1600590 (Refugee)

[2018] AATA 930

1600590 (Refugee) [2018] AATA 930 (21 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600590

COUNTRY OF REFERENCE:                  China

MEMBER:Mr S Norman

DATE:21 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2018 at 4:55pm

CATCHWORDS
Refugee – Protection visa – China – Fear of harm – Religion – Christian – Social discrimination – Female business owner – Extortion by local security guard leader – Financial hardship – Detained –
Breached China’s one child policy – Forced abortion – Working in Australia  to support her family in China

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA , 36, 65 , 499
Migration Regulations 1994 Schedule 2

CASES
Abebe v. The Commonwealth; Re MIMA; ex [1999] HCA 14
MIAC v SZQRB [2013] FCAFC 33

MZYXS v MIAC [2013] FCA 614

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 on [date] December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who claims to be a citizen of China, applied for the visa on [date] January 2015.

2. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

3. 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, he or she 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.

4. 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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

7. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

   Real chance to put evidence and submissions

9. The applicant said she “lawfully” departed China on [date] October 2014;[1] and she arrived in Australia on a Visitor visa on [date] October 2014.[2] Amongst other things, the applicant said she had previously felt suicidal after the death of her husband in [Country 1] in February 2015. She did not claim to have sought any medical treatment at that time but sought solace from her subsequent religious belief (and the Tribunal accepts the applicant was emotionally impacted by the death of her husband).

   [1] Department – folio 26.

   [2] Department – folio 35.

10. At the end of the hearing, and without providing examples, the applicant’s migration agent said the applicant (who claimed to have been a successful business woman in China) had only attended five years education in China, and she may not have understood questions asked of her at the hearing. At hearing, the applicant did not regularly or immediately respond to the material questions asked of her, preferring to discuss other issues, but as then stated by the Tribunal, after hearing her evidence I was satisfied she was (eventually) able to respond meaningfully to the materials questions asked. Further, the Tribunal was also eventually satisfied the apparent evasiveness of the applicant when responding to material questions at hearing, was not related to her lack of education or any emotional or other trauma; and instead, this was part of the reasons that ultimately satisfied the Tribunal that the applicant was not generally credible.

11. Next, at hearing the applicant did appear to be upset on occasion (particularly when discussing her three children that she has resided apart from since her departure from China). Though offered, she did not wish to have a brief adjournment when upset. Again after considering her responses to material questions I was satisfied she was (eventually) able to respond meaningfully to the questions asked.

12. The Tribunal understands that a principal responsibility (including at hearing) is to ensure that an applicant is given a real opportunity to put evidence and submissions in support of their case. After considering the evidence and submissions, including at the hearing, the Tribunal is satisfied the applicant was given the appropriate opportunity.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is the applicant fears harm for reasons of her religion, the Chinese one child policy, and for reasons of coming to the adverse attention of a local government official in Xiamen city. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The extortion by the local security guard leader & the applicant’s detention:

14. The applicant was born in [year] and her hukou was registered in Fuqing city. However, in July 2012 she travelled to Xiamen city (shortly after returning from [Country 1]). At that time a distant relative “ran a [stall]” (business licence lodged[3] - and at hearing the applicant agreed this was a [restaurant]) in Xiamen city and the applicant worked at this restaurant. In January 2014, the distant relative transferred the restaurant to the applicant.

    [3] Department – folio 43.

15. The applicant then said that in March 2014 a new team leader of the local security guards (the security guard leader) came to the area. He was a ‘veteran’ with a lot of friends in both the Army and the Public Security Bureau. At hearing, the applicant said the security guard leader was a former soldier, and though he was not then in the Chinese army or a member of the PSB, he was a state employee of Xiamen city. In writing, the applicant explained the security guard leader was brutal and “always bullied us”. She said he was also very greedy and “forced us to pay him money with the excuse of protecting their safety”. If someone failed to pay these protection fees that person would be in trouble.  These problems commenced after the arrival of the security guard leader.

16. Next, the applicant also said that as she was a female, the security guard leader came to cause trouble every 3 to 5 days. This would include bringing his friends to the restaurant without paying. He then asked for protection money. The applicant paid RMB [amount] (approx. AUD$[amount]) each month during March, April and May 2014. She then stopped paying as the restaurant business had slowed (as it was outside the tourist season). She explained that she had then reached an agreement with the security guard leader that she would pay again (ie make up for any short fall in the monthly extortion payment) during the next tourist season. This had been agreed to by the security guard leader.

17. However, in July 2014 the security guard leader (accompanied by four or five security guard colleagues and three local thugs) ‘smashed up her shop’. This occurred on [date] July 2014. She explained the security guard leader thought her staff member was her husband and had beaten him. The applicant then said that she and her three daughters were subject to financial hardship because she had to support all her children by herself. She did not have sufficient monies to pay the security guard leader. The delegate asked the applicant why she had not borrowed protection fees from her relatives and she said she understood they were negotiable.

