1418082 (Refugee)

[2016] AATA 3872

1418082 (Refugee) [2016] AATA 3872 (17 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418082

COUNTRY OF REFERENCE:                  China

MEMBER:Amanda Paxton

DATE:17 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 May 2016 at 8:42am

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).

2. The applicants, who claim to be citizens of China, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] October 2014.

3. Applicant 4 was born in Australia on [date]. This application, lodged [in] June 2013, is his first application for protection. The Tribunal will consider Applicant 4’s claims against the relevant law for refugee and complementary protection.

4. Applicant 1, Applicant 2 and Applicant 3, were all part of a protection visa application which was refused by a delegate [in] February 2011. This decision was affirmed by the RRT on 19 September 2011. Although Applicants 1, 2 and 3 have previously been refused a protection visa, the Federal Court judgment handed down on 3 July 2013 in SZGIZ v Minister for Immigration and Citizenship held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. That is, as per this matter, it does not prevent Applicants 1, 2 and 3 (who previously made a valid application on the basis of the refugee criteria in s.36(2)(a) and (b)) from making a further application on the basis of the complementary protection criterion in s36(2)(aa) and the family membership criteria in s.36(2)(c). As such, the application of the Applicant 1, Applicant 2 and Applicant 3, complies with the validity requirements of the Migration Act and Migration Regulations. The Tribunal will consider the claims of the first, second and third applicants against the complementary protection provisions.

5. At the hearing, Applicant 1 advised that she gave birth to another child on [date], after this application for review was lodged. As there is no decision in existence for this child, this child is not taken to be included in this application and the Tribunal has no jurisdiction in relation to this child.

6. Applicant 1 appeared before the Tribunal on 4 February 2016 to give evidence and present arguments on behalf of herself, her husband and her children.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   RELEVANT LAW

8. 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.

   Refugee criterion

9. 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).

10. 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.

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

18. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criteria

19. 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

22. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. On 24 March 2012, the complementary protection provisions were introduced. On 3 July 2013, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (hereinafter referred to as “SZGIZ”) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

    Section 499 Ministerial Direction

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account 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.

    Member of the same family unit

24. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses and dependent children.

    CLAIMS AND EVIDENCE

25. The claims made by Applicant 1 on behalf of herself, Applicant 2, Applicant 3 and Applicant 4 can be summarised as follows.

26. Applicant 1 was born on [date] in Fuqing City, Fujian Province China. She lived in [location], Fuqing City before travelling to Australia in 2007 on a Subclass 571 School Sector Student visa.

27. Applicant 2 was born in Fujian, China on [date] and travelled to Australia in 2006 on a Subclass 571 School Sector Student visa. Applicant 1 and 2 were married in Australia in August 2013.

28. Applicant 3 was born in Australia on [date].

29. Applicant 4 was born in Australia on [date].

    Family church

30. Applicant 1 was a member of the Family church in her village just outside Fuqing City in Fujian. (The Family church is also known as the Local church. In this decision both terms will be used.) [In] May 2006, a gathering of the Family church which was held in someone’s home was reported to the authorities. The police detained people who were at the gathering, including Applicant 1, because attendance was illegal. The applicant was held by the authorities in detention for three days and released after her uncle used his network. Applicant 1 has continued to attend the Local church in Australia, first in [city] and then in [city]. Applicant 2 sometimes accompanies her to the meetings.

31. Applicant 1 and her family will continue to practice at the local Family church which is considered illegal by the Chinese government if they return. She fears she will be detained again. She fears that this will leave no-one to look after the children.

    Compensation for property

32. A part of a property was bequeathed to Applicant 1 by her [relative] on her [relative]’s death. This property was subsequently listed as a heritage site and taken over by the authorities. Her [relative]’s home was part of a [number] household structure. Applicant 1 has been awarded compensation for her share of the house, but the village officials have held the money because they are corrupt. Applicant 1 has not made a request to the village authorities for the compensation but believes she would have to apply to the court to obtain it. 

