1504818 (Refugee)

[2017] AATA 278

1504818 (Refugee) [2017] AATA 278 (8 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504818

COUNTRY OF REFERENCE:                  China

MEMBER:Mara Moustafine

DATE:8 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2017 at 3:24pm

CATCHWORDS

Refugee – Protection visa – China – Religion – Catholic – Particular social group – Black child – Child of a single mother – One-child policy – Social compensation fee – Household registration – Forced sterilisation

LEGISLATION

Migration Act 1958, ss 5, 36, 48A, 424AA, 499
Migration Regulations 1994 Schedule 2, r 1.12

CASES

SZGIZ v MIAC [2013] FCAFC71

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. The first named applicant (the applicant) is [an age] year old male child, who was born in Australia on [date]. Also included in his application as a member of his family, is his [age] year old mother, the second named applicant, who acts on behalf of the applicant. Both applicants claim to be citizens of China.

2. According to his migration history, as set out in the delegate’s decision, the applicant first applied for a Protection visa [in] July 2010. [In] November 2010 a delegate of the Minister for Immigration refused to grant the visa and on 27 April 2011 the Tribunal (differently constituted) affirmed the decision to refuse to grant the applicant a protection visa. This decision was subsequently upheld by the Federal Court [in] December 2011 and a request for Ministerial intervention was declined in May 2012.  The applicant’s mother arrived in Australia [in] June 2006 on a [temporary] visa. Her application for a Protection visa was refused [in] July 2006 and this decision was affirmed by the Refugee Review Tribunal (RRT) on 19 December 2012. Her appeals to the Federal Magistrate’s Court and Full Federal Court were dismissed in 2007 and 2008 respectively and several requests for Ministerial intervention were declined in 2009 and 2010.

3. [In] February 2014, the applicant launched another Protection visa application on complementary protection grounds, with his mother included in his application as a member of his family. The application was deemed valid as a result of the Federal Court judgement in SZGIZ v MIAC, which found that s.48 did not prevent a person making another protection visa application on complementary protection grounds. The second delegate refused to grant the visa [in] March 2015. The applicants applied to the Tribunal for review of this decision on 9 April 2015. They provided the primary decision record to the Tribunal for the purpose of the review and are taken to be on notice of the delegate’s reasons and findings.

4. The applicants appeared before the Tribunal on 2 February 2017. The applicant’s mother gave evidence and presented arguments on behalf of her son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

5. As the applicant’s claims have previously been assessed against the Refugee criterion and he was found not to have a well-founded fear of being persecuted in China for a Convention reason, as explained at the hearing, the Tribunal assessed his and his mother’s claims only against the Complementary Protection provisions.  

6. 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 applicants will suffer significant harm. 

   RELEVANT LAW

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.

   S.48A

8. Section 48A of the Migration Act 1958 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. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion.

   Complementary protection criterion

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

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

    Section 499 Ministerial Direction

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.

    Member of the same family unit

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

14. As indicated above, the first named applicant has previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because the applicant is considered ‘SZGIZ-affected’ as he has not left Australia since the final determination of his previous Protection visa application which preceded the Complementary Protection laws. As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa) and (c).

    CLAIMS AND EVIDENCE

15. The applicant’s written claims, as set out in a statement signed on the applicant’s behalf by his mother [in] January 2014, are that he fears persecution, discrimination and the abuse of his human rights if he returns to China due to its one child Family Planning Law. As his mother has violated this law, she will face a heavy fine, which as a single mother with three children, she cannot afford to pay. Consequently, the applicant will be unable to be registered for residency (‘hukou’) and will be a ‘black child’, ineligible to receive education and social welfare and face discrimination in all aspects of social life. His mother fears forced sterilisation by the government. She claims she was punished by the family planning authority when she gave birth to her [earlier] child; was harmed physically and mentally and had to hide to avoid further persecutions. The applicant’s parents are separated. Contact with his father was lost when he disappeared out of fear of being deported after his own refugee application failed.

16. In a statutory declaration dated 14 December 2016, provided to the Tribunal ahead of the hearing, the applicant’s mother reiterated these claims. She also stated that:

    a.While family planning policies in China had changed in recent years, she would have to pay a heavy social compensation fee for her son because he was her third child (with two [siblings] in China). As a single mother, totally reliant on support from refugee services, she is in serious financial hardship and it is absolutely impossible for her to pay the fine.

    b.She had heard that the Chinese government had recently separated household registration from the payment of social compensation fees and that a child could now apply for household registration without paying the fine. However, she did not believe this, as Chinese officials were very corrupt and took advantage of their position to abuse their powers. She was certain that, if she returned to China and failed to pay the fine for her son, the authorities would use it as an excuse to refuse him his household registration and to seriously harm them. He would become a "black child" and be subjected to serious discrimination and pressure as the child of a single mother.

    c.She and her son were baptised in March 2013 and would be subjected to persecution due to their Catholic beliefs if they had to return to China because there is no genuine freedom of religious belief in China.

17. In support of their application, the applicants provided official letters and photographs attesting to their membership of [Church 1] and church attendance since 2010. A letter from a registered psychologist dated [in] January 2017 was also submitted. Based on one consultation with the applicant’s mother, which took place [in] January 2017, it assessed her to be suffering from ‘[two conditions]’ due to various stressors, including immigration issues. In light of this report, before proceeding with the hearing, the Tribunal obtained confirmation from the applicant’s mother that she was fit to give evidence.

18. In her evidence at the hearing, the applicant’s mother maintained the previous claims. She elaborated that, as the child of a single mother, her son would suffer as people in the countryside who might call him ‘a wild child’ growing up without a father and would have no one to support him in China as she suffered from [a different physical Condition 1]. Additionally she said she also feared she might be harmed and jailed because the previous case against her had not yet been finalised, although she was vague as to what the case against her was.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    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 that he will suffer significant harm?

19. On the basis of the applicant’s mother’s travel document issued by the Chinese Consulate in [Australia] on [date], the applicant’s birth certificate, identifying him as her son, and, in the absence of evidence to the contrary, the Tribunal accepts that both applicants are nationals of China and assesses their complementary protection claims in reference to China as the receiving country.

20. In assessing the applicant's claims, the Tribunal has carefully considered and weighed a range of independent material about China, Fujian province and the situation regarding family planning and religion there. These include materials cited in the delegate’s decision and DFAT reports prepared expressly for protection status determination purposes, including DFAT Country Information Report on the People’s Republic of China of 3 March 2015 and DFAT Thematic Report, Fujian Province, People’s Republic of China of 16 December 2016.

21. As indicated above, the key claims made on the applicant’s behalf are that he will face significant harm in China as a ‘black child’, who will be unable to obtain household registration and therefore be denied free education and social welfare because his mother cannot afford to pay the social compensation fee for having three children; and that he will face serious discrimination as the child of a single mother.

22. His mother fears she will be forcibly sterilised by the government for having three children, jailed because the previous case against her had not yet been finalised and that both she and her son will be subjected to persecution as Catholics in China.

23. For the reasons set out below the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to China, there is a real risk that the applicant or his mother will suffer significant harm.

    Claims regarding Family Planning

24. The applicants’ claims are inconsistent with country information regarding recent changes to China’s family planning laws, including implementation of a two-child policy and the cancellation of forced contraception, with effect from 1 January 2016[1], as well as earlier changes to regulations in Fujian province.

    [1] The Fujian People’s Congress passed implementing provincial-level regulations on 19 February 2016.

25. With regard to the claim that he will be a ‘black child’, unable to obtain a ‘hukou’ and access to education and social services, it is significant that in August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ directing local authorities to not treat the payment of social compensation fees as a prerequisite for accepting an application for household registration. The Tribunal has had regard to the applicant’s mother’s claim at paragraph 11.b and at hearing that she does not believe this will happen and that her father told her she would have to pay at least 100,000 RMB to get a hukou for her son, but does not find this persuasive, especially as Fujian province has long been assessed by DFAT as having one of the least coercive family planning regimes in China.

    The Tribunal is aware that a child born out of wedlock to a young single mother in China may experience social stigmatisation. As discussed with the applicant’s mother at hearing, it does not find that the applicant, a child of married parents, who will be able to obtain a hukou and have access to education and other services, will face a similar situation; and notes that separation and even divorce are increasingly common in China. Even if the applicant were to encounter people in the countryside who might call him ‘a wild child’ growing up without a father, as his mother claimed at hearing, the Tribunal does not accept that this would amount to significant harm.

26. In light of information that forced contraception has been cancelled under China’s new family planning law, the Tribunal does not accept that, if she returns to China, the applicant’s mother will face forcible sterilisation because she has had three children, as claimed. The Tribunal notes that, as discussed with her at hearing, DFAT has long assessed Fujian province as having one of the least coercive family planning regimes in the country and stated in its latest report that, while the March 2014 Population and Family Planning Regulations of Fujian permitted unspecified ‘remedial measures’ to be taken the use of extreme remedial measures, such as forced sterilisation or late term abortions (which have occurred previously in China), was considered unlikely in Fujian.

27. Even before the recent changes, Fujian was among the provinces, which was implementing regulations to allow couples to have more than one child in certain circumstances, including rural couples with only one daughter. According to a statement by the Deputy Chairman of the Fujian Family Planning Association in March 2016, outstanding social compensation fee notices issued under the March 2014 Population and Family Planning Regulation of Fujian are still enforceable; but local authorities would not pursue those individuals who had children in breach of these regulations but had not received notification of social compensation fees. DFAT understands that the new regulations apply to children born after 1 January 2016 or in cases where Social Compensation Fee notices have not been issued for children born prior to 1 January 2016.

28. As the applicant’s mother has not been living in China since 2006, she has not been served with a notification that she must pay a social compensation fee for allegedly having three children. In light of the above, if the applicant’s mother returns to China now, she may have to pay a social compensation fee. However, as discussed at hearing, this would only be for one additional child. As she comes from a rural area, it would amount to 2-3 times the average annual net income or her actual income; and be payable in instalments. The applicant’s mother has not claimed and, on the evidence before it, the Tribunal does not accept that she will suffer significant harm because she is unable to pay the social compensation fee. While the Tribunal accepts that having to pay a fee may cause the applicant’s mother some financial hardship, it is not satisfied that this would amount to significant harm as defined in the Act. 

29. Nor does the Tribunal accept that, if they returned to China, the applicant would be left without any support to the extent that he would suffer significant harm as defined in the Act, because his mother suffers from [Condition 1]. The Tribunal accepts that payments from [Organisation 1] and other refugee services have assisted the mother in looking after her son in Australia as a young child. However, as her son is now [a specified age range] and will be eligible for free education and other social services in China, the Tribunal does not accept that her alleged [Condition 1] will prevent her from doing any work at all while he is at school. Moreover, by her evidence, her son has both maternal and paternal grandparents in China, who have been supporting his two [siblings] to attend school and university since their parents have been in Australia. While she has claimed that her husband has not provided support for her son, whom he did not want to be born, as discussed at hearing, given her evidence that her husband threatened to take his son away from her several years ago because she could not look after him, the Tribunal does not accept that he would disregard his son’s welfare should she be unable to support him.

    Claims regarding their Catholic belief

1. On the basis of statements from church leaders and the evidence of the applicant’s mother, the Tribunal accepts that the applicants have attended a Catholic church in Australia since 2010 and were baptised in 2013. The Tribunal accepts that the applicant’s mother has found in the Catholic church a supportive community and that her attendance at this church has not been solely for the purpose of strengthening her refugee claims.

2. However, the Tribunal does not accept that the applicants will be subjected to significant harm in China due to their Catholic beliefs, as claimed by the applicant’s mother in her statutory declaration. The Tribunal notes that she made no mention of this claim among those she identified at hearing as reasons she feared returning to China. When prompted by the Tribunal as to why this was the case, the mother said she could not remember some things and affirmed that she and her son were Catholics. She was not afraid that she could not practice Catholicism in China, but said that Catholics in China did not help people and were ‘not real’, whereas she felt protected by the church here. She claimed she had attended Catechism classes in 2012 and went to church every Sunday, where she sat and listened to others talking about principles. However, when asked the most important principle she knew, the mother said she could not remember any after she left church. Asked why she could not practice her Catholicism in the same way in China, the applicant’s mother said she did not know why but that she was ‘just used to it here’ and knew that the church in China would not be appropriate for her.

   As discussed with the applicant’s mother at hearing, large numbers of people worship inchurches linked to the Catholic Patriotic Association (CPA) in Fujian province. DFAT assesses that direct interference by local authorities in the operations of these churches in Fujian rarely occurs, compared to other areas in China, and that worshippers are generally able to openly practice their religion, including with a significant amount of public visibility. Moreover, some CPA-linked churches in Fujian also provide social services, which is encouraged by local authorities[2].

   Claims regarding the mother’s previous case

   [2] DFAT Thematic Report, Fujian Province, People’s Republic of China of 16 December 2016

3. The Tribunal is not satisfied that, if she returns to China, the applicant’s mother will be arrested and jailed because the previous case against her has not yet been resolved, as she claimed at hearing. The Tribunal found her evidence as to the details of this case vague and inconsistent with her evidence to the RRT in the context of her own protection visa application in 2006[3]. At hearing the applicant’s mother said she was arrested and detained for 3-4 months in 2005 on suspicion of attempted murder of the father of her cousin’s girlfriend. By contrast, she told the RRT that the reason she was arrested was for writing letters of appeal to the government regarding the treatment of her cousin. Further, while she told the Tribunal that this was the only time she was ever detained in China, in her interview with the Department she said she was detained in [earlier year range] when she was [number] months pregnant with [an earlier child].

   [3] RRT Decision Record, [file number], 7 December 2006  

4. The Tribunal put these inconsistencies to the applicant’s mother in accordance with s.424AA of the Act, noting that they raised doubts about her truthfulness and general credibility. She responded vaguely that she did not understand about her own refugee application but had told the truth to the Department about what happened when she was [number] months pregnant with her [earlier child]; and that she could not really remember now and was quite confused. The Tribunal finds implausible that, if the applicant’s mother had really been arrested and jailed for several months and her case was still pending, she would not remember what it was about.

5. The Tribunal has had regard to the psychologist report regarding the applicant’s mother’s [two conditions], largely related to her uncertain migration status and financial situation. In this context, the Tribunal has not attached weight to certain other inconsistencies, which were discussed with her at hearing, including whether she last saw her husband in 2013 or 2014 and why she referred several times to her son as her ‘only child’, while at other times said she had [other children] in China. However, for reasons outlined in paragraph 33 above the Tribunal considers the inconsistencies in her evidence about her previous case to be of a different order.

6. Having considered the totality of the evidence, for the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm. The Tribunal does not accept that on return to China the applicant will be a ‘black child’, denied household registration/’hukou’, free education or other social services; face discrimination in all aspects of social life or that any difficulties the applicant might encounter as a child of a single mother would amount to significant harm for the purposes of the complementary protection criteria. Nor does the Tribunal accept that his mother will be forcibly sterilised by the government. While the Tribunal acknowledges that the applicant’s mother may be required to pay a social compensation fee for having a single out of plan child, it does not accept that her son will be denied a hukou if his mother is unable to pay this fee or that the imposition upon her of such a fee amounts to significant harm. Furthermore, the Tribunal is not satisfied that any financial hardship that the applicant’s mother may experience upon her return to China will amount to significant harm as defined in s36(2A) and s 5(1) of the Migration Act.

7. Accordingly, the Tribunal is not satisfied that there is a real risk that either of the applicants will be arbitrarily deprived of their life; the death penalty will be carried out on them; or will be subjected to cruel or inhuman treatment or punishment; or will be subjected to degrading treatment or punishment. The Tribunal finds, therefore, that the applicants do not satisfy the criterion set out in s.36(2)(aa).

8. CONCLUSIONS

9. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2) (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2(c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

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

    Mara Moustafine
    Member