18. Regarding the staff member who was beaten, this man’s wife had called the police but when they had arrived the gangsters had already ran away. The applicant requested that the police investigate the matter; she told them that the security guard leader was behind the incident as he wished her to pay protection fees (though she was not apparently able to provide any corroborating evidence of this); but the police colluded with the security guard leader and failed to assist. The applicant also said she lost a lot of money as her business property was destroyed, her business ceased, and she “had to pay” for the medical fees for her staff member who was beaten (RMB [amount] – approximately AUD$ [amount] – this amount was claimed to have been borrowed from relatives – and the Tribunal accepts the applicant paid this amount). The country information stated:

    2.22 China ranked 79 out of 176 countries and territories measured on Transparency International’s 2016 Corruption Perceptions Index. On taking office in 2013, President Xi Jinping launched a nation-wide anti-corruption campaign promising to catch officials of both high and low rank. The crackdown has caught over 1,800 officials, including 182 officials ranked at or above the deputy provincial or deputy ministerial level. The campaign has led to the arrest, expulsion from the Party or conviction for corruption of 1,130 officials (including 139 senior officials). Ousted senior officials include provincial Party secretaries, former generals, and former Politburo Standing Committee member Zhou Yongkang. Targets include state-owned enterprise bosses and officials who have fled China with large sums of public money. The Central Commission for Discipline Inspection (CCDI) oversees corruption investigations of Party members, and internal Party supervision. The CCDI has expansive powers to investigate, seize evidence and detain any Party official for months without a warrant. … Conviction rates for corruption cases, as with all criminal cases, are close to 100 percent. Chinese authorities have announced plans to establish in 2018 a new national anti-corruption watchdog, the ‘National Supervision Commission’, which would bring anti-corruption and prosecutorial activities of party and government organs under one agency. … .
    …..
    3.65 The CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, … The Party and government may, in limited circumstances, tolerate commentary on corrupt local officials, particularly those already under investigation by the CCDI … What the authorities deem sensitive can change with no warning.

19. The Tribunal notes the applicant’s inconsistent evidence between the attack on her restaurant on [date] July 2014, which in writing appeared to have possibly been by local thugs at the instigation of the local security guard/s, and at hearing, where the Tribunal understands she said the attack was undertaken by the thugs and local security guards. Be that as it may, based on the country information considered, it is clearly possible (and the Tribunal accepts) the applicant’s restaurant in Xiamen city was destroyed on [date] July 2014, as she failed to pay protection money. Notwithstanding the agreement with the security guard leader, it is also possible (and the Tribunal accepts) this was for the purposes of making an example of her.

20. Finally, the Tribunal notes the evidence clarified by the Tribunal at hearing did not always reflect that evidence which was identified by the Department delegate. To the extent the evidence is different, the Tribunal has preferred the evidence it was able to clarify at hearing.

    The Tribunal makes the following preliminary findings:

    ·     The Tribunal has seen a photocopy of the face-page of the applicant’s (expiry date [2017][5]) on the Department file and I accept she is a citizen of China as claimed. I therefore accept that China is the applicant’s receiving country for the purposes of assessing her refugee protection and complementary protection claims.

    ·     Based on the evidence presently before me, I am not satisfied the applicant has statutory effective protection in any safe third country (pursuant to subsections 36(3)-(5A) of the Act).

    ·     The Tribunal accepts the applicant’s restaurant in Xiamen city was destroyed on [date] July 2014, for having failed to pay protection money.

    ·     The Tribunal accepts this was for the purposes of making an example of her.

    ·     As discussed herein, the Tribunal accepts the applicant is from Fujian province in China.

    ·     The Tribunal notes the evidence clarified by the Tribunal at hearing did not always reflect that evidence which was identified by the Department delegate. To the extent the evidence is different, the Tribunal has preferred the evidence it was able to clarify at hearing.

    [5] Department – folio 3. 

    REFUGEE PROTECTION

21. In order to satisfy the criteria in subsection s.36(2)(a) of the Act, an applicant must be determined inter alia to have a real chance of persecution for at least one of grounds prescribed in the Act. The Tribunal notes this is a forward looking test.

    The applicant’s religion:

22. The applicant told the Department delegate that she had recently commenced to practice Christianity “due to having experienced mental unrest and that she now believed in Jesus”. The delegate recorded the applicant as claiming that while she had been in Australia, and shortly after her husband’s death in [an] accident in [Country 1] on [date] February 2015 (and the Tribunal accepts the husband was killed in an accident in [Country 1] in February 2015), she wished to return to China to bury her husband. Her mother-in-law advised her that nothing would bring her husband back. She was advised she would serve her daughters better by remaining in Australia. At this time, the applicant was “unable to get out of bed [and] she kept agonising over whether to return to China knowing that if she did she would be unable to return to Australia”. She felt suicidal (though no relevant medical assistance was claimed to have been sought).

23. The applicant explained that on [date] March 2015, “two sisters had come to the house to visit the applicant, as the applicant’s landlord was a Christian and had been concerned about her emotional well-being after her husband’s death”. Then someone from a church contacted the applicant. The applicant commenced attending a church in [a suburb]. There she was able to “find some measure of peace in [her] belief in Jesus”. She now wishes to continue to practice Christianity. When the delegate asked if she would attend a State sanctioned church in China, the applicant asked the delegate whether government churches existed in China. When she was told that they did, the applicant said she would attend one of these churches on her return. The delegate was satisfied the applicant had some interest in Christianity. When discussed at hearing, the applicant said she did not know about government sanctioned churches in China at the time of the Department delegate’s interview. The country information stated:

    Three-Self Patriotic Movement and Catholic Patriotic Association
    3.7 Large numbers of people in Fujian worship in TSPM- and CPA-linked places of worship. Asia Harvest, a Christian US NGO, estimates that there were 1.88 million TSPM-linked worshippers in Fujian and 908,000 CPA-linked worshippers in 2011. More recent data on the number of TSPM- and CPA-linked places of worship in Fujian is difficult to obtain. However, TSPM- and CPA-linked places of worship (including prominent crosses outside places of worship) are clearly visible in Fujian. In-country contacts suggest that there are approximately 120 CPA-linked places of worship across Fujian and over 200 TSPM-linked places of worship in and around Fuqing City alone (including one that holds over 2,000 worshippers at any one time). … Bibles and other religious paraphernalia are readily available for purchase at TSPM- and CPA-linked places of worship in Fujian and credible sources confirmed to DFAT that these were generally accessible to the public.
    3.8 DFAT assesses that direct interference by local authorities in the operations of TSPM or CPA-linked churches in Fujian rarely occurs (particularly compared to other areas in China) and that worshippers at TSPM- and CPA-linked churches are generally able to openly practice their religion, including with a significant amount of public visibility (by attending clearly identified churches, for example), without interference. Beyond basic operations, some TSPM- and CPA-linked churches in Fujian also provide social services, such as palliative care, which in-country contacts said was encouraged by local authorities.[6]

    and:

    Unregistered, Underground or ‘House’ Churches
    3.10 Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.
    3.11 Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.
    3.12 Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.
    3.13 Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.
    