33. Applicant 1 believes that if she brings up the matter of the compensation up with the village officials and tries to obtain the money, they will threaten to deny the children household registration, hukou, and will report her church attendance to the authorities.

    Financial issues

34. The applicants will not have the financial ability to survive in China. While Applicant 1 has not made any enquiry about how much they will need to pay as fine for their third child, she estimates they will be required to pay a large fine of up to RMB 300,000 because they have three children, two of whom were born outside the Fujian family planning regulations of the day.

35. Neither Applicant 1 nor Applicant 2 has support from their parents and they do not have a place to live.

36. They will not be able to pay the “social compensation” fine because Applicant 2 will not be able to earn as much as he does in Australia. As a result, the children will not be allowed to access services such as healthcare and education.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

37. Applicant 1 and Applicant 2 claim to be Chinese nationals.  Based on the copies of their passports, the Tribunal finds that China is their country of nationality and their receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

38. In respect of Applicant 3, who was born in Australia, a photocopy of a PRC Travel Document has been provided to the Department. A photocopy of his birth certificate has also been presented[1]. Article 5 of the Nationality Law of the People’s Republic of China[2] indicates that he would be eligible for a Chinese passport should an application be made on his behalf.  Article 5 of the Nationality Law of the People’s Republic of China states in part that, “Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.”[3] The Tribunal finds therefore that Applicant 3 is a national of China and has assessed his claims against China accordingly.  The Tribunal finds that for the purposes of s.5(1) and s.36(2)(aa), China is the receiving country for Applicant 3.

    [1] DIBP, f.63

    [2] CX82388: People’s Republic of China: Nationality Law of the People’s Republic of China, People’s Republic of China: Government of, 10 September 1980

    [3] CX82388: People’s Republic of China: Nationality Law of the People’s Republic of China, People’s Republic of China: Government of, 10 September 1980

39. Applicant 4, who was born in Australia, does not hold a passport or travel document, however, a photocopy of his birth certificate has also been provided to the Department[4]. As above, Article 5 of the Nationality Law of the People’s Republic of China indicates that Applicant 4 would be eligible for a Chinese passport should an application be made on his behalf.  Article 5 of the Nationality Law of the People’s Republic of China states in part that “Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.”[5]  The Tribunal finds that Applicant 4 is a national of China and has assessed his claims against China accordingly.  The Tribunal finds that China is Applicant 4’s country of nationality for the purposes of the Convention and also his receiving country receiving country for purposes of s.5(1) and s.36(2)(aa) of the Act.

    [4] DIBP, f.64

    [5] CX82388: People’s Republic of China: Nationality Law of the People’s Republic of China, People’s Republic of China: Government of, 10 September 1980

    Assessment of claims

40. On the evidence before it, the Tribunal accepts that Applicant 1 and Applicant 2 are from towns near Fuqing City, Fujian Province, in China, were married in 2013 and have three children. The Tribunal accepts that Applicant 1 arrived in Australia in June 2007 as the holder of a 571 School sector visa, and that Applicant 2 arrived in Australia in 2006, also on sub-class 571 School sector visa.

41. The Tribunal accepts that Applicant 3 and Applicant 4 were born in Australia and are the children of Applicant 1 and 2.

42. On the evidence of the birth certificate[6], the Tribunal accepts that Applicant 1 and Applicant 2 have recently had a third child.

    Family church

    [6] AAT, f.26

43. The Tribunal has considered Applicant 1’s claim that in China she was an adherent of the Family church and that she attended gatherings of the church in her village in Fujian. On the evidence of Applicant 1 below, the Tribunal accepts that Applicant 1 has an understanding of the Local Church beliefs. On the basis of her discussion of her beliefs, the Tribunal is also willing to accept that she attended Family church gatherings in Fujian before her departure. In making this finding, the Tribunal has also considered country information that there is estimated to be at least 70 million people in China affiliated with the house church movement such as the Local Church and that the church is active in Fujian.[7]

    [7] Department of Foreign Affairs and Trade 2015, DFAT Thematic Report: Unregistered religious organisation and other groups in the People’s Republic of China, 3 March

44. In consideration of the applicant’s claim to fear return to Fujian because of her religious practice, the Tribunal has considered Applicant 1’s claim that in 2006, when she was [age], she was detained when attending a youth gathering of Family church members and held for 3 days. Applicant 1 stated that her [relative] used his network and she was released after he asked a favour of his friends. 

