1419021 (Refugee)

1419021 (Refugee) [2016] AATA 3812 (9 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419021
COUNTRY OF REFERENCE:                  China
MEMBER:Belinda Mericourt
DATE:9 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 May 2016 at 3:35pm
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 on 28 October 2014 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas [in] November 2013. The delegate refused to grant the visas on the basis that the delegate was not satisfied that Australia owed protection obligations to the applicants.
[In] November 2014 the primary visa applicant lodged an application for review of the Department’s decision with the Tribunal.
CRITERIA FOR A PROTECTION VISA
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, he or she 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’).
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
BACKGROUND
The primary visa applicant was born in [year] in [name] Village, [name]Town, Fuqing city, Fujian province, the People’s Republic of China (PRC). On the application form she stated that she speaks, reads and writes in both Mandarin and English. She is of Han ethnicity and Christian religion. Her father and [sibling] reside in China and her mother resides in Australia as an unlawful non-citizen.
The secondary visa applicant (hereafter referred to as the applicant child) is the primary visa applicant’s [child] born on [date] in [city]. No father is identified on [child’s] birth certificate.
[In] October 2007 the primary applicant was granted a student (schools sector) visa (subclass 571) and she entered Australia [in] October 2007. Her mother was granted a student guardian visa (subclass 580) and entered Australia with her daughter on the same date. The primary visa applicant was granted second subclass 571 visa [in] April 2008 and this visa ceased [in] March 2011. She remained in Australia as an unlawful non-citizen. Her mother’s student guardian visa ceased [in] March 2009 and she also remained in Australia as an unlawful non-citizen. The primary applicant departed Australia [in] January 2010 and returned [in] March 2010 while her student visa was still valid.
On her application, the primary applicant stated that she attended school in Australia from October 2007 until March 2009, and then attended [name] College from August 2009 to March 2010.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Requirement that the decision-maker be ‘satisfied’
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal has before it the Department’s file relating to the applicants, which includes a certified copy of the primary applicant’s PRC passport issued [in] 2007, the applicant mother’s written application for a protection visa, a copy of the audio recording of interview conducted by the delegate [in] February 2014 and a copy of the delegate’s decision record. The Tribunal has also referred to relevant country information as cited in this decision.
Claims made by the applicant in her written statement to the Department dated [in] November 2013
In her written statement of claims, the primary applicant stated her family were persecuted for their Christian religious beliefs and violation of family planning (policy). Her parents sent her to Australia in order to keep her from persecution. Her mother was told to abort her as she was a [additional] child. Her mother refused and hid in the forest until she was born. When she returned to her village she received a notice saying they were fined 200,000RMB for violating the Family Planning Policy. Her father was detained until her mother borrowed 20,000RMB for bail. Her father was sterilised. Her mother became depressed. A villager who was a Christian comforted her and her mother became a devout Christian and was baptised [in] May 1993. The director of the Family Planning Office, [Mr A] kept sending people to the house to ask for money and he found out that her mother was involved in illegal underground activities. [In] June 2006 he arrested her on the grounds that she was a member of the cult. Her grandparents had to borrow money to bail her out of detention after 10 days. Her mother was depressed and suicidal. Her father was unable to take care of her or her [sibling] so her [sibling] was fostered by [sibling’s] grandparents. Her father borrowed money from relatives to send her to study in Australia accompanied by her mother.
The primary applicant returned to China in 2010 as her grandmother was ill in hospital. When [Mr A] heard she had returned he told her father that he would forget about the money they owed if the applicant mother agreed to be his lover. She told [Mr A] she would think about it but fled back to Australia after her grandmother felt better. [Mr A] was angry when he discovered she had run away and told her father that he would break her legs if he sees her again. Her father has asked her not to return.
The primary applicant fell in love with her boyfriend and decided to live with him. Her mother was unhappy about this and they quarrelled and her mother moved out at the beginning of 2012. She has not had contact with her since then. In [year] she fell pregnant. When she told her boyfriend he abandoned her. She is now a single mother. She was at a total loss and did not know what to do and goes to church every week. A friend in the church told her that she can apply for refugee protection.
Claims made by the applicant mother at her interview with the delegate [in] March 2014
The Tribunal listened to a recording of the interview and is satisfied that the summary in the Decision Record dated [in] October 2014 is accurate.
The primary applicant stated she could not return to China when she ceased studying in March 2010 because there would still be trouble because her father had not paid the penalty for having [number] children. The person from the Family Planning Office still wants her father to pay the penalty but has said that if she became his lover then her father would not have to pay the penalty. When she returned to China in 2010 he asked her to become his lover then.