    [6] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [7] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    3.14 Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.[7]  

1. After putting the gist of the country information to the applicant at hearing and when asked, the applicant said she attended a new church in [another suburb] around once every two weeks (and the Tribunal accepts this is correct). She did not know which denomination this church was. However, she now believed in Jesus (and again, the Tribunal accepts this to be correct). Not wishing to make her case, and while accompanied by her migration agent, the Tribunal put to the applicant that based on the information before it, and the country information considered, I may be satisfied she could safely practise her new found Christianity in Fujian province (either in a registered or unregistered church), and this would not give rise to a real chance of her suffering serious (or significant) harm. When this was put to her, the applicant did not meaningfully comment.

2. After considering the evidence, the Tribunal is satisfied the applicant’s attendance at a church in Australia is principally related to the care and assistance she may receive (though I also accept she now believed in Jesus). This care and assistance could be provided to the applicant when she attended a State sanctioned church in China – and given the applicant does not even know the denomination of the Church she attends in Australia, I am satisfied she would willingly attend a State sanctioned church in Fujian.

3. That being said, based on the accepted claims and the country information, the Tribunal is not satisfied the applicant would have a real chance of suffering serious harm in Fujian province (either where her hukou was registered in Fuqing city – or where she had most recently resided in Xiamen city), for any reason discussed under the above sub-heading.

   China’s one-child policy:

4. In her Protection visa (PV) application, the applicant said she was born in Fujian in China in August [year]; that when she was [age] years of age (in 1993), she fell in love with a named man and had become pregnant. They were too young to get married legally and were not eligible to have a child. The applicant said she hid at the home of her partner “for some time”. When she was eight months pregnant a neighbour reported her to the authorities (for a RMB [amount] reward), and she was forced to have an abortion. She said this had “deeply hurt her, physically, mentally and psychologically”. After discussing this with the applicant at hearing, the Tribunal accepts the applicant was forced to abort her first pregnancy in or after 1993.

5. Next, the applicant said that during the following six years she could not fall pregnant. However in [year] she became pregnant and subsequently gave birth to her daughter on [date]. On [date] July 2000, the applicant and her partner officially registered their marriage. The applicant said that prior to that her partner “did not marry her owing to huge social pressure”. However, as their daughter was born before they were married, they had to pay a fine of RMB [amount] (approx.AUD$[amount]). After discussing this with the applicant at hearing, the Tribunal accepts this is correct.

6. The applicant then said that on [date], their second daughter was born. She said “they got into trouble” as they had breached the Chinese one child policy. She said “according to birth control policy in China she and her husband would not be allowed to have any children again after they had this second daughter. Furthermore, she would be forced to have an abortion. However her husband really wanted to have a boy child, not only for carrying on the family line but also to look after the family in their old age. Therefore in order to escape from being forced to be sterilised, the applicant decided to leave her home area in Fuqing city, Fujian province, and she went to Xiamen city in Fujian province around September 2007”. The applicant said that from September 2007 to January 2009 she worked with a distant relative of her family at [a] restaurant in Xiamen. She said this relative was an experienced cook and she learnt “a lot from her”.

7. Next, the applicant said during this time her husband had travelled to [Country 1] as “[a labourer] of [Corporation 1]” (at hearing she said he worked in [Country 1] – with short return trips to China – between September 2008 and February 2015).  In February 2009, the applicant had also travelled to [Country 1] as “[a labourer] of [Corporation 1] for the first time”. She stayed with her husband and cooked for [labourers] on the [work] sites. However, in June 2011 she returned to China. The applicant then said that in July 2011 she returned to [Country 1] for a second time. She then became pregnant and had to return to China in December 2011. On return to China, and in order to avoid the birth-control office, she went into hiding (again in Xiamen city). On [date] her third daughter was born. The applicant then went into hiding in order to avoid being forcibly sterilised.

8. The applicant told the Department delegate that her two older daughters lived with her parents-in-law in Xiamen city. At the hearing, the applicant said the two older daughters (now [age] years and [age] years), had lived there for several years; and that her youngest daughter lived with one of the applicant’s two older sisters in Xiamen city (though at hearing, the applicant also explained the now [age] year old youngest daughter had lived with her parents-in-law for the past 6-7 months). The applicant also said that in July 2012 she returned to Xiamen. Regarding the Family Policy in Fujian (which the applicant said was strictly applied), the country information stated:

   3.29 … 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.
   3.31 DFAT understands that the Social Compensation Fee multiplier rates for people in breach of the amended February 2016 Population and Family Planning Regulation of Fujian (ie. couples who have a third child) are likely to be similar to the multiplier rates described in the March 2014 Population and Family Planning Regulation of Fujian outlined above. …
   3.32…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.[8]

   and:

   3.109 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 … 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. [9]

   [8] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016 - People Affected by Family Planning Policies, from p.12. 

   [9] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

9. Further sources indicate that a child is not to be prevented from being registered even if a child’s parents have not paid any penalty. The country information stated:

   2.32 ….. There are hundreds of thousands of unauthorised children born every year. Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child. …[10]

   [10] UH Home Office, Country of origin information and guidance: contravention of national population and family-planning laws, China, July 2015.