45. In considering this claim, the Tribunal enquired whether Applicant 1 experienced any difficulties over the period of more than twelve months between this claimed incident and her departure from China in June 2007. The applicant stated that she was required to report to the police every week. The Tribunal asked Applicant 1 whether she has any evidence of her detention, release and subsequent reporting requirement. She stated that she did not and that as this occurred so long ago the village officials would not give out that information. Applicant 1 stated that she did not think there will be any evidence to show that she was detained, because no receipt was given when money was paid to the authorities. While the Tribunal acknowledges the difficulties that asylum seekers may face in obtaining evidence, the Tribunal would expect that after weekly contact with the police through reporting over a period of more than one year, that she would have some form of evidence of such regular engagement with the authorities. The Tribunal considers that the lack of evidence in this case raises doubts about the applicant’s credibility in respect to her claimed detention and reporting.

1. The applicant stated that over the period of more than twelve months between her detention and her departure from China in June 2007, she continued going to school. She continued going to Family church gatherings in secret. On one occasion the group believed the police were coming and she ran away, hurting her ankle. She stated that she was not detained or questioned again. As discussed with the Applicant 1, the Tribunal finds Applicant 1’s claim to have continued going to secret Family Church gatherings difficult to believe in light of her stated requirement to report to the police on a weekly basis. If it was the case that the applicant was required to report on a weekly basis to the police, the Tribunal would expect that the authorities would be monitoring and alert to her activities. The Tribunal would expect that the police would be aware of her religious worship and that if they were concerned about her religious activities that they would take action to investigate and prevent it. On this basis, the Tribunal has serious concerns about the veracity of Applicant 1’s account of her treatment by authorities because of her religious activity.

2. In assessing the credibility of the applicant’s claimed experiences in China in respect of her detention and subsequent weekly reporting regime, the Tribunal also notes, as discussed with the applicant at the hearing, that she was issued her passport after her claimed detention. Applicant 1 stated that she did not experience any difficulties obtaining her passport and that she departed China legally. As put to Applicant 1, independent country information indicates that the authorities refuse to issue passports, thereby restricting travel, to people who are believed to undermine national security and that this includes religious dissidents.[8] The Tribunal also sought Applicant 1’s comment that she was able to depart China legally on a passport in her own identity, and, as put to the applicant, the Public Security Bureau (PSB) have comprehensive facilities to monitor exit procedures at Chinese airports[9] and the Tribunal considers that the ease with which the applicant obtained a passport and departed China indicates that she was not of any adverse interest to the authorities for any reason. In response, Applicant 1 stated hers was not considered a serious crime, and that it took place in a small village. She commented that the officials in the village probably did not circulate information about her further, so she was able to get her passport and depart legally. Taking into account the ease with which the applicant obtained a passport and departed China and the applicant’s response which suggest that the authorities did not regard her conduct as serious, the Tribunal has significant doubts about the credibility of the applicant’s claims in respect of her detention and weekly reporting regime.

   [8] Department of Foreign Affairs and Trade, People’s Republic of China Country Report, 3 March 2015.

   [9] Department of Foreign Affairs and Trade, People’s Republic of China Country Report, 3 March 2015.

3. On all the evidence above, the Tribunal does not consider the applicant’s claim to have been detained for three days in 2007 and subsequently been required to report to the police on a weekly basis, to be credible. The Tribunal does not accept that the applicant was detained for three days and had to report weekly to the police because she was found attending a Family church gathering. The Tribunal does not accept that the applicant has any profile with the authorities in China as a member of the Family church. The Tribunal does not accept that her religious activities were of adverse interest to the authorities. 

