1512703 (Refugee)

1512703 (Refugee) [2018] AATA 488 (5 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512703
COUNTRY OF REFERENCE:                  China
MEMBER:Louise Nicholls
DATE:5 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 05 February 2018 at 1:41pm

CATCHWORDS
Refugee – Protection Visa – China – Minor Applicants – Nationality of minors born in Australia – Applicants taken to be Chinese Nationals – Ability of minors to obtain household registration –Applicants eligible for household registration – Religion – Mormon – Ability to practice religion – Applicants able to practice – Economic burden of Social Compensation Fee – Economic harm not amounting to serious harm – Societal discrimination for children born out of wedlock – Level of discrimination does not amount to serious harm – Fear of harm arising from personal dispute – Significant period of time since dispute – No basis for fear
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 417, 438, 499
CASES
MZAFZ v MIBP [2016] FCA 1081

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

The applicants are sister and brother and are respectively [ages of applicants]. The applicants were born in Australia; however, for reasons set out later in this decision the Tribunal finds they are Chinese citizens. The applicants’ mother [Ms A] (the mother) has made the application on behalf of her children and has provided material to support their claims.
The mother arrived in Australia [in] March 2008 as the holder of a [student] visa. She subsequently met and formed a relationship with [Mr B] (the father) and gave birth to her first [child] in [year]. She applied for a protection visa [in] October 2011 and included her first [child] in her application. Her partner, [Mr B] applied for a protection visa separately.
From 2011 until 2014 the applicants’ mother and father pursued their respective protection visa applications through the Refugee Review Tribunal and the courts. Further the applicants’ mother made a request for ministerial intervention pursuant to s.417 of the Migration Act 1958 (the Act). This request was refused and her application to make a further protection visa application was also refused.
The applicants’ mother gave birth to the first named applicant on [birth date] and the second named applicant on [birth date].
The first named applicant applied for a protection visa on [in] July 2014 and the second named applicant [in] April 2015. The application initially included the children’s father [Mr B], however, his application was found to be invalid.
[In] August 2015 the delegate of the Minister for Immigration and Border Protection refused to grant the applicants protection visas under s.65 of the Act.
This is an application for review of that decision. The mother provided copies of the delegate’s decision and the children’s [Australian State 1] birth certificates. She also provided a copy of an extract from her Chinese passport.
The applicants appeared before the Tribunal on 25 January 2018 and their mother gave evidence and presented arguments on their behalf to support the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants’ mother gave evidence about her family and her background, her current circumstances and the applicants’ claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether one or both of the applicants meet the refugee criterion, and if not, whether one or both meet the complementary protection criterion. If one or both meet either criterion the Tribunal must consider whether the sibling is a member of the same family unit.
The relevant law is set out in Attachment A.
Non-disclosure certificates – s.438 of the Act
A preliminary issue which arises for consideration in this matter is the effect of certificates purporting to restrict the disclosure of information pursuant to s.438 of the Act.
The Tribunal has received six Department of Immigration and Border Protection (the Department) files relating to the application before the Department as well as files relating to the mother and father’s previous applications for protection visas. Five of the files contain certificates issued by the delegate pursuant to s.438 of the Act. These certificates all refer to information in various folios of the files as being restricted from disclosure on the basis that the disclosure of the information would be contrary to the public interest because they contain information relating to an internal working document and business affairs.
The Tribunal has considered the material identified in the certificates and considers the certificates are not valid certificates.
In considering the validity of these certificates the Tribunal has taken into account recent case law on the issue.
In MZAFZ v MIBP,[1] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[2]
[1] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
[2] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].
After attempting to explain the Tribunal’s obligations to disclose the existence of the certificates, the applicants’ mother was invited to make submissions on the validity of the certificates. She was perplexed by the invitation but had nothing to put to the Tribunal on this issue.
The Tribunal has considered the material referred to in the certificates. Essentially the various folios contain case management materials, submissions relating to Ministerial requests, interpreter bookings and other material not relevant to the claims made by the applicants. They are not adverse to the applicants nor do they support the application. The Tribunal has not taken them into account in determining the application.