10. Household registration of children is now separated from payment of social compensation fees for family planning violations. Since August 2015, in Fujian province, payment of social compensation fees is not a prerequisite for accepting an application for household registration (hukou) for a child, and children whose unauthorised birth may previously have gone unregistered are now able to apply for a household registration (hukou) regardless of whether the relevant social compensation fees have been paid.[11] 

    [11] ‘DFAT Thematic Report: Fujian Province, People’s Republic of China’, Department of Foreign Affairs and Trade, 16 December 2016, CIS38A80123116, p.14, para 3.37 

11. Article 46 of the Fujian Population and Family Planning Regulation stipulates that ‘unmarried childbearing’ shall be charged a social compensation fee at 60 to 100 per cent of the annual urban residents per capita disposable income or rural per capita net income of the previous year.[12] Discretion in the application of social compensation fees means that a person who actively cooperates with the authorities or ‘takes remedial actions to reduce the harmful consequence’ of their illegal action may have the fee applied in its ‘lenient’ or ‘light’ form, whereas one who deliberately ’conceals’ the fact of their transgression, obstructs law enforcement personnel or refuses to take remedial actions may be punished by the application of the fee in its highest or ‘serious’ form.[13]

    [12] ‘Fujian Population and Family Planning Regulation’, Health and Family Planning Commission, 2 April 2014, CIS2F827D92163, Article 46 (I) 

    [13] See ‘Notice of Population and Family Planning Commission of Fujian Province on Printing and Issuing Applicable Method for Discretion of Administrative Penalty and Social Support Fee Collection of Population and Family Planning in Fujian Province’, 23 August 2011, CISD9559B11949, especially Articles 7 and 8; and ‘Notice of Population and Family Planning Commission of Xiamen City on Amending Applicable Regulations and Implementation Standards for Discretion of Social Support Fee Collection’ , CIS2F827D92162, especially Appendix 2 for the No.1 Illegal Act ‘Out-of-wedlock birth’ and the No.5 Illegal Act ‘One extramarital child’ 

12. After putting the gist of the country information to the applicant for comment, the applicant conceded that her elder daughter ([age] years old), was in her [grade] year of education; that her middle daughter ([age] years old), was in her [grade] year of education; and that her youngest daughter ([age] years of age), was in her [grade] year of education. Regarding education, the country information stated:

    Education

    Despite a nine-year compulsory education policy, children in China attend school for 7.6 years on average, although the figure varies according to location. China’s adult literacy rate is 96.4 per cent. Education standards vary considerably across the country.[14]

    [14] DFAT Country Information Report, People’s Republic of China, 21 December 2017. 

13. Based on the evidence before the Tribunal, the applicant’s children do not appear to have been denied access to education. At hearing, the applicant also conceded that her children resided in Xiamen city, as persons in cities had better access to health services – and that her daughter\s could access the health services in Xiamen city.

14. The applicant had said that her “husband got troubles”; and that [Corporation 1] failed to pay him his “labour fee for several months”. The husband briefly returned to China together with other “[labourers]” in May 2014. The husband and other [labourers] “urged [Corporation 1] to make the payment to them”. Eventually the Corporation promised to make all payments in February 2015 if the applicant’s husband and other persons would work for the company. The husband then returned to [Country 1] in June 2014.

15. However, given the applicant’s and her husband’s work opportunities, the access of her children to school and medical facilities, the Tribunal put to the applicant it may be satisfied that she no longer had to pay any social compensation fee or penalty arising from the birth of her three children. The applicant only then agreed that all such fees and penalties had been ‘paid off” (and the Tribunal is satisfied this is correct – including, but not limited to, any penalty for allegedly hiding the birth of some of her children).  

16. After considering the applicant’s concession, and based on the country information, the Tribunal is not satisfied the applicant would have a real chance of suffering serious harm in Fujian province (either where her hukou was registered in Fuqing city – or where she had most recently resided in Xiamen city), for any reason discussed under the above sub-heading.

    That the applicant was allegedly attacked because she was a female:

17. As stated herein, the applicant said that in July 2012 she travelled to Xiamen city. At that time a distant relative “ran a [stall]” (and at hearing the applicant agreed this was a [restaurant]) in Xiamen city and the applicant worked at this restaurant. In January 2014, the distant relative transferred the restaurant to the applicant.

18. The applicant then said that in March 2014 a brutal and new team leader of the local security guards (the security guard leader) came to the area. Next, the applicant also said that as she was a female, the security guard leader came to cause trouble every 3 to 5 days. This would include bringing his friends to the restaurant without paying. He then asked for protection money. The applicant paid RMB [amount] (approx. AUD$[amount]) each month during March, April and May 2014. Towards the end of the hearing, the applicant had also said it was difficult for a female in China. Amongst other things, the country information stated:

    Article 48 of the Chinese constitution states that women ‘enjoy equal rights with men in all spheres of life’. The Law on the Protection of Women’s Rights and Interests provides for equality in ownership of property, inheritance rights, access to education, and equal pay for equal work. Under the Provisions on Female Labor Protection under Special Circumstances, women are eligible for 98 days of paid maternity leave. Despite these measures, the US State Department documents continuing discrimination in education and work, sexual harassment, unfair dismissal, demotion, and wage discrepancies. On average, women reportedly earn 35 per cent less than men. Women remain under-represented in senior CCP and government positions, holding only 23.4 per cent of the total number of seats in the National Party Congress in 2013 and one of the 25 seats in the current Politburo. Unmarried mothers face particular difficulties … as do lesbian, bisexual and transgender women … [15]

    [15] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

19. Based on her own evidence and her apparent access to funds, the applicant appeared to be in a reasonably strong financial position in China (at least prior to the destruction of her restaurant in July 2014). The applicant was also accompanied by her migration agent at hearing and though asked, he did not wish to make further submissions, even after the Tribunal provided the applicant a brief adjournment to ‘collect her thoughts’. That being said, the Tribunal understands it need not make an applicant’s case for them, and though mindful of this issue (ie the applicant being a female), nothing she had said (either in writing or at the hearing), satisfied the Tribunal the applicant had a real chance of suffering serious harm for reason of her gender in China.

