1500474 (Refugee)

[2015] AATA 3803

1500474 (Refugee) [2015] AATA 3803 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500474

COUNTRY OF REFERENCE:                  China

MEMBER:Penelope Hunter

DATE:25 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2015 at 10:35am

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

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is an infant child of [the applicant’s mother] and [the applicant’s father], both of whom are citizens of China. The applicant was born in Sydney [in] 2012 and is three years of age.

3. The applicant’s mother lodged a Protection visa application on the applicant’s behalf with the Department of Immigration (the Department) [in] April 2014. The applicant’s parents were previously refused Protection visas and the decision of the delegate was affirmed by the Refugee Review Tribunal on 30 January 2013. They are therefore barred under s.48A of the Act from making further applications for protection whilst in Australia.

4. The applicant claims protection on the basis that her mother and maternal grandparents were of the Mentuhui Church and that she was a disciple of the church of Mentuhui. The delegate refused to grant the visa [in] December 2014 and notified the applicant.

5. The applicant and the applicant’s mother appeared at a hearing before the Tribunal on 10 September 2015, and the applicant’s mother on 18 November 2015. The applicant’s mother gave evidence and presented arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

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

    Departmental File and Evidence

11. The Tribunal had before it a copy of the Department and Refugee Review Tribunal files in relation to the previous claim for a Protection visa by the applicant’s parents. The applicant’s mother first arrived in Australia on a [temporary] visa [in] June 2007. Her father also arrived on a [temporary] visa on 14 March 2008. [In] May 2012, the applicant’s mother lodged a protection visa application for herself and the applicant’s father. As the applicant was not born at the time of the application she was not considered a party to that application.

12. The applicant’s mother had claimed in her application that she would suffer persecution due to China’s family planning policies, and that she and the applicant’s father would not be able to register the applicant or their marriage. The delegate refused their application [in] July 2012 and the decision was affirmed by the Refugee Review Tribunal on 30 January 2013. The Refugee Review Tribunal accepted that the applicant’s parents had breached China’s family planning laws, but found that these laws would not be applied to the applicant’s parents in a discriminatory way, that they had the capacity to pay any social compensation fee and was not satisfied that they would suffer serious harm or significant harm.

13. In the application form completed on behalf of the applicant it is set out that she is a citizen of China, does not hold any other citizenship, or have a right to enter or reside in, any other country. A birth certificate for the applicant was provided to the Department and she holds a Chinese passport that was issued [in] 2013 in Sydney, Australia.

14. The applicant’s parents married [in] 2013, and a copy of the marriage certificate was filed with the Department.

15. In support of the applicant’s claim for a Protection visa a statement was provided by her mother to the Department in which the applicant’s claims were detailed as follows;

    ·In the Refugee Review Tribunal hearing  the applicant’s mother made it clear that she was a committed Christian but she was not asked details of her religion. Her  mother was born into a Christian family and her maternal grandparents attended the house church of the Mentuhui Church. Her mother was baptised at the age of [age] and she kept attending the house church of Mentuhui Church before she came to Australia.

    ·As an activist of the Church her maternal grandfather was intimidated and persecuted by the local government for attending the church and for having more children that the birth control policy allowed. Under the dual persecution by the government, her paternal grandfather found that he could not bear all the persecution and oppression and he had no choice but to flee to [another country], where he was granted the humanitarian protection by [that country’s] government in 2010.

    ·In 2014 [a] fellow adherent of the applicant’s grandfather went to China to help organise a house church. He was preaching at a gathering when he was caught.

    ·After she arrived in Australia the applicant’s mother tried in vain to find a Mentuhui Church, instead she had to rely on the Internet to connect with the house church in China. The applicant’s parents are now endeavouring to preach gospel. They pray to those who don’t believe in God and tried to save as many souls as possible. The applicant’s mother has initiated many of her relatives and friends into the church.

    ·The applicant’s mother has found a church in [a suburb] where she is received well without bias. She attends gatherings there and wishes to stay in that home in pursuit of her faith. Her parents do not believe their security will be assured if they go back to China. They have decided to stay in the Australian church, where they can enjoy freedom of faith.

    ·The applicant is also a disciple of the Church of Mentuhui. Her fate will be quite different if she returns to China. What she has to face is only punishment and hazard caused by her parent’s pursuit of their faith.

16. At an interview [in] December 2014, the applicant’s mother gave evidence on behalf of the applicant. The Tribunal has had regard to the delegate’s decision record provided to the Tribunal by the applicant. In addition, the Tribunal has listened to the audio recording of the interview and is satisfied that that the summary of evidence as set out by the delegate is accurate.  The delegate found that the claims made on behalf of the applicant were not credible and that applicant did not have a genuine fear of persecution or significant harm in China. Where relevant aspects of that decision are discussed below.

    Tribunal File and Evidence

17. An application for review was lodged with the Tribunal on behalf of the applicant on 13 January 2015. Prior to the hearing a birth certificate for the applicant’s [sister] born [in] 2015, was lodged with the Tribunal. As [the applicant’s sister] was born after the applicant’s Protection visa application was decided by the Department, there is no valid application for review in respect of the applicant’s younger sister before the Tribunal.

18. The applicant’s mother told the Tribunal that not all of the claims contained in the statement filed with the applicant’s application were correct. The applicant’s mother stated that neither she nor her parents were members of the Mentuhui religion. She told the Tribunal that an agent had typed this statement and it was just a story that the agent wrote. The applicant’s mother confirmed that she had read the statement and understood the contents before it was filed with the Department. Although she knew the claims were not true the applicant’s mother told the Tribunal that she adopted the statement on behalf of the applicant because the agent had advised her that it would have to be done in that way in order for the applicant to qualify for the Protection visa requirements.

19. The applicant’s mother claimed she was actually Christian and her parents were Christian. Her mother had attended a registered church in China. The applicant’s mother claimed that she rarely attended church with her mother as a child and she did not report any incidents of past harm. Currently the applicant and the applicant’s mother attend [a] church and have done so since 2013. It was claimed that the applicant was Christian.

20. When asked what harm the applicant feared due to Christianity, the applicant’s mother told the Tribunal that in China they were now getting rid of the crosses and that crosses were not allowed to be put outside of buildings. She claimed that the applicant would continue to attend church if she returned to China and she hope that the applicant could grow up in the church. The applicant’s mother suggested that church leaders might have a fight in the future for power in China. Additionally, she spoke of people in general in China being afraid to help one another. When asked how this related to the applicant’s claims for protection she claimed that children in China do not become good people.

21. The applicant’s mother claimed that the applicant should remain in Australia as it was safer than China and she would have more security. The applicant’s mother stated that she was not married to the applicant’s father, although they had a certificate and they did not have savings. If the applicant was required to go back to China, the applicant’s mother claimed that the applicant’s father would not go back and he would stay in Australia and continue to work. She claimed that it was better for the applicant if the family stayed together.

22. When asked to clarify the concerns she had for the applicant due to her marriage, the applicant’s mother claimed that in China she would have to have a wedding ceremony to get married again. The applicant’s mother acknowledged that she was legally married in Australia. It was put to her that she would be able to register her marriage in China. The applicant’s mother claimed that her mother-in-law had advised her otherwise.

23. The applicant’s father would not return to China because he was the eldest son and his parents had sent him to Australia to make money. If he had to go back he would not have enough money and he would be forced to rely on his family. The applicant’s mother claimed that people would think less of the applicant if her father was forced to return without money. It was claimed that no one in China wishes to lose face. She claimed that the applicant would experience discrimination because her parents had stayed overseas for so many years but were not able to bring back any money. When asked why the applicant would face serious harm if she returned to China, the applicant’s mother said the main reason was because they have no money and they have been overseas for a long time.

24. The applicant’s mother also spoke in general to the Tribunal about other concerns relating to her, rather than the applicant. These related to difficulties in her marriage, concerns about the division of responsibilities in her marriage and problems arising from previous relationships. She expressed initial concern that the applicant was not the daughter of her husband, however she confirmed this had been allayed with the birth of her second child and the confirmation that she had the same blood type as the applicant. She also spoke about the pressure on her to give birth to sons not daughters and that daughters were not appreciated in China. She believed that the applicant would be under similar pressure as a girl if she grew up in China and that men could do what they wanted, but women did not have similar freedom.

25. The applicant’s mother told the Tribunal that she was under pressure from her mother-in-law to send the applicant back to China so she could work. She had concerns relating to the care and attention her mother-in-law would be able to provide to the applicant as her mother-in-law worked in business, was busy, and had not personally raised her own [children].

26. The applicant’s mother told the Tribunal she wanted to give the applicant a better life. If she returned to China, without education levels the applicant’s mother would have to work 7 days a week in a menial job to make money. In Australia the applicant has a stable environment to raise the applicant.

27. The applicant’s mother also claimed that China was not secure. She spoke generally about crime in China that there were a lot of children smugglers, bad people who steal things or people that buy and sell human organs.

ASSESSMENT OF CLAIMS AND EVIDENCE

1. The Tribunal is satisfied that the applicant is a citizen China, and has no right of residence in any other country. Accordingly, her claims are to be assessed against China.

2. The Tribunal does not accept any of the claims of harm feared by the applicant and for this reason has concluded that the decision under review should be affirmed. The Tribunal considered that the claims made on behalf of the applicant were either not credible or were not substantiated on the evidence as is discussed below.

3. The applicant’s mother admitted that she knowingly gave false information in the statement that was provided with the applicant’s claims. Although she blames this on an agent, no agent was disclosed in the documents before the Department or the Tribunal. The applicant’s mother claimed that the agent had told her not to disclose this. The applicant’s mother was reluctant to disclose the name of the agent, although she claimed to have paid them for their services. In the preparation of her previous application for a protection visa the applicant’s mother disclosed that she had the assistance of a migration agent. The Tribunal does not accept that a migration agent provided advice to the applicant that it was appropriate to provide false information in support of the application. Further the information in the statement was tailored to the personal circumstances of the applicant, her mother’s previous application, the circumstances of her grandparents and current attendance at [a] Church. This demonstrates that the applicant’s mother had input into the contents of the statement and it was not something just blindly adopted without actual knowledge of what was contained within. This reflects poorly on the credibility of the applicant’s mother and the reliability of her evidence.

4. Furthermore the number of claims raised on behalf of the applicant evolved over the course of the hearing in addition to those mentioned in the written application. The applicant’s mother was asked repeatedly about any specific fears of harm there was for the applicant if she was returned to China, but in response she made a number of general claims and failed to identify any threat of harm directed specifically at the applicant. Overall the Tribunal considered that the applicant’s claim was manufactured for the purposes of enabling the family to remain in Australia so the applicant’s father could continue to work.

   Mentuhui Church

5. All claims by the applicant as far as they related to the Mentuhui religion were withdrawn at the hearing. The evidence to the Tribunal was that this was just a story and known to be false. Therefore the Tribunal does not accept that the applicant, her mother and her maternal grandparents were, or have ever been, members of the Mentuhui Church. Consequently the Tribunal does not accept that the applicant’s paternal grandfather was an activist of the Mentuhui Church and suffered persecution in China for this reason. The Tribunal does not accept that the applicant’s mother has connected with the Mentuhui House Church via the internet from Australia, that her parents have preached the gospel or converted others to the religion.  The Tribunal finds that the applicant will not suffer any harm for this reason if returned to China.

   Christianity

6. The applicant’s mother claimed that the applicant was a Christian. Despite the concerns about the credibility of the evidence of the applicant’s mother the Tribunal has given the applicant the benefit of the doubt and accepted this claim. It is accepted that the applicant’s mother and maternal grandmother had attended a registered church in China. The Tribunal also accepts that the applicant has been attending [a] Church with her mother since 2013. The Tribunal also accepts that the applicant may attend a Christian church if she returns to China. On the basis of the evidence of the applicant’s mother the Tribunal finds that this would be a registered church.

7. However the Tribunal is not satisfied that the applicant is at risk of harm for this reason. Article 36 of China’s Constitution of China’s constitution specifically protects religious freedom[1]. The Regulations on Religious Affairs set out the conditions under which Christian churches and leaders may operate within China. The applicant attends a Protestant church in Australia and the Tribunal has found on the evidence that the applicant would attend a registered church if she was to return to China. Protestantism is a religious practice approved by the Chinese government. As a registered religious organisation the Protestant church is permitted to possess property, publish literature, train and approve clergy, collect donations and conduct charitable activities. There are also state sanctioned places of worship and religious schools. [2]Protestants in China are permitted to worship at officially registered Protestant churches and the country information indicates that many do so unhindered by the government. Further, the religious policy in the Fujian Province, the home province of the applicant’s parents, is described as ‘relatively liberal’. [3]The applicant’s mother did not identify any specific harm directed at the applicant if she attended a Christian church in China. A general claim was raised about a future struggle for power amongst church leaders in China, yet there was no specific incidences provided to the Tribunal. Information was presented about general concerns for Chinese society and the way children are raised in China. The applicant’s mother did not present any evidence of any past harm for the applicant’s family due to their Christianity. Consistent with the experience of the applicant’s mother and that of her maternal grandmother the DFAT Thematic Report of 3 March 2015, also assesses that broadly speaking “religion in China can be practised within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Government”[4]. The applicant is an infant she has no religious profile and there is no evidence that her family has an adverse religious profile in China.

   [1] Article 36 states that the citizens of China enjoy freedom of religious belief and that no state organ, public organisation of individual may compel citizens to believe in, or not to believe in, any religion.

   [2] Australia: Department of Foreign Affairs and Trade 2015, Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 at 2.8

   [3] Lambert, T. 2006, China’s Christian Millions, Monarch Books, Oxford,

   [4] Australia: Department of Foreign Affairs and Trade 2015, Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 at 2.11

1. The Tribunal is not satisfied on the evidence that the applicant faces a real chance of any harm due to her parent’s religious practice, or that there is a real chance that her parents will be harmed such that the applicant will be denied their care. Tribunal is also not satisfied that if the applicant follows her mother in the practice of Christianity she would be unable to pursue her faith or suffer any harm. Therefore the Tribunal finds that there is not a real chance that the applicant will suffer any harm for reasons of her Christian religion if she was to return to China now or in the reasonably foreseeable future.

   Marriage

2. In response to questioning by the Tribunal the applicant’s mother claimed there would be discrimination due to her concerns about registration of her marriage. When asked how this discrimination would affect the applicant, her answer was non-responsive and she linked it to people without money suffering degrading treatment from other people. Country information confirms that overseas Chinese are also able to register their marriage after returning to China. According to Wang[5], Chinese legal documents divide foreign marriages into categories depending on residence or citizenship status (marriage between a PRC citizen and citizen of a foreign country; marriage between a PRC citizen and citizen of Macao, Taiwan or Hong Kong; and marriage when one or both PRC citizens reside abroad). ^[6] The 1990 Law of the People’s Republic of China on the Protection of Rights and Interests of Returned Overseas Chinese and Family Members of Overseas Chinese states that ‘overseas Chinese’ (huaqiao) are defined as ‘a Chinese citizen who settles down abroad’ and a ‘returned overseas Chinese’ refers to ‘overseas Chinese who has returned and settled down in the homeland.’[7] Article 3 of the law states:

   Returned overseas Chinese and relatives of overseas Chinese enjoy the rights of a citizen provided by the Constitution and laws, and perform the duties of a citizen provided by the Constitution and laws, and shall not be discriminated against by any organization or individual person.[8] 

   [5] Wang Pan is a post graduate researcher in the International Studies Program University of Technology Sydney.

   [6] Wang. P 2015,  Love and Marriage in Globalizing China, London: Routledge. Google Books, p.3,4 < > Accessed 1 October 2015

   [7] Foreign Law: Law of the People's Republic of China on the Protection of the Rights and Interests of the Returned Overseas Chinese and the Relatives of Overseas Chinese Who Remain in the Homeland 1990 , Article 2, 7 September , amended on 31 October  2000, Overseas Chinese Affairs Office of Shanghai Municipal Government, < > Accessed 7 October 2015 <CIS1D85456308 >

   [8] Foreign Law: Law of the People's Republic of China on the Protection of the Rights and Interests of the Returned Overseas Chinese and the Relatives of Overseas Chinese Who Remain in the Homeland 1990 , Article 3, 7 September , amended on 31 October  2000, Overseas Chinese Affairs Office of Shanghai Municipal Government, < > Accessed 7 October 2015 <CISEC96CF13492>

3. The PRC’s Marriage Registration Regulations) specify how overseas Chinese can register their marriage in China.[9] Wang reports that the 2003 Regulations have simplified registration procedures for Overseas Chinese applicants and that, currently, ‘Overseas Chinese applicants must provide a valid passport, and documentation proving that they are eligible to marry and are not a close blood relative of their intended spouse, issued by a notary office in their country of residence and certified by the consulate of the PRC in that country.’ ^[10]

   [9]Wang. P 2015,  Love and Marriage in Globalizing China, London: Routledge. Google Books, p.39 <

   [10] As above, P.40

4. As to the costs of registration, The Beijing Government’s website states that the charge for marriage registration certificate is ‘9 Yuan per pair’.[11]Shanghai’s Civil Affairs Bureau website prescribes a standard of ‘RMB5 per pair for the marriage certificate’. ^[12]