What is the country of reference?
The applicants were both born in [Australian State 1] and the mother has provided [Australian State 1] birth certificates to support this evidence.
The birth certificates show that [Ms A] (the mother) is the mother of the applicant children and she gave oral evidence to this effect. The mother gave evidence she is a citizen of China and provided a copy of her Chinese passport to support this evidence. The Tribunal accepts the mother is a citizen of the People’s Republic of China (China) and is the mother of the applicant children.
In the applicants’ application forms it is acknowledged on their behalf, that their parents are Chinese citizens and that the applicants are Chinese citizens.
According to Article 5 of the Nationality Law of the People’s Republic of China, if a parent of a person born abroad is a Chinese national or both parents are Chinese nationals, then that person shall have Chinese nationality.[3]
[3] Immigration Department of the Government of the Hong Kong Special Administrative Region, Topical Issues – 9, Nationality Law of the People’s Republic of China and the National People’s Congress’ Explanations of how it is to be applied to the HKSAR, 15 December 2008, >
In the Australian Department of Foreign Affairs and Trade (DFAT) advice provided in 2011 it states:
According to local authorities and post’s understanding of Chinese regulations and practice, it is normal for a person to first have a hukou (household registration) before he/she is eligible to apply for a Chinese passport. For a child born outside China, it is normal practice for Chinese missions abroad to issue a travel document for the baby to travel. Once back in the mother’s town/village where her hukou is registered, the parents would then apply for the child’s hukou at the local police station.[4]
[4] Department of Foreign Affairs and Trade, DFAT Report No. 1261 – China: RRT Information Request: CHN38360, 30 March 2011.
Whilst no other evidence has been provided of the applicants’ Chinese nationality, the Tribunal accepts that the children are Chinese nationals as their mother is a Chinese national and on the evidence before the Tribunal it finds they have acquired Chinese nationality by descent.
The Tribunal is satisfied that the applicants are both citizens of China and that China is the receiving country for the purposes of s.36(2)(aa).
What are the applicants’ claims?
The first named applicant’s claims were set out in the original application for protection. In April 2015 the mother added the second named applicant to the application and provided a statutory declaration made by her [in] April 2015. The claims were further discussed at an interview with the delegate [in] May 2015.
The mother gave evidence at the tribunal hearing where she discussed the claims made on behalf of her children.
Essentially the mother claims, on behalf of the children, that they will not be able to obtain household registration (hukou) if they return to China as they have been born outside China’s family planning laws. As such they are members of a particular social group and will suffer harm and discrimination as members of that group because they will be unable to access basic services in China such as education and health. They will also suffer some social stigma as being children born out of wedlock. The mother claims on their behalf that their standard of living and lifestyle will suffer if they return to China as she will not have the same resources available to her in China as in Australia.
She also stated that she is a Mormon and that she takes her children to church in Australia. If she returned to live in Fujian province with her children she would return to live with her parents and there is no Mormon church in her locality in which the children can worship.
She also claimed that the children may face harm for reasons of animosity and a claim for money arising from a personal dispute involving the children’s father in China in 2007.
Background
The applicants’ mother and father came to Australia from Fujian Province in China as the holders of student visas. The mother arrived in March 2008 and the father arrived in August 2008. The mother was [age] at the time of her arrival and the father was [age].
The mother stated that her family live in an urban village in the Fuqing City District Fujian Province. She explained that an urban village is a village in between a rural village and a town. Her parents live in the village; her father is retired and her mother works in her [relative’s] business.
She is an only child and attended school in Fujian Province and finished high school before she came to Australia as a student. She completed [courses]. She returned to China to visit her parents in 2010 but has not returned since that visit.
She met the applicant children’s father in 2010 in [Australian City 1] and they moved in together and live together as a couple until they separated in 2014 as a result of the father’s domestic violence. The couple have three [children]. Their mother, father and eldest daughter have previously applied for protection and their claims were refused.