The primary applicant is pregnant and unmarried. She met her boyfriend in mid-2011 at a friend’s party. They lived together from March 2012 until she found out she was pregnant in October 2013. He was working at the time. The primary applicant was unable to identify the full Chinese name of the baby’s father and doesn’t know his whereabouts now. He is not returning her calls. She cannot marry and as a single mother she will have to pay a social compensation fee and she will be discriminated against as a single mother. Her parents do not know she is pregnant and they would not be able to help her pay the social compensation fee.
The delegate did not discuss any claims related to her Christian beliefs and practices with the primary applicant.
Claims made by the applicant at the Tribunal hearings on 8 March and 26 April 2016
During the hearings the Tribunal discussed with the primary applicant her background, current circumstances and her fears of returning to China.
The first Tribunal hearing was conducted with some difficulty as the applicant child was present throughout. It was clear the primary applicant was distracted and, on occasion, frustrated by her child’s behaviour. She was frequently distressed when giving her evidence. The Tribunal had some concerns that the primary applicant may have not always accurately heard the Tribunal’s questions or discussion of concerns and consequently scheduled a second hearing to provide the primary applicant with an opportunity to provide further evidence and clarify some of her responses given at the first hearing.
The Tribunal discussed the applicant’s background, current circumstances and claims for protection. The primary applicant confirmed that she was born in [name] village (known as [name] village), [name] Town, Fuqing city, Fujian province, China and lived there until she departed China in October 2007. She has a rural hukou which her father has in his possession. She completed year [number] in China. She came to Australia for the purpose of studying English and high school. Her father paid for her visa and student fees for the first semester. She did casual work at [restaurant] to pay for her living expenses which was supplemented by money earned by her mother who had come with her as a student guardian and who did casual [occupation] work.
The primary applicant returned to China in January 2010 because her paternal grandmother’s health had deteriorated, She passed away at Christmas 2014. The primary applicant paid for her own airfare to China. When she returned to Australia she was supposed to re-enrol (at [name] College) but she didn’t do so as she did not have any more money to pay for tuition. She didn’t return to her job as she did not have a work visa and said that she lived on her savings until she moved in with her boyfriend who supported her from early 2012. The Tribunal put to her that it seemed implausible that she didn’t work at all for two years and was able to support herself. She said that her costs were very low. She shared a room with her mother for very cheap rent and they did not eat much.
The primary applicant met her boyfriend in about August 2011. They moved in together around Spring Festival of 2012. Her mother moved out because she did not approve of the relationship and said she would disown her unless she did what she said. The primary applicant’s mother is still residing in Australia but the applicant claimed she has not seen or had contact with her mother since before she became pregnant and does not know where she is. When her boyfriend found out she was pregnant he left her and she does not know where he is living.
The primary applicant said that she totally relies financially on the Red Cross which has been giving her $920 every two weeks since the birth of her [child]. She pays $180 a week in rent and the remaining money is adequate for her day-to-day needs.
The primary applicant said that no-one in her family knows that she has had a child. Her mother left the household since she moved in with her boyfriend and did not know that she became pregnant. She has not had any contact with her. She speaks to her father by phone every few months but she has not told him about the child either. She rarely has any contact with her [sibling]. They were never close because he used to live with her paternal grandmother. She never told her grandparents about her pregnancy.
The primary applicant fears returning to China for the reasons summarised below. Her claims are discussed further under findings and reasons below:
·the primary applicant’s mother was a practising Christian and a member of the Local Church in China. Her mother was arrested and detained in mid-2006 as a result of her participation in Local Church gatherings; the primary applicant is currently a practising Christian and attends the Local Church in [suburb]. If she returns to China she will continue to attend Local Church gatherings and consequently will be persecuted;
·the primary applicant is at risk of physical harm threatened by [Mr A], a director of the local Family Planning Office who wants her to become his lover if she returns, due to an ongoing demand for money by this person from her family as her own mother had a [additional] child in breach of China’s Family Planning Policy;
·the primary applicant has had a child out of plan and would have to pay a social compensation fee in order to obtain her [child]’s hukou. This would threaten her capacity to subsist;
·the primary applicant will suffer discrimination, harassment and harm as a result of being a single mother and she will also have no family support;
·the primary applicant was sexually assaulted by a member of her family as a child and fears she will be assaulted and harassed again by this person if she returns to China.
FINDINGS AND REASONS
Nationality
Based on the primary applicant’s passport and applicant child’s birth certificate provided to the Department, the Tribunal finds that the applicant mother and child are citizens of China. There is nothing in the evidence before the Tribunal to suggest that the applicants have a right to enter and reside in any country other than China. Therefore the Tribunal finds that the applicants are not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicants are nationals of China, the Tribunal also finds that China is the applicants’ “receiving country” for the purposes of s.36(2)(aa).