4. Based on Applicant 1’s oral evidence, the Tribunal accepts that she is an adherent of the Family (Local) in [city].  She stated that she attends church on Sunday for 2 hours, going to a Family church in [suburb] and sometimes in [suburb] or [suburb].  She stated that she has been attending the church in [city] since she came to [city] in mid-2012. Applicant 1 provided the Tribunal with sufficient detail concerning her attendance, delivered spontaneously, for the Tribunal to be convinced of the veracity of these claims. She spoke with some knowledge about verses of the Bible, such as verses from the Book of Job, and described meetings and the use of the Recovery version of the Bible and the Trinity. The applicant was able to describe in very general terms how she applied her faith in daily life, explaining that she tries to do what Jesus asks us to do, to be gracious and not to worry about tomorrow and to pray to the Lord in her heart. On this basis, the Tribunal formed the view that Applicant 1 is currently attending the Local Church as a participant in worship, attending services once a week. On the evidence of Applicant 1, the Tribunal accepts that her husband accompanies her to the church and has a similar level of involvement.

5. The Tribunal made enquiry whether Applicant 1 or her husband had involvement in preaching or proselytising for the church. She stated that to do this, a person needed to have a developed spiritual life. When their faith was more mature they would need to spread the gospel but that they had not reached this stage yet. She stated that this did not mean, in her case, that she would not take responsibility to tell the gospel to other people when she had that level of knowledge. The Tribunal considered Applicant 1’s response, but was of the view that given the current low level of her and her husband’s involvement in the church as adherents and attendants, that engagement in preaching or proselytising was speculative. On this basis, that Tribunal does not accept that either Applicant 1 or Applicant 2 will engage in preaching or proselytising now or in the foreseeable future.  

6. On the basis of Applicant 1’s discussion of her faith, the Tribunal accepts that Applicant 1 and Applicant 2 attend the Local Church in Australia and they are adherents of that faith. The Tribunal is satisfied that they will attend gatherings in China in a similar capacity as in Australia, i.e. as low level participants, attending once a week, without involvement in preaching or proselytising.

7. Having found that Applicant 1 and 2 are adherents in the Local Church in [city], and having accepted that they will practice in the manner in which they currently do, attending gatherings on a weekly basis but not preaching or proselytising, on return to China, the Tribunal has considered Applicant 1’s claim to fear that she will be detained by the authorities because Family church worship is illegal in China.  During the course of the hearing, the Tribunal observed that in 2015, DFAT advised that the government of China considers several unregistered Christian groups to be “evil cults,” including the Local (or Family) Church[10], and as such practice in the Local church is prohibited. In this respect, the Tribunal accepts the applicant’s claim that the Family church remains illegal in China.

   [10] Department of Foreign Affairs and Trade 2015, DFAT Thematic Report: Unregistered religious organisation and other groups in the People’s Republic of China, 3 March, p.10 <CISEC96CF1260>

8. However, as put to the applicant at the hearing, the line between the registered and unregistered churches has grown increasingly blurred in recent years[11] and that Chinese authorities have shown increased tolerance for unofficial religious activity that does not challenge the authority of the state.[12]  While there have been government efforts to suppress activities, some house churches meet openly with membership of several hundred thousand.[13]  In making its findings, the Tribunal has also taken into account DFAT’s advice of March 2015, put to the applicant, that while DFAT assess that members of registered church movements could be mistreated by authorities, they do not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province.[14] The Tribunal has also taken into account information, put to the applicant, from the Annual Report of China Aid, published in April 2015 that records no instances of Christians detained in Fujian.[15]

   [11] Madsen, R. ‘Catholic Revival During the Reform Era’, The China Quarterly, vol. 174, 2003 p. 474

   [12] US Department of State, ‘Legal/Policy Framework’, International Religious Freedom Report 2010 (July - December) – China, 13 September 2011

   [13] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 5, paragraph  2 < OG54B544637

   [14] Department of Foreign Affairs and Trade, DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015

   [15] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.13, Table 4 <​ > CISEC96CF1731

9. In response, Applicant 1 stated that she could neither agree nor disagree with this information because treatment depends on your village and how the village officials manage the affairs. She does not think that all officials are evil and if village officials are not corrupt then they would show a greater level of tolerance. In some aspects, Applicant 1 stated she agrees, but in her case, she does not know what the village has become.

