1508411 (Refugee)

1508411 (Refugee) [2017] AATA 834 (4 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1508411
COUNTRY OF REFERENCE:                  China
MEMBER:Tigiilagi Eteuati
DATE:4 May 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 04 May 2017 at 3:27pm
CATCHWORDS
Refugee – Protection visa – China – Religion – Shouters Church – Social group – Contravened one child policy – Credibility issues

LEGISLATION
Migration Act 1958, ss 5AAA, 5(1), 36(2)(a), (aa), (b), (c), 36(2A), 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2, r 1.12

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas [in] May 2014 and the delegate refused to grant the visas [in] June 2015.
The applicants appeared before the Tribunal on 26 November 2015 and 30 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants consist of the primary applicant father (the applicant) and his two infant children (the secondary applicants).
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘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.
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
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
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 children.
CLAIMS AND EVIDENCE
In his protection visa application, in response to the question as to why the applicant left China, the applicant stated:
“I left China because my parents wanted me to study in Australia.”
The applicant indicated that he had not experienced harm in China.
In response to the question as to what the applicant feared may happen if he returned to China, the applicant stated:
“My [wife] is a member of the Shouters, an underground church group in China banned by the Chinese Government. I am afraid I will be mistreated by the government because I am the partner of a underground church member.
I also fear that my family will be mistreated by the Chinese Government doe to our breach of one-child policy. My wife is now pregnant again and if we return to China, she will be forced to have an abortion. Even if we manage to give birth to our second child, the second child will not be denied household registration and therefore be denied fair education and employment opportunity in the future.”
In response to the question as to who the applicant thought may harm or mistreat him if he returned to China, the applicant stated:
“The Chinese Government.”
In response to the question as to why the applicant thought that he would be harmed/mistreated if he returned to China, the applicant stated:
“The Shouters has been banned by the Chinese Government for a long time and members of this church have been mistreated and persecuted by the government in the past.
The one child policy is still a national policy in China and if we breach the policy, we will face fiscal and administrative penalty.”
In response to the question as to whether the applicant thought that the Chinese authorities could and would protect the applicant if he returned to China, the applicant stated:
“The Chinese Government will not protect underground church members and families in breach of the one-child policy.”
At the hearing before the Tribunal, the applicant gave evidence that he was raised [in] Fujian province in China. The applicant indicated that he arrived in Australia in 2007 to study. He said that after 2008, he did not have the finances to continue studying and so ceased his studies.
The applicant claimed to fear returning to China because he was a member of the Shouters church. When asked when he first joined the church he said that he could not remember but that he joined because his wife was a member. The applicant later claimed that he joined in 2010 when he first attended a Shouters church in [City 1].
The applicant claimed that he went to a Shouters church for two months in 2010, attending the church on [number] occasions. He said that he did not remember the name of the church. The applicant indicated that he ceased attending the church because he moved to [another State]. This is inconsistent with the information in his visa application form which indicated that he moved to [another State] in 2013.
The applicant claimed that since he moved to [City 2] he has been attending a [Church 1] in [Suburb 1] where he attended a Shouters service held on the last Friday of each month. This is inconsistent with his evidence at the Departmental interview recorded in the department’s decision, where the applicant claimed that he attended Shouters meetings every week in [Suburb 1].
The Tribunal asked the applicant how he became a member of the Shouters and the applicant said that a friend of his wife took her to a Shouters service in [City 1] in 2009 or 2010. He said that his wife asked him to attend after she had attended a few times. The applicant indicated that he travels back to [City 1] to attend Shouters gatherings and big events. The applicant said that he was not a practicing Christian before he joined the Shouters.
The applicant was asked whether he was baptised and the applicant indicated that he was baptised [a few] days after his second child was born on [December] 2014. The Tribunal asked where the applicant was baptised and he answered that he was baptised in [City 1]. He said that elders asked him questions about his religion and said that he was prepared to be baptised and so he was. He was vague about what was involved with his baptism but mentioned something about water. When pressed further to describe his baptism, the applicant continued to provide vague answers. He said that there were three elders present who asked him questions and then there was a ceremony. The Tribunal asked the applicant what happened during the ceremony and the applicant appeared to be evasive and said that the elders prayed. The Tribunal asked what else had occurred and the applicant said that he “shouted the bible with the Elders”. The Tribunal asked the applicant what he had shouted and he did not answer specifically but rather claimed that he shouted what the elders told him to shout. The Tribunal asked the applicant about his previous reference to water. The applicant claimed that a branch was used to pour water over his head. He said that he had been to other baptisms and usually the person being baptised is immersed in water. He said that the [City 1] church did not have the facilities to have a person immersed in water so a branch was used to pour water on his head.