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
The Tribunal raised its concerns in relation to the applicant’s credibility, noting a number of inconsistencies and omissions between the applicant’s oral evidence and her evidence to the Department. The Tribunal also raised its concerns about the applicant mother’s level of knowledge of the beliefs and practices of the Local church. The Tribunal put its concerns about the plausibility of some of the primary applicant’s evidence such as evidence relating to her residing in Australia and supporting herself using savings for over two years when she had no funds for tuition, her evidence relating to a family planning official demanding a fine of such magnitude for having a [additional] child [number] years after her birth and her evidence that she had not discussed her claims for protection with anyone within the Local church she attends. Overall, the Tribunal finds the primary applicant is not a witness of truth and is not satisfied she has told the truth in relation to critical aspects of her claims. The reasons for these findings are discussed below.
Delay in lodging application
The primary applicant mother entered Australia in October 2007 but did not lodge her application for protection until November 2013, over six years later, nearly four years after she ceased studying. At the hearing she stated the reason for delay was because she didn’t know she could apply for protection until her friend told her about protection visas. The Tribunal put to her that she returned to China for two months from January to March 2010. When she returned she did not re-enrol in her course. She remained in Australia unlawfully from the time her visa ceased in March 2011 until she lodged her claim for protection in November 2013 over 2½ years later. The Tribunal considers that if she was genuinely fearful of returning to China at that time she would have taken steps to find out what options were available to her.

The Tribunal places significant weight on the length of time between when the applicant first entered Australia, when she became aware her visa ceased and when she lodged the visa application. The Tribunal considers that if the applicant genuinely feared returning to China she would have sought protection in Australia sooner than she did. The Tribunal does not accept the explanation that she didn’t apply for protection in Australia because she didn’t know about protection visas for almost six years. The Tribunal considers that information about protection visas would be readily available amongst international students, and Chinese students in particular. As she attended classes for almost three years the Tribunal considers she would have been aware of this option from fellow students during this period. The Tribunal finds it far more likely that the applicant did not seek protection sooner because she did not, and does not, actually fear suffering serious or significant harm in China, rather than because she was unaware that she could seek protection in Australia at that time. The Tribunal considers the applicant’s delay in making the visa application reflects poorly in the credibility of her claims to fear persecution if she returns to China.
Claims related to fear of harm from a family planning official
The primary applicant told the Tribunal that when she was an infant her father was arrested and detained for not paying the social compensation fine for having a [additional] child (that is, herself) After he had a vasectomy and paid RMB20,000 he was released. However, a particular government official continued to harass her family as he wanted her father to pay RMB200,000. She was mocked at school and “discriminated” She believed that she suffered psychological harm. She agreed that she had a hukou and was able to attend school and obtain a passport, but that the demands for extra money and discrimination continued all the time she lived in China.
When the primary applicant mother returned to China in January 2010 to visit her grandmother she was harassed by the government official who was still demanding her father pay more money. He said he would forgo the payment if she became his mistress. She was frightened of him and believes he will continue to harass her if she returns. The Tribunal put to her that she was last in China six years ago and asked why she thought he would be still interested in her now. She said that he kept calling her father and threatening him verbally. She last spoke to her father several months ago. She phones him every few months. At both the first and second hearings the primary applicant told the Tribunal that she had not informed her father of the birth of her [child] due to shame on her part.
The Tribunal put to the primary applicant its concerns about her credibility as it found her story that a government official would harass her family for [number] years for a debt for an amount of money way above the social compensation fee, particularly as it is clear she obtained a hukou after the fine of RMB20,000 was paid. The Tribunal also found her evidence that this same government official continued to demand that she become his mistress six years after he last saw her to lack credibility. She insisted that this was the truth.
The Tribunal is not satisfied that the applicant’s parents were unable to pay the relevant social compensation fee for having a [additional] child in breach of China’s Planning policy at the time, as the applicant obtained her own hukou and has had access to health and education services. This would indicate that her parents were either able to pay the relevant fee or the fee or part of the fee was waived.
The Tribunal does not find the primary applicant’s evidence to be credible that this family planning official would be continuing to harass her family [number] years after her birth for payment of a fee which clearly had already been paid, or that she would be subject pressure to become his mistress as a result of the alleged non-payment of a social compensation fee in respect of her own birth.
Taking the above evidence into account both individually and cumulatively, the Tribunal does not accept the applicant’s claim that she has been and would continue to be harassed by a government official and finds that there is no real risk or real chance that she would suffer serious or significant harm as a result of her alleged parents’ social compensation debt either from this official or any other government official.
Claims relating to the primary applicant’s religious beliefs
The primary applicant said that she didn’t discuss her religious beliefs at interview with the delegate because her mind was confused at that time.
The primary applicant said she accompanied her mother to the Local church in China since she was very young. She was injured on the head when the Local church was raided by the authorities when she was [age]. She has had occasional migraines since then. In the two years or so before she left China she attended gatherings on a farm in her village every weekend. The authorities raided their gathering in about June 2006 and her mother was arrested and detained. Her mother became depressed and suicidal and did not have the courage to return to church meetings. The applicant mother’s friends mocked her and threw things at her. Her father and brother rarely attended the Local church but her mother was a devoted member of the local church and she attended with her. After her mother was arrested they did not attend any more gatherings before departing China in October 2007.
