborted the pregnancy and soon after left China before a scheduled check up with the family planning officials.

11. When asked what repercussions this had in terms of reaction from family planning officials, the applicant said that the officials, from 2002, withheld benefits that her husband’s parents had been receiving and they were only reinstated a year after her husband returned to China in 2004.  The applicant told the Tribunal there was no other reason she and her husband left China.  She said neither of them had been in conflict with Chinese authorities before coming to Australia.  She added that neither of them ever practised Falun Gong in China or in Australia and, after they came here, neither of them ever participated in public events or protests related to Falun Gong.

12. The Tribunal asked the applicant about the grounds of the Protection visa application she and her husband made in 2002.  The applicant said that the application they made for protection in 2002 was made on the grounds that they were both practising Falun Gong in China, that the applicant’s husband had come into conflict with Chinese authorities for that reason, that the applicant’s husband, at least, had been involved in public events for Falun Gong in Australia and, as a result, Chinese authorities told the family in China they were aware of that and wished to apprehend him. The applicant told the Tribunal that all of those claims were false. 

13. She said that this application, made on false grounds, arose from enquiries they made with friends once they got here as to how they could stay in Australia.  Through those enquiries they came in contact with an agent who said that he would make an application for a visa for them that would enable them to stay here but the agent did not tell them how that would be done or on what basis.  She added that her husband dealt with the agent and he said nothing about the application being made.  The Tribunal is sceptical of those claims and is not convinced that the applicant would be ignorant of the fact that an application had been made on false grounds to enable she and her husband to remain in Australia.

14. The applicant told the Tribunal that, in fact, the first time she had mentioned this account of her conflict with family planning officials when she lived in China was in the submissions from her current representative of 30 June 2015.   Although she made a statement dated [in] January 2014 with this current Protection visa application she made no mention of the claimed conflict with family planning officials when she lived in China.   When asked why this particular claim had not arisen until such a late stage, the applicant said that previously, she had just been focused on her fears for her son in China but she now realised how important this particular claim is and that her own welfare was at stake.

15. In her evidence to the Tribunal, the applicant recalled consulting an agent (‘the agent’) who helped her apply to the Minister for intervention and to make Protection visa applications in 2011 and 2012 which were not accepted by the department (and which she said were again focused on risk of harm to her son).  The applicant recalled that the agent made written submissions to the Minister in 2010 (submissions before the Tribunal) but acknowledged that they made no mention about the claimed conflict with family planning officials. When this was put to her, she said that she thought she had mentioned those things to the agent but he just did not write them down. 

16. The Tribunal can allow for the possibility of miscommunication between a representative and an applicant and omissions on the part of a representative.  However, the Tribunal does not believe that if this conflict with family planning officials in China actually took place, a conflict she claimed was the reason she left China, the applicant would not actually raise it as a protection claim until some 13 years after she arrived here. 

    Inaction about her status in Australia

17. The decision of the delegate indicates that the applicant and her husband were in Australia unlawfully without a valid visa from September 2003.  To the Tribunal, the applicant said that when her husband was apprehended in October 2004 she then realised that she did not have a valid visa to be in Australia.  While she was pregnant with her son, she made enquiries with migration agents who just told her to stay in Australia.  She told those agents that she was pregnant and feared harm in China on that ground but no agent was willing to help her.  She thought both she and her son were at risk at that time in view of what had happened to her in China with the family planning officials.

18. The applicant said that after her son was [born] she still did not wish to return to China again for the reasons related to conflict with family planning officials and, in addition, her fear that her son would not have household registration and therefore be denied essential services such as education.  She recalled being introduced to the agent in 2010 who assisted her with applications from that time.  However, the Tribunal was concerned that for a period of five years between giving birth to her [son] and consulting the agent in 2010, she was inactive in terms of taking steps to remain in Australia permanently or to at least find out how she could do that. 

