1503666 (Refugee)

[2017] AATA 198

1503666 (Refugee) [2017] AATA 198 (2 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503666

COUNTRY OF REFERENCE:                  China

MEMBER:Rachel Homan

DATE:2 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 02 February 2017 at 4:06pm

CATCHWORDS

Refugee – Protection visa – Religion – Christianity – Rarely attends church – Credibility – Resiled from claims – Unwed mother – Social compensation fee – No significant harm –

Breach of family planning laws – Marriage option considered

LEGISLATION

Migration Act 1958, ss 36(2)(a), (aa), (b), (c), 48A, 65

Migration Regulations 1994, Schedule 2

CASES

SZGIZ v MIAC (2013) 212 FCR 235

AMA15 v MIBP [2015] FCA 1424

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who the Tribunal accepts are citizens of China, applied for the visas [in] April 2014 and the delegate refused to grant the visas [in] February 2015.

3. The first named applicant previously made an application for a protection visa on the basis that she was a refugee [in] March 2011. The application was refused [in] April 2011 and the first applicant sought review of that decision. The Refugee Review Tribunal affirmed the decision on 25 August 2011.

4. The second named applicant previously made an application for a protection visa making claims against the refugee and complementary protection criteria [in] January 2013. That application was refused [in] July 2013 and the Refugee Review Tribunal affirmed the decision on 10 March 2014.

5. The issue in this review is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the first applicant will suffer significant harm.

6. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.

9. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

10. Having regard to the nature of the protection visa applications previously made by the applicants and applying these authorities, the Tribunal has considered the first applicant’s claims only in relation to s.36(2)(aa). As the second applicant has previously had an application considered against both s.36(2)(a) and s.36(2)(aa), the Tribunal is confined to considering whether he meets the family unit criteria.

11. A person may meet the complementary protection criterion for the visa in s.36(2)(aa) 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.

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

    Visa application

13. According to information provided in the visa application forms, the first and second applicants are de facto partners born in Fujian, China. The visa application initially included the applicants’ [number] children, born in Australia in [years]. respectively. The children’s visa applications were, however, found to be invalid by the Department on the basis that they were included as members of the family unit in the protection visa application made by the second applicant [in] January 2013. As such, their applications were prevented by s.48A of the Migration Act.

14. Only the first named applicant, hereafter referred to as “the applicant”, submitted a Part B application form making claims for protection.

    Immigration history

15. The delegate’s decision sets out the applicant’s immigration history. The applicant arrived in Australia as the holder of a [temporary] visa in May 2007. The applicant was permitted to remain in Australia until [date] March 2009. [In] May 2009, the applicant voluntarily approached the Department as an unlawful non-citizen and was granted a Bridging visa E to enable her to depart. [In] May 2009, the applicant lodged a further application for a [temporary] visa which was refused. The applicant’s bridging visa ceased [in] May 2009 and she became an unlawful non-citizen once again. The applicant remained in the community until lodging her first protection visa application [in] March 2011. The applicant has held a series of bridging visas since that time.

    Claims for protection

16. The applicant claimed to fear returning to China as she would be unable to pay a substantial fine in respect of a breach of China’s family planning regulations. The applicant also expressed a fear that she would be unable to register her children if she were unable to pay the fine.

17. The applicant also claimed that her father had been in Australia for more than 15 years and his hukou had been deregistered. The family’s farm land had been divided and shared amongst the villagers. The applicant claimed that if removed to China she would assert her rights to her father’s property and the villagers would try to prevent her from doing this. The villagers would use the fact of her contravention of the family planning regulations against her. The applicant claimed that the authorities would not protect her upon return.

    Departmental interview

18. The applicant was interviewed by an officer of the Department of Immigration [in] January 2015. The Tribunal has listened to an electronic recording of that interview.

19. The applicant gave evidence that her mother and [number] siblings continued to reside in Fujian, China.

20. The applicant stated that she arrived in Australia in 2007 in order to study English and continued to study for quite a period of time. The applicant ceased studying because her English language skills were insufficient to commence a [certain] course she had been intending to undertake. The applicant met her de facto partner, the second applicant, around the same time.

21. Asked why she did not return to China when she finished studying, the applicant stated that she felt she would not be used to China anymore and also because she felt there may be some persecution. Asked what type of persecution she feared at the time, the applicant stated religious persecution. The applicant stated that she was a Christian and that her family also believed in Jesus Christ.

22. The delegate noted that the applicant’s previous protection visa application had been based on her religion and asked whether the applicant continued to fear returning to China for reasons of her religion. The applicant agreed. Asked what her fears in respect of her religion were, the applicant stated that she had been asked about this in the past. Asked again about the nature of her fears, the applicant responded that she did not know what would happen to her if she returned. Asked about the Christian denomination she followed, the applicant stated that she was an underground Christian. Asked what church she attended in Australia, the applicant stated that she had previously attended a church in [suburb] but it had moved to [another suburb] and said she did not know the name of the church. The applicant stated that she now rarely attends church because her children play up. The applicant said she last attended church at Christmas time.

23. The applicant was asked to talk about her Christian beliefs. The applicant responded that she would tell people about Jesus Christ’s resurrection. The applicant said she would tell people about what they should eat, what they should do and that they should pray. The applicant said she had no evidence of her attendance at church in Australia although she had been attending for two or three years. The delegate put to the applicant that he was having difficulty accepting that the applicant held genuine Christian beliefs based on her evidence and asked whether there was anything further she wished to say. The applicant responded no.

24. The delegate noted that the applicant had previously claimed that her parents were detained in 2004. The applicant responded that this happened a long time ago and she didn’t remember anything. The applicant said that her previous application had been refused. The applicant was asked whether there was anything else she wished to say in respect of her fear of persecution for reasons of her Christianity. The applicant said no.

25. The applicant was asked about the claims made in the present application. The applicant said she was afraid of persecution and afraid that her children’s hukou would not be registered. Asked what persecution she feared, the applicant stated that she was afraid of people knocking on her door in the middle of the night trying to find out whether she was participating in church activities. Asked if she feared anything else, the applicant said there was nothing else at the moment.

26. The applicant was asked about the claims made in her current application. The applicant said she did not know. Asked what she thought might happen to her if she returned to China, the applicant said she did not know.

    Delegate’s decision

27. The delegate’s decision records that the applicant claimed in her first protection visa application that her [relatives] were Christian missionaries. The applicant and her siblings began to follow God when they were very young. The applicant, under the influence of her parents, went to church and liked it very much. The church was not, however, registered or recognised by the Chinese government. They had to gather in secret and moved their activities frequently. When the applicant was [age], she attended a gathering at her [relative]’s house in October 2004. The police came and detained them, taking all the bible materials. The applicant was taken to the local police station for interrogation. The applicant was frightened and after being brainwashed, the applicant and her siblings were released but the applicant’s [relatives] were sentenced to [number] months labour and her parents detained for [number] days. The applicant’s parents arranged for her to study in Australia hoping that she could freely believe in God and avoid persecution.

28. In January 2009, the applicant tried to call her family in China but the call was not answered. The applicant called [another relative]’s house and was told that her parents and [relatives] were arrested for their missionary activities. Later, the applicant’s [relatives] were released but her parents were not. The applicant wanted to return to China but her [relative] advised her not to as her house had been searched and materials that she had sent back to China had been confiscated.

29. The delegate’s decision records that the applicant had given evidence at the RRT hearing in August 2011 that her father lived in China and drove vehicles for a [certain] business. The applicant had given evidence that she did not have any family in Australia. The applicant had given evidence that her parents had been arrested on two or three occasions, the last occasion being in 2009.

30. The delegate noted that the applicant’s father in fact arrived in Australia [in] April 1998 and had not returned to China since. The applicant’s father had arrived on a [country] passport under a different name. The applicant, her partner and children had previously been added as dependents in a protection visa application lodged by him in October 2013 but the applicant had later withdrawn and her family members’ applications were found to be invalid.

31. The delegate found the applicant’s oral evidence with respect to her new claims to be vague and deliberately confusing. The delegate formed the view that the applicant had no knowledge of what was contained in her written application. The delegate noted that the applicant had not raised during the interview any fear of being persecuted due to being unmarried, having not yet reached the legal age for marriage before having children and being unable to pay a fine for breaching family planning regulations. The delegate concluded that the applicant was not a witness of truth and did not find her written or verbal claims to be credible.

32. The delegate did not accept that the applicant was a member of an underground Christian church in China or that she had been practising Christian faith in Australia. The delegate did not accept that the applicant was a Christian of any denomination. The delegate did not accept that the applicant feared persecution for having breached China’s family planning policies or that her [number] children would be denied household registration. The delegate did not accept that the applicant’s father’s land had been confiscated or his hukou cancelled. The delegate did not accept that the applicant would suffer harm in China for any reason.

    Review application

33. At the time they applied for review, the applicants submitted to the Tribunal a copy of the delegate’s decision record. No additional evidence was provided prior to the Tribunal hearing.

    Tribunal hearing – 11 January 2017

34. The applicants appeared before the Tribunal on 11 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

35. The applicants were represented in relation to the review by a registered migration agent, who did not attend the hearing.

36. The applicant confirmed at the hearing that she and the second applicant were not married. Asked if there was any reason why they had not got married, the applicant told the Tribunal that they had no money to get married. Asked if there was any other reason apart from money, the applicant stated she had never thought much about it.

37. The applicant told the Tribunal that she and her family were living in a friend’s house and had few living expenses. The applicant denied that she or the second applicant were working and stated that neither of them had worked for a long time as they did not have permission to work. The applicant stated that her father was living in Australia and also not working.

38. The applicant told the Tribunal that her mother, [and siblings] continued to reside in China, in a two-storey house being the same home that the applicant had resided in before coming to Australia. The applicant told the Tribunal that her husband’s family all live in China, also in Fujian province. The applicant stated that she and her husband rarely received financial assistance from their families in China as they are not rich. The applicant stated that neither her mother nor the second applicant’s parents were working although her siblings worked in [various workplaces]. The second applicant’s [sibling] sells things on [the internet].

39. The Tribunal asked the applicant why she had applied for a protection visa to remain in Australia. The applicant told the Tribunal that previously she had applied for a protection visa because of her religious beliefs but this was not the case now. The applicant explained that she was now concerned about the welfare of her children were born in Australia. The Tribunal asked the applicant whether she had any fears relating to religion now. The applicant stated that she still had a fear but not as much as before as it had been a long time since she had been in China. The Tribunal asked the applicant if she could elaborate on the nature of her current fears. The applicant stated that she feared she may be harmed if she were to attend an underground Christian gathering and that people could come to her house at night.

40. The applicant told the Tribunal that she was a Christian but said she seldom attended church because of her children. The applicant told the Tribunal that neither she nor her husband had attended church for a long time. The Tribunal asked the applicant why she would attend an underground Christian gathering in China given that she is not regularly attending church in Australia and has not done so for a long time. The applicant told the Tribunal that her mother attended an underground church and her husband’s family were also Christians. The Tribunal put to the applicant that she and her husband were adults and explained that it was having difficulty accepting that they would attend underground Christian churches in China given that they were not attending church in Australia where they had a significantly greater degree of religious freedom. The applicant indicated that she had no response.

41. The Tribunal asked the applicant whether she had experienced harm in China because of her religion in the past. The applicant responded that she had but it was a long time ago. The Tribunal asked the applicant whether she could say what had happened. The applicant said that some family members were arrested. The Tribunal asked the applicant which family members. The applicant responded that it was her [relatives] and parents. The Tribunal asked the applicant whether she had ever been arrested and the applicant responded no.

42. The Tribunal put to the applicants that it had some concern over the credibility of the applicant’s claims having regard to the information set out in the delegate’s decision record that she had previously claimed that in October 2004 she and other members of her family were arrested whilst attending a Christian gathering at her [relative]’s home. The applicant and her siblings were released after being brainwashed but her parents were detained for [number] days and her [relatives] sentenced to [number] months labour. The Tribunal also put to the applicants that the delegate’s decision record indicated that although the applicant had claimed that her father had been arrested in connection with his religious practice in China, he had in fact been in Australia since 1998. The applicant responded that she had difficulty remembering such events as they happened long time ago. The Tribunal put to the applicant that it seemed that being arrested was something she would remember. The applicant responded that she was feeling a bit nervous.

1. The second applicant also told the Tribunal that he was Christian and would want to attend an underground church if he was forced to return to China. The second applicant initially told the Tribunal that he was regularly attending Bible study and other religious gatherings at church. When questioned further, the second applicant then agreed that he had not attended church for a long time. The second applicant told the Tribunal that he could not afford to travel to a church as he was not working. The second applicant told the Tribunal that he was nonetheless engaging in private study of Christianity at home. Asked about the manner in which he was undertaking such study the applicant stated that he would watch videos and read Christian materials on the Internet. Asked to identify some of the websites he accessed in order to undertake such study, the applicant second applicant told the Tribunal that he would search on Google. Asked if he could identify some of the sites that would come up on his Google searches the second applicant responded that there were many and that he would just put the search term ‘Christianity’ in Google or the Chinese equivalent.

2. The Tribunal asked the applicants whether they thought their failure to marry was consistent with their Christian beliefs. The applicants variously stated that they had not married because of the expense; because they thought that because they were not Australian citizens or permanent residents they were unable to marry in Australia; because it was too complicated; and because of language barriers.

3. The Tribunal put to the applicants that it was having difficulty accepting that they were genuine Christians and would attend an underground church in China given that neither was presently attending church in Australia and had not done so for a long time. The second applicant’s evidence as to nature of his private practice of Christianity was extremely vague. There were also credibility issues arising from the applicant’s previous protection visa application.

4. The second applicant insisted that he would attend underground Christian gatherings if he was to go back to China. The second applicant stated that when he first came to Australia he was attending church but no longer had any money to go out to attend gatherings. The second applicant stated that they can Google everything anyway. The applicant told the Tribunal that her father had come to Australia a long time ago escaping religious persecution and had used another person’s name in order to come to Australia. For this reason, she had been unable to say that her father was in Australia in order to protect him. The applicant also asked the Tribunal not to focus on the issues arising in the first application and insisted that her main concern now was her children. The applicant stated that she wanted her children to have a better life in Australia and be educated in this country. The lifestyle was different in China and she was concerned about air pollution and any discrimination they may face. The Tribunal explained to the applicants that the children were not part of the current application and that the Tribunal could only consider whether there was a real risk of the first applicant suffering significant harm.

5. The Tribunal asked the applicant about her concerns arising from China’s family planning regulations. The Tribunal asked the applicant if she knew what the consequence of her breach of the regulations was. The applicant told the Tribunal that she had never asked or done any research but suggested that perhaps she may be imprisoned.

6. The Tribunal discussed with the applicants country information set out in the DFAT Thematic Report on Fujian Province issued in December 2016 indicating that China’s population and family planning laws had been changed with effect from 1 January 2016 and that provincial level regulations had been implemented in Fujian. Under the new policy, couples were permitted to have two children. The report indicated that if individuals who had children in breach of the previous regulations had not received notification of social compensation fees local authorities would not pursue the issue further. In cases where notices had not been issued for children born prior to 1 January 2016, the new regulations applied.

7. The Tribunal explained to the applicants that it appeared that they may still be in breach of the family planning policy in so far as their children were born out of wedlock and that the social compensation fee of 4 to 6 times the average annual net income for residents may be applied. As the average net annual income for residents in 2013 was approximately 15,000 RMB, the fee payable could be up to 90,000 RMB. The Tribunal noted that the DFAT report indicated that local authorities were able to show considerable discretion in charging social compensation fees. Factors which may influence them could include whether the couple was cooperative, underage or from a low income family. The Tribunal also put to the applicants that their evidence suggested that they would get married if forced to return to China and this may also influence whether a fee would be charged. The information also indicated that the fee could be paid in instalments.

8. The Tribunal also put to the applicants that the report suggested that the measures used to secure payment of the fee included applying personal pressure through personal phone calls and visits. The remedial measures which had been permitted under the previous regulations no longer applied under the new regulations and that in-country contacts had suggested that the use of measures such as forced sterilisation was unlikely in Fujian. The Tribunal explained to the applicants that it did not appear that imposition of the fee, if it took place, or attempts at enforcing payment of the fee, would involve significant harm as defined.

9. The first applicant responded that the Tribunal could not know what was happening in her home area. The second applicant also suggested that officials in rural areas have a lot of power and inflict suffering on ordinary people. The second applicant suggested that it takes time to implement a new policy and that there are so many different cities in China it was impossible to know what was happening in their area.

10. The second applicant also told the Tribunal that he was concerned that the applicant may suffer harm in China as an unmarried mother. In their area, she may face discrimination for this reason. The Tribunal put to the applicants that this would not appear to be an issue given their evidence that they would definitely get married if they were forced to return to China. In response, the second applicant told the Tribunal that his most significant concern is persecution because of their religious beliefs. The second applicant stated that marriage and family life was an important and fundamental part of Christianity and that family planning policies and regulations could be changed at any time. As such they were mostly concerned about their ability to practice their religion.

11. When asked, the second applicant told the Tribunal that there was no reason why he would not be able to gain employment should he be forced to return to China.

12. The Tribunal asked the applicant about the claim made in her visa application that she would assert her rights to her father’s property which had been divided amongst the villagers. The applicant indicated that she could not recall having made such a claim and did not know anything about her father’s property. If anything happened, it would have been when she was a child.

    Additional country information

    Family planning laws

13. The Chinese government has institutionalised and regulated birth planning since the 1970s. China's family planning policies are under continual revision and the central government has permitted provincial and municipal authorities greater levels of policy planning autonomy in relation to this issue. As a result, interpretation and implementation of the policy varies enormously across China.

14. The DFAT Thematic Report: Fujian Province, People’s Republic of China, issued on 16 December 2016 states:

    3.26 On 27 December 2015, the National People’s Congress amended the Population and Family Planning Law with effect from 1 January 2016. Changes to the Population and Family Planning Law included the full implementation and encouragement of a two-child policy (provided couples continue to meet other health, age and timing requirements), the cancellation of forced contraception and changes to certain leave entitlements for parents (including maternity and paternity leave). The Fujian People’s Congress passed implementing provincial-level regulations on 19 February 2016.

    …

    3.28 Along with many other provinces in China, Fujian was already implementing regulations which allowed couples in certain circumstances to have more than one child. ….A rural couple may give birth to a second child if the husband’s brothers have no children and are all sterile; the wife has a brother who supports his wife’s family but not his own family; the husband and wife live in an area with negligible population density; or the couple only has one daughter.

    …

    3.29 Authorities in China use incentives and penalties to achieve compliance with family planning regulations. Social Compensation Fees (also referred to as Social Maintenance Fees) are the most common disincentive used in Fujian. According to the March 2014 Population and Family Planning Regulation of Fujian, Social Compensation Fees are calculated on the basis of average annual disposable income for urban residents or the average annual net income for rural residents, or residents’ actual income, whichever is the greater). The fee is levied on a multiplier basis, depending on the couple’s circumstances. The March 2014 Population and Family Planning Regulation of Fujian provided that: A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a child born out of an extra-marital affair (including those who give birth to a child out of wedlock).

    3.30 Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. In Fuqing (a county-level city near Fuzhou with a population of approximately 1.34 million people) the average annual disposable income for rural residents was RMB32,279 (AUD6,840) and the average net annual income for rural residents was RMB15,061 (AUD3,190) in 2013. Social Compensation Fees calculated in 2014 were based on these figures.

    …

    3.32 Credible information on the actual Social Compensation Fees charged in practice is difficult to obtain. The actual application of Social Compensation Fees varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation). The March 2014 Population and Family Planning Regulation of Fujian states that the decision to impose a Social Compensation Fee may be made at the county, township or neighbourhood level. DFAT is aware of verdicts by the Fujian High Court in late-2015 imposing Social Compensation Fees of approximately RMB50,000 (AUD10,595) for couples who gave birth to a second son, in violation of the Population and Family Planning Regulation of Fujian. In 2014, Fujian courts recorded 1,628 cases involving payments arrears of Social Compensation Fees over RMB100,000 (AUD21,190). However, DFAT also understands that local authorities in Fujian are able to show considerable discretion in charging Social Compensation Fees. Factors that would influence local authorities when charging Social Compensation Fees may include whether a couple is cooperative, is underage and/or from a low income family.

    3.33 While there has been some speculation that any outstanding Social Compensation Fees for children born in breach of the March 2014 Population and Family Planning Regulation of Fujian would be waived, DFAT understands that the waiving of outstanding Social Compensation Fees remains at the discretion of local authorities. In March 2016, the Deputy Chairman of the Fujian Family Planning Association stated that if parents had received previous notification of Social Compensations Fees, these penalties stood. If individuals who had children in breach of the March 2014 Population and Family Planning Regulation of Fujian had not received notification of Social Compensation Fees, local authorities would not pursue the issue further.

15. In 2010, DFAT advised that returning student couples were exempt from the social compensation fee when they return to China with a second child if both parents studied in another country for more than a year. DFAT advised in relation to Fujian province that to qualify for the exemption, both the mother and father needed to be overseas Chinese students. An earlier 2004 advice stated that in cases where one or both of the parents had travelled overseas for study, a couple was allowed to have two children but fees would be charged on return to China for a third or subsequent child. DFAT advised in February 2010, however, that these exemptions did not apply to parents who had a child out of wedlock.

    Findings and reasons

16. The Tribunal is not satisfied that the applicant’s religious claims are credible. Whilst the applicant urged the Tribunal not to focus on these claims and suggested that her main concern now was her children’s welfare, the applicant has nonetheless maintained that she fears harm if she were to attend an underground Christian gathering and that people could come to her house at night.

17. As discussed with the applicant at hearing, her own evidence indicates that she seldom attends church in Australia and that neither she nor her husband has attended church in Australia for a long time. The Tribunal accepts that the applicant’s children may present some obstacle to regular church attendance. However, the applicant would be returning to China with her children and given that she has not recently attended church in Australia despite having the freedom to do so, the Tribunal has considerable difficulty accepting that the applicant would attend an underground Christian gathering should she return to China now or in the reasonably foreseeable future.

18. The Tribunal has considered the second applicant’s evidence regarding his religious practice and expectations should he return to China but finds his evidence to be lacking in credibility. The second applicant contradicted himself in his evidence before the Tribunal by suggesting initially that he was regularly attending Bible study and other religious gatherings at church but later stating that he had not in fact attended church for a long time as he was not working. The second applicant’s evidence with regard to his manner of private study was vague and unconvincing.

19. The Tribunal has also considered the applicant’s claim that she would attend Christian gatherings as her mother and parents in law are Christians and attend Christian gatherings in China. The Tribunal does not find this claim persuasive given that the applicant is an adult and given her evidence as to her lack of recent attendance at church in Australia.

20. Other aspects of the evidence cause the Tribunal to doubt that the applicant is, or has ever been, a Christian at all. The applicant’s credibility is severely undermined by, amongst other things, the discrepancy between her evidence in relation to her first protection visa application and that presented in relation to the current application. The delegate’s decision records that the applicant claimed in relation to her first application that she and her siblings had been arrested alongside her parents and grandparents whilst attending a Christian gathering in October 2004. At the Tribunal hearing, however, the applicant denied having ever been arrested. The Tribunal is not satisfied that the passage of time or feelings of nervousness adequately account for this inconsistency.

21. The applicants’ failure to get married despite having [number] children also appears on its face to contradict their claimed religious beliefs. The Tribunal is not satisfied that any of the matters raised by the applicants at hearing presented genuine obstacles to them marrying in Australia, had they so wished.

22. Having considered the totality of the evidence, the Tribunal is not satisfied that the applicant and second applicant are Christians. The Tribunal is not satisfied that the applicant has suffered any harm in the past as a consequence of her or her family’s attendance Christian gatherings. The Tribunal is not satisfied that the applicant has sent Christian materials to China. The Tribunal is not satisfied that there is a real risk that the applicant would attend Christian gatherings should she return to China in the reasonably foreseeable future. Nor is the Tribunal satisfied that there is a real risk that the applicant would be perceived as a Christian or suffer any form of harm as a consequence of such a perception.

23. The Tribunal is satisfied that the applicant has now resiled from the claims made in her written application that her family’s farmland has been divided and shared amongst villagers, that she would assert her rights to her father’s property and may suffer harm as a consequence. The applicant indicated at hearing that she had no awareness of the fact that these claims had been made nor did she have any knowledge about her father’s property. The Tribunal is not satisfied that there is a real risk of the applicant suffering any harm related to her father’s property.

24. The remaining issue for the Tribunal to decide is whether there is a real risk of the applicant suffering significant harm as a consequence of any breach of China’s family planning regulations. As put to the applicant at hearing, the country information set out above indicates that the applicant would be subject to the new family planning regulations implemented in Fujian province in February 2016, as she has not been issued with a notice of breach under the previous regulations. Under the new regulations, the applicants are permitted to have two children. The country information before the Tribunal indicates, however, that a prohibition on giving birth out of wedlock continues to apply.

25. The Tribunal accepts having regard to the birth certificates on file that the applicant’s children were born out of wedlock, although the applicant and her husband expressed an interest in getting married should they return to China. The country information indicates that the penalty for a breach of the regulations of this nature would be the imposition of a social compensation fee of 4 to 6 times the average annual net income for rural residents or the applicant’s actual income. The country information indicates that local authorities have considerable discretion in charging social compensation fees. As such, the actual amount of any social compensation fee that would be imposed, if any, is difficult to discern. The country information indicates, however, that a social compensation fee of up to RMB 90,000 per child could potentially be imposed. Whilst Tribunal has considerable doubt that a fee of this magnitude would be imposed in fact, the Tribunal has considered the applicant’s position should this occur.

26. The country information indicates that social compensation fees are able to be paid in instalments and children are not denied household registration in Fujian whilst any fee remains unpaid. The measures used to secure payment include personal pressure through personal phone calls and visits. The country information also suggests that legal proceedings may be implemented in order to secure payment. The DFAT Thematic Report on Fujian specifically indicates that the remedial measures reportedly used under the previous regulations, including forced sterilisation, no longer apply and are unlikely to be used in Fujian province. Accordingly, the Tribunal is not satisfied that there is a real risk of such measures being taken against the applicant.

1. The applicants are both of a young age, are educated and have Australian work experience. There is no evidence before the Tribunal to suggest that they would not be able to work and earn an income permitting them to repay any social compensation fee, in instalments, if necessary. The applicant has the support of her mother and her parents-in-law in China. In all the circumstances, the Tribunal is not satisfied that the imposition of a social compensation fee would involve significant harm. Nor is the Tribunal satisfied that there is a real risk of the applicant suffering significant harm as a consequence of any attempt by the authorities to enforce payment of the fee.

2. Furthermore, the Tribunal is not satisfied that the imposition of a social compensation fee or any enforcement measures provided by the current regulations constitute anything other than lawful sanctions that are not inconsistent with the Articles of the ICCPR.

3. At the Tribunal hearing a claim was ostensibly made on the applicant’s behalf by the second applicant that she may face harm or discrimination in China as a consequence of being an unwed mother. As discussed with the applicants at hearing, however, the Tribunal is not satisfied that there is a real risk of this occurring given the applicants’ evidence that they would marry if forced to return to China.

4. For the reasons given above, 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, there is a real risk that she will suffer significant harm.

5. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(aa).

6. As indicated above, the Tribunal is unable to consider the applicant’s claims against the criterion set out in s.36(2)(a) in view of her previous protection visa application invoking this criterion. Nor is the Tribunal able to consider the second applicant’s circumstances against s.36(2)(a) or (aa). It follows that the applicants are also unable to satisfy the criteria set out in s.36(2)(b) or (c).

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

   DECISION

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

   R Homan
   Member