The primary applicant told the Tribunal that she occasionally attended a Local church at [suburb] on Fridays after her arrival in Australia. She didn’t attend church regularly due to her study and work commitments. She stopped going after the baby’s birth but started going again from the time [child] was [age]. She now regularly goes to a Local church at [suburb] (close to the rail station) every Sunday from 230pm to 530pm. There are lots of children at the gatherings so her [child] likes going. One sister helps look after the children. The Tribunal put to her that she earlier said no one would help to look after her child while she attended the hearing yet she has also told the Tribunal that there are lots of mothers with young children at her church. She said that they would not help her because they work or are busy with their own children. The Tribunal put to her that Christians would usually help each other as this is part of the Christian teachings. She said that she did not tell anyone she was coming to the hearing or that she had applied for a protection visa. She has no idea if other members of her local church have applied for protection visas as she never discussed this with them. The Tribunal put to her that this seemed implausible as there would be a number of Mandarin speaking people attending the local church who have sought asylum or are seeking asylum. The applicant repeated that no-one knew she was applying for protection.
The Tribunal asked the primary applicant about the difference between “Local church” practices and other Christian denominations. She said they do not have a pastor, but elders. They refer to each other as brothers and sisters. They use the Recovery Bible which has commentary from Witness Li and corrections which are different from other Bibles.
Local church beliefs that are different from other Christian beliefs in that they believe that all sinful people will go to purgatory. They believe Jesus was born to save us and he is the Trinity of God and the Holy Spirit. In church gatherings they recite God’s name three times as only this way they can be connected to God spiritually. She could not explain this belief. She said that at the Local church people pray and share with each other instead of just sitting listening to a pastor. They sing songs and talk about the Bible. She said she could not describe what the discussions relating to the Bible were about because she found it hard to concentrate at the meetings.
The Tribunal asked the primary applicant about the photos and statement of attendance that she provided to the Department as part of her visa application. She said that the photo was of herself with Brother [B] who is at a different local church. The Tribunal put to her that the letter about her attendance was not from Brother [B]. She then said the letter may have been from Brother [name]. The Tribunal put to her the letter was from a church in [suburb] and signed by two different people and put to her its concerns that the letter may not be genuine. She said she could not remember and she didn’t read who signed it. The brothers at her church can be witnesses for her. She gets a book every few weeks called Morning Revival. At the second hearing she again told the Tribunal that the letter was from Brother [B] but the translation was in dialect and sounded like [Mr C] (the signature on the letter). The Tribunal pointed out that the letter was typed and in English and clearly stated it was signed by Brother [C]. However, the Tribunal did not place any weight on this discrepancy.
The Tribunal asked the primary applicant what the Local church says about having children outside marriage. She said that the church supports her as a single mother and it is ok. The Tribunal then asked her about what the Bible says about having a sexual relationship outside of marriage. She said that the Bible said it was a sin. She only reads the Bible very rarely and so she only attends gatherings and shares things from the Bible at the gatherings. The Bible is “too deep” and she only understands and remembers a few things. Sometimes she cannot even remember her own mobile number. She could remember that the Old Testament is about the agreement between God and the Hebrew people and the New Testament is about details of Jesus’ life.
If she returned to China the primary applicant said she would continue to attend Local Church gatherings. She would not attend the Three Self Patriotic Church or a registered Protestant church as she has had her Local church beliefs since childhood. She did not know what the Three Self Patriotic Church was. The Tribunal asked her why she could not attend the registered Christian churches in China if she did not know the difference between those churches and the Local church. She said that only by attending the Local church can she “feel that feeling”. She had no knowledge or understanding of the doctrinal differences between the Three Self Patriotic Church or any other Christian church. She then said that Jesus is the Trinity and the Bible is enlightenment from God and Jesus will punish sinful people – these are different beliefs in the Local Church. Given these are all beliefs of any Christian denomination the Tribunal considers that the applicant does not understand any doctrinal differences between the Local church and any other denomination of Christianity.
Country information related to the practice of Christianity in the Local church in China
The Tribunal put to the applicant independent country information that in Fujian province there is some tolerance by local authorities of small Christian gatherings in private homes.[1],[2] The primary applicant denied this and said people who attend Local church gatherings will be persecuted as her mother had been.
[1] 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
[2] Department of Foreign Affairs and Trade, Thematic Report: Unregistered religious organisations and other groups, 3 March 2015 < OG54B544637
The primary applicant gave evidence that she attended Local church gatherings with her mother from time to time until her mother was allegedly arrested in mid-2006 when the applicant was [age] and then did not attend again before she departed China a year later. The primary applicant gave evidence that she did not attend church in Australia until just before she lodged her application for protection.