19. When asked what steps she took between the birth of her son and going to see the agent in 2010 as to how she could remain here, the applicant said that she made enquiries with welfare and charity agencies but they could not help her.  She then said that in this period she did consult quite a few migration agents but nobody could help her.  If that was truly the case, the Tribunal has difficulty accepting that in this period of some five years no applications would be made on her behalf with respect to being able to stay here until 2010 when she received assistance from the agent.  Accordingly, the Tribunal finds that the applicant has withheld the truth as to what steps she took in the relevant five year period as to her and her son’s status in Australia.  This reflects poorly on the credibility of her claim to genuinely fear harm for her and her son in China. 

    Conclusions on credibility

20. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that she is not a witness of truth with respect to her claim to genuinely fear harm in China and to have been in conflict with family planning officials before she came to Australia.  Therefore the Tribunal disbelieves the applicant’s claims about that conflict; that benefits were withheld from the family of her husband and that officials were suspicious about her absence when her husband was sent back to China in 2004 (a claim she made to the Tribunal).  There is no credible evidence that Chinese authorities hold adverse interest in the applicant or her husband and that they or anyone else in China seek to harm them or her son.  There is also no credible evidence as to why the applicant and her husband left China and why the applicant does not want to return there.

21. In submissions made to the Minister in September 2010, it was asserted that the applicant was separated from her husband and their marriage had broken down.  At the hearing, the Tribunal brought this to the applicant’s attention and she said that was incorrect.  She said they had had only a temporary disagreement when the department was trying to get her son to apply for a Chinese passport.  Her husband would not cooperate with that application because he did not want their son to risk returning to China.  She told the Tribunal that she is in regular contact with her husband and they are in a married relationship.  She said her husband works in [China] and their daughter goes to school.  Her husband and daughter live in what was the marital home when they all lived in China and which he shares with his parents [and] family. 

22. The applicant also said that her parents live in China as does a [sibling].  She said that she has another [sibling] who is in Australia as the holder of a temporary visa who is seeking to remain here but she said that she does not know why [this sibling] left China and why he wants to remain here.  The Tribunal accepts all of this evidence about the status of the applicant’s marriage; the current circumstances of her husband and daughter and this evidence about her own family.  Before turning to an assessment of whether the applicants meet the complementary protection criterion, the Tribunal repeats its finding that there is no credible evidence that Chinese authorities or anyone else in China holds an adverse interest in the applicant, her husband and her son.  There is no credible evidence as to why the applicant left China and why she does not want to return there.

    Assessment of whether there is a real risk the applicants will suffer significant harm in China - the complementary protection criterion

    Family planning laws in Guangdong

23. The applicant claimed to fear harm on the ground that her son was born in breach of family planning laws.  She claimed that she would have to pay a heavy fine which she could not afford and so her son would not receive household registration and be denied health care and education and would suffer discrimination.[4]  The hukou system does enable access to government services like education above a certain level and health.[5]  For this to be obtained parents of children born in breach of family planning regulations will have to show social compensation fees have been paid.[6]  Authorities in Guangdong have tended to take a relaxed approach to family planning.[7]  Population and Family Planning Regulations of Guangdong Province effective January 2009 ‘advocate’ one child for each couple.[8]  ‘Child bearing’ that violates the regulations attracts ‘social upbringing charges’ for which a couple may apply to make payment in instalments for a period of not more than three years.[9] 

    [4] These claims were made in her statement of 28 January 2014 and in submissions made to the Minister in 2010.

    [5] DFAT Country Report China March 2015 at 5.12.

    [6] Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November.

    [7] See RRT Country Research 1994, Record of Conversation with Dr Terence Hull, 15 August <\\melsrv01\library\First.links\4143.pdf>; RRT Country Research 1994, Record of Conversation with Ms Penny Kane, 15 August; Qiwen, L 2008, ‘Baby overload in Guangdong’, China Daily, 16 October < Accessed 13 January 2009 and ‘China’s population: Only and lonely’ 2011, The Economist, 21 July < Accessed 8 February 2013.