20. After considering the accepted evidence and the country information herein, the Tribunal is not satisfied the applicant would have a real chance of suffering serious harm in Fujian province (either where her hukou was registered in Fuqing city – or where she had most recently resided in Xiamen city), for any reason discussed under the above sub-heading.

    The applicant’s arrest:

21. As stated above, the Tribunal accepts the applicant’s restaurant in Xiamen city was destroyed on [date] July 2014, for having failed to pay protection money; and that this incident took place by way of making an example of her. As a result, the applicant said she was “driven to the wall”. She said she went to the local Xiamen government requesting they investigate the corrupt police and the corrupt security guard leader and so that she could receive “reasonable compensation”. However the officials refused to assist the applicant. She said they tried to conceal the matter. The applicant said that when she complained about the corrupt security guard leader she was “alleged to distribute social orders and damage public security. As a result she was arrested by the police on [date] August 2014”. She was detained at a named detention centre for two weeks. She said during her detention she was “mistreated inhumanely by the police and the criminals who are detained together”. She said she was interrogated, threatened and forced to make confessions. She also had to promise not to make further trouble. On [date] September 2014 she was released. The country information stated:

    Protesters/petitioners

    3.75 An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. Duihua’s Mass Incidents Database records 13,305 incidents involving 3,396 arrests in 2017 to 31 May.

    3.76 Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes over expropriated land and property demolitions occur every year…  

    3.77 China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low  … The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. [16]  

    [16] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

1. On her release from detention on [date] September 2014, the applicant learnt the security guard leader had parents who worked for the Xiamen government. As she did not approve of the corruption she reported these practices to the provincial government in Fuzhou. She travelled to this location ‘many times’ requesting to see senior officials at the provincial government. The applicant had said in writing that as a result she had been arrested (the aforementioned arrest and subsequent release on [date] September 2014[17]). In writing, the applicant also said that at the end of September 2014, the police attempted to arrest her again but “luckily she fled away”. She was then in great danger and went into hiding and she later managed to depart China from Shanghai on [date] October 2014.

   [17] Department – folio 27.

2. When discussed at hearing, the applicant said that shortly after her restaurant was destroyed (on [date] July 2014), she attended a local government office to petition and or complain. She was able to speak to a local government official for around two hours, but as she had no evidence of (ie) the local security guard leader being involved in the [date] July 2014 incident, she was told to leave.  As she was still angered by the destruction of her restaurant, on [date] August 2014 she returned to see the same local government official and had commenced to argue with him. The official then called the security in his office and the applicant was arrested and detained for two weeks. The applicant subsequently conceded she was arrested for arguing with the official.

3. At hearing, the applicant also explained that she had ‘no time’ to seek medical assistance after her release on [date] September 2014, but she was still able to immediately travel to her family home in Fuqing city to discuss (principally with her [brother] who lived with their parents) what she should then do. In the circumstances, and based on the country information considered, the Tribunal accepts the applicant was detained as claimed, but that she was not seriously mistreated as she claimed. The applicant then remained at the family home for some 11 days (during which time she had made more than one trip to the Anti-Corruption Bureau in Fuzhou city - around one hours bus ride). On [date] September 2014, she then booked into an “Inn” (hotel) in Fuzhou city and made some other trips to the Anti-Corruption Bureau in Fuzhou city. At hearing, she believed she may have attended the Anti-Corruption Bureau in Fuzhou city around six times in total. She also conceded that she had provided her temporary address to them (in Fuzhou city). She remained at the Inn for around four days.

4. At the end of her time in the Inn, the applicant was contacted by her sister who was then looking after her youngest daughter. That daughter was unwell and the applicant returned to her sister’s home in Fuqing city for one day to care for her daughter. While there (for one day), she was contacted by the manager of the Inn, and she was warned that the police had visited the Inn with an arrest warrant for her (ie, allegedly an arrest warrant dated prior to the applicant’s departure from China). The Tribunal notes it is possible the applicant was absent from the Inn at the time she claimed and for the reasons she claimed; however, if true, the applicant was fortunate with the timing of her departure from the Inn. The applicant then fled to another relative’s home in Shanghai (many hundreds of kilometres north of Fuqing city). The applicant said she did not register in Shanghai (as a temporary resident), as the Chinese government officials had connections and databases which would have been able to locate her. While in Shanghai, the applicant spoke to the husband of her relative (with whom she then lived), and he arranged (and paid) for her to depart China via Shanghai. However, at hearing, she appeared to provide inconsistent evidence that she left China with her brother who was temporarily travelling to Australia, in order to collect his own son who had tragically been killed in an accident; and he paid for her. The country information stated:

   PREVALENCE OF FRAUD
   5.9 DFAT understands that there is a well-established history of individuals from Fujian using fraudulent documents to obtain visas. Fraudulent activity is supported by highly organised and well-resourced networks of agents and counterfeiters. High-risk documents include financial and employment records, which can be either bogus or altered.
   