Based on the letter provided by Brother [C], The Local Church in [city], dated [in] February 2014, the Tribunal accepts that the primary applicant commenced attending a Local church in [city] from May 2013.
The primary applicant had a very rudimentary understanding of basic Christian tenets and beliefs and those of the Local church in particular. Whilst the Tribunal took into consideration the difficulties of staying focused and paying attention when having a young baby, the Tribunal considers that, given the primary applicant claimed to have accompanied her mother to Local church gatherings in China since she was a small child and she claimed to have attended the Local church in Australia for one year prior to the birth of her [child], that the primary applicant would be able to demonstrate some knowledge and understanding of Christian beliefs more commensurate with a person with a longstanding commitment to Christianity.
Based on the primary applicant’s rudimentary understanding of basic Christian tenets and beliefs, her inability to describe the sermon at her church just prior to her attendance at the first Tribunal hearing, her inability to identify any doctrinal differences between the Local church and the Three Self Patriotic Church in China or other denominations of Christianity, the Tribunal is not satisfied that the primary applicant was a practising Christian or a member of the Local Church in China. Furthermore the Tribunal is not satisfied that the primary applicant is understands or is committed to the teachings of the Local church.
Based on the above evidence both individually and cumulatively, the Tribunal is not satisfied that the primary applicant is currently a practising Christian. Nor is the Tribunal satisfied that she would attend a Local church or any other church if she were to return to China now or in the foreseeable future.
Consequently, the Tribunal finds that there is no real risk or real chance that the primary applicant would suffer serious or significant harm as a result of her actual or imputed religious beliefs and/or practices.
Claims relating to the primary applicant’s having to pay a social compensation fee for having a child “out of plan” (outside marriage)
The Tribunal accepts that if the primary applicant returns to China she would have to pay a social compensation fee as a result of having her [child] outside of marriage. The Tribunal put to the applicant recent country information which indicates that she would be able to obtain a hukou for her [child] before she pays the social compensation fee. The applicant claimed that she could not get a hukou for her own [child] because her father had not paid the debt he owes for having a [additional] child. The Tribunal put to her that it appears that her father paid more than the required fee and her own evidence is that she has a hukou. This would indicate her [child] could also obtain a hukou. She denied this would be the case because of the corrupt family planning official in her local area who continues to harass her father.
The primary applicant said that she could not pay social compensation fee as she would not have a job and has no savings. The Tribunal put to her that information from the Health and Family Planning Commission of Fujian Province indicates that she could pay the fee in instalments and it would be a relatively small amount as she has a rural hukou. Once she found employment she should be able to manage payment of instalments. The applicant said that her main fear is that the official would threaten her life and threaten harm to her [child]. She was also concerned that officials are corrupt and can do anything they want. She claimed that her paternal grandmother was run down by a car and her family is suspicious that the official arranged for her death. They would also be psychologically harmful. She would be vulnerable and helpless as a single mother.
The primary applicant has not told her father about the birth of her child because she is a single mother and he would be discriminated against by other people in the village. The Tribunal asked why he would tell anyone else if it is likely he would suffer discrimination. She said there is always gossip and a relative would be likely to tell the rest of the village. She claimed that her father would not be able to assist her. At the second Tribunal hearing the primary applicant told the Tribunal that she recently spoke to her father again as her paternal grandfather passed away a month ago. Again she did not tell him about the birth of her [child] as she was too ashamed.
Country information relating to children born outside of marriage
In January 2015, Department of Foreign Affairs and Trade (DFAT) provided advice concerning the protection afforded by family law to children born out of wedlock, noting that ‘a number of contacts told us (DFAT) local public security bureaux are required to sight a marriage certificate before issuing a registration permit (hukou) to a newborn child’.[3]
[3] Department of Foreign Affairs and Trade (DFAT) 2015, China - Country Information Request No. CHN16428 - Child Custody - Court Orders , 28 January, R1, third paragraph <CXBD6A0DE835>
DFAT advice provided in July 2015 advice also refers to central government regulations released in 1988 which state that government agencies cannot deny children born in breach of family planning regulations the right to apply for a hukou even if social compensation fees have not been paid, and note that ‘anecdotal evidence suggests provincial and local authorities have not uniformly complied with these regulations’ and officials from the National Health and Family Planning Commission in Beijing have advised that ‘it is difficult to monitor and enforce implementation of these regulations across China’.[4]
DFAT provided advice regarding social compensation fees in Fujian province in December 2015.[5] News articles in the China Daily, Global Times and the Guardian reported that in 2013 and 2014 children born in breach of family planning regulations in Fujian and Hubei provinces have been able to obtain birth certificates, and in Fujian province have been able to obtain household registration, before social compensation fees have been paid. The DFAT post in Guangzhou wrote to seek advice from the Fujian Public Security Bureau (PSB) on the Fujian Provincial Public Security Regulations on Household Registration which came into effect on 25 August 2014. While awaiting advice from the PSB, the post gave its own assessment based on its reading of the regulations:
* Eligibility: According to Chapter 3, Section 1, Article 21 of the Regulations "all Chinese nationals [born in mainland China] have a legal right to apply for hukou for newborns. All children, no matter whether born legally, to unmarried or divorced parents, abandoned, or born as additional children born in violation of family planning policy, shall promptly be granted a hukou" (Guangzhou Post translation). According to Chapter 3, Section 2, children born overseas have a right to apply for hukou if they meet relevant criteria for overseas birth.