Despite not holding a visa to remain in Australia, the father is still living in [City 1] and is working in [a particular field]. The mother stated he sees the children every [particular day of the week] and sometimes during the week. He does not pay child support. The mother is supported by [charity] payments although some of those payments stopped in December 2017.
She and the children live in a [house] in [City 1] and when she has time she speaks to her parents in China by telephone.
Will the applicants be able to obtain household registration (hukou)?
The mother stated that if she and the children returned to China they would return to live in the village in which her parents live in Fujian Province.
The mother claimed that, as she and the children’s father were not married at the time they had their three children, they could not apply for the children’s household registration in China unless a social compensation fee was paid. She stated that the children were born outside the family planning rules as the parents were unmarried and they have had three children.
She stated that if the children cannot obtain household registration they cannot attend school or obtain medical services or access all the benefits of being a Chinese citizen.
She stated that neither she nor her parents can afford to pay the large social compensation fee which would be levied on her if she returned to China and the children applied for household registration.
She acknowledged that the family planning regulations had changed in China and that after 1 December 2016 couples could now have two children but she pointed out that her children were born before that date and she would not have the benefit of those changes. Further her children were born out of wedlock and she would have a pay a larger fee than if the couple had been married.
As discussed with the mother at hearing, the country information indicates that the payment of a social compensation fee for children born out of plan has now been separated from the issue of household registration. The Chinese government has declared that all children irrespective of the circumstances of their births have the right to obtain household registration. The applicants’ mother did not accept that her children would have the right to obtain household registration if she returned to China with the children. She stated that as she could not pay the social compensation fee the local officials responsible for school enrolments would not allow her children to attend school.
The Tribunal has considered country information from a number of sources which indicate that all children of Chinese nationality will be entitled to be granted household registration. Household registration provides access to medical and educational services and other government benefits.
On the issues of the changes in the family planning laws and the changes to the household registration system, the DFAT 2016 report on Fujian[5] notes:
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.
3.37 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.
5.3 Hukou reform has been proceeding throughout China as part of wider economic reforms for some time in an effort to control urbanisation. In Fujian, authorities no longer distinguish between urban and rural hukou – all households are now registered as ‘residents’ and are entitled to access available social services…..
5.4 Under the new system, children may be registered under the hukou of either parent, who must normally supply supporting documentation including the child’s birth certificate, household registration books of the parents, identification cards of the parents and the marriage certificate of the parents. If the child is born out of wedlock, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.
[5] DFAT Thematic Report on Fujian Province, PRC, 16 December 2016.
In March 2016 DFAT responded to a country information request regarding household registration for children born out of plan in Fujian Province.[6] The post noted that:
Household registration (hukou) reform has been proceeding in China as part of wider economic reforms for some time. 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.
[6] China CIR CI160219094800679 Fujian registration of children and out of plan births 24 March 2016, CX0562B6F11.
The latest DFAT country report on China notes:
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 Human Rights Defenders (including Lawyers)). According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.
Whilst the report also notes that children of unmarried mothers in China may have difficulties registering their children this would appear to arise from past difficulties in obtaining birth registration in China. Single women without a valid reproduction certificate were once denied birth certificates for their children. A birth certificate is necessary before a hukou can be issued.[7] An article in The Economist[8] noted that until January 2016 it was impossible to get birth certificates and that many unwed mothers left China in order to have their children so that they have foreign proof of birth. It is now easier to get birth certificates as long as the parents can prove they are both related to the child.
[7] Chinas two child policy: Single mothers left out, 2 November 2015,
[8] ‘Pariahs’, The Economist, 27 February 2016, >
The Canadian Immigration and Refugee Board of Canada noted in a Research Response prepared in October 2016, 10 months after the changes in policy were announced that:
There are approximately 13 million non-registered people in China (Xinhua 9 June 2016; US 13 Apr. 2016, 58; Global Times 27 Jan. 2016). …. An article by Xinhua News Agency states that, “[u]nregistered citizens include those who do not have a birth certificate, those born out of a wedlock, orphans adopted outside the official system, and those who lost their hukou due to marriage traditions, being pronounced missing or dead, or previously held invalid registration papers.” (14 Jan. 2016)
…Sources indicate that government authorities also announced in 2015 that they would take steps to regularize the status of unregistered citizens (Xinhua News Agency 9 June 2016; AI 2016, 120; Germany 14 Dec. 2015). In a briefing note, the Federal Office for Migration and Refugees of Germany stated that with this change in policy, unregistered people would "[f]or the first time, […] receive 'Hukou' documents allowing them school attendance and unrestricted access to social services including medical care" (Germany 14 Dec. 2015, 5).