   [11] ‘The Registration of Marriages between Beijing Residents and Overseas Chinese, Chinese Nationals Working Abroad’ 2015, Official Website of the Beijing Government,  < > Accessed 7 October 2015 <CISEC96CF13496>

   [12] ‘Marriage (Remarriage) registration by Shanghai residents with foreigners, overseas Chinese and residents from Hong Kong, Macau or Taiwan’ 2009, Shanghai Civil Affairs Bureau, 25 December < Accessed 7 October 2015 <CISE1310071672>

5. The Fujian Provincial Government’s website provides the following information on cost of authentication of documents relating to marriage for United States Applicants:

   Fees and processing time

   The authentication fee of $20 is payable by Money Order, Cashier??s [sic] Check, Company Check or Cash.

   Personal checks are not acceptable. Please make the check payable to Chinese Embassy or Chinese Consulate.

   For mail service, an additional 5 dollars PER PACKAGE for handling will be charged. Make sure you readMail Application Instructions.

   The regular processing time is 4 working days. For express service, additional fees of $30 for 1 working day processing, or $20 for 2-3 working days processing will be charged.[13]

   [13] ‘Fujian Provincial People's Government; marriage registration in China’ 2012, Fujian Provincial People's Government, 6 January < Accessed 7 October 2015 <CIS961F9402334>

6. The applicant’s mother offered no evidence to dispute this information. She suggested that it may be difficult for people such as her and her husband who came from the country to register their marriage, however there is an absence of any evidence to support this contention. Although the applicant’s mother discussed financial concerns with the Tribunal, she also told the Tribunal that the applicant’s father was working as [occupation], approximately 6 days a week, earning approximately $[amount] per day. The applicant’s paternal grandmother owns a business in China. It was put to the applicant’s mother that the fee for registration is nominal. The applicant’s mother did not suggest that there would be any difficulty with the payment of the fee, and the Tribunal finds, that the applicant’s parents would be able to afford the fee to register their marriage in China. The Tribunal finds that applicant would therefore not face any harm for this reason and that any fear claimed on this basis is not well-founded.

   Family Planning

7. The statement in support of the applicant’s claims refers to the applicant mother’s previous claims in relation to China’s family planning. The Tribunal accepts that the applicant was born prior to her parent’s marriage. No specific claims in relation to the application of China’s family planning policies were advanced at the Tribunal hearing or before the delegate on behalf of the applicant. The applicant’s mother was asked whether the applicant was making any claims under China’s family planning policies and she responded that in each instance she had made claims as advised by an agent. The Tribunal put to the applicant’s mother that China’s family planning laws were laws of general application and that any compensation fee payable for the registration of the applicant would not be applied in a discriminatory way. In fact the evidence was that the applicant’s mother was under pressure to return the applicant to China so that the applicant’s mother could work in Australia. The applicant’s family has access to financial resources through her father’s current employment and the income of her grandparents. As was put to the applicant, the Tribunal is satisfied that her family have the resources to pay any social compensation fee to allow the applicant to be registered and obtain a hukou, whereby she will have access to social services and education. Accordingly, although the applicant has not raised any such claims the Tribunal assesses that any fear of harm on this basis is not well-founded.

   Family Separation

8. The applicant’s mother claimed that the family will be separated if the applicant’s claim is refused and she is forced to return to China. Although the applicant’s mother did not establish a Convention nexus for this claim, the Tribunal has considered whether the applicant will be denied the care of her parents and whether this puts the applicant at risk of harm. The applicant’s father remains in Australia on a bridging visa pending determination of the applicant’s claim. His [temporary] visa has expired, he is barred under s.48A of the Act from making a further application for protection whilst in Australia in his own right and there is no evidence before the Tribunal that he has any claims to advance for protection in his own right. The Tribunal is not aware of any other legal basis on which the applicant’s father can apply to remain in Australia. The submission in relation to the concerns of the applicant’s father about returning to China relate only to the expectation that he will earn money in Australia. If the application is refused, the applicant’s parents will also be required to return to China. Additionally the applicant has grandparents and extended family that are available to provide care for her in China. The Tribunal is not satisfied that the applicant will experience any harm for this reason and any fear claimed by the applicant is not well-founded.

   Paternity

9. The applicant’s mother raised the doubt about whether the applicant’s father was the biological father of the applicant due to the fact that she had multiple partners approximate to the time of the applicant’s conception. The Tribunal has therefore considered any risk to the applicant arising from this and finds that the claim is not substantiated. The applicant’s mother confirmed that her fears had been allayed once her second child was born with the same blood group. There is no DNA testing to demonstrate that the applicant is not the child of the applicant’s father before the Tribunal. The applicant’s mother did not demonstrate to the Tribunal that the applicant’s father did not accept the applicant as his daughter, nor that his family had any concerns about his paternity. The applicant’s father is recorded on the applicant’s birth certificate as her father. The Tribunal is not satisfied that the applicant would experience harm for this reason.

   Financial Concerns

10. The applicant’s mother has claimed that the applicant’s parents would experience financial difficulty providing for the applicant if they were forced to return to China. This she had stated to be one of the main reasons for the claim for Protection. The Tribunal does not consider that because of this the applicant will experience harm amounting to persecution, or that her parents would experience significant economic hardship or the denial of a capacity to earn a livelihood that would threaten their ability to subsist and therefore support the applicant. The applicant’s father has been able to find work to support the applicant and the rest of the family in Australia; he has shown the resources to provide for his family in a situation where he is without family support, facing a language barrier and different culture. The applicant’s mother also spoke of the expectation that she would go to work if she returned to China. It is clear from the evidence of the applicant’s mother that the applicant’s grandparents would provide support and if necessary accommodation for the applicant and her family if they returned to China. The applicant’s mother told the Tribunal that there were additional relatives, such as [an] aunt that was available to provide care for the applicant.

11. It may well be that there is an economic preference to remain in Australia, and the applicant’s mother clearly articulated that there was a strong family expectation of this, however the Tribunal is not satisfied that this amounts to a fear of harm for a convention reason. The evidence of the applicant’s mother about this pressure further support the conclusion of the Tribunal that the applicant’s claims have been manufactured to allow the family to remain in Australia. However the Tribunal has considered this motivation in the context of the application for protection by the applicant. It is accepted that the applicant and her family may face negative comments, friends and family may look down upon them, and others think less of them if they are required to return to China without financial savings. However the Tribunal does not consider that this amounts to persecution or serious harm for the applicant. She will still be cared for by family, have access to basic necessities and she will not be denied the capacity to subsist.  The Tribunal further concludes that any fear claimed by the applicant for this reason is also not well founded.

    Societal Concerns

12. The Tribunal has also considered the generalised claims of life being hard for women in China, crime, abduction of children and theft in China raised by the applicant’s mother on behalf of the applicant. The applicant’s mother provided no evidence to substantiate the claim that this was a specific risk to the applicant. In relation to the claims regarding difficulty for women, the applicant’s mother confirmed that this was more in relation to her circumstances and the pressure on her to give birth to a son, rather than a risk the applicant was facing. There was an absence of any evidence as to a specific threat that the applicant would encounter if returned to China due to her youth or gender. While there may be instances of societal discrimination and in general women may have less income than men, the Tribunal is not satisfied, and it was not contended on behalf of the applicant, that this amounts to serious harm. There is also no evidence before the Tribunal that demonstrates that the Chinese authorities, any agent, organisation or individual in China would systematically or discriminatively target the applicant as she is a child or on the basis of her gender. Accordingly the Tribunal does not accept that there is a real chance that the applicant would face harm now or in the reasonably foreseeable future due to her youth, gender or crime in China.

13. Having assessed the totality of the applicant’s claims, on the evidence the Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future, for reasons of her religion, her parent’s marriage, her paternity, family planning laws, family separation, her paternity, financial reasons, youth, gender or societal concerns or any other Convention reason.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk she will suffer significant harm?

14. The Tribunal has also considered whether the applicant meets the complementary protection provisions as set out in the Act.

15. The Tribunal has accepted that the applicant and her family may experience some negative comments, friends may look down upon them and others may think less of the family if they return to China without financial resources. However the Tribunal is not satisfied that due to this slight social disapproval the applicant will suffer significant harm.

16. In relation to the applicant’s other claims, on the basis of the above findings of fact rejecting the entirety of the her claims in relation to religion, family planning, her parent’s marriage, her paternity, family separation, youth, gender, and societal issues, the Tribunal is not satisfied there is a real risk that the applicant will suffer significant harm for any of these reasons.

17. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk she will suffer the arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or degrading treatment or punishment.

    Conclusion

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

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Penelope Hunter
    Member