* Social compensation fee: The Regulations do not refer to social compensation fees (or other fines) and do not appear to require evidence of payment of a fee when providing documents to support a hukou application (Articles 22 to 42). A 24 November 2014 media report points to the Longyan City PSB noting the Regulations do not permit Fujian's public security organs to seek payment of the social compensation fee before processing hukou applications (the report is available at ).
* Birth approval certificate: The China Daily reported on 26 May 2015 that the Fujian Health and Family Commission had advised that couples in Fujian no longer needed to apply for a birth approval certificate when they planned to have a first child. Couples could also obtain an approval certificate for a second child by confirming their eligibility for a second child with documentation. Couples needed a marriage certificate and ID cards to register the birth of their first child. The article is available at .[6]
[5] Department of Foreign Affairs and Trade (DFAT) 2015, China: Country Information Request CI151126093857626 - Social Compensation Fees - Fujian Province 10 December 2015
[6] Department of Foreign Affairs and Trade (DFAT) 2015, China: Country Information Request CI150528103300795 - Issuing of Hukou to children of unwed mothers in China, 29 July, R1 <CXBD6A0DE10895>.

An article published on 3 December 2015 in the China Daily reported that in November 2015 the Ministry of Public Security was considering ‘new regulations to grant hukou (household registration) and identification cards to those without them’, a group which would include ‘children born in violation of the family planning policy, those born of single mothers, abandoned children and those who have lost relevant documents’.[7]
[7] Residents without hukou pin hopes on new policy’ 2015, China Daily, 3 December < CXBD6A0DE16759
The Ministry of Public Security ‘vowed to address the problem and grant the group hukou and identification cards’. The article also reports on a woman in Longyan city, Fujian province who received a hukou for her second baby in 2013 before paying social compensation fees.
The Fujian Population and Family Planning Regulation indicates at Article 46 that a fee of 60 per cent to 100 per cent is charged in social compensation fees for giving birth to a child while unmarried, although if the couple have reached legal marrying age when the child is born and register their marriage within three months after being notified, they shall be exempted from the charge.[8]
[8] Health and Family Planning Commission of Fujian Province 2014, Fujian Population and Family Planning Regulation, 2 April, Article 46 <CIS2F827D92163>
Specific guidelines on the collection of social compensation fees are described in the Measures for Administration of Collection of Social Maintenance Fees. As specified in Article 3 of this law, citizens who ‘bear children out of line’ with family planning law must pay social compensation fees which are determined according to whether offenders are urban or rural residents. The fines for urban and rural residents are based on ‘the urban residents’ [average] annual per capita disposable income’ and the ‘rural residents’ [average] annual per capita net income’, respectively.[9] The calculation of the social compensation fee is also determined by:
·the average incomes (mentioned above) for the district in which the hukous are registered
·the ‘actual income level’ of the parents
·the fee structure imposed at the provincial level
·the manner in which they have breached the family planning regulations (e.g. by having one or more children over the limit, out of wedlock, or through an extra marital affair).[10]
[9] Measures for Administration of Collection of Social Maintenance Fees (China), promulgated 2 August 2002 (effective 1 September 2002), National People’s Congress of the People’s Republic of China < Accessed 20 November 2008
[10] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February 2013; Measures for Administration of Collection of Social Maintenance Fees (China), Promulgated 2 August 2002, (Effective 1 September 2002), National People’s Congress of the People’s Republic of China < Accessed 20 November 2008; Population and Family Planning Law of the People’s Republic of China (China), promulgated 29 December 2001 (effective 1 September 2002) Chinese Government Official Web Portal < Accessed 2 April 2007
Under national law, offenders have 30 days to pay 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’.[11]
[11] 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 < Accessed 20 November 2008
A document produced by the Population and Family Planning Commission of Fujian Province and purporting to ‘regulate the administrative discretion work of population and family planning’ discusses the discretion which may be applied depending upon an applicant’s circumstances, when deciding whether to charge a social compensation fee at the lower or higher end of the range, and suggests that a person may be free of penalty if they are an overseas student when they give birth to their second child:
6. The person should be free of penalty and collection under one of the following circumstances: […]
(5) Overseas student give birth to the second child overseas or come back to Chinese mainland after pregnancy.[12]
[12] Population and Family Planning Commission of Fujian Province 2011, Notice of Population and Family Planning Commission of Fujian Province on Printing and Issuing Applicable Method for Discretion of Administrative Penalty and Social Support Fee Collection of Population and Family Planning in Fujian Province, 25 August, <CISD9559B11949>
A document on discretion in collection of social compensation fees in Xiamen city of Fujian province, Applicable Regulations for Discretion of Social Support Fee Collection of Xiamen City, indicates that the lower level of the range of penalties should be applied where a person is deemed to have cooperated with family planning authorities:
5.(2) The person actively cooperates with department of population and family planning to investigate after unwanted pregnancy, and gives birth to a child or children unlawfully as result of impossible remedial actions required by medical identification;[13]
[13] Population and Family Planning Commission of Xiamen City 2014, Notice of Population and Family Planning Commission of Xiamen City on Amending Applicable Regulations and implementation Standards for Discretion of Social Support Fee Collection, 4 June, Appendix 1, Article 5 <CIS2F827D92162>
Given the above information, particularly the most recent information as cited above, the Tribunal is satisfied that the primary applicant would be able to obtain a household registration (hukou) for her [child] before having to pay a social compensation fee.
Whilst the primary applicant would undoubtedly suffer some financial hardship in having to pay a social compensation fee, the Tribunal is not satisfied that any economic harm that she may suffer as a result of payment of such fees constitutes persecution or ‘serious harm’ (having regard to the examples provided in s.91R(2) of the Act). It does not constitute persecution as any penalties suffered are the result of law of general application applied on a non-discriminatory basis. There is no evidence to suggest that China’s family planning laws are discriminatory in their terms or intention.
Nor is the Tribunal satisfied that the financial penalties constitute ‘significant harm’ (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as there is no evidence to suggest that there is an intention by the Chinese authorities to inflict severe pain or suffering or extreme humiliation through the imposition of financial penalties for breach of China’s family planning laws.
Claim that the primary applicant will suffer social discrimination and stigma as a single mother and her child will suffer discrimination as the child of a single mother
The applicant claims that she will face social stigma and discrimination as a single mother in China and her [child] will also suffer discrimination as a child of a single parent.
Country information indicates that parents of children born out of wedlock, particularly young single mothers, may experience social stigmatisation.[14] The Tribunal accepts that both applicants will suffer a degree of societal stigma due to the fact that the applicant child was born out of wedlock. The applicant child may be vulnerable to bullying or teasing by [child’s] peers but if [child] has a registered hukou [child] will have access to health and education services. Similarly while social discrimination may lead to the primary applicant experiencing some shame and possibly difficulty finding employment, the Tribunal does not accept that the social stigma or social discrimination would not amount to either ‘serious’ harm or ‘significant’ harm.
[14] Ma, Q, Ono-Kihara, M, Cong, L, Xu, G, Pan, X, Zamani, S, Ravari, S M & Kihara, M 2008, ‘Unintended pregnancy and its risk factors among university students in eastern China’, Contraception, vol. 77, no. 2, p.111; Chang, A 2008, ‘China hooking up with love hotels, bars; Young Chinese are embracing their own version of the sexual revolution’, The Toronto Star, 5 March; Yardley, J 2007 ‘Today’s Face of Abortion in China Is a Young, Unmarried Woman’, The New York Times, 13 May < Accessed 23 February 2009; Liu, J 2007, ‘Mother load Being a single mother is tough – and on the mainland it’s even tougher as women battle official discrimination’, South China Morning Post, 12 March.
The Tribunal considers that the discrimination the applicants may encounter would not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Act. They would not cause 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. The Tribunal therefore concludes that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China , that there is a real risk they will suffer ‘serious harm’ .
Claim that the primary applicant fears assault from a family member
At the end of the first hearing the primary applicant told the Tribunal that she had a new claim. As a child she was assaulted by her [Relative 1] when they visited his home and she was left alone with him. She never disclosed the assault to her family members. She fears he would harm her if she returns as she is vulnerable as a single mother. He lives in the next village to her family home and he often visits her paternal grandfather’s house in her own village.
At the second Tribunal hearing, the Tribunal discuss this claim further with the primary applicant. She was clearly distressed when she described being sexually assaulted by her [Relative 1] from the time she was in private school when she was left at her [Relative 2]’s house, particularly during the school holidays. Her [Relative 2] would leave the home to play mah-jongg and when they were on their own her [Relative 1] would [details deleted]. He threatened her if she told anyone else in the family. This continued until she departed China in 2007. She was too frightened and ashamed to tell anyone in her family.
When the primary applicant returned to China to visit her grandmother in 2010, her [Relative 1] again tried to touch her inappropriately. He visited her home because her grandmother was ill. Using an excuse of checking that she was doing her homework he would enter her room and when they were alone in her room he would touch her. Other family members were in the house as her grandmother was ill so she told her mother she did not want her [Relative 1] to come into her room but was too frightened to say anything about what was actually happening.