The response also noted that:
Chinese who give birth to or return from abroad with an unauthorized child, answer to the local regulations in the place of their household registration. (Landinfo Norway 3 Aug. 2015, 3.)
…After the State Council's notice [in January 2016], Guangdong and Liaoning provinces responded by officially delinking fines and hukou registration. Several provinces including East China's Shandong and Fujian implemented such policies as early as 2014 to tackle the [black children] problem. In these places those that are born outside the rules can register for a hukou without having to first pay fines - although the fines must be paid eventually. (Global Times 27 Jan. 2016)
The Tribunal accepts that the applicants were born in Australia and have Australian birth certificates which show the identity of the mother and the father. The mother gave evidence that both she and the father are Chinese citizens and have household registration in Fujian Province. The country information indicates, and the Tribunal finds, that on return to Fujian Province the mother would be able to apply for household registration for the first and second named applicants irrespective of the circumstances of their birth. She would need to provide a copy of her household registration and their birth certificates and/or a statement setting out their circumstances. Upon registration the applicants would have access to services in Fujian Province including health and education.
Whilst accepting that local officials are often largely responsible for the way in which family planning and registration is managed, the country information indicates that Fujian Province has implemented changes to their laws and policies to ensure as far as possible that children born ‘out of plan’, including children born out of wedlock, are entitled to household registration.
Will the applicants’ mother be required to pay a social compensation fee?
The mother stated that she would be severely disadvantaged if she returned to China with the children because she would be required to pay social compensation fees for all three children born ‘out of plan’. This could involve payment of a large amount which she would not be able to manage. She claimed this would have a negative impact on the applicants’ welfare and lifestyle. She also claimed that although her parents would be willing to help and would be fond of their grandchildren they could not help with financial or physical support of all three children due to their own limited circumstances.
She agreed that in 2008 when she arrived in Australia her parents had assisted her with the considerable travel and education expenses she incurred during the first few years of her arrival. She estimated that her education expenses alone amounted to about $12,000 per year. She stated her parents could not now provide this sort of support.
The DFAT thematic report on Fujian noted that:
3.29 Authorities in China use incentives and penalties to achieve compliance with family planning regulations. Social Compensation Fees (also referred to as Social Maintenance Fees) are the most common disincentive used in Fujian. According to the March 2014 Population and Family Planning Regulation of Fujian, Social Compensation Fees are calculated on the basis of average annual disposable income for urban residents or the average annual net income for rural residents, or residents’ actual income, whichever is the greater). The fee is levied on a multiplier basis, depending on the couple’s circumstances. The March 2014 Population and Family Planning Regulation of Fujian provided that:
A Social Compensation Fee of 0.6 to 1 times will be imposed on those who give birth to a child ahead of schedule.
A Social Compensation Fee of 2 to 3 times will be imposed on those who give birth to an additional child.
A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a second additional child. Heavier Social Compensation Fees will be imposed on those who give birth to additional children.
A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a child born out of an extra-marital affair (including those who give birth to a child out of wedlock). Heavier Social Compensation Fees will be imposed on those who give birth to additional children born out of an extra-marital affair.
3.30 Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. In Fuqing (a county-level city near Fuzhou with a population of approximately 1.34 million people) the average annual disposable income for rural residents was RMB32,279 (AUD6,840) and the average net annual income for rural residents was RMB15,061 (AUD3,190) in 2013. Social Compensation Fees calculated in 2014 were based on these figures.