   [18] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

   5.10 Organised syndicates selling immigration packages for visa applicants are active in Fujian. Syndicates have been known to alter identity documents such as passports or national identification cards to misrepresent the applicant’s place of birth (to avoid greater scrutiny of their applications). DFAT understands that applicants originating from Fuqing, Lianjiang and Pingtan have demonstrated particularly high rates of fraud and non-compliance.[18]

5. To the Tribunal (and the delegate) the applicant also said she was subject to an arrest warrant prior to her departure from China, and that as she had made complaints or petitioned to higher (provincial) authorities, the local security guard leader (who had relatives who worked for Xiamen city), would lose face and seek to exact revenge on her should she return. The delegate recorded the applicant as claiming that since she had arrived in Australia she understood the police were still pursuing her (and she repeated this to the Tribunal). She claimed that her mother-in-law had (then) recently been approached by the police (though when discussing her significant contacts with her family in China at the Tribunal hearing, the applicant made no mention of the mother-in-law being approached, and given the other adverse credibility findings herein, the Tribunal rejects the claim as false). When asked if a warrant had been issued for her arrest, the applicant appeared to the delegate to be confused. When the delegate asked for a copy of the arrest warrant the applicant said her mother-in-law was illiterate and was unable to read anything and had simply heard about this from other persons. The applicant was unable to provide an arrest warrant (though one was subsequently lodged with the Tribunal – discussed below). The applicant also believed that a second attempt to arrest her had been made towards the end of September 2014 (around which time she travelled to Shanghai).

6. That being said, given the applicant claimed to have access to reasonable funds in China, that she did not seek to use her claimed connections to depart Fujian province (by way of a fraudulent passport), and that she had petitioned to higher provincial authorities (which the Tribunal accepts is true), may be considered to support her claim to have been in hiding in Shanghai. The country information stated:

   5.30 DFAT assesses it would be difficult to depart China on a forged passport. Chinese passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officials. DFAT is aware of cases where genuine documents obtained by fraudulent means (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards) are submitted in support of visa applications. DFAT assesses such documents are relatively easy to obtain and are commonly used. DFAT is aware of sophisticated syndicates that provide targeted background stories to support fraudulent documents used in visa applications. [19]

   [19] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

7. Therefore, the applicant may have chosen to depart on her own lawful passport (as she had done when travelling to [Country 1]). However, many people petition against corruption in China (including at the provincial level), and while some are detained (as was the applicant - though she was detained for arguing with a local government official), the mere fact of same does not mean a person has a real chance of suffering serious harm on return.

8. The Tribunal had then asked the applicant how much it cost her to depart China and travel to Australia. Though asked repeatedly, the applicant was not sure. The Tribunal does not believe it to be plausible the applicant would be unsure of this, given it very likely she would have to pay back some of the monies she was allegedly lent. Later, when further discussing her departure from China, and the fact she was able to access ‘connections’, the applicant said she paid around RMB[amount] (approximately AUD$[amount]) to depart. When asked, the applicant said she had first referred to this amount during the Department interview. However, in her PV form the applicant had referred to this same amount as a medical expense paid on behalf of a former employee, and though assisted to complete her PV form by a migration agent, she had not mentioned any amount paid to depart China. It is possible that she would have paid some money to depart (if she had used ‘connections’ as claimed in writing), but it is surprising she did not refer to the same amount in her written PV application to depart China, as she paid for the medical expenses.

9. Next, and as noted above, the applicant said her husband was killed in an accident in [Country 1] in February 2015, and that she wished to return to China to bury her husband. Her mother-in-law advised her that nothing would bring her husband back; and she was advised she would serve her daughters better by remaining in Australia. The applicant had also said that she knew if she returned to China, she would not be allowed to return to Australia. This statement could be interpreted in more than one way. However, and if her claimed fears are true, the Tribunal believes it surprising the applicant was more concerned about not being able to return to Australia (where she apparently can earn money to assist in the raising of her daughters in China). It is possible the applicant was meaning she would be detained in China and consequently not allowed to again depart, but if this was true, the Tribunal would commonly expect this to be more clearly expressed (particularly where an applicant is assisted by a migration agent).

10. At the commencement of the hearing, the applicant conceded that she was able to speak with her parents-in-law in Xiamen city, and her father-in-law said he was old and had ‘taken pity’ on her children, and apparently wished the applicant to return to care for her children in China (all of whom lived with the applicant’s in-laws). When the Tribunal put to her it may not accept she was suggesting her father-in-law was saying she should return to China, only then did she refer to the fact of her circumstances (discussed herein), and that her father-in-law ‘knew’ she could not return. Without more, this would not have caused the Tribunal to doubt or reject the applicant’s material evidence, but along with the other adverse credibility concerns expressed herein, it was one of the reasons that satisfied the Tribunal the applicant was no longer of adverse interest to the authorities, or anyone else, in China. 

11. Next, the Tribunal understands it is difficult to leave China if wanted by the authorities. There were four distinct checks that an individual must pass before boarding a plane and in two of these stages a person’s passport was scanned.[20] And as stated above “Chinese passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officials”. At hearing, the Tribunal said it may not accept the applicant could therefore depart China if she was subject to an warrant as she claimed. The applicant then said she did not see the warrant and was apparently unable to provide one to the delegate. She also then said that she was now in her “[age bracket]” and she needed to work for money to raise her children in China and she was unable to support her whole family as a women (not wishing to make her case at hearing, based on the evidence before it, including that of the applicant’s prior work experience and opportunities, the Tribunal is not satisfied she would suffer serious harm for any reason as a ‘woman in China’). She had previously said her parents-in-law (who cared for her children) both worked, and that she had raised RMB[amount] on two occasions (though after considering the case in its entirety, and given the Tribunal was not satisfied the applicant was generally credible, the Tribunal does not accept the applicant paid RMB[amount] to depart China).

    [20] CHN105049.E – China: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, Immigration and Refugee Board Canada, 22 September 2015.