10. Considering all the evidence, the Tribunal does not accept that any of the applicants, as people from Fuqing, Fujian, who are low level adherents of the Family Church and who do not preach or proselytise, will be detained or mistreated by the authorities for reason of the religious practice of Applicant 1 and Applicant 2.

11. Having found that Applicant 1 and Applicant 2 will not be detained or mistreated by the police for their participation in the Family Church, the Tribunal has not addressed the claim that Applicant 1’s children will have no-one to care for them.

12. In respect of Applicant 4, the Tribunal finds that there is not a real chance of serious harm on the basis of his family’s religious beliefs now or in the foreseeable future.

13. In respect of each of the applicants, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China that there is a real risk that they will suffer significant harm on this basis.

    Compensation for property

14. Applicant 1 claims that she is entitled to compensation for her [relative]’s house. She makes the claim that the village officials are holding the compensation money and she believes they want to retain the money. Applicant 1 believes that if she seeks to claim the compensation the village officials with threaten not to register the children for hukou and that they will tell the authorities about her church attendance. As a result she will not be get money which is rightfully hers and the children will be denied hukou and attendant services.

15. In consideration of this claim, the Tribunal notes that Applicant 1 stated that she has no documentation about the property compensation matter and she is aware of the situation because a village official talked to her [sibling].  She thinks her [sibling] has documentation and that she would have to go to the court to apply for the funds. The Tribunal notes that Applicant 1 has not yet made a request for the compensation funds or sought to communicate with the village officials to explore retrieval of the funds because she is too far away. Applicant 1 stated that if she was able to live in Australia she would give up on obtaining the money because there is nothing she can do, but if she went back to China she would need the funds because she does not have support from family, savings or a place to stay, and this was the only thing her [relative], with whom she grew up, left her.

16. On the evidence of Applicant 1, the Tribunal accepts that she has an entitlement to some compensation funds for her [relative]’s portion of the house. However, the Tribunal found Applicant 1’s knowledge of the matter very vague and limited, i.e. that she thinks her [sibling] has documentation and that there would be a court process for her to retrieve the funds. The Tribunal has also considered Applicant 1’s statement that she has made no approach to the village officials in regards to the matter, because she is far away. The Tribunal would expect the applicant to have taken some action to obtain more information about the matter if it had the significance to her that she claims. The Tribunal does not accept that her distance from her village would present an obstacle to her obtaining more information about compensation process given that there would be some form of communication means with the officials of the village, which is near to the major industrial city of Fuqing. The applicant has claimed that the village officials will deny her access to her entitlement, but the Tribunal considers that she has no basis on which to make this claim and the Tribunal has formed the view that this claim is purely speculative.

17. Taking all the evidence before it into account, the Tribunal is not satisfied that the village officials will deny the applicant any compensation owed to her. The Tribunal further does not accept that the village officials with threaten to deny her children hukou or to notify the authorities of her church attendance, or take any other action, in the event, Applicant 1 makes enquiry about, or takes action to obtain, her compensation.

18. For the reasons above, the Tribunal does not accept there is a real chance that Applicant 4 faces serious harm from the authorities because Applicant 1 will seek to obtain compensation money owed to her from the village officials, now or in the reasonably foreseeable future.

19. For the reasons above, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of any of the applicants being removed from Australia to China that they face a real risk of significant harm on this basis. 

    Financial issues

20. The Tribunal has considered the claim that the applicants will not be able to survive economically in China and they will have nowhere to live. Applicant 1 identified the first reason for this as being the requirement that she and her husband, Applicant 2, pay a large social compensation fine because they have three children, two of whom were born in contravention of the Family planning regulations of the day.  