…
3.32 Credible information on the actual Social Compensation Fees charged in practice is difficult to obtain. The actual application of Social Compensation Fees varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation). The March 2014 Population and Family Planning Regulation of Fujian states that the decision to impose a Social Compensation Fee may be made at the county, township or neighbourhood level. DFAT is aware of verdicts by the Fujian High Court in late-2015 imposing Social Compensation Fees of approximately RMB50,000 (AUD10,595) for couples who gave birth to a second son, in violation of the Population and Family Planning Regulation of Fujian. In 2014, Fujian courts recorded 1,628 cases involving payments arrears of Social Compensation Fees over RMB100,000 (AUD21,190). However, DFAT also understands that local authorities in Fujian are able to show considerable discretion in charging Social Compensation Fees. Factors that would influence local authorities when charging Social Compensation Fees may include whether a couple is cooperative, is underage and/or from a low income family.
…
3.34 DFAT is aware of a range of measures that have been used in Fujian to secure payment of Social Compensation Fees, including applying personal pressure through personal calls and visits. In July 2015, the Fujian Health and Family Planning Commission signed a Memorandum of Understanding with the Fujian High Court, the Fujian Development and Reform Commission and the Fuzhou Branch of the People’s Bank of China to list people who failed to pay Social Compensation Fees on a ‘black list’, limiting their ability to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their businesses, board planes or book soft berth tickets on trains.
3.35 Notwithstanding that these measures demonstrate that many couples in Fujian seek to evade payment of Social Compensation Fees, in-country contacts suggest that widespread awareness of the fees means couples wishing to have an additional child in violation of the relevant regulations often save the required Social Compensation Fee in order to do so. DFAT assesses that for the vast majority of residents in Fujian, Social Compensation Fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure.
The Tribunal accepts that if the mother returns to China she may have to pay a social compensation fee, but as discussed with the mother, it also notes that local officials have considerable flexibility in how they apply these fees. They have the power to exempt fees or allow fees to be paid by instalments, depending on the circumstances of the parents.[9] She claimed that local officials in her parents’ village would think that she had a large amount of money because she had returned from living in Australia and they would perceive that she had acquired significant savings. However, this appears to be based on her own speculation and there is no other evidence that this would be the case.
[9] DFAT, DFAT Report 1210 – RRT Information Request CHN37505, 12 November 2010.
Even if the applicants’ mother is required to pay a large amount by way of a social compensation fee the Tribunal does not consider that this will result in serious disadvantage to the applicants. The mother stated if she had to pay the fee she would have to obtain work and leave the children in the village to pay off any fee. As discussed with the applicants’ mother, the Tribunal would expect her parents would assist her in caring for the children if she was required to work to pay the social compensation fees. The children are the only grandchildren of her parents. She agreed that it was customary for grandparents to care for grandchildren whilst their parents worked but stated that she had three children and she claimed her parents could not manage this number of children. However, the Tribunal considers that if she is required to find work her parents will assist her as they have in the past with her education and travel expenses.
The Tribunal also considers that local officials in Fujian Province have a large degree of flexibility in determining whether and how the fee should be paid. If the mother were able to demonstrate that she had little resources she could apply for exemption or payment by instalments. In any event, as discussed above, the payment of the social compensation fee is no longer linked to household registration and the applicants would not be deprived of essential government services.
The mother’s religious beliefs
In the application for protection made in 2014 the first named applicant claimed she would face harm in China for reasons of her father’s religious beliefs. The form stated that the father was a Mormon and the first named applicant feared her father would continue to participate in the Mormon Church and as a result she would face discrimination and harassment from Chinese authorities. She also claimed she faced harm because her father defended a girl from sexual assault before he left China in 2008 and the alleged perpetrator has strong connections with authorities who have accused the father of assault.
Following the lodgement of the application the father’s application was found to be invalid. Further the mother added her youngest child, the second named applicant to the application in 2015. She also provided a statutory declaration made [in] April 2015 setting out the claims made on the applicant children’s behalf. In that declaration she stated that she and the father had separated as a result of the father’s domestic violence.