12. The Tribunal notes that a purported Chinese arrest warrant (dated [November] 2014 – being after the applicant departed China), was lodged with the Tribunal on 1 March 2018. However, acknowledging the evidence that many fraudulent documents may be obtained in China, during the course of the hearing the Tribunal attempted to put the applicant on notice that her credibility was in issue. Towards the end of the hearing, the Tribunal expressly put the applicant and her agent on notice that one of the substantial issues it would need to consider was whether the applicant was subject to an arrest warrant and or whether she was of any ongoing adverse interest to anyone in China. The Tribunal provided an adjournment for the agent and the applicant to discuss this, or any other issue. The agent had then referred to inter alia the applicant as having suffered after the death of her husband (which the Tribunal accepts is true), but made no further reference to whether the applicant was of any ongoing adverse interest. The applicant said (words to the effect) she was telling the truth, but the Tribunal is satisfied the applicant embellished or fabricated some of her material claims.

13. That being said, the Tribunal did not propose to make the applicant’s case for her. Therefore, and regarding the lodged arrest warrant, there was no evidence (ie) of why one attempt had been made to arrest the applicant prior to her departure from China (possibly without an arrest warrant); there was no evidence why the applicant could not have used her claimed ‘connections’ to ascertain whether an arrest warrant had been issued against her prior to her departure from China; this may have explained why the applicant had to pay to depart China (if an arrest warrant had been issued prior to her departure). Also, there was no explanation as to why the [date] November 2014 arrest warrant had been issued after the applicant’s departure, or why it was issued by the Fuqing authorities (and not the Xiamen city authorities). After considering all her claims, the Tribunal was not satisfied the applicant was generally credible. Therefore, after considering all the claims and evidence, and all the adverse findings herein, the Tribunal has decided to give the purported arrest warrant no weight. The Tribunal is mindful of and understands that the High Court,  referring to the ‘pressure of circumstances that [may] lead some applicants for refugee status to tell lies’, stated:

    … the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. [21]

    [21] Abebe v. The Commonwealth; Re MIMA; ex [1999] HCA 14 (14 Apr. 1999) Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ per Gummow & Hayne JJ [191].

14. However, and respectfully, I remain satisfied of the adverse findings made herein. Therefore, after considering the evidence and the findings herein cumulatively, the Tribunal is not satisfied the applicant is subject to an arrest warrant or that any attempt was made to arrest her in late September 2014 (and I am satisfied these claims are false). I am also satisfied that almost four years after the incident in question (which the Tribunal accepts arose out of a personal conflict between the applicant and the local security guard leader in Xiamen city), and almost four years after the subsequent petitioning regarding the July 2014 incident (which the Tribunal accepts occurred), the applicant does not have a real chance of suffering serious harm in her home region of Xiamen city (either by the local security guard leader or persons acting on his behalf). The Tribunal accepts the applicant’s home region is Xiamen city due to her children living there, and due to her most recent reasonably lengthy residence and work there.  The Tribunal does not accept the applicant’s in-laws or children have suffered any harm, harassment or even questioning since the applicant departed China (apart from the alleged conversation with her father-in-law – which the Tribunal now rejects as false – the applicant did not claim that her children with whom she speaks regularly, indicated any harm, harassment or questioning).

15. Next, the Tribunal notes that s.5J(3) of the Act provides:

    (3)  A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)  conflict with a characteristic that is fundamental to the person's identity or conscience; or

    (b)  conceal an innate or immutable characteristic of the person; or

    (c)  without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)  alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
    (ii)  conceal his or her true race, ethnicity, nationality or country of origin;
    (iii)  alter his or her political beliefs or conceal his or her true political beliefs;
    (iv)  conceal a physical, psychological or intellectual disability;
    (v)  enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)  alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

16. However, the present applicant has been in Australia for almost four years and has not even attempted to take any steps to continue to seek a remedy in China (regarding the 2014 incident or anything else). She has spent her time working in order to provide for her family in China. In the circumstances, the Tribunal is satisfied she would not wish to continue to petition about the July 2014 incident, on her return to China.

17. After considering the accepted evidence and the country information herein, the Tribunal is not satisfied the applicant would have a real chance of suffering serious harm in Xiamen city in Fujian province, for any reason discussed under the above sub-heading.

    Relocation:

18. Given the above findings, the following is possibly redundant. However, at hearing the Tribunal discussed with the applicant whether she could safely and reasonably relocate within China. The applicant said she had feared revenge by the local security guard leader in Xiamen city (or by his family who worked for Xiamen city); and that she feared her petitioning to the provincial level authorities would ensure she would be harmed in China. However, and as stated above, many people petition against corruption in China (including at the provincial level), and while some are detained, as was the applicant (though she was detained for arguing with a local government official), the mere fact of same does not mean a person has a real chance of suffering serious harm on return.

1. Be that as it may, and only for the purposes of the following discussion, the Tribunal will accept the applicant will suffer serious harm by the local security guard leader, or by persons acting on his behalf, for reasons arising out of personal animus, in Xiamen city. The Tribunal notes that based on the applicant’s claims, persons who cause other persons to lose face in China, may suffer some consequent harm. This is one claimed aspect of Chinese culture,[22] though presumably different persons act differently. In the circumstances, and for the purposes of the following discussion, the Tribunal accepts the applicant fears harm for reasons of her membership of a particular social group (something approximating “Chinese who cause other Chinese to lose face”). Regarding relocation, the country information stated:

   Internal Relocation

   5.12 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement.

   5.13 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination (see also Ethnic Uighurs and Ethnic Tibetans).
   5.14 DFAT assesses that internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level … People subject to adverse attention from authorities are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability .[23]

   Hukou (household registration) system
   

   [22] “Gaining and Losing Face in China”, The China Culture Corner, 10/10/2013, accessed 14 March 2018.

