1416374 (Refugee)

1416374 (Refugee) [2015] AATA 3807 (2 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416374
COUNTRY OF REFERENCE:                  China
MEMBER:David McCulloch
DATE:2 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 December 2015 at 10:58am

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] August 2014.
The applicant appeared before the Tribunal on 2 November 2015. The applicant, as a minor, did not give evidence. The applicant’s [mother] (‘the mother’) appeared on his behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
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. The Tribunal has before it DFAT Country Report – China, 3 March 2015 but has not rely on any specific information in that report in this decision. The
The issue in this case is the credibility of the mother and, on the accepted claims, whether the applicant fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant was born in Australia on [date]. His birth certificate lists his parents as [name] (‘mother’) and [name] (‘father’), who are citizens of China. The applicant has been issued with two successive bridging visas. The applicant has an elder brother [name] (‘brother’) who was born in Australia on [date].
The mother was born on [date]. She arrived in Australia [in] June 2007 on a [student] visa. She departed [in] February 2010 then arrived again [in] March 2010, again on a [student] visa. The father was born on [date]. He arrived in Australia [in] July 2007 on a [student] visa.
The mother applied for a Protection visa [in] June 2012. The father and brother were included in that Protection visa application (‘mother’s Protection visa application’). The application was refused by the delegate of the Minister and that decision was upheld in a decision of the Tribunal dated 29 April 2012 (‘mother’s Tribunal decision’).
In the mother’s Protection visa application it was claimed that harm would be suffered as a result of the mother’s involvement in an underground church in China, and subsequent involvement in a Christian church in Australia. It was indicated that the mother and the brother faced harm on the basis of the brother being a ‘black child’, given that the child was conceived out of wedlock and that the brother’s father was under the legal age for marriage in China. As a result, the mother and father would be liable to pay a social compensation fee to register the brother and entitle him to state education and health services in China. It was indicated that the mother and father would not be able to pay this fee. It was indicated that the mother’s parents in China disapproved of her relationship with the father and the fact that she had had a child out of wedlock. It was indicated that the family would be subject to social and family disapproval in China.
A written statement was made on behalf of the minor applicant as part of the current Protection visa application. It is indicated that the applicant and the brother will be fined at least RMB100,000 under Chinese birth control policy. Without such payment, the applicant will not be registered and will be discriminated against in terms of medical care and education. The applicant’s parents will be disowned by their families and society.
It is claimed that the applicant also faces harm on the basis of the parents’ religious beliefs. They are both adherents of the Local Church and will be persecuted in China. It is claimed that the applicant’s parents have been blacklisted by the local government for the mother’s preaching and unauthorised religion, and family members in China are being constantly harassed. It is indicated that in 2014 the mother’s personal computer was attacked for distributing Gospel materials and files on her blog were deleted. Fellow adherents had connections to her were summoned by the local government. The applicant’s parents relatives were told to warn the mother and the father not to preach from outside of China.
It is indicated that the applicant’s family will be in a difficult financial situation if they return to China and will suffer the disapproval and lack of support from their families. It is indicated that the Fujian Provincial Government have been carrying out in human birth control policy in a brutal way. It is claimed that the government has set up an illegal prison for those who breach the birth control policy but could not afford to pay the fines.
In the interview with the delegate of the Minister with respect to the current application, the mother made a claim that might be construed as a claim of harm on behalf of the applicant. She said that the applicant will be forced to be vaccinated and the result can be bad and can cause death.
Further evidence - involvement in Christianity/Local Church
The mother’s Tribunal decision outlines the evidence provided as part of that application concerning involvement in Christianity. The mother indicates that on her return to China in 2010 she visited three meetings of a house church held in a private home. She was introduced to the church by a friend whose mother was a leader of church. She claims that she was made to write her name on a list on attending the church. She claims that shortly after she returned to Australia one of the gatherings was raided by police and they found her name on the list. As a result, her parents were provided with a notice of fine for their daughter’s involvement. The mother’s parents were superstitious and angry about the daughter’s conversion to Christianity. The mother claims that she was not told at the time that the Church was illegal.
The mother claims that she sent material over the Internet to friends back in China concerning Christianity. She claims that in May or June 2010 those to whom she sent the information were discovered by the police and they became aware of her IP address and her identity.
In respect of the current Protection visa application, it is claimed that in 2014 the mother’s personal computer was attacked for distributing gospels and files on her blog were deleted and that fellow adherents she had connections to were summoned by the local government. The mother’s parents’ relatives were told to warn the mother and father not to preach from outside China.
The mother’s Tribunal decision records that the father was interviewed by the delegate of the Minister. It records that he indicated that he had grown up in a Christian family which attended a legal church in China. He indicated he would attend this church again if he returned to China. He indicated that in Australia he attended the Local Church. He said that this was similar to the church he attended in China.
The mother’s Tribunal decision records that her written claims for protection indicated that she joined a church in Australia when she returned from China in 2010 and was baptized. The decision records that in the Departmental interview the mother said that she had attended church in [suburb] once a week. This was a Local Church. The decision records that in the Tribunal hearing she said she started attending church in Australia or the three months after she returned from China. She indicated that she went every week until she was pregnant. After the brother was born she ceased attending for six to seven months and then resumed at irregular intervals because her son was very noisy. She had not been baptised but and arranged for a baptism along time previously. When it was put to the mother that she had previously said she had been baptised she said that this may have been a mistake by the person who helped her with the statement.
The mother’s Tribunal decision records that the mother advised the Tribunal after the first hearing of the Tribunal that she had been baptised [in] March 2012. Also provided to the Tribunal on the letterhead of The Local Church in [Australia] signed by [names] as ‘Responsible Brother’ and dated [in] March 2012 which indicates that the mother had been ‘meeting regularly with the church’ since [date] October 2010.
Retraction of key claims, new claim, relationship with father
At the commencement of the Tribunal hearing, the mother indicated that previous claims were made by the agent and were not true. When this was explored by the Tribunal, the mother said that claims based on the basis of underground church involvement in China were untrue. It was indicated that whilst the mother did attend a Local Church in [suburb] but this was done on the advice of the agent and the father, and that the mother was not a genuine practitioner.
When the Tribunal asked the mother if any claims were being made on the basis of Christianity, the mother said that she was visited by members of Jehovah’s Witness in about October 2015. She thought that Jehovah’s Witness churches were not allowed in China.
She indicated that she attended a Jehovah’s Witness church occasionally, perhaps once a month. (The Tribunal, in the hearing, mistakenly from this point on transposed Seventh-day Adventists church for Jehovah’s Witness. This was not corrected by the mother. The Tribunal proceeds on the basis that the mother was responding to the questions on the basis of her membership of the Jehovah’s Witness church. Given the answers provided by the mother, the Tribunal is confident that the mother was responding to the questions on the basis of involvement in the Jehovah’s Witness church and was not confused by the Tribunal’s mistake.)
The Tribunal asked the mother about the beliefs of the church. The mother indicated that they say God is God and his son is his son. Previously other churches have referred to the Trinity but she personally believe that God is God and his son is his son, The mother had been told that only Hong Kong has the church but if you want study in China you can arrange for sisters to study.
When asked if mother was making a claim of harm to the applicant based on the mother’s involvement in this church, the mother said that this is one part. The mother agreed that this was speculative based on lack of information about the attitude of the Chinese authorities to the church. The mother indicated that the bigger part of her claim relates to money. The mother indicated that if she returned to China she would read about the church at home and talk to others about it.
The mother said that she split up from the father about six months ago. She said that he would come home from work and not help and only play computer games. He would smoke at home which would cause the children asthma. She said that he beat her and the children. She said that she thinks he may have a new girlfriend. The mother indicated that the father does not see the children in person but has communicated via video.
When the Tribunal put to the mother that it might have some difficulties in being satisfied as to the family financial position without hearing evidence from the father, it was indicated that the mother does not want to see the father.
Independent information concerning family planning laws in China and Fujian Province
Since the 1970s the Chinese Government has institutionalised and regulated birth planning. Under this system, Chinese couples have been required to adhere to a body of prescriptions regarding when and under what circumstances they may have a child (or children). These prescriptions include meeting a minimum age for marriage (before which couples are not permitted to have a child) and applying for permission to give birth to a second child. Children born outside the bounds of the family planning program are considered out of plan and their parents face penalties for violating the regulations.
Having children out of wedlock is illegal in almost all provinces of China and attracts a social compensation fee. Children who are not registered cannot access public services.