In that declaration the mother stated that she was a Mormon, however, no claims were advanced on behalf of the applicants on the basis of the mother’s religious belief or practice. The decision record stated that the mother had abandoned any claims based on religion at the time of the delegate’s interview.
When this was discussed with the mother at hearing she told the Tribunal she joined the Church in about 2011 and attended regularly until about 2013 when she was having problems with the father. She stopped attending Church for some time during the conflict with the father and the subsequent separation. She stated that since that period she has resumed her attendance at the Mormon Church and that she also takes her three children to church.
When asked whether she had abandoned claims based on religion she stated that she was confused and upset at the time of the delegate’s interview and she now wanted to put forward claims based on her membership of the Mormon Church and the children’s attendance.
She stated that if she returns to China she will not be able to evangelise and there is no Mormon Church near the village in Fujian Province where her parents live and to which she would return.
The Tribunal notes the country information[10] in the most recent DFAT country report on China which indicates that whilst there are certain restrictions on the practice of religion in China the government ‘permits friends and family to hold small, informal prayer meetings without official registration’.
[10] DFAT Report on China, at 3.37.
The DFAT report also notes that the legal prohibition on proselytising would appear to conflict with the religious requirements of Mormons to proselytise to the wider community, however, it states that it is not aware of any evidence relating to Chinese citizens who are Mormons practising their faith in China.
The Tribunal put it to the applicant that country information indicates that the Mormon Church exists in China and has instructed its members to obey the laws of the land and not to proselytise or undertake missionary work in China. The website of the Church of Latter Day Saints in China[11] has a large amount of information on the church for Chinese members returning to China. This includes a reminder that proselytising is prohibited. The Church also notes that:
Many of these Chinese members remain where they have been working or studying, but many also return to China and do not know how to find the Church in their country and may not understand how they should comply with Chinese laws in relation to religious practice.
This website seeks to answer “Frequently Asked Questions” by PRC Church members outside China and by Church leaders who work around the world with those members. It gives needed basic information for PRC Chinese members returning to China, including whom to contact for information, attending Sunday Church meetings and encouragement to observe relevant Chinese laws. Also provided are links to online Church resources in simplified Chinese.
Over the years, the Church has built a strong relationship of trust with the People’s Republic of China by always respecting the important laws and traditions of that country. In order to observe Chinese laws and directions on religious activities, the Church is blocking access to this website so it cannot be viewed inside China.
[11] Church of Jesus Christ of Latter Day Saints in China >
The Church’s administrative director in Beijing is named and his contact details provided. One of the frequently asked questions on the Church’s webpage notes:
As a PRC Chinese member living overseas, when I return to China, can I attend Church on Sunday?
Yes. Local members meet on Sundays in various cities around China, led by local priesthood leaders, with local families and members of all ages, professions, and family situations.
The country information indicates, and the Tribunal finds, that the mother and the children can continue to have contact with, and attend a Mormon congregation in China if they return. It may be that there is no congregation which meets in, or near, the applicant’s home village. However, the Tribunal considers if the mother faces any limitations in arranging attendance at a Mormon Church these are essentially practical limitations arising from geographical issues and the small size of the Mormon Church in China. If the mother and children are not able to attend a Mormon gathering in their local area the Tribunal does not consider this arises as a result of ‘targeted’ systematic and discriminatory conduct on the part of Chinese authorities for reasons of religion.
Will the applicants face any discrimination or social stigma due to their mother’s unmarried status?
The mother claims that she will face a certain amount of discrimination and stigma if she returns to China as an unmarried mother. She also claimed that the first named applicant will face discrimination because she is a female and both children will face discrimination because they were born out of wedlock.
Article 25 of the Marriage Lawstates 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 on that basis. However, the country information indicates that despite this provision unmarried mothers in China have faced social disapproval if they remain unmarried.
As set out above, until 2016, unmarried mothers found it extremely difficult to obtain household registration because unmarried mothers were denied birth registration documents which were required for household registration (hukou). They were also denied benefits relating to maternity and antenatal care.