    [8] See Article 18 of the Population and Family Planning Regulations of the Province of Guangdong, art 53, promulgated 28 November 2008 (effective 1 January 2009), Westlaw < Accessed 13 March 2012.

    [9] See Article 47 of the same regulations.

24. For urban residents who have one more child the actual charge will be three to six times the per capita disposable income of an urban resident in the year before the child was born to be paid by each parent.[10]  For rural residents who have one more child the charge will be three to six times the per capita disposable income of a rural resident in the year before the child was born to be paid by each parent.[11]  Therefore the applicable charge to be paid by the applicant and her husband would be, if they are urban residents, up to approximately RMB 81,780 and, if they are rural residents, up to approximately RMB 15,332.[12]   In the interim, before household registration is obtained, private healthcare is available in China as is private education.[13]

    [10] See Article 53 of the same regulations.

    [11] Ibid.

    [12] accessed 9/7/15 is the source for the income figures used in the calculations for urban residents and the same source was used for the per capita annual net income for rural households in 2004.  Statistics for the per capita disposable income for a rural resident in 2004 were not available at the time of decision.

    [13] Health services in China are mainly provided by the public system but the private sector has increased its market share in recent years (See Home Office China Country of Origin Information (COI) Report COI Service 20 December 2013 at 11.01).   For private education see CX300341: "CIS Request No. CHN 14017 Access to health care for 'black' children", Australia: Department of Foreign Affairs and Trade (DFAT), 06 December 2012.

1. The Tribunal discussed this country information with the applicant and put to her that household registration and access to services would be granted to her son once she and her husband pay the requisite fee.  The Tribunal put to her that in the interim private health and education services were available which her son could use prior to the fee being paid.  In response, the applicant said that the amount of the fee in her local area could be higher; her husband’s employment was not stable and not well paid and so they could not afford the fee or private education and health care.  The Tribunal rejects her assertions because she told the Tribunal that her husband was [employed] and he and their daughter live with his family.  In addition she told the Tribunal that in Australia both she and her husband had been able to find employment.

2. The applicant will be free to seek employment on return to China, the applicant telling the Tribunal that the family home was approximately one hour from Guangzhou and therefore not in a part of China that is remote and where access to employment could be restricted.  Apart from their own earnings, they would also have the support of the family of the applicant’s husband.  That support and their earnings could also provide for private healthcare and education in the interim prior to the requisite fee being paid and household registration being issued.  Accordingly, the Tribunal finds that the risk of the fee not being paid and the applicant’s son not getting access to healthcare and education or suffering discrimination on that ground, is remote.

3. Available country information refers to instances of forced abortions in 2009 and forced sterilisation in 2010 in parts of Guangdong.[14]  However, given the historically relaxed attitude to family planning in the province and given the applicant’s son was born now [number] years ago, the Tribunal considers that the risk of the applicant being forced to undergo such a procedure is remote.  The Tribunal put this to the applicant at the hearing and she chose not to comment on that issue but, instead, made submissions about the impact on her son of having to live in China.  Those submissions have been dealt with below.  For all of these reasons, the risk of the applicant and her son suffering significant harm with respect to breaching family planning laws in China is remote.

   Christianity in Guangdong

   [14] US Congressional-Executive Commission on China 2009, Annual Report 2009, 10 October, pp. 154‑6 < Accessed 15 October 2009; US Congressional-Executive Commission on China 2010, Annual Report 2010, 10 October, p.119.

4. The applicant also claims that she and her son will suffer harm in China because they have become Christians in Australia.  In this respect, to the Tribunal, the applicant said that she was introduced to the church she currently attends through a friend when she was pregnant with her son.  At that time she was feeling alone because her husband had gone back to China.  From this time she began attending services at the church every Sunday, she was baptised in 2009 and she also belongs to a dance group from the church which performed in nursing homes and in which the group expressed admiration for God through dance.  She also read the Bible at home but the dance group also discussed the Bible and the group prayed together at rehearsals.  When asked if she practised her religion in any other way, she said that she also did [certain] work at the church.