The Tribunal pointed out that, the delegate’s decision, which he provided to the Tribunal, indicated that, during his interview with the delegate, the applicant had told the delegate that he had not been baptised. The Tribunal pointed out that this appeared to be inconsistent with his evidence before the Tribunal. The applicant claimed that when he was interviewed he had not been baptised but since the interview he has been baptised.
The Tribunal pointed out that the applicant’s interview with the delegate occurred [in] January 2015 which was after he was claiming that he was baptised [in] December 2014. The applicant indicated that the delegate did not recognise that he had been baptised at the interview because there had been no witnesses to the baptism. The Tribunal pointed out that the Departmental decision indicated that the applicant had said that he had not been baptised “because his wife told him he did not know the essence of the shouters.” The applicant then appeared to change his evidence and claimed that he told the delegate that he was not baptised, even though he was, because his wife did not believe that he had sufficient knowledge of the shouters to be baptised. The applicant claimed that he had thought that his wife may have been correct as his baptism had been different from other baptisms he had witnessed. The applicant went on to say that in May 2015 he met with elders in the Shouters Church in [City 1] who confirmed he had been baptised.
The Tribunal indicated that it seemed difficult to believe that that the applicant had left his wife, who had given birth to their second child only [a few] days earlier, and travelled to [City 1] to be baptised [in] December 2014. The applicant claimed that as it was near to Christmas at the time, there were no elders of the church in [City 2] who could baptise him so he had to travel to [City 1] to be baptised. The Tribunal indicated that it was still difficult to believe that the applicant would leave his wife only [a few] days after she had given birth to travel to [City 1] to be baptised. The applicant said that he felt that he had to be baptised because he was happy and thankful about the birth of his child. He said that he left for [City 1] on an aeroplane on the morning of [date] December 2014 and returned on a flight later that day after being baptised. The Tribunal notes that [date] December 2014 fell on a [day of the week].
The Tribunal asked the applicant why he had only attended [Church 1] in [City 2] and had not attended the Shouters church in [suburb]. The applicant said that his first address in [City 2] was in [Suburb 1] so he went to the [Church 1] in [Suburb 1]. The applicant then said that his wife was the more involved in the church than he was and that he usually stayed at home and looked after the children when his wife went to church.
The applicant indicated that he could provide written statements from the church elders who were present at his baptism. The applicant also indicated that he could provide statements from other Shouters that he was a member of the Shouters. The Tribunal indicated that the applicant had had ample time to provide evidence to the Tribunal and the Department prior to the hearing. The applicant indicated that his migration agent did not tell him what documents he should provide. The applicant suggested that the Tribunal was obliged to tell the applicant what documents he should provide. The Tribunal indicated that the applicant knew what his claims were and that it was for the applicant to provide the Tribunal with evidence to support his claims. The Tribunal indicated that it was not for the Tribunal to try to find evidence to support the applicant’s claims to be a shouter and to have been baptised.
The applicant indicated that there was no point in the hearing continuing if he was not permitted to put on documentary evidence of being baptised and being a member of the Shouters church. At this stage of the hearing the applicant’s infant child who the applicant had brought with him was crying and making it difficult for the hearing to continue. The Tribunal adjourned the hearing and allowed the applicant until 8 January 2016 to provide any evidence he wished to provide of any of his claims including his claims relating to him and his wife being Shouters and also relating to any difficulties he or his children may face upon return to China relating to China’s one child policy or other family planning regulations.
The hearing resumed on 30 March 2016 by which time, the applicant had not submitted any further evidence. The Tribunal reminded the applicant that the hearing had been adjourned on 26 November, in part to allow the applicant to produce documentary evidence to support his claims as he had requested. The Tribunal indicated that the fact that the applicant had provided no further evidence regarding his claims may indicate that his claims were untrue and that he did not fear returning to China.

The applicant said that, in relation to his claims regarding the one-child policy, the policy had changed to a two child policy so there was no point in providing evidence of the one-child policy. In relation to evidence of baptism or being a Shouter, the applicant said that he was baptised in [City 1] so it was very difficult to obtain evidence of being baptised. In relation to his involvement with the Shouters church, the applicant asked the Tribunal whether he should provide statements or photographs as evidence. The Tribunal reiterated that the applicant had had four months to provide further evidence and had provided nothing.
The Tribunal asked the applicant whether, in light of his response regarding the one-child policy, he continued to fear returning to China because of China’s family planning policies. The applicant said that he would be fined by the government for having two children and this would cause him financial hardship.
The applicant said that it would be difficult for his children to be granted official Chinese documents including passports. The applicant said that he had applied to the Chinese authorities on three occasions to obtain passports for his children. He said that the Chinese authorities refused to issue his children passports because he was applying for a protection visa in Australia.
The applicant was asked why he had approached the Chinese authorities for passports for his two children if he feared persecution by the Chinese government. The applicant said that his [child] needed identification documents to go to school in Australia. The Tribunal pointed out that the many Australian citizen children did not have a passport but could still attend school and that the applicant had Australian birth certificates for both children. The applicant then said that his children needed passports to open bank accounts in Australia and that he had been unable to open bank accounts for the children using only their birth certificates.
The Tribunal asked the applicant why he thought that the Chinese officials knew that the applicant was applying for a protection visa. The applicant was unresponsive to the question and said that he wanted to point out that he had to register his children in his household registration and that according to his research he would be fined for having two children before the change of the policy on 1 January 2016.
The applicant claimed that as his second child was born before the change to the two child policy on 1 January 2016, the child could not be entered into his household registration or Hukou in China unless he paid a large fine. He said that if his second child was not registered, the child could not attend government schools or hospitals.
The Tribunal asked the applicant whether his second child would still be able to attend private schools and hospitals if he was unregistered. The applicant said that private hospitals could not be relied upon to provide proper healthcare and that private schooling was very expensive.
The Tribunal pointed out that in his application form the applicant never claimed that he was a member of the Shouters church and indicated that this may suggest that his claims to be a member of the church were untrue. At first the applicant claimed that his migration agent was responsible for the contents of the form and his inability to speak English meant that he was unaware of what was in the form. The Tribunal reminded the applicant that he had given evidence that his migration agent had read the contents of the form back to him in Mandarin so his explanation seemed unconvincing. The applicant then appeared to change his evidence and claimed that he did not include mention of his membership of the Shouters church in his application because he believed that he should make the claim to the Departmental interviewer in person.
The applicant was asked whether he read the bible and he said that he rarely read the bible. He said that his practice of his religion consisted of shouting what he was thinking.
The Tribunal asked the applicant what version of the bible he read and he answered that he read the New Testament. The applicant did not know what version of the bible the Shouters used. He said that his wife had given him a copy of the bible but he did not know what version of the bible it was. The applicant said that he was not very familiar with the bible, that he spent his time doing household work and that it was his wife who was familiar with the bible. He said that his whole knowledge of the bible came from his wife. The applicant later gave evidence that he had read the whole bible himself.
The Tribunal asked the applicant whether he was aware of any recent Christian event that had just been celebrated with a holiday and the applicant said that he did not. The Tribunal asked the applicant whether he was unaware of the Easter holiday. The applicant said that all Christians were aware of Easter but he was confused by the use of the term “holiday”.
The applicant said that he was aware that 24 December was an important Christian date. The applicant said that members of the Shouters church had a gathering on the evening on 24 December for Christmas Eve. The Tribunal put to the applicant that the country information that the Tribunal had indicated that the Shouters did not celebrate Christmas. The applicant said that he and other Shouters members had a gathering on Christmas Eve not on Christmas day.
The Tribunal indicated that the applicant appeared to have very little knowledge of the Shouters church. The Tribunal indicated that the applicant had provided contradictory evidence about when he was baptised, he attended a [Church 1] rather than the Shouters church, he did not know what version of the bible the Shouters used and he rarely read the bible.
The applicant admitted that he had very little knowledge of the religion but that he considered that he was a member because his wife was a member and that he had “studied what she believed.” He said that he was not required to have any great knowledge of the religion to be a member of the church. He said that he felt that he was a member of the church because the Shouters was his only current religion. He said that he enjoyed shouting his thoughts and sometimes more experienced members would tell him about the religion.
The Tribunal indicated that the applicant had not explained what his religion meant to him and that his practice of the religion appeared to mostly involve shouting out his thoughts. He replied that his religion was his only hope and that he enjoyed the shouting practice the most but that he also occasionally read the bible and listened to elders of the church talk about the religion.
The Tribunal indicated that the fact that the applicant’s wife had applied unsuccessfully for a protection visa may suggest that she was not a member of the Shouters church. The applicant claimed that when his wife applied for protection she made no mention of being involved in the Shouters church and that her claims were based on being persecuted by the Chinese government. The Tribunal indicated that it found this claim to be difficult to believe and asked the applicant why his wife, who was said to have a deep knowledge of the religion and who introduced the applicant to the religion would not have raised her membership of the Shouters church in her protection visa application. The applicant said that she may not have had sufficient knowledge about the Shouters church to consider herself a member of the church when she applied for a protection visa.
The Tribunal put to the applicant information in the manner prescribed by section 424AA. That information was that his wife applied unsuccessfully for a protection visa in 2011 and part of that application was based on her claim that she was a member of the Shouter church but her claims for protection on the basis of her religious practices were rejected. The Tribunal also put information to the applicant that his wife had applied to the Refugee Review Tribunal (RRT) for review of the Department’s decision to refuse her protection application and that the RRT affirmed the Department’s decision.
The applicant claimed that perhaps his wife’s claim as a member of the shouters failed because she had insufficient knowledge to be a proper member at the time of her application.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal finds the applicant is a national of the China. The Minister’s delegate stated that the applicant arrived in Australia on Chinese passport [number] in 2007. The applicant also provided to the Department and to the Tribunal a copy of his [Drivers] licence bearing his name. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against the China for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered [Fujian] Province, where he last lived, to be his home region.
The applicant’s claims at the hearing are that the applicant fears persecution in China because both he and his wife are members of the Shouters. Additionally, the applicant fears that he would have difficulty registering his second child on the family’s household registration or Hukou because, despite China’s recent change to a two child policy, his second child was born before the policy came into effect in January 2016. The applicant claimed that he would have to pay a substantial social compensation fee for his second child and that without paying this fee, his child would not be added to the family Hukou and could not receive government services, in particular health and education services. The applicant said that private education was expensive and private health was unreliable.
Membership of the Shouters church
The DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China - 3 March 2015, provides the following relevant information in relation to the Shouters and the treatment of “cults” and cult members:
“The Shouters (Local Church)
3.33 The Shouters (also known as "Yellers", "Local Church", "Recovery Church", "Assembly Hall" and "Assemblies") are known for their habit of shouting while stomping their feet. Shouters are an offshoot of Watchman Nee's Little Flock in China and were led by Nee's student, Changshou Li who called himself, "Witness Lee". Li moved from China to Taiwan and then the United States, where he died in 1997. Li created the Shouters group in the US in 1962 which was then introduced to China in 1979. By 1983 the group had up to 200,000 followers across China. Witness Lee believed that the Shouters were the only true church; that teaching or preaching from the Bible was unnecessary; that the gift of tongues could be taught; and that the Shouters could save people by making them say "O Lord" three times.
3.34 The Shouters lost much of its popularity when it splintered into several groups including the Church of Almighty God (also known as Eastern Lightning – see below). Both it and the Society of Disciples reported having hundreds of thousands of followers in the 1980s or early 1990s. Credible sources were not able to comment on the extent to which Local Church members were still active in China.
…
3.38 The McDonald’s case has triggered an official crackdown on “cult” organisations. According to a news report published by the English version of the state-owned China Daily, the Ministry of Public Security said Chinese police would "severely attack" religious cults and punish those who participate in such movements. More than 1,500 cult members have reportedly been detained, and others have been arrested and sentenced to prison terms. For example, in July 2014, twenty-five cult members were given jail terms from three and a half years to eight years in the Ningxia Hui Autonomous Region. In Henan, five people were given prison sentences of three to three and a half years for editing and handing out leaflets about the church. Four women in Liaoning also received prison sentences of three and four years organising illegal activities and distributing publicity material for the group.
3.39 Credible sources have told DFAT that the government’s efforts to crackdown on Christian “cult” organisations are primarily aimed at identifying and punishing the leaders. Disciples are generally seen as vulnerable victims who have been taken advantage of by “opportunistic people who are trying to make money”. DFAT assesses that the government’s current crackdown on “cultish” organisations, could result in members of unregistered church movements being mistreated by authorities who conflate unregistered church membership with membership of a cult. Stigma and suspicion of cult members can make it difficult for them to access lawyers who are willing to defend them; and lawyers who are willing to take on such cases are often themselves targets of adverse attention by authorities. “
The Tribunal does not accept that the applicant is, or was ever a member of the Shouters in Australia. The applicant’s evidence in relation to his membership of the church was often inconsistent, vague and unconvincing.
First, the applicant did not claim to be a member of the Shouters in his protection visa application form but rather the claims he made in his application form were based on his wife being a member. The Tribunal does not accept the applicant’s first explanation that this was simply his migration agents fault as the applicant had given evidence that his migration agent had read the contents of the form back to him in Mandarin. The Tribunal does not accept the applicant’s second attempt to explain this omission, that he did not include mention of his membership of the Shouters in his application because he believed that he should make the claim to the Departmental interviewer in person. The applicant did not provide a reason why he would not have included one of central claims in his application form or why he thought he should only make the claim at the interview. The Tribunal finds that the applicant’s failure to raise the claim in his application form supports the view that the applicant has never been a member of the Shouters.
An example of his inconsistent evidence was that the applicant had given evidence to the delegate in January 2015 that he had not been baptised whereas before the Tribunal the applicant claimed that he had been baptised in [City 1] in December 2014. The applicant’s attempts at the hearing to explain this inconsistency and his vague and evasive description of being baptised were unconvincing and are not accepted.
Another example was the inconsistent evidence that the applicant gave in relation to his knowledge and understanding of the bible. At one point during the hearing the applicant said that his knowledge of the bible came entirely from his wife and that he had very little knowledge of the bible. At another point, the applicant said that he had read the whole bible himself. While the applicant gave contradictory evidence as to his knowledge of the bible. The applicant did not even know what version of the bible he had or what version of the bible was used by the Shouters church (Recovery Version).
At the hearing the applicant claimed that he would sometimes attend Shouters services held at a [Church 1] once a month. Before the delegate the applicant claimed that he attended weekly services in [City 2]. In addition to this inconsistency, the applicant provided no convincing reason as to why he did not attend the Shouters church in [City 2] which was about as far away from his house as the [Church 1] he said he attended. The applicant’s explanation that when the family arrived in [City 2] the [Church 1] was closer to where they lived is not accepted.
Significantly, on the first hearing date, the applicant requested further time to provide evidence of his being baptised in [City 1] and being a member of the Shouter. The applicant indicated that he would be obtaining evidence from other Shouters members to provide to the Tribunal. Despite the applicant being given some four months to provide this evidence, the applicant produced no further evidence before the hearing was resumed. The Tribunal places significant weight on the applicant’s failure to provide the evidence he said he would provide and considers that this weighs heavily in favour of a finding that the applicant is not a member of the Shouters. The Tribunal is unconvinced by the applicant’s explanation that it was difficult to provide evidence of his baptism because it happened in [City 1] and the applicant gave no reason why he had failed to provide evidence from Shouters members in [the other state] attesting to his membership of the religion.
Finally, despite being asked repeatedly what the practice of his religion involved, the applicant simply repeated that he enjoyed “shouting his thoughts” and that sometimes he would read the bible and listen to elders talk about the faith. The Tribunal considers that the applicant’s failure to provide any detail or depth of description relating to his practice of the faith lends weigh to the conclusion that the applicant is not a member of the Shouters.
Similarly, the applicant was unable to give any convincing answer when questioned what his religion meant to him simply saying that it was his only current religion and his only hope. Again, the lack of any detail or depth in his answer regarding his claimed religion supports the view that the applicant is not a member of the Shouters.
For similar reasons, the Tribunal does not accept that the applicant’s wife is a member of the Shouters. The applicant gave no convincing evidence of his wife’s following of the Shouters religion. The applicant gave evidence that his wife applied for a protection visa which was refused by the Minister’s delegate. This is consistent with information held by the Tribunal which indicated that the applicant’s wife applied unsuccessfully for a protection visa in 2011 and sought review of the refusal decision which was unsuccessful in 2012 before the RRT. The Tribunal notes that the applicant’s wife had claimed to be a member of the Shouters in her protection visa application but her claims for protection on the basis of her religious practices were rejected. The Tribunal considers that these matters give weight to the view that the applicant’s wife was not a member of the shouter’s church.
The Tribunal does not accept that either the applicant or his wife are, or have ever been, members of the Shouters and finds that neither will join the Shouters if they return to China.
China’s One/ Two Child Policy

The DFAT Thematic Report: Fujian Province, People’s Republic Of China - 16 December 2016, provides the following relevant information in relation to Family Planning Policy in Fujian in China:
“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. For example, the previous March 2014 Population and Family Planning Regulation of Fujian provided that:
 A couple may give birth to a second child if the husband or wife are only children; the couple were diagnosed as sterile, adopted a child and then become pregnant; the first child has a non-inherited disability; or the husband or wife becomes disabled because of a work accident.
…
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. DFAT therefore understands that outstanding Social Compensation Fee notices issued under the March 2014 Population and Family Planning Regulation of Fujian are still enforceable. The February 2016 Population and Family Planning Regulations of Fujian only applies 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.
…
3.37 The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see 5.4). In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid. “
The Tribunal considers that it is unclear whether the applicant would be expected to pay a social compensation fee in relation to his second child. It appears from his protection visa application form that the applicant is an only child which the country information suggests would mean that he would be allowed to have a second child without penalty. Further, it does not appear that the applicant has received a social compensation fee notice in relation to his second child and this may mean that he would be exempt from paying such a fee in relation to his second child.
However, for the purposes of this decision, the Tribunal is willing to accept that the applicant would be required to pay a social compensation fee in relation to his second child. The Tribunal notes that the country information suggests that the applicant could have his children added to his Hukou irrespective of whether the relevant social compensation fees have been paid.
The Tribunal also notes that although the issue was not raised by the applicant it appears that the delegate proceeded on the basis that the applicant’s first child was born out of wedlock. The applicant’s first child was born in [year]. The Tribunal accepts that the applicant is married to his wife but it is unclear when they were married. In his application form lodged in May 2014, the applicant indicated that he was married. At the hearing he indicated that he had a wedding ceremony in 2013 but also indicated that he was married in 2015. The applicant also suggested that he had his marriage registered in China in 2009. For the purposes of this decision the Tribunal is willing to accept that the applicant’s first child was born out of wedlock.
The Tribunal understands that it is difficult to calculate the exact quantum of the social compensation fee which would apply in the applicant’s case in part because local authorities have many discretions regarding the application of the fee to individuals. However, the Tribunal is willing to accept that any social compensation fee payable in relation to the applicant’s children would be substantial. The Tribunal has information that social compensation fees are able to be paid by instalment in Fujian Province.
However, the Tribunal does not accept that having to pay social compensation in relation to his children constitutes serious harm or significant harm. While the social compensation fee may be significant, the applicant could pay this off over time in instalments. The applicant appeared to the Tribunal to be intelligent and resourceful and the Tribunal considers that these qualities would make him well placed to find gainful employment in China. Even if his children were not included in the family Hukou, country information suggests that the applicant could access private health and schooling for the children.
The Tribunal finds that even if the Chinese authorities somehow discovered that the applicant had applied for a protection visa in Australia, his lack of public profile in China and the lack of any previous knowledge of the applicant by the Chinese authorities as a Shouters practitioner or other person of interest, would mean that applicant would not face a real chance of suffering serious harm if he returned to China on the grounds that he applied for a protection visa in Australia.

Conclusions

After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the reasons mentioned above, the Tribunal finds that there is no real chance that the applicant would suffer serious harm if he returned to China. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to China. Therefore, the applicant does not satisfy the requirements of s.36(2)(a).
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.
For the reasons set out above, the Tribunal is not satisfied, on the evidence before it, 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 the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).
As the applicant does not satisfy the criteria in section 36(2)(a) or (aa) and therefore does not hold a protection visa, the secondary applicants are not eligible to be granted protection visas under section 36(2)(b) or (c).

DECISION

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

Tigiilagi Eteuati
Member

[2017] AATA 834

4 May 2017

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