As set out above, the country information indicates that in Fujian Province, which is the mother’s home province, she can now obtain household registration for the children. She has Australian birth certificates which show the names and identity of both parents and the Tribunal finds they can be registered irrespective of whether the social compensation fee is paid. Thus, the children will be able to receive the educational, medical and social benefits which are linked to household registration.
The mother was not able to satisfactorily explain why she and the father did not marry during the time they lived together and gave birth to three children. As discussed, at the time the couple lived together both claimed they were active and devout members of a Mormon congregation. The mother stated that, according to Mormon Church beliefs and teaching, sexual contact was unacceptable outside marriage and that parents should marry before they had children.
In any event, it appears that the parents are now separated and the Tribunal has considered the situation for the applicants if they return to China and their parents remain unmarried. The Tribunal accepts they may face some social discrimination due to their status; however, there is no country information which suggests that the level of possible social discrimination amounts to persecution. The Tribunal accepts that there may be some social disapproval of the mother, embarrassment for the children but the evidence does not support a conclusion that the level of social discrimination amounts to serious harm. The children will be able to have a relationship with their grandparents if they return to Fujian Province and the applicant agreed that her parents would be fond of the children. If the children obtain household registration they will be able to attend local schools and access local medical services.
According to the mother, the applicants’ father is still living in [City 1], is working in [a particular field] and has contact with the children once a week despite not having a current visa. His application for protection which was lodged with the applicants was found not to be valid because his earlier application had been refused. It would appear that without a current visa the father may also have to return to China in the near future although there is no other evidence regarding his current situation. The mother gave evidence that the father’s home village is located quite close to her village in Fujian Province. If the father returns to China in the near future, he will be able to continue to see the children regularly.
In the written claims the applicant claimed that the first named applicant was a second daughter and that attitudes to female children were poor. DFAT notes:
2.11 …The traditional preference in Chinese society for boys, combined with decades of the one-child policy, have contributed to a sex ratio of 1.16 male births to every one female birth (compared with a natural rate of 1.05:1).
However, country information also indicates that the government authorities have implemented a number of policies to assist the development of women and are committed to protecting the legitimate rights and interests of women. The Law on Population and Family Planning forbids gender selection for non-medical purposes.
The Chinese government’s statement to the United Nations[12] notes:
In 2003, the "Care-for-Girl Action" started, which put forward the ideas that "gender discrimination should be eradicated from the prenatal stage and gender equality should be stressed in early childhood." Through wide and intensive publicity, the action is aimed at establishing, step by step, an interest-oriented mechanism favorable for girls and their family development, changing the traditional preference for boys to girls, safeguarding girls' legitimate rights and interests, and striving to enhance their status in the family.
[12] Gender Equality and Women’s Development in China

Recent articles have noted that as a result of the family planning policy the value of girls has risen in both urban and rural areas as the ratio of young women to men has reduced. Social attitudes have also changed.[13] Although somewhat dated, a BBC report in 2004 noted that in Fujian Province the authorities provided extra funds for insurance for households with daughters and a large number of girls were exempted from paying school fees.[14] The country information suggests that social attitudes are changing and in these circumstances the Tribunal does not accept that the first named applicant will face serious harm for reasons of her female gender.
[13] ‘As China’s One-Child Policy Relaxes, Girl Children No Longer Stigmatized’, 1 July 2014, great gender crisis’, The Guardian, 3 November 2011,
[14] ‘Chinese given perks to have girls’, BBC, 12 August 2004,
The Tribunal considers that the applicants will have access to family support and assistance if they return to China. Whilst they may face some social disapproval the Tribunal does not accept that this will amount to serious harm in all the circumstances.
Will the applicant children face harm as a result of their father’s involvement in a dispute in 2007?
The mother originally claimed that the father had been involved in a dispute with persons who had powerful connections in the local area in which he lived. As a result of this dispute she claimed he had been charged with assault before he left China and would face harm if he returned.
