1412645 (Refugee)

[2015] AATA 3454

1412645 (Refugee) [2015] AATA 3454 (23 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412645

COUNTRY OF REFERENCE:                  China

MEMBER:Andrew Mullin

DATE:23 September 2015

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2015 at 12:11pm

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 the People's Republic of China, applied for the visa [in] February 2014.  The delegate refused to grant the visa [in] June 2014 and on 21 July 2014 the Applicant applied to the Tribunal for review of the delegate’s decision.

   RELEVANT LAW

3. 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.

4. 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).

5. 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.

6. 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’).

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

   CLAIMS AND EVIDENCE

8. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision.

9. In his protection visa application and an accompanying statement the Applicant claims, in summary:

   ·She was born in Fengcheng, Jiangxi Province, China, in [year].  She lived at one address in Fengcheng City from [year] to [year] and at another address, in [Village 1], [Town 2], Fengcheng City, from 1998 to December 2014 (sic)  She received a total of [number] years of formal education in China, ending in [year], and was employed as the owner of a [product] shop from [year] to 2004 and as a [business] manager from 2004 to December 2014.  She visited [Country 3] in [2011], [Country 4] in [2012] and [Country 5] in [2013].  She arrived in Australia [in] February 2014.  She was married in [month] and her husband, daughter and parents live in China. 

   ·She and her husband had a daughter in [year].  They had hoped for a son.  In December 2013 she and other women were taken to hospital by local family planning officials for a pregnancy screening.  She was found to be [number] months pregnant and, after an unsuccessful attempt to escape, suffered a miscarriage.

   ·She and her husband still want to have a son.  It would not be possible to do so in China and so they planned for her to go to Australia or [Country 6], both of which protect human rights and democracy, after which her husband would wind down his business and join her, with their daughter.  They would then be free to have one or even two sons. 

   ·With the help of an agent she was able to come to Australia.

   ·She is unwilling to return to China as she has no rights to have a child there.  She asks that the Australian government grant her the right to stay so that she can be reunited with her husband and daughter here.

10. The delegate’s decision record indicates that the Applicant was invited to discuss her claims at a protection visa interview to be held [in] June 2014.  She did not attend the interview and did not provide the Department with a reason for her failure to do so.

    Tribunal hearing

11. The Applicant appeared before the Tribunal on 15 June 2015 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

    ·As recounted in her protection visa application, she left China, in February 2013, because she thought it was not safe for her under the One Child Policy.  She had given birth in [year] and waited for more than ten years before falling pregnant again.  She was asked to go to a hospital for a check-up in 2013 and found she was [number] months pregnant.  This made her happy but she was also sad because she knew she would be asked to terminate the pregnancy.  She thought only of saving her child and managed to escape by jumping through a [window].  She injured her foot in doing so, however, and the leader of the One Child Policy office caught her and returned her to the hospital.  She was already bleeding and suffered a miscarriage.  She returned home and remained in bed for a week.  Her husband told her they were still able to have children and suggested they go overseas, to [Country 6] or Australia, for this purpose.  She would travel first and he would then join her, with their daughter.  Shortly after this she obtained an Australian visa.

    ·Asked what she feared would happen if she returned to China she said she had been forced to give up her child there.  She had lost confidence and there was a shadow on her mind.  Asked again she said she had been in Australia for a year and was adapting to the country.  If she had to return to China she could not realize her dream of having more children.

    ·She confirmed her biographical details set out in the protection visa application.  Since her marriage in [year] she had lived at the address in [Village 1], [Town 2], Fengcheng City, Jiangxi Province in a house owned by her.  Her husband and daughter are currently living there.  Her parents are also living in Fengcheng City.  She is in contact with her husband, using her mobile telephone.  Her parents have hearing difficulties and she normally contacts them through her husband.  She has a younger brother in China but is not in contact with him.  Her parents-in-law are dead and she has no contact with her husband’s siblings.  She confirmed she meant that the only person in China with whom she was in direct contact was her husband.  To the observation that this seemed unusual she said she came to Australia to avoid the One Child Policy and there were many things she had not told anyone.

    ·She confirmed that she was employed as a [manager] in a [business] in China.  Her husband is employed in the [service] industry.  Asked about her travel to [Country 4], [Country 3] and [Country 5] she said some of it was because of her job and some was for holidays.  Asked about her trip to [Country 5] she said this was for travel.  She said she had spent only one month there, then went to [Country 3] in connection with her job, exploring the market for [her products]. 

    ·I asked why, if her purpose was to be able to have a child, she could not have simply gone to [Country 3], [Country 4] or [Country 5] to give birth.  She said they are not democratic countries – she had learned about the situation in [Country 3] when she lived there.  Without immigration status it is illegal to give birth to a child – how could she support herself if she did so?  I suggested that she would be able to return to China after giving birth.  She asked who would look after her in [Country 3] if she gave birth there.  To the suggestion that she would be able to give birth in a hospital she said her husband would not be there and she would not have any income - he was [employed in his work] and she had her job.  Noting that she had taken a number of overseas holidays I put to her that it did not appear money would be a problem for her.  She said this travel was paid for by her company.  Her husband was a [occupation] and did not have his own business.

    ·Asked about her household registration (hukou) she said it is rural.  Noting that this would allow her to have a second child, since her first child was a girl, she said her husband was on an urban hukou, restricting them to one child.  I noted that there are exceptions to the regulations which allow couples to have more than one child.  She said the regulations are being applied very strictly in her area.  Asked why she and her husband could not have moved to another province she said the family planning officials would find her wherever she went – she was their target.  She agreed she had been able to leave China using a passport in her own name.  To the observation that this indicated the authorities were not trying to find her she said they did not do it every day – they would come to check on people like her every four months.

    ·She confirmed that she was not currently pregnant.  I put to her that the possibility of her falling pregnant once more if she returned to China was no more than speculative, suggesting that she did not have a well-founded fear of persecution for this reason.  She said they had persecuted one of her children – how could she trust them?

    ·Asked if there was anything she wished to add she said there was not.

    FINDINGS AND REASONS

13. On the basis of her passport, which she submitted at the hearing, I accept that the Applicant is a citizen of the People's Republic of China and that her identity is as she claims it to be.

14. The issue in this case is whether the Applicant would suffer serious or significant harm in China because of the application of the One Child Policy.  She claims she suffered a miscarriage in 2013 in the process of escaping from local family planning authorities who had discovered she was pregnant for a second time.  She claims to fear she will be forced to undergo an abortion if she returns to China and falls pregnant once more.

15. In the present case the Applicant’s claims are not substantiated from any external source.  She has provided only a vague and sketchy outline of her experiences in China and her evidence at the hearing added little or no circumstantial detail to the bare outline in her written statement.  Her responses gave some impression of rehearsal and it was difficult to engage her in any more extensive discussion.  There was some consistency between her oral and written evidence at this basic level, however, and I am prepared to give her the benefit of the doubt by accepting that she and her husband had a child in [year], that she fell pregnant again thirteen years later and that this pregnancy ended in a miscarriage in the circumstances she claims.

16. In accordance with Ministerial Direction No. 56 I have taken into account the relevant sections of the most recent country information assessment on China prepared by DFAT expressly for protection status determination purposes.[1]  The report states, in part:

    Nation-wide family planning policies have been implemented in China since the late 1970s. China's Population and Family Planning Law came into force on 1 September 2002. The State encourages late marriage and childbearing and generally promotes one child per couple, although exceptions to the "one child" policy have been permitted in situations where: both spouses are only children; the first child has a disability; both spouses are members of ethnic minorities; or, for rural residents, the first born child is a girl. In November 2013, the Chinese government announced an adjustment to the family planning policy to allow couples to have a second child if either parent is an only child. At the time of writing, Hainan, Shandong, Heilongjiang, Fujian, Jilin, Jiangsu, Guangdong, Hubei, Gansu, Sichuan, Shanghai, Beijing, Tianjin, Anhui and Zhejiang had amended their regulations to reflect the change.

    In March 2013 the Population and Family Planning Commission was absorbed by the Ministry of Health. The combined National Health and Family Planning Commission is the body now responsible for overseeing the policy. Lower level governments right down to neighbourhood and village committees are responsible for the day-to-day implementation of the policy. Government departments, state media and schools are also all required by law to advocate family planning policies. As a result, interpretation and implementation of the policy varies enormously across China.

    Compliance with family planning regulations is largely achieved in response to incentives or punishments. Social compensation fees (also referred to as “social maintenance fees”) are the most common disincentive used to ensure compliance with the policy. Fees are to be calculated according to "last year's local disposable annual income per capita" in urban places, and "the net annual income per capita" in rural places. If the parents' actual income is higher than the average income, the actual income may be used as the basis for calculation. Each parent of an unapproved child is required to pay a social compensation fee. In some cases, this can amount to up to ten times a person’s annual disposable income in social compensation fees. In some provinces or counties, authorities have imposed fines on entire work units in addition to the individuals concerned.

    Revenues from fees are directed to county-level governments. The law does not set out a fee schedule that applies to all localities. Instead, provinces are empowered to formulate their own rules on specific fines based on the basic social compensation fee measure outlined above. Local authorities can decide whether to impose a more lenient fine based on whether or not the family has been compliant with the policy. Compliance or cooperation could mean reporting the birth of an out-of-plan child within a short timeframe. Uncooperative behaviour could mean hiding children or sending them away at the time of inspection by family planning authorities. Those that fail to pay the required fee can be subject to additional surcharges or have pressure placed on them by employers or the family planning bureau.

    Local authorities occasionally launch campaigns to crack down on or prevent non-compliance with family planning policies. DFAT is aware of media reports indicating that coercive practices (such as forced abortions, sterilisations or invasive medical inspections) can be employed by authorities in order to force compliance. There is no reliable data on the frequency of coerced or forced abortions or sterilisations. Recent years have seen some high-profile media reports of late-term forced abortions, but observers believe such instances are becoming less frequent. DFAT is aware of reports that couples in violation of the policy, or their family members, have been beaten or detained, or have had their belongings, or those of their family, confiscated.

    [1] ‘DFAT Country Report: People’s Republic of China’, DFAT, 3 March 2015, \\sydnetapp2\REFER\Research\2015\DFAT\Country Information Reports\DFAT Country Report - China - Final.pdf

17. On the basis of this report I consider that if the Applicant were to return to China and fall pregnant once more she would be unlikely to have difficulties from the planning authorities, given that she has a rural hukou and her first and only child was a girl.  She stated at the hearing that this avenue was not available to her because her husband has an urban hukou, but I have some doubts as to the credibility of this claim.  If it is true, however, the report indicates the most likely response from the authorities would be to impose on her a social compensation fee (or fine) to allow her to have the child.  While I accept that coerced terminations sometimes do occur in China I am not satisfied the chance that she would suffer harm in this way, should she conceive once again, is no more than remote.

18. Further, even apart from this consideration the Applicant is not pregnant now and her claim to fear harm in China rests entirely on the assumption that she would fall pregnant once more if she returned.  I note that a period of some thirteen years passed between the birth of her first child and her second pregnancy.  In these circumstances I am not satisfied that the chance of her conceiving once more could be said to be more than simply speculative. 

19. For these reasons I am not satisfied there is a real chance that the Applicant would suffer serious harm if she were to return to China for a breach of the family planning regulations.  She does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal.

20. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should she return to China, now or in the reasonably foreseeable future, and I am not satisfied she is a refugee.

    Complementary protection

21. For the reasons given above, I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore the Applicant does not satisfy the criterion set out in s.36(2)(a).

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

1. 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

2. The Tribunal affirms the decision not to grant the Applicant a Protection visa.

   Andrew Mullin

   
   

   Member