5. The Tribunal asked the applicant questions to gain an understanding of the strength of her faith and the type of Christian she was.  The applicant could give a broad knowledge of Christianity and Christian teachings.  She gave answers demonstrating a basic knowledge of the Bible.  She has told her husband that she is a Christian and he is approving of that.  When asked if she would practice Christianity on return to China, the applicant said her freedom to practice religion would be restricted.  To the department, the applicant submitted a letter from a pastor of the [church] who stated that he had known the applicant and her son for four years; that they attended church regularly and the applicant was baptised in April 2009.[15]  This person also said that the applicant did voluntary work and her son participated in Sunday school.  In her statement [in] January 2014, the applicant said that the church she attends is Presbyterian.

   [15] See folio 26 of the department file.  At folio 32 is the certificate of baptism issued by that church to the applicant.

6. According to official statistics, there are approximately 100 million religious believers in China including over 23 million Protestants.[16] The Chinese government limits religious practice to five religions which include Protestantism and members are required to register with the government’s Patriotic Associations.[17]  In addition to those followers just mentioned, who belong to government affiliated registered churches, DFAT estimated that there are approximately 70 to 100 million believers in unregistered Protestant Christian organisations.[18] DFAT stated that religion in China can be practised within state sanctioned boundaries as long as those practices do not challenge the interests or authority of the government.[19] Unregistered groups are vulnerable to punitive action by the Chinese authorities.[20] However, (unregistered) house churches can be found across China and gatherings of 30 to 40 people are generally tolerated with some house church congregations numbering in the thousands being able to operate with little to no interference from local authorities.[21]

   [16] See DFAT Country Report People's Republic of China 3 March 2015 at 3.12.

   [17] DFAT ‘Thematic Report Unregistered religious organisations and other groups in the People's Republic of China’ 3 March 2015 at 2.8.

   [18]  DFAT ‘Thematic Report Unregistered religious organisations and other groups in the People's Republic of China’ 3 March 2015 at 2.13.

   [19] DFAT ‘Thematic Report Unregistered religious organisations and other groups in the People's Republic of China’ 3 March 2015 at 2.11.

   [20] DFAT ‘Thematic Report Unregistered religious organisations and other groups in the People's Republic of China’ 3 March 2015 at 2.10.

   [21] DFAT ‘Thematic Report Unregistered religious organisations and other groups in the People's Republic of China’ 3 March 2015 at 3.2.

7. In addition to this information from DFAT, the Tribunal also considered a report from the United Kingdom Home Office entitled ‘Country Information and Guidance China: Christians’, released on 13 June 2014, which contained the following assertions.  The risk of harm for Christians expressing and living their faith in China is very low, almost virtually negligible.[22] The majority of Christians in China are able to worship and practice without facing serious difficulties, millions of Chinese Christians manifesting their beliefs openly.[23] Adverse treatment of Christian communities was confined to closing down church buildings or interrupting or preventing public worship or demonstrations.[24] A risk of harm was more likely to arise for those who were ‘dissident bishops’ or Christians who chose to worship in unregistered churches and behaved in a way that attracted the attention of local authorities to them or their political, social or cultural views.[25]  Members of unregistered Protestant groups that the government arbitrarily deemed to be evil cults were the most vulnerable to detention, arrest and harassment (examples being the ‘Shouters’ and ‘Local church’).[26]

   [22] See 1.3.5 of that report.

   [23] See 2.1.3 of that report.

   [24] See 1.3.6 of that report.

   [25] See page 6 of that report.

   [26] See 2.3.10 of that report.

8. The Tribunal discussed this country information with the applicant at the hearing.  The Tribunal put to the applicant that according to this information if she was to attend an official Protestant church in China the risk of her and her son suffering significant harm was remote.  The Tribunal put to her that even if she was to attend an unregistered Protestant church in China those most at risk appeared to be church leaders or those who were outspoken against the government and those in groups deemed by the government to be cults.  In addition, the Tribunal put to the applicant that according to this information it was highly unlikely that she would not be able to practice her religion in China and the most likely harm, were she to attend an unregistered church, would be the authorities trying to close down the premises or interfering with large gatherings.

9. In response, the applicant said that her practice of religion would be restricted.  However, the sole ground on which she made that claim was that she lived in an area where everybody else was Buddhist and, to her knowledge, there were no churches or other Christians.  The Tribunal put to the applicant that she would therefore have to travel out of the local area to go and meet with other Christians.  In response, she said that she could not do that because she has to care for her family.  Her responses do not persuade the Tribunal that there is a real risk that the applicant and her son will be unable to practice Christianity in China.  The applicant and her son can join an official Christian church in China and participate in that as they have done in the church in Australia.

10. Country information discussed above indicates that for doing so the risk of them suffering significant harm is remote.  Alternatively they may choose to join an unofficial church, but, that, by itself, does not mean that there is a real risk they will suffer significant harm.  The applicant and her son are not dissident church leaders and she expressed no interest in joining a church which the government has deemed to be a cult.  Based on the country information set out above, the Tribunal finds that the risk of the applicant and her son suffering significant harm because they have become Christians in Australia and will want to practice their religion on return to China, as they have done in Australia, is remote.

    Residual claims

11. To the Tribunal, the applicant said that she did not want to go back to China because that would have a negative impact on her son.  He would be adversely affected because he has been in Australia since he was born and would find it hard to adjust in China.  In her statement of January 2014 she said that her son attends school in Australia and has limited Chinese language skills.[27]  In submissions of June 2015 the representative said that the applicant’s son was affected by the circumstances under which his father was sent back to China including a raid on the family home, having to attend the department to extend a Bridging visa and seeing officials rebuke his mother for being here unlawfully.  The representative submitted that the applicant’s son was in a poor psychological state and could not attend the hearing for that reason.  It was submitted that on his return to China he will be alienated.  In her statement of January 2014 the applicant also said that she had ties to Australia being an aunt who lives here and with whom she had lived and provided care.

    [27] To the department, the applicant provided documents from a school the applicant's son attends in Australia (see folios 31,33- 36 of the department file).

12. Any distress caused to the applicant on being separated from this aunt does not amount to significant harm given the applicant is returning to her own country where she will have the support of her husband, children and his family.  The risk of the applicant’s son being unable to obtain household registration, healthcare and education is remote so claims that he will be alienated on return to China or suffer discrimination are rejected.  While it was submitted that his mental state was fragile, it was also submitted that he attends school in Sydney and while he has never been to China, he will return there with his mother and live there with his parents who can assist him to integrate into life there including improving his Chinese language skills.  The risk of the applicant and her son suffering significant harm on any of these grounds is remote.

13. For the sake of completeness, the Tribunal adds that the applicant’s son was granted Australian citizenship [in] March 2015.[28]  Accordingly, he cannot be granted a Protection visa given he is not a non citizen.[29]  The Tribunal nevertheless assessed the risk of him suffering significant harm on return to China given that his mother indicated throughout her evidence that he will remain with her.  The Tribunal made that assessment to gauge what impact there would be on her, if her son suffered significant harm.  For the reasons given above, the risk of the applicant and her son suffering significant harm in China is remote.

    [28] See folio 30 of the Tribunal file.

    [29] See s.29 of the Act.

14. For the reasons given above, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, China, there is a real risk that the applicants will suffer significant harm.

    CONCLUSIONS

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

    DECISION

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

    Paul Millar

    
    

    Member