The father did not attend to give evidence and the mother stated that she did not know all the details because she had only heard about the incident from the father and had no first-hand knowledge of the incident. She claimed that in 2007 a fight took place at school; the fight arose from one person flirting with another at school. The father had not been involved in the fight in which a person was beaten up but had been reported to police as being involved in this assault. The person who was beaten was connected with a Party official and asked the father and his family to pay a large amount of money. She claimed that this person was still demanding money from the father and his family.
As discussed with the mother, this incident occurred over 10 years ago and she and the applicants had no connection with the parties to the incident. Further she is now separated from the father and in these circumstances the Tribunal does not consider the applicants will face any harm as a result of this incident in 2007. She claimed that the father’s village is not far from her home village and the persons seeking money from the father will come to her and demand money because she has been in Australia.
The Tribunal does not accept these claims. Firstly the children are [minors] and clearly do not have the capacity to pay any money to the alleged persons claiming money. According to the mother she did not know the father before she came to Australia and is now separated. The Tribunal considers that it is implausible that persons involved in a dispute with the father when he was [age] (2007) would now become aware that the mother, who is separated from the father and unmarried, had returned to a village in Fujian or that they would pursue her for an alleged debt from over 10 years ago.
The Tribunal does not accept that the persons involved in the ‘fight incident’ in 2007 would take any action to harm the mother or the applicant children if she and the children returned to their home in Fujian Province.
Will the applicants face economic disadvantage if they return to China?
The mother stated that if she returned she would have to live with her parents temporarily but would eventually need to find work to cover the family’s living expenses. She claimed that it would be hard as she would not have the level of support and respect she has enjoyed in Australia. She is currently receiving an income from [a charity] and she had good social support from a number of charities at the time she and the father separated. She is currently living with the children in a [house].
The Tribunal accepts that the applicant and the children have enjoyed and taken advantage of the lifestyle available in [City 1] and do not wish to return to a semi-rural village in Fujian Province. However, the Tribunal finds that the mother and applicants can access family support in China. The mother has also acquired English language skills and a [qualification] in Australia which will help her to obtain work and support the family. She gave evidence she would live temporarily with her parents but would need to find work in the longer term. She stated this would reduce her day to day contact with her children. She also stated that she would be humiliated on her return because whilst she has been in Australia for 10 years she would not return with substantial savings.
The Tribunal accepts that the applicants may not have the same standard of living in a village in Fujian Province as they might enjoy in [City 1] and that the mother may not have built up a substantial level of savings to assist her in resettling in China. However, it does not accept the applicants will face a level of economic hardship that amounts to serious harm if they return to China.
Do the applicants meet the refugee criterion?
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 applicants will face harm for reasons of their membership of a particular social group or religion if they return to China now or in the foreseeable future.
As discussed above, the Tribunal does not accept that the children will face serious harm for reasons of being ‘out of plan children’, children born out of wedlock or children born to parents who are members of the Mormon congregation in Australia or any other Convention related reason.
The Tribunal is not satisfied that either of the applicants have a well-founded fear of persecution for any Convention related reason.
Do the applicants meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it, there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
The Tribunal accepts that the children have been born outside the family planning regulations applicable in China and accepts that the mother has been attending the Mormon Church in Australia.
There is no evidence, and the Tribunal does not accept, that the applicant children would face the death penalty, arbitrary deprivation of life or torture if they return to China. Further whilst it does accept they may face some social disapproval due to the unmarried status of their parents it does not accept they would be subject to cruel or inhuman treatment or punishment or degrading treatment or punishment.
Having considered the applicant’s circumstances singularly and on a cumulative basis and for all the reasons set out above the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of either of the applicants being removed from Australia to China there is a real risk that they will face significant harm.
Conclusion
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Louise Nicholls
Senior Member

ATTACHMENT A
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

100. 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).
101. 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.

102. 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.
103. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
104. 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.
105. 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.
106. 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.
107. 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.
108. 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.
109. 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
110. 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’).
111. ‘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.
112. 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
113. 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 –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
114. Subsections 36(2)(b) and (c) provide as alternative criteria 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.

[2018] AATA 488

5 February 2018

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