   [23] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

   [24] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

   5.15 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities. The government is committed to reforming the hukou system, including extending urban residency permits to migrant workers. The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) are more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.[24]

2. The applicant’s hukou is registered in Fuqing city (a few hundred kilometres north of Xiamen city). The Tribunal put to the applicant (words to the effect), it may not appear that a local security guard leader, even one who had relatives who worked for the Xiamen city, would be able to, or would wish to, harm her should she reside in Fuqing city (where her parents and some siblings reside), and some 3 ½ years after she departed China (and the Tribunal is not satisfied the applicant is subject to an arrest warrant as claimed). The applicant said she still feared the local security guard would seek revenge on her. The applicant, who conceded she had connections and was able to raise RMB[amount] for medical fees, still believed she would be harmed in Fuqing city. Based on the country information set out herein, and even if some form of personal animus still existed between the applicant and the local security guard leader, the Tribunal is not satisfied she would have a real chance of suffering serious harm from this person, or anyone acting on his behalf, should the applicant reside in Fuqing city. When asked if there was any other reason she feared harm if she lived in Fuqing city, the applicant said no.

3. For the reasons set out, the Tribunal is satisfied the applicant can safely reside to Fuquing city in China, and by so doing, not have a real chance of suffering serious harm.

   Failed asylum seeker:

4. At hearing, the Tribunal asked the applicant if she feared harm in China, for reason of having sought protection in Australia, and for having lived here for almost four years. The applicant feared she would be harmed by the aforementioned local security guard leader, or persons acting on his behalf (though as stated above, the Tribunal is not satisfied there is a real chance she would suffer serious harm for this reason in all of China).

5. In May 2015 the Department of Foreign Affairs and Trade (DFAT) provided the following comments in response to the question ‘Can post comment on the likely treatment of failed asylum seekers who return to China?’:

   R.1. As advised in reftels, it is not possible to comment definitively on how Chinese authorities would treat returnees to China who were failed asylum seekers, or if Chinese authorities would be aware of the return of a failed asylum seeker. The treatment would differ depending on local authorities' previous knowledge of the individual, the point of entry and whether the Bureau of Exit and Entry Administration had maintained a "flag" against the individual's name. Local-level Public Security Bureau officials also monitor exit and entry procedures, and have broad administrative detention powers, as well as significant levels of discretion in detaining individuals without formal arrest or charge.[25]

   [25] Department of Foreign Affairs and Trade (DFAT) 2015, China - Country Information Request CI150402160444876 - Treatment of Returned Failed Asylum Seekers, 18 May, R.1. <CXBD6A0DE6523>

6. More recently, DFAT has stated:

   DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China … Party members or public officials who return to China to face corruption offences are subject to Party disciplinary and potentially criminal prosecution …[26]

   [26] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

7. When discussed at hearing, the applicant said she attended Church (discussed above) and worked in Australia. She did not claim to have engaged in anything else in Australia that may give rise to a real chance she would suffer serious harm in China. After considering the accepted evidence, the Tribunal is not satisfied the applicant has any type of profile that would give rise to a real chance she would suffer serious harm in China, for reason of her residence in Australia, or for reason of her application for a Protection visa.

8. After considering the accepted evidence and the country information herein, the Tribunal is not satisfied the applicant would have a real chance of suffering serious harm in China, for any reason discussed under the above sub-heading.

   Miscellaneous:

9. The applicant’s passport expired on [date]2017.[27] The Tribunal understands it need not make an applicant’s case for them, but the applicant did not claim, and the Tribunal has no evidence before it, that merely for having to apply for a passport in Australia, this would give rise to a real chance the applicant would suffer serious (or significant) harm, in China.

   Conclusion:

   [27] Department – folio 3. 

10. Finally, even considering those of the applicant’s claims that I have accepted cumulatively, for the reasons stated herein, I do not accept she has a well-founded fear of persecution for a prescribed reason, in China. Neither am I satisfied there is any other issue, squarely raised by the evidence if not articulated, that would give rise to a real chance the applicant would suffer serious harm in China.

11. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has refugee protection obligations. The applicant does not satisfy s.36(2)(a) or (b) of the Act.

    COMPLEMENTARY PROTECTION

12. If an applicant is not found to be a person in respect of whom Australia has protection obligations under the Act, they may nonetheless meet the criterion for a Protection visa in subsection 36(2)(aa) or (c) of the Act. That subsection provides that the ‘decision maker’ must be satisfied that Australia has protection obligations to a non-citizen in Australia because the ‘decision maker’ has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen (the applicant) will suffer significant harm. Subsection 36(2A) of the Migration Act defines significant harm as:

    (a)  the non-citizen will be arbitrarily deprived of his or her life; or

    (a)the death penalty will be carried out on the non-citizen; or

    (b)the non-citizen will be subjected to torture; or

    (c)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

    (d)the non-citizen will be subjected to degrading treatment or punishment.

13. Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’ In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part):

    In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that SZQRB will suffer significant harm… were he to return to [the receiving country]. [246]

    Relocation:

14. Subsection 36(2B)(a) of the Act, provides there is not a real risk that a person will suffer significant harm in their receiving country, if the decision maker is satisfied ‘it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm’.

15. Based on the reasons provided above, I am not satisfied the applicant has a real chance of suffering persecution for reason of any claim I have accepted, should she relocate within China. After considering all the evidence, I am also not satisfied she has a real risk of suffering significant harm for reason of any claim I have accepted, should she relocate within China. Further, and though I understand I need not make the applicant’s case for them, after having considered the country information, neither am I satisfied she has a real risk of suffering significant harm for any other reason, should she relocate within China.  

16. Regarding whether it is reasonable to relocate, the Federal Court in MZYXS[28] has accepted the ‘issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context.’[29] That said, the Tribunal understands each case still needs to be considered according to its merits. The gist of the following country information was put to the applicant at hearing:

    [28] MZYXS v MIAC [2013] FCA 614 (21 June 2013), Marshall J.

    [29] MