1512678 (Refugee)

[2018] AATA 929

1512678 (Refugee) [2018] AATA 929 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512678

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:5 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2018 at 11:35am

CATCHWORDS
Refugee – Protection visa – China – Family members – Individual protection visa applications remitted to the Federal Court – Minor applicant – Social discrimination – Child born out of wedlock – Parents breached China’s one child policy – Unable to pay social compensation fee – Fears being taken away by authorities – Family’s Christian believes – Claims inconsistent with country information – Credibility concerns

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

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 and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on [date] July 2014 and the delegate refused to grant the visa on [date] August 2015.

3. On 15 September 2015, the applicant lodged a review of this decision with the Tribunal. The applicant submitted a copy of the delegate decision with the application for review. The applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. As the applicant is a minor, his mother [Ms A] gave evidence on his behalf. The Tribunal hearing was conducted with the assistance of a Mandarin interpreter.

4. The applicant was represented in relation to the review by his registered migration [agent].

   BACKGROUND

5. The applicant [was] born on [date] in [Australia]. He is [age] years of age.

6. His mother is [Ms A], who was born on [date] in the Fujian Province in China. She had lived her entire life in that province before coming to Australia. She arrived in Australia on a student visa on [date] March 2008 and applied for a protection visa on [date] July 2011. Her application for a protection visa was refused by a delegate on [date] October 2011 and she applied for a review of this decision with the Refugee Review Tribunal. The Tribunal in case 1111915 affirmed the decision to refuse the protection visa on [date] March 2012. She lodged an application for judicial review with the Federal Magistrates’ Court of Australia but this review was dismissed on [date] July 2012. His mother remains in Australia on a bridging visa associated with the applicant’s protection visa application.

7. His father [was] born also born on [date] in the Fujian Province in China. He had lived his entire life in that province before coming to Australia. He arrived in Australia on [date] May 2007 on a student visa and applied for a protection visa on [date] July 2011. His application for a protection visa was refused by a delegate on [date] October 2011 and he applied for a review of this decision with the Refugee Review Tribunal. The Tribunal in case 1111915 affirmed the decision to refuse the protection visa on [date] March 2012. He lodged an application for judicial review with the Federal Magistrates’ Court of Australia but this review was dismissed on [date] July 2012. His father remains in Australia on a bridging visa associated with the applicant’s protection visa application.

8. His sister [who] was born on [date] in Australia. She applied for a protection visa on [date] July 2012. Her application for a protection visa was refused by a delegate on [date] October 2012 and she applied for review of this decision with the Refugee Review Tribunal. The Tribunal in case 1218573 affirmed the decision to refuse the protection visa on [date] October 2013. She lodged an application for judicial review with the Federal Magistrates’ Court of Australia but this review was dismissed on [date] October 2014. His sister remains in Australia on a bridging visa associated with the applicant’s protection visa application.

9. The applicant was born in Australia to Chinese citizens. He submitted his [State 1] Birth Certificate and People’s Republic of China passport which confirm that he is a citizen of China. The applicant is not a citizen of Australia. The Tribunal is satisfied that the country of reference is China.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issue in this case is whether [the applicant] meets the refugee criterion, and if not, whether he meets the complementary protection criterion.

   Claims

10. The Tribunal has considered the written application for protection, the interview with the delegate and the oral evidence given to the Tribunal when identifying the claims raised by [the applicant]. From that evidence, the claims can be identified as follows:

11. [The applicant] cannot return to China because his parents had breached the Chinese family planning laws, his parents will be required to pay a social compensation fee, and he fears that his parents will be forced to undergo sterilisation because of the breach of these laws.

12. [The applicant] cannot return to China because he would not be able to obtain household registration and will be deprived of all the benefits that are associated with such registration, such as access to health, education and welfare services.

13. [The applicant] cannot return to China because he was born out of wedlock.

14. [The applicant] cannot return to China because he will not be able to practise as a Christian.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Criteria for a protection visa

16. 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.

17. 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).

18. 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.

19. 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’).

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    FINDINGS AND REASONS

    Breach of the family planning laws and social compensation fee by parents

21. [Ms A] claimed that that she and her de facto husband would be required to pay a social compensation fee because of a breach of the Chinese family planning laws. As noted previously, [the applicant] is one of two children. When asked how the requirement to pay a social compensation fee have any impact on [the applicant], the Tribunal was told that a failure to pay this fee would result in [the applicant] having no parents and being discriminated against by other people. His mother told the Tribunal that she did not want her son to grow up in that sort of environment.

22. The Tribunal noted that China previously had a ‘one child’ policy, but that country information indicated that this position had changed and China now allowed a couple to have two children without paying the social compensation fee. However, the Tribunal accepts that children born before 1 January 2016 are required to pay the compensation fee and that [the applicant]’s parents would be caught by such a provision. [Ms A] claimed that she and her husband would be taken away if they did not pay the social compensation fee which would leave [the applicant] without his parents.

23. There is nothing in the country information to suggest that parents who do not pay the social compensation fee are taken away or otherwise detained by the government. The country information suggests that measures by the authorities to obtain the payments are personal pressure through phone calls and visits, as well as limitations on the parents’ ability to obtain government-linked contracts, apply for loans or credit cards, obtain market access certificates for businesses, board planes or book sleeper cabins on trains.[1] It was also put to [Ms A] that there is a degree of flexibility in the amount which is to be paid as a social compensation fee[2] and that factors such as low income are a consideration when determining in charging this fee.

    [1] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.33

    [2] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.32

24. It was put to [Ms A] that the social compensation fee appeared to be a law of general application which was applicable to all citizens, and was not imposed in a discriminatory way. [Ms A] told the Tribunal that she was concerned that her family did not have the means to pay for the fine.

25. Even if the Tribunal was wrong to consider the family planning laws to be laws of general application, it appeared that [Ms A] and her husband would have the resources to discharge this financial burden. [Ms A] told the Tribunal that she and her husband previously worked both in Australia and China, and [Ms A] told the Tribunal that her family who remained in China had a local market [stall], a business that her mother and brother were involved in since she was very young. Indeed, [Ms A] had worked at the stall as a child.

26. Despite at the time of her protection visa application indicating that she did not have contact with her family, she is now in contact with them and the last time she spoke to her mother was several months prior to the Tribunal hearing. She said her family was worried about her. Her family had access to pay for her enrolment and student visa in Australia, which amounted to RMB [amount] and she told the Tribunal that her family had also paid money for her brother’s travel to [another country]. The Tribunal rejects [Ms A]’s claim that as this money was borrowed and had not been paid back, it would be impossible for this social compensation fee to be discharged with the assistance of her family, or through her and her partner working in China, or a combination of the two. That being said, even if [Ms A] and her de facto husband did not pay the social compensation fee, there is no evidence to suggest that this would result in any harm to [the applicant], as the social compensation fee is now not linked to hukou registration, despite historically this being the case.

27. The Tribunal finds that Chinese family planning laws are a law of general application applicable to all citizens of China, and there is no evidence before the Tribunal to suggest that they are imposed in a discriminatory way. The Tribunal does not accept that [the applicant] will suffer significant harm if his parents do not pay this fee.

    Forced sterilisation of parents

28. In the written application for the protection visa, [the applicant] stated that he was concerned that his parents would be forced to be sterilised for their breach of the family planning laws. [Ms A] did not raise this in her oral evidence and this was raised by the Tribunal. The Tribunal noted the country information indicated that China abolished forced contraceptive measures as part of reforms to the Population Law[3], and that in any event, this was not a claim related to [the applicant] but rather his parents. The Tribunal does not accept that [the applicant]’s parents would undergo forced sterilisation as a result of breaching family planning laws in light of the country information.

    [3] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.106

    Inability of applicant to obtain household registration “hukou”

29. [Ms A] told the Tribunal that her son would be unable to be registered as part of the Chinese household registration system because he had been born out of wedlock and his parents would have to pay the compensation fee for [the applicant] to be registered, and [Ms A] indicated that she would not be able to do so. The household registration system, known as the hukou ties access to services including health and education to an individual’s place of birth, or parents place of birth. It is accepted by the Tribunal that if [the applicant] is not registered in the hukou system, he would face difficulty accessing education, health and other social services.

30. The Tribunal put to [Ms A] that country information indicated that [the applicant] would not have difficulty being registered as part of the hukou. On 25 August 2014, the Fujian Public Security Department (PSB) implemented a new provincial Household Registration Management system.  Under the new system, provincial PSB officials were directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for hukou registration. This means all Fujian babies, including abandoned babies or those born "out of plan" or out of wedlock, should now have access to household registration, whether or not they pay the fee.[4]  

    [4] China: Country Information Request: CI160219094800679: Fujian registration of children and 'out-of-plan' births, 24 March 2016

31. [Ms A] indicated that her brother in China had to pay to get his adopted daughter registered as part of the hukou, which he has now done. She told the Tribunal that this happened one or two years ago. This adopted daughter was a second child and this is in conflict with the country information that the Tribunal needs to have regard to. The Tribunal does not give any weight to this claim as it does not know the circumstances of the registration of [Ms A]’s adoptive niece, and it prefers the evidence contained in the country information.

32. It is clear that children born before 1 January 2016 have a right to household registration. Fujian, Shandong and Zhejiang prohibited local authorities from requiring payment of social compensation fees for accepting an application for a hukou. Children who might have previously been unable to be registered are now by law able to apply for a hukou irrespective of whether their parents paid the relevant fees.[5] Given that [the applicant] is in possession of a [State 1] birth certificate and passport, the Tribunal does not find that he will have any difficulty in obtaining hukou registration in China.

    [5] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.109

    Applicant being born out of wedlock

33. [Ms A] claimed that [the applicant] would be discriminated because he was born out of wedlock. When questioned who would discriminate against her son because of his parent’s unwed status, [Ms A] claimed that in rural areas, Chinese people are ‘very gossipy’ and that everyone around her son would be talking about him which would cause him ‘psychological harm’

34. The Tribunal noted that [Ms A] gave evidence that she and her de facto husband had been together for over seven years, and that Christian teaching was that parents should be married before having children. [Ms A] said that she realised that it was a ‘sin’ to have children before she was married, and she later ‘confessed’ this sin, however the children were unplanned. [Ms A] told the Tribunal that her family and her de facto husband’s family had not given the couple their blessing to wed and did not initially want her to have her first child, and that was initially why she and her partner did not get married. The Tribunal accepts that [Ms A] and her de facto husband are not married. [Ms A] told the Tribunal that even if she and her husband did marry, it would not change the fact that [the applicant] had been born out of wedlock. The Tribunal accepts that this is the case, and is unsure whether [Ms A] or her de facto husband will eventually marry.

35. While the Chinese state provides that children born outside of marriage have the same rights as those born to married parents and shall not be subjected to harm or discrimination[6], the Tribunal accepts that unmarried mothers have faced societal disapproval if they remain unmarried in China. As noted by the Tribunal to [Ms A], it is unfortunate that some people could be so awful as to ‘gossip’ about [the applicant] on account of being born out of wedlock. However there is no country information which supports a finding that the level of social discrimination against children born out of wedlock amounts to serious harm, and [the applicant]’s claim is only that people will ‘gossip’ about him.

    [6] Article 25 of the Marriage Law

    Christianity

36. [Ms A] told the Tribunal that her family attend church weekly at [a] Church in [a suburb]. She told the Tribunal that the family attend the 11am Mandarin service and that the family had been attending that church since [Ms A] and her husband were released from immigration detention (as she and her husband had previously been unlawful non-citizens in Australia). When asked by the Tribunal how her son, as a [age] year old, would have difficulty in China on the basis of his Christianity, [Ms A] told the Tribunal that she did not want her son to ‘turn his back on Christianity’ and was worried that this would happen in China. She told the Tribunal that she wanted [the applicant] to remain in Australia so he could attend Church in Australia. She told the Tribunal that if [the applicant] was to return to China she was not sure if she would take him to a church there.

37. The Tribunal noted that it was very difficult to understand how her [age] year old son could have any religious beliefs, and [Ms A] acknowledged that her son had not been baptised because he was ‘too young to be baptised’ because he did not understand what that entailed. Nevertheless, the Tribunal accepts that [Ms A] wishes to raise her son as a Christian, but as noted at the hearing, whether her son decides to practice as a Christian will ultimately be a matter for him when he gets older.

1. [Ms A] was asked about family’s religious practice, and [Ms A] readily admitted that despite her attendances at church services, she did not have a good knowledge of the Bible. When asked if she could tell the Tribunal the 10 Commandments, she could only respond that the Commandments were “Not to hurt people, not to steel, not to rob and not believe in any other God” and said that she could not remember the rest. She could also not recite the Lord’s Prayer. She told the Tribunal that her memory was not good and that she had raised her inability to retain this information to people at her Church, but she was told not to worry about this inability, and was encouraged by brothers and sisters in the Church who knew she was a true Christian in her heart.