21. In respect of the requirement to pay a social compensation fee, the Tribunal notes that parents are often charged a ‘social maintenance fee’ for violating family planning policies.[16] Independent country information before the Tribunal indicates that despite recent policy changes to allow married couples to have a second child[17] and the current loosening of family planning restrictions, regulation to require payment of social compensation fees remain in place to ensure compliance with the policy.[18] On the information before it, the Tribunal accepts that Applicant 1 and Applicant 2 will be required to pay a social compensation fine.

    [16] Hong Fincher, L 2015, ‘China's two-child policy: Single mothers left out’, BBC News, 2 November, paragraphs 4-6    < CXBD6A0DE15233

    [17] BBC News 2015, China two-child policy not valid until March, government says, 2 November < CXBD6A0DE15220

    [18] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March, pp14-15

22. Applicant 1, who has three children, stated that despite the relaxation of the Family Planning regulations to permit two children per couple, she expects to be required to pay fees for two children because they were born at a time when the ‘one child’ policy was still in place. In the absence of detailed information in this respect, the Tribunal accepts that Applicant 1 and Applicant 2 will be required to pay fine for two children born outside Family Planning regulations.

23. As put to Applicant 1, the Fujian Population and Family Planning Regulation indicates at Article 36 that couples who bear two children in excess of the prescribed number in violation of family planning regulations will pay a fine of four to six times their combined total income for the previous year[19]. As put to Applicant 1, DFAT further advise that:

    “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.” [20]

    [19] Health and Family Planning Commission of Fujian Province 2014, Fujian Population and Family Planning Regulation, 2 April, Article 36 <CIS2F827D92163> 

    [20] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March, pp14-15 

24. As further discussed with Applicant 1, country information indicates that social compensation fees are set and assessed at the local level[21] and the DFAT Country Report China issued 3 March 2015 contains the following information:

    3.48 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.”[22]

    [21] United States Department of State 2014, Human Rights Report 2014 China (includes Tibet, Hong Kong, and Macau), 25 June, Section 6, Women, p.58, second paragraph < <OG2B06FAF44> 

    [22] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March, pp14-15 

25. In response, Applicant 1 stated that the village officials do not follow the standards and usually prescribe a different amount. Applicant 1 put the view that while the federal government may put in place laws, their implementation gets complicated as responsibility goes from the federal government to the provincial, municipal, and small village authorities. Applicant 1 indicated that the village officials will do what they want and will take possessions from home, or if the fine is paid they will not give a receipt. On the information before it, the Tribunal accepts that there may be variation imposition of the fees across China. However, as also noted, DFAT advise that in Fujian “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.”[23] and media reports in December 2015 indicate that in Fujian social compensation fees are to be standardised across provinces.[24] On this basis, the Tribunal finds that the social compensation fees that apply to Applicant 1’s family will be in line with Fujian’s stated policy.

    [23] Department of Foreign Affairs and Trade 2013, DFAT Report 1473, Fuqing City: Fuqing Population and Family Planning Committee 2012

    [24] Residents without hukou pin hopes on new policy’ 2015, China Daily, 3 December < CXBD6A0DE16759 

1. On the information available, the Tribunal accepts that Applicant 1 and Applicant 2 will be required to pay a fine which may amount to up to four to six times the local average annual disposable income.

2. In considering the situation of the applicants, the Tribunal has considered the capacity of Applicant 1 and Applicant 2 to pay the fine. The Tribunal notes DFAT advice, as put to Applicant 1, that payment of social compensation fees can be made by instalments[25] and that the authorities may apply discretion depending on the applicant’s circumstances when deciding where the social compensation fee will be set.[26] The Tribunal considers that these arrangements will facilitate the capacity of Applicant 1 and Applicant 2 to pay the fine.

   [25] Measures for Administration of Collection of Social Maintenance Fees (China), art 6A, Promulgated 2 August 2002, (Effective 1 September 2002), National People’s Congress of the People’s Republic of China; Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November

   [26] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March,

3. In consideration of the implications of the payment of the fine, the Tribunal has noted Applicant 1’s statement that her husband will not be able to earn as much money in China as he does now, and accepts that this may be the case. However, as discussed at the hearing, DFAT advise that the Chinese economy offers employment opportunities[27], and Applicant 2 is an experienced and able [occupation]. On the evidence before it, the Tribunal finds that Applicant 2 will be able to obtain employment in China. On this basis, the Tribunal finds that Applicant 2 will be able to make payments required for the social compensation fee and provide for the subsistence of himself and his family.

   [27] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March,

4. On the basis of all the evidence above, the Tribunal does not accept Applicant 1 and Applicant 2 will not be able to pay the social compensation fee. The Tribunal finds that Applicant 1 and Applicant 2 will have the means and in fact will pay the social compensation fee.

5. Having regard to the non-exhaustive examples of serious harm set out in s.5J(5) and s.91R(2), the Tribunal has considered whether payment of the fine and other basic requirements such as accommodation, the applicants will experience significant economic hardship that threatens the person’s capacity to subsist. In this consideration, the Tribunal notes, as found below, that all the applicants will have access to basic services, such as education and healthcare. The Tribunal has also found below that the Applicant 2 will be able to obtain employment to support the family, including providing basic accommodation. The Tribunal accepts that payment of the social compensation fee will place heavy financial pressure on the applicants’ family, but does not consider that this would be such as to present significant economic hardship that threatens their capacity to subsist or otherwise amount to serious harm for the purposes of s.91R(1)(b) and (2). The Tribunal finds that Applicant 4 does not face a real chance of serious harm because Applicant 1 and Applicant 2 will be required to pay the social compensation fine for contravening Family Planning regulations now or in the foreseeable future.

6. The Tribunal also does not consider the imposition of the social compensation fee amounts to significant harm as defined in s.36(2A) of the Act.  The fines do not involve the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act.  It would not constitute severe pain or suffering, whether physical or mental, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature.  Nor would it involve extreme humiliation which is unreasonable. The Tribunal finds that none of the applicants face a real risk of significant harm on return to China because Applicant 1 and Applicant 2 will be required to, and will in fact, pay the social compensation fine for contravening Family Planning regulations.

7. Furthermore, as acknowledged by Applicant 1, the Tribunal does not accept that the imposition of these social compensation fees under the family planning regulations, constitutes persecution of Applicant 4 as defined by s.91R(1) of the Act.  The Tribunal is satisfied that the family planning laws and policies apply generally to the population of China.  There is no evidence to indicate that the law and penalties or any enforcement measures are applied in a discriminatory manner.  The Tribunal finds that the imposition of these fines under the family planning laws and any enforcement of fine measures will be the result of a non-selective law of general application which does not involve discriminatory conduct under s.91R(1)(c) of the Act.  Accordingly, the Tribunal finds that Applicant 4 does not, in the reasonably foreseeable future, face a real chance of persecution as defined by s.91R of the Act.

8. Additionally, there is no evidence before the Tribunal that the family planning laws are not applied to the population generally or that they are applied in a discriminatory manner.  Whilst all the applicants may be personally affected due to the breaches of the law, given that the risk is faced by the population of the country generally, the Tribunal finds that there is taken not to be a real risk of significant harm under s.36(2B)(c) of the Act.

9. For the reasons above, the Tribunal does not accept there to be a real chance that Applicant 4 will face persecution for reasons of China’s family planning policy if he returns to China, now or in the reasonably foreseeable future.

10. On the evidence before it, the Tribunal finds that there is not a real risk that any of the applicants face significant harm because they will not be able to subsist. The Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the any of the applicants being removed from Australia to China that there is real risk that they will suffer significant harm on this basis.