The Tribunal accepts the primary applicant’s evidence that she was sexually assaulted by her [Relative 1] as a child until she departed Australia in 2007 at the age of [age].
The Tribunal put to her that she was now [age] with a child of her own. Her [Relative 1] lives in a different village from her family home. Both her grandparents had now passed away and there seemed to be no reason why she would be left alone with her [Relative 1]. The Tribunal asked her whether she thought she would still be subject to further harassment or assault from her [Relative 1] and, if so, whether she could protect herself from assault. The primary applicant said that she thought she would still be vulnerable as she would be suffering the stigma and shame of being a single mother and that as she has not told any other members of her family what occurred, she would be afraid to do so now.
The Tribunal put to the primary applicant that she could relocate to another area of China to avoid the harm she feared from her [Relative 1]. She said she could not go anywhere else because that is her home town.
The Tribunal put to the primary applicant that her [Relative 1]’s previous conduct was unlawful in China and that if she was concerned about future assaults she could seek protection from the relevant authorities. The primary applicant stated that she is afraid to tell her family what happened and was not confident that any authority would take any action as she is a single mother and would face social discrimination.
The Tribunal finds that the primary applicant’s claim related to fear of sexual assault is not a Convention related claim as her fear of being persecuted is not for reasons of race, religion, nationality, membership of a particular social group or political opinion. Furthermore, under Chinese law, sexual assault is a crime and the primary applicant would be able to seek the protection of the relevant authorities[15]. The Tribunal therefore considered this claim under the provisions for complementary protection. The Tribunal accepts that sexual assault falls within the definition of ‘significant harm’ in s.36(2)(aa) and s.5(1) of the Act.
[15] DFAT Country Report – Peoples Republic of China, 3 March 2015, para.3.38 “Rape is illegal and penalties range from three years in prison to a death sentence with a two-year reprieve and forced labour.”
The Tribunal recognises the difficulties that victims of sexual assault have in speaking out about what happened when they were children, and as discussed in paragraph 75 above, that single mothers are likely to experience some social stigma and shame. The Tribunal therefore accepts that it would be very difficult and probably unlikely that the primary applicant would report her [Relative 1] to the relevant authorities about what happened in the past.
Nevertheless, the primary applicant is now an adult with a child and her [Relative 1] lives in a different village from her family home. There is no reason the primary applicant would be staying in his household now she is no longer a child and there is little reason for him to be in her family home since her grandparents (his [relatives]) have died. The primary applicant has stated that if she returned to China she would be living in the same household as her father due to her economic situation. The primary applicant did not tell her parents about her [Relative 1]’s behaviour and she made no suggestion that her father would accept or condone such behaviour. Considering the primary applicant’s evidence cumulatively, the Tribunal considers the risk that the primary applicant would be sexually assaulted by her [Relative 1] to be remote.
Based on the above evidence and findings, the Tribunal therefore considers that there are no substantial grounds for believing that there is a real risk that the primary applicant will suffer significant harm if she returns to China now or in the foreseeable future.
Applicant child
The applicant child was not included in the primary applicant’s application as [child] had not been born at the time the application was lodged in November 2013. However, the Department added the applicant child as a family member of the primary applicant [in] September 2014 and made a decision to refuse to grant protection in respect of both applicants.
The primary applicant claimed her applicant child would suffer discrimination and harassment as the child of a single mother and would also be unable to access health and education services as she would be unable to obtain a hukou for [child] for the reasons described above.
The Tribunal is not satisfied that the primary applicant would not be able to obtain a hukou for her [child] for the reasons discussed above and that [child] would therefore have access to health and education services as any other citizen of China does.
As discussed in paragraph 77 above, the Tribunal does not consider that any social discrimination the applicant child may encounter would amount to ‘serious harm’ (having regard to the exhaustive definitions in s.91R(2) of the Act).or ‘significant harm’ (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).
CONCLUSION
Having assessed all of the applicants’ claims individually and cumulatively, the Tribunal is not satisfied on the basis of the evidence before it that there is a real chance of the primary applicant suffering from serious harm for any Convention related reason. Therefore the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the primary applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the primary applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons given above the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Having considered her claims individually and cumulatively, the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given in this decision the Tribunal is not satisfied that either of the applicants are persons in respect of whom Australia has protection obligations. Therefore it follows that the applicants are unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for protection visas, they cannot be granted the visas.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Belinda Mericourt
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

3 Department of Foreign Affairs and Trade (DFAT) 2015, China: Country Information Request CI150528103300795 - Issuing of Hukou to children of unwed mothers in China, 29 July, R1 <CXBD6A0DE10895>

[2016] AATA 3812

9 May 2016

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