In Fujian province the official sanction for family planning violations, that is, for having unapproved children, is a social compensation fee. These fees apply for violations such as having a child out of wedlock and for having more than the approved number of children. The fees in the Fujian regulations for having extra children are greater than those for a child born out of wedlock, indicating that having extra children is seen in Fujian as a greater offence than having a child out of wedlock. In addition there is a range of possible fees for having extra children (two to three times the average local income for the first extra child, and four to six times the average local income for the second extra child). This range allows local officials to apply lighter or heavier fines, after considering the circumstances and relative seriousness of each case. There is wide variation in the amount of social compensation fees, and the severity of hardship they impose, for out-of-plan births. The Tribunal could not locate any information on what factors are taken into consideration by local officials.
Tables which provide an estimate of the Fujian family planning fines have been prepared by the Country of Origin Information Section of the Department of Immigration. The fines in these tables are calculated based on the ‘average per capita urban annual disposable income’ and the ‘average per capita rural net income’ in Fujian Province. These income levels have been obtained from the Fujian Statistical Yearbook 2011 and China Statistical Yearbook 2013. The rates are indicative only because they are obtained in relation to data for specific rural and urban areas and there will be variations for different localities.
Under the national law, offenders have 30 days to pay the social compensation fee via lump sum after being served notice by local authorities. Those unable to pay in a lump sum have 30 days to apply for approval to pay in instalments ‘to the family planning administrative department of the people’s government at the county level’. The county level family planning unit should then decide the outcome within 30 days of receiving the application and notify the person in writing. The national law also states that individuals who fail to pay on time are penalised with a ‘surcharge fine on a monthly basis at the rate of 0.2 per cent of the unpaid social maintenance fee’, and those who persist in not paying face the possibility that the family planning administrative department could ‘file an application with the people’s court for compulsory enforcement according to law’. In Fujian province the period for the payment of instalments shall not exceed three years.
DFAT also advised in January 2013 that for Chinese nationals who breach the family planning regulations while outside the country, and who are not eligible for an exemption, their social compensation fee will be calculated using the average income of the district in which their hukou is registered. In September 2010, DFAT advised that social compensation fees are strictly implemented in relation to families returning to Fujian with additional children born overseas, unless waived by relevant authorities. Previously, in DFAT advice of 2004 stated for Fujian in cases where ‘one or both of the parents had travelled overseas for study’, a couple is ‘allowed to have two children, but fees would be charged on return to China for the third and any subsequent children’. However, in February 2010 DFAT advised that this exemption does ‘not apply to parents who have a child out of wedlock’.
China has a ‘comprehensive system for birth registration’ which requires parents (or other responsible persons) to report new children to the appropriate “household registration [hukou] organ” within a month of their birth. The Hukou (household registration system) records a child’s birth, testifies to its citizenship, and registers its permanent residence. Reports dated from 2005 through to 2010 in relation to several provinces indicate that payment of social compensation fees is required to register out of plan children. DFAT has also advised that family planning authorities will find out about out of plan children when parents seek to register their children with the local Public Security Bureau (PSB). DFAT has indicated that out of plan children can obtain hukou registration once their parents pay the appropriate social compensation fee. Some parents choose not to register out of plan children in order to avoid ‘punishment for unsanctioned births’.

DFAT advice of November 2010 states that if the parents do not marry and the child is to be registered in the mother’s hukou, the mother would be required to submit:
- a written application
- birth certificate and
- her own household registration details.
In the event that the child is to be registered on the father’s hukou, in addition to the abovementioned documentation, the father would need to provide documents proving fatherhood, which may include ‘a DNA report, official Court Judgement, notarial certificate etc’.
The 2012 US State Department report found that children who are not registered cannot access public services. Unregistered children, commonly known as black children, do not have the full rights of a registered child. Without a Hukou registration, an unregistered child would not be entitled to either government funded public education or subsidised health care. Fees charged by private education providers are usually higher than for public schools. In 2010, Monash University China expert Dr Alice de Jonge advised that not having registration documents for a child when seeking medical care in a public facility would mean a risk that services would be denied or a ‘hefty charge levied’. She likens it to ‘not being entitled to a Medicare card in Australia’. Dr Alice de Jonge, also advised that unregistered children ‘would not be able to enrol in a state pre-school or school’. However, the most recent advice from DFAT on this issue (from 2007) indicates that this is not the case and that a child’s registration status is not relevant to accessing medical services. This is in contrast to 2004 DFAT advice which noted that, in respect to access to public health services for an unregistered child in Fujian, such a child would have access to private clinics and that the fees are not excessive. The 2004 DFAT advice is consistent with information presented by Zhou in his 2005 report examining the situation of unregistered children in China, in which he states that unregistered children are ‘generally blocked from access to a series of basic social welfare benefits and state support, including health care’.
Advice from DFAT in December 2012 noted that a child who does not have household registration cannot attend public school in China, or sit the national college entrance exam. Private schools vary greatly in affordability – many ‘cheap’ private schools allow for students from rural, migrant-worker families (who presumably do not have household registration in the area in which they live). Children born out of wedlock and without household registration in remote regions ‘may have experienced discrimination in the past due to traditional and cultural disapproval. However, in March 2012 DFAT advised this situation is likely to have improved.’
Nationality
The applicant was born in Australia. There is no suggestion that the applicant is an Australian citizen.
The mother and father have provided their Chinese passports and have maintained throughout the Protection visa determination process that they are nationals of China, that they have been since birth, and that they are not nationals of any other country. The Tribunal is satisfied of the truth of that evidence and finds the mother and the father have been nationals of China since birth.
Article 5 of the Nationality Law of the People’s Republic of China states:
Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.
On the basis of the above, the Tribunal finds that the applicant, both born in Australia to parents of Chinese nationality, are considered under Chinese law to be Chinese nationals.
Hearing, credibility, assessment of claims
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’.
In the hearing, the mother indicated that she studied in Australia for four years, for two years doing an English course and another two years doing a [course]. She indicated that the first two years of tuition fees were paid by her family and that this cost between $20,000 and $25,000. She indicated that she paid the $12,000 tuition for her [course]. She earned this from [working].
The mother indicated that she currently [works]. [Details deleted]. She indicated that she earns about $[amount] per month. She indicated that, after expenses, she has about $200 a week left over but this is needed for medical expenses, particularly [treatment] for the brother. She indicated that she has no savings. The mother indicated that on rare occasions she sent money back to her parents, but cannot do so now as she has two children. She said that they do not provide any support for her. She was not aware if they had savings and had not discussed with them if they would contribute to any social compensation fee. The mother said she speaks to her mother once per month and her father sometimes does not speak to her. She indicated that her parents are happy to have two male grandchildren but on the other hand disapproved when she became pregnant.
The Tribunal has a number of credibility concerns with aspects of the mother’s claims on the applicant’s behalf for the following reasons.
First, the Tribunal takes a significant adverse view as to the mother’s credibility as a result of her indication in the Tribunal hearing that the claims of underground church activity in China and harassment from authorities were untrue. The Tribunal also takes an adverse view as to her credibility based on her admission that she did attend a Local Church in [suburb] but this was on the advice of an agent to further her application for a Protection visa and not for genuine reasons. These untrue claims were attested to by the mother on the applicant’s behalf in the written claims as part of the current Protection visa application. Whilst the mother has blamed the agent and the father for her part in making these false claims, the mother herself has been the primary exponent of those false claims and the Tribunal does not accept that she was coerced into making those false claims by others. The Tribunal considers that the mother has in a detailed and premeditated way made false claims.
Second, the mother has been inconsistent in relation to the employment of her father. In the hearing, the Tribunal asked the mother what her parents do. The mother said that they are farmers and do temporary [jobs]. When asked if this included [trade work], she said that it did. The Tribunal notes that in the interview with the delegate of the Minister the mother was asked how her parents funded her education. The mother responded that her the mother did [certain work] and her father did [trade work]. She indicated that she had not contacted them for a long time so she did not know what they are doing (now).
In the hearing, the Tribunal put to the mother (on the applicant’s behalf) information contained in the mother’s Student visa file pursuant to s.424AA of the Act. That information was a Details of Study Loan document which indicated that the mother’s father was a shareholder and [occupation] of a [business]. It indicated that he earned an annual salary of RMB 70,000 and had received, for the last seven years, an end of year bonus of RMB 40,000. It indicated a loan taken out in the name of the mother’s mother of RBM 500,000. The mother, in response, said that what her father is doing now and previously is a different question. The mother indicated that she was asked what her father is doing now. She indicated that when she left China her family was well off and were able to support her. She indicated that her father had lots of jobs.
The Tribunal pointed out to the mother that there was a significant variance between employment as a farmer and involvement in a [business]. The mother said that each family were granted land and that there was not much that could be done with the land, and other work was needed. The mother indicated that the [firm] was located in Fuqin City which her father commuted to from his village.
The Tribunal does not accept the mother’s explanation for the inconsistency in the evidence on the basis that she was only asked in the hearing what her father was doing presently. The mother’s acknowledgment in the hearing that her father was involved in a [business] when she left China and the family was well off when she left China is not consistent with the evidence she gave previously that her parents funded her education from her father being a [tradesman] and her mother doing [certain work]. The Tribunal does not consider that the mother has been truthful about the past or current employment of her parents. The Tribunal draws from this a lack of candour on the part of the mother obfuscation as to her parent’s financial position and their ability and willingness to assist in the payment of any social compensation fee on behalf the applicant and the brother.
Thirdly, the Tribunal also has credibility concerns with claims by the mother that she is estranged from her parents. Clearly, given the retraction of claims by the mother, the Tribunal does not accept claims that they are estranged virtue of the mother becoming involved in an underground church. Further, the mother has been inconsistent as to contact with her family. In the interview with the delegate of the Minister [in] August 2014, the mother said that she had not contacted her parents in long time so she did not know what they were doing. In contrast, in the Tribunal hearing, the mother said that she is in contact with her mother about once a month. It is further not consistent with the mother’s claims that she sent money to her mother occasionally before she had children (namely before March 2011) that she is estranged from her parents.
Again, the Tribunal considers that the inconsistencies in relation to the relationship with the mother’s parents is designed to obfuscate with respect to the ability of the mother’s parents to assist in the payment of any social compensation fee.
Fourth, the mother’s evidence to the Tribunal about the employment of her former partner’s parent’s was not satisfactory. When the Tribunal asked the mother what her former partner’s father did for work, she said that she did not know and that she never discussed this with her partner. When the Tribunal expressed surprise to the mother that she would not have known the job of the father of her partner, with whom she had been with for eight years, the mother said that he used to [do certain work].
The Tribunal put to the mother pursuant to the procedural requirements of s.424AA of the Act information from the Student visa file of her former partner. That information is a Parents’ Letter of Support which indicates that her partner’s father was a shareholder and [occupation] of a [business] and that his annual income was approximately RMB 80,000 in recent years and a loan had been undertaken of RMB 500,000. It was indicated that this information is relevant on the basis that, if the Tribunal was not to accept as credible claims that the mother and the father had split up, that might suggest resources on the part of her partners’ family to pay a contribution to any social compensation fee, plus thus enabling the applicant to be registered and able to access health and education services. The mother in response said that that was eight years ago and she does not know what these people are doing. She said that her parents were rich but are no longer rich.
The Tribunal considers that the mother’s initial response to the Tribunal that she was not aware of the occupation of her former partner’s father as implausible to the Tribunal. The indication, when pressed, that her partner’s father worked as [occupation] is inconsistent with the information in her partner’s Student visa file. Again, the Tribunal considers that the mother is seeking to obfuscate in relation to the capacity of the father’s parents willingness or ability to contribute to a social compensation fee.
One issue that was raised with the mother in the hearing was the fact that a loan document relating to the mother’s Student visa application appeared on the Departmental file that the Tribunal had obtained relating to the father’s Student visa. This might suggest a relationship between the parents prior to arriving in Australia. In the hearing, the mother said that this must be a mistake. Following the hearing, the Tribunal made enquiries of the Department to check whether this particular document appeared on the original of the father’s Student visa file. The response was that it did not. The Tribunal accepts that was an error in compiling the documents for provision to the Tribunal and draws no adverse inference on this basis.
The mother’s willingness to make the false claims identified in the first point above causes the Tribunal to treat with a degree scrutiny and some scepticism other evidence provided to support additional claims on behalf of the applicant, most particularly claims of harm on the basis of a new religious belief, the fact of the mother and the father splitting up, the financial situation of the family and the capacity of the parents of the mother and the father to contribute towards any social compensation fee that needs to be paid in order to register the applicant and the brother.
The fact that the mother made and sustained over a period what she now says a false claims, together with the other credibility issues identified, cause the Tribunal to not be satisfied as to any key claims made by the mother on the applicant’s behalf.
The Tribunal is not satisfied that the mother has formed anything other than a cursory connection with Jehovah’s Witness. The Tribunal is not satisfied that the mother is a serious adherent of that church or that she would wish to practice on return to China. The Tribunal is of the view that the mother has in the past made opportunistic claims of religious involvement furthering the application for protection on the applicant’s behalf and considers that this is likewise the reason for making a claim on this basis now.
The Tribunal is not satisfied that the mother and her partner have separated. The Tribunal considers that this is an opportunistic claim to enhance the grounds for protection, namely more limited financial resources on the part of the family to pay any social compensation fee. The Tribunal is not satisfied that the mother’s father is a farmer. It considers that he has a [industry]/professional background which enabled him to borrow a large sum of money to fund the mother’s education in Australia. The Tribunal is not satisfied that the mother is estranged from her parents. The Tribunal accepts the mother’s claim that her parents are happy to have two male grandchildren. The Tribunal considers that the father’s father also has a retail background and was in a position to also borrow a large amount of money on his income to send the father to study in Australia.
Given the mother has retracted claims of involvement in an underground church in China, and that her attendance at a Local Church in Australia was not for genuine reasons, the Tribunal is not satisfied that the mother has been, or would be, a practitioner in an underground church or a Local Church in China. The Tribunal is not satisfied that the mother has sent religious materials to China via the Internet or otherwise which have been discovered by authorities, or that she has been communicating with persons back in China on religious issues. That being the case, the Tribunal is not satisfied there is a real risk of the applicant facing serious harm or a real risk of significant harm on her return to China as a result of Local Church practice by the mother.
The Tribunal is not satisfied that the mother has genuinely joined the Jehovah’s Witness church or would seek to be a practitioner or adherent on return to China. The Tribunal is not satisfied that the mother would otherwise be religiously active on return to China. That being the case, the Tribunal is not satisfied that there is a real chance of the applicant facing serious harm or a real risk of significant harm as a result of the past or future practice of the religion of his mother on return to China.
The Tribunal accepts that the applicant is a second child and born out of wedlock, and has thus been born in breach of China’s one child policy. The Tribunal also accepts that the brother was born whilst his parents were unmarried and below marriage age, which puts the brother in breach of China’s one child policy. As an unregistered child, the applicant would not have the full rights of a registered child. He would not have access to public education or basic government provided medical care. To access such services his parents would need to pay a social compensation fee.
If the parents are unmarried, the child would be registered in the mother’s hakou.
The applicant and the brother are capable of being registered subject to the payment of a social compensation fee. The independent information contained in this decision sets out in broad terms the basis of fees. In the case of the applicant’s parents, they will both be liable for a fee both in relation to having a second child and in relation to having both children out of wedlock and under marriageable age.
The Fujian Family Planning Fine Tables sets out the range of fees that would be payable in Fujian. Whilst the these tables are based on Fujian aggregate income figures and the actual payment will be based on the specific income levels in the applicant’s parents districts, the figures in the tables will be a guide only, but they are the best assessment of the fees that the Tribunal is able to make.
The mother has indicated that both her and her husband’s parents are situated in a rural hukou and, accordingly, the Tribunal assesses the fee based on the family being registered in a rural area. The Tribunal is of the view that the family, on return to China, would return to be near either sets of parents. The lower social compensation fees in rural areas would also create an incentive to return to be near the respective parents.
Based on the figures in the Tables, the Tribunal assesses that each parent would be required to pay a minimum of 4008 RMB and a maximum of 6690 RMB for having a child, the brother, out of wedlock. The Tribunal assesses that each parent would be required to pay a minimum of 5980 RMB and a maximum of 9967 RMB for having the applicant out of wedlock. In addition, they would each be required to pay a minimum of 19,934 RMB and a maximum of 29,901 RMB for the birth of the applicant as an additional child. Added, this means that the applicant and the husband, combined would be required to pay a minimum of 59,844 RMB and a maximum of 93,116 RBM. In Australian dollars that ranges between approximately AUS $13,000 to $20,000.
In the hearing, the Tribunal provided to the mother a copy of the relevant Tables and outlined its assessment of the range of estimated fines. The mother indicated that the fine could be more. This is true, but it could also very well be less, particularly bearing in mind the flexibility of the system and the past latitude given to returning Chinese who have had children overseas. Whilst the Tribunal accepts that the Tables provide a guide only, the Tribunal is confident that it provides a reasonable estimate. The Tribunal proceeds on the basis that the mother and the father would be required to pay a fine at the top end of the estimate, namely RMB 93,000 to register the applicant and the brother.