11. The Tribunal considered the wider claim that the applicants will have nowhere to live and will not be able to survive. The Tribunal accepts that the applicants will need to find accommodation on return to China and that neither Applicant 1 nor Applicant 2’s family may provide any support, accepting that that Applicant 1’s mother has limited accommodation and her father is working in [country].

12. However, as noted above, Applicant 2 now has employment experience as a [occupation], and as discussed with Applicant 1, DFAT advise that China, as the world’s second-largest economy (after the United States), still has a growing economy, and that while economic growth has slowed since 2008, “China’s gross domestic product (GDP) grew 7.4 per cent (year-on-year) in 2014… China’s registered urban unemployment rate (excluding migrants and private enterprises) was estimated to be 4.1 per cent in 2013.”[28] In this discussion, Applicant 1 acknowledged that stated there must be many changes in China and that she does not know what the village has become. On the information before it, the Tribunal considers Applicant 2 will be able to obtain employment to provide resources to obtain basic accommodation.

    [28] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March

13. Applicant 1 has claimed that her children will not be able to access basic services until they have paid outstanding fines. The Tribunal accepts, on the basis of independent country information before it, that China has a comprehensive system of household and child registration (hukou) and that hukou is required for access to government services, such as education above a certain level and health.[29] At the hearing, Applicant 1 said that she was aware of changes to the hukou regulations and she agreed with advice that reform of hukou had been proceeding in China, and that under the new system, provincial PSB officials had been directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for hukou registration. This means all Fujian babies, including abandoned babies or those born "out of plan" or out of wedlock, should now have access to household registration, whether or not they pay the fee.[30] Applicant 1 stated that her friends say they will be able to register all their children.

    [29] DFAT Country Report – China, 3 March 2015

    [30]China: Country Information Request: CI160219094800679: Fujian registration of children and 'out-of-plan' births.

14. However, Applicant 1 stated that payment of the social compensation fine in full will be required by the village officials if the children access services. At the hearing, the Tribunal noted media announcements concerning changes to hukou regulations in Fujian province, that guarantee the rights of children to enjoy public services,

    ‘…the new regulation says that no matter whether an infant is born in violation of the birth policy, he or she will be granted a hukou to guarantee his right to enjoy public services, said an official from the provincial public and security bureau at a press conference on Monday. They can sue if the local public bureau turns down the hukou registration for their children, he added. But parents will still receive punishment for breaching birth rules. The announcement marks a historical improvement and shows more humane touches in Fujian’s birth regulations, insiders said. Fujian adopted the so-called second-child policy earlier this month, allowing couples to have a second child if one of them is a single child.’[31]

    The Tribunal noted that this statement indicated that all children in Fujian were to be guaranteed access to basic services and that this was not conditional upon payment of the penalty, in full or in part, for breaching birth rules.

    [31] ‘Fujian relaxes hukou registration for infants’ 2014,  China Daily, 29 April, < Accessed 23 June 2015  <CX1B9ECAB10837>

15. On the evidence before it, the Tribunal does not accept that Applicant 3 and Applicant 4 will be denied access to services in the event that their parents have not paid the social compensation fine in full. The Tribunal finds that there is not a real chance of serious harm or a real risk of significant harm to Applicant 3 and Applicant 4 because they will be denied access basic services now or in the foreseeable future.

16. Having considered all the claims and evidence put by Applicant 1 in respect of Applicant 4, individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm if he returns to China now or in the foreseeable future. Consequently, the Tribunal finds that Applicant 4 does not have a well-founded fear of persecution for a Convention reason if he returns to China.

17. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds there are not substantial grounds for believing that there is a real risk that Applicant 1, Applicant 2, Applicant 3 and Applicant 4 will suffer significant harm upon being removed from Australia to China.

    CONCLUSION

18. For the reasons given above the Tribunal is not satisfied that Applicant 4 is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a), (aa). It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c).

19. For the reasons given above the Tribunal is not satisfied that the are people in respect of whom Australia has protection obligations under 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)(aa) or (c).

20. As the applicants do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    Amanda Paxton
    Member