2. The Tribunal put to [Ms A] that country information indicated that there would be no issue with practising as a Christian in China, as there were millions of Christian worshippers in that country[7]. The Tribunal noted that the Chinese Constitution stated that citizens enjoy freedom or religious belief and that no state organ, public organisation or individuals may compel citizens to believe in, or not believe in, any religion.[8] The Tribunal noted that discrimination on the basis of religion is prohibited by law, and that, particular to the Fujian Province, the Chinese Communist Party is largely indifferent to religious practice at an individual level[9]. [Ms A] told the Tribunal that these policies are different from what actually happens on the ground, but that observation is not based on any experienced harm, but rather speculation that is not supported by the country information.

   [7] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.11

   [8] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.4

   [9] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.5

3. [Ms A] said that registered churches in China are, in effect, beholden to the Chinese government and that her family would not listen to the messages from those churches because her family believed in listening to ‘the true God’. The Tribunal put to [Ms A] that there are many unregistered churches in China, and that in Fujian, congregations of 50 people can meet weekly in private houses without being closed down or repressed by the local authorities[10], so that she and her family could attend churches that way if she did not want to attend a registered church.

   [10] DFAT Thematic report on Fujian Province, People’s Republic of China, 16 December 2016 at 3.12

4. The Tribunal is conscious of the fact that people who are Christians may have different levels of understanding of their faith, and is conscious of the fact that it cannot assess whether [the applicant] is a genuine Christian on the basis of his mother’s knowledge of Christian teachings. The Tribunal faces a difficult task when assessing whether a [age] year old is a practising Christian.

5. Considering all of that, the Tribunal cannot be satisfied that [the applicant], as a [age] year old, is a practising Christian other than to accept that he has attended Church with his family in Australia. The Tribunal accepts that he would have an imputed religion by the conduct of his parents in bringing [the applicant] to church. The Tribunal accepts that [the applicant]’s parents have attended a Christian church in Australia, and desire their son to continue to do so. However, there is no country information to suggest that children of Christians in China are at risk of any harm due to their parent’s practice of Christianity, and the Tribunal is satisfied that if returned to China, [the applicant] will attend an unregistered house churches with his family as part of the family’s practice of Christianity, if his parents decide to not attend government registered churches because of their objection to the influence the government has over registered Churches.

   CONCLUSION

   Refugee Criterion

6. The Tribunal has considered the criterion in s.36(2)(a), namely, whether the there is a real chance that [the applicant] will face serious harm for reasons of his membership of a particular social group or religion if he were to return to China now or in the foreseeable future.

7. The Tribunal accepts that [the applicant] has been born outside the family planning laws in China and accepts that he and his family have been attending church services in Australia. However, the Tribunal does not accept that the [the applicant] would not be able to obtain household registration, does not accept that [the applicant] would suffer any harm because of his parents failure to pay the social compensation fee, which is a law of general application in any event, does not find that he would suffer any harm because of the religious practice of his family, or that he would suffer serious harm because he is a product of unmarried parents.

8. Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that there is a real chance that [the applicant] will face harm for reasons of his membership of a particular social group or religion if he were to return to China now or in the foreseeable future.

   Complimentary Protection Criterion

9. Having decided that [the applicant] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) namely, whether there are substantial grounds for believing that there is a real risk that [the applicant] will suffer significant harm as a necessary and foreseeable consequence of being returned to China.

10. As noted above, the Tribunal accepts that there may be some societal disapproval of [the applicant] being the product of unmarried parents, but having people ‘gossip’ about you, while awful behaviour, is not sufficient to establish significant harm.

11. Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that there are substantial grounds for believing that [the applicant] will be arbitrarily deprived of his life, have the death penalty carried out, be subject to torture, be subject to cruel or inhumane treatment or punishment, or be subjected to degrading treatment or punishment.

    SUMMARY

12. For the reasons given above, the Tribunal is not satisfied that [the applicant]is a person in respect of whom Australia has protection obligations. Therefore, he does not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. As he does not satisfy the criteria for a protection visa, he cannot be granted the visa.

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

    DECISION

14. The Tribunal affirms the decision not to grant [the applicant] a protection visa.

    Nathan Goetz
    Member