The Tribunal accepts the mother’s claims that she [works] which earns her an income. The mother has also demonstrated ability to save money in Australia to fund the $12,000 tuition fee for the last two years of her education, although the Tribunal acknowledges that she did not have children at that point in time. As the Tribunal is of the view that the mother and the father have not split up, the Tribunal considers the father will be working cash in hand in Australia and earning and income in Australia which will contribute towards the family unit. The Tribunal is of the view that the mother and the father have been, and will be, in a position to accumulate some degree of savings in Australia, although the Tribunal does accept that with two children to support the savings may well be limited.
The mother has demonstrated herself to have initiative in Australia in being able to [work] whilst bringing up two children. The Tribunal considers that between them, the father and the mother will be in a position to obtain work and earn an income in China. The Tribunal considers that this would facilitate some of the payment towards the social compensation fee that would need to be payable on behalf of the applicant and the brother, including on the basis that the fee will be able to be paid over three years. The Tribunal also considers the possibility that the mother and the father will be able to take out a loan against their incomes to pay any fee. As indicated, the Tribunal considers that there will be some savings that the mother and the father have accumulated in Australia that will be able to be used in part payment of the social compensation fee.
The Tribunal does accept that, even with savings accumulated in Australia, employment in China, and the ability to secure a loan, there might well be a deficiency in raising the RMB 93,000 that will need to be paid over a period of three years. Given all the evidence, the Tribunal is not satisfied that, between them, the parents of the mother and the father will not be in a position to contribute to make up any difference. The mother’s family have demonstrated a commitment to the mother by expending significant resources in sending her to Australia to study. The Tribunal considers that the father’s parents have similarly demonstrated a commitment to him funding study in Australia. The Tribunal is satisfied that the parents of the mother and the father would assist in making up the difference between the amount that the mother and the father themselves are able to raise and the total amount of the social compensation fee.
The Tribunal acknowledges that RMB 93,000 is a large amount of money relative to Chinese wages. However, it needs to be seen in the context of the RMB 1 million that was borrowed jointly by the parents of the mother and the father to fund their respective children’s education in Australia. In addition, the relevant Student Visa files indicate, at the time of application, total annual incomes by the fathers of the mother and the father of RMB 190,000 (including bonuses).
The Tribunal is satisfied that between the mother, the father (their prior savings, income they earn in China and any loan are able to secure income), and their respective parents, that the social compensation fee will be paid on behalf of both the applicant and the brother.
That being the case, on the payment of the social compensation fee, the applicant will be able to access health and education services. There would be, therefore, no basis on which the applicant faces a real chance of serious or significant harm as a result of not being able to access health and education services.
The mother has claimed that there are illegal prisons in China for those who breach the birth control policy and could not afford to pay the fines. The Tribunal indicated to the mother in the hearing that it had no independent evidence of such prisons. The Tribunal gave the mother the opportunity to provide any such information following the hearing. No information was provided within the required time frame. The Tribunal is not satisfied that the mother would be placed in a prison for being unable to pay a social compensation fee and thus there is no real chance of serious harm or real risk of significant harm to the applicant as a consequence of that.
In any event, as indicated, the Tribunal is not satisfied that the social compensation fee would not be paid and therefore there is no real chance of serious or significant harm to the mother, and by extension to the applicant, as a result of the mother being detained in an illegal prison as a result of not paying any social compensation fee.
The mother claimed that social stigma will attach to the family and the applicant as a result of the applicant being born out of wedlock and the parents being unmarried.
Regarding societal attitudes towards children born out of wedlock, DFAT advised in February 2010, that ‘in remote regions, children born out of wedlock without a household registration may have experienced discrimination in the past due to traditional and cultural disapproval’. DFAT assessed, however, that social acceptance of children born out of wedlock is ‘likely to have improved’. DFAT also advised that such children may be entitled to the same educational rights as others if they have gained household registration since birth.[1] In 2010, the tribunals contacted Dr Alice de Jonge, a Senior Lecturer of Business Law and Taxation at Monash University, for information about children born out of wedlock in China. According to information provided on the Monash University website Dr de Jonge has ‘lived and studied in China and was a Visiting Scholar at Nanjing University, China’.[2] In her response, Dr de Jonge stated: ‘[Children born out of wedlock] are still regarded with pity and disdain. They are teased at school.’[3]
[1] Department of Foreign Affairs and Trade 2010, DFAT Report No. 1104 – China: RRT Information Request: CHN36059, 12 February <Attachment>
[2] ‘Dr Alice de Jonge’ 2009, Monash University, 14 October < Accessed 18 February 2010 <Attachment>
[3] De Jonge, A 2010, Email to RRT, RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060), 15 January <Attachment>; De Jonge, A 2010, Email to RRT, RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060), 20 January <Attachment>
The Tribunal accepts there may be a degree of social stigma towards the applicant as result of his parents being unmarried, and him being a ‘black child’. However, neither the mother or the father are from remote regions where the stigma seems greater. They are both from villages on the outskirts of a large city. The Tribunal is not satisfied, on the basis of the evidence before it, that the level of stigma would be such that the applicant would be at a real chance of facing serious harm for the purpose of the Refugees Convention criterion. Further, the Tribunal is not satisfied that the extent of any stigma or discrimination would result in a real risk of the applicant facing any enumerated definition of significant harm. In particular, the Tribunal is not satisfied that there would be conduct towards the applicant that causes and is intended to cause extreme humiliation, which, as defined, is the heart of determining whether the applicant faces a real risk of degrading treatment or punishment (as a defined category of significant harm).
In any event, the Tribunal is of the view that if there were a significant stigma attached to children with unmarried parents in the area to which the family decide to return in China, that the mother and the father would get married to reduce the stigma.
The mother indicated more generally that she will not be in a position to support her and her family on return to China. As indicated, the Tribunal does not accept that the mother and the father have separated. Between them, and with parental support, which Tribunal considers there will be sufficient financial support to sustain the family over time. That being the case, the Tribunal is not satisfied that the applicant faces a real chance of serious harm as a result of an inability of the family to subsist in China. The Tribunal is not satisfied that the applicant faces a real risk of significant harm due to the inability of the family to subsist.
In the hearing, the Tribunal raised with the mother her previous claim on behalf of the applicant that he will be forced to be vaccinated and he may suffer harm as a result of a vaccination. The mother did not recall making a claim on this basis and referred to sterilisation. On the basis that the mother, in the hearing, had no recollection of making a claim on this basis, and did not seek to pursue it, the Tribunal does not consider there is a claim made on this basis.
In terms of any claim of forced sterilisation, no independent evidence has been provided to the Tribunal of routine forced sterilisations in the province of Fujian for mothers in breach of family planning laws. In any event, any harm in this respect would be suffered by the mother and not the applicant, and thus is not relevant to the applicant.
In the hearing, the mother indicated that the brother suffers from [health] difficulties and requires the services of a [health professional]. The mother provided three invoices from a [health professional] for treatment of the brother. The mother provided an additional invoice from [a] Medical Centre relating to a missed appointment scheduled for the brother. The mother indicated that the brother’s medical problems will create difficulties for the family as a whole on return to China. The Tribunal is satisfied that the brother has [health] difficulties which may well require treatment in China. The Tribunal is not satisfied, however, given that the brother will be registered following the payment of the social compensation fee, that he will be denied access to public health services to deal with this issue. The Tribunal is not satisfied that issues relating to the treatment of the brother’s medical issues will create difficulties for the applicant to an extent that would lead to a real chance of serious harm or a real risk of significant harm to the applicant.
In summary, in terms of the Refugees Convention criterion, the Tribunal is not satisfied that there is a well-founded fear of the applicant being persecuted for a Convention reason as a result of: the mother’s attendance at an underground church in China and adverse attention from the authorities; the mother’s attendance at a Local Church in Australia or sending religious material back to China; the practice of any religion by the mother on return to China including as a Jehovah’s Witness; the inability of the applicant to access health or education services due to being an unregistered child; social stigma attached to the applicant being born out of wedlock or a ‘black child’; sterilisation of the mother; the mother or the applicant being detained in a prison due to inability to pay the social compensation fee; the health issues suffered by the brother; or for any other reason.
In terms of the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the outcome being removed from Australia to China, there is a real risk that he will suffer significant harm due to: the mother’s attendance at an underground church in China and adverse attention from the authorities; the mother’s attendance at a Local Church in Australia or sending religious material back to China; the practice of any religion by the mother on return to China including as a Jehovah’s Witness; the inability of the applicant to access health or education services due to being an unregistered child; social stigma attached to the applicant being born out of wedlock or a ‘black child’; sterilisation of the mother; the mother or the applicant being detained in a prison due to inability to pay the social compensation fee; the health issues suffered by the brother; or for any other reason.
For the reasons given above, the Tribunal is 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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David McCulloch
Member

[2015] AATA 3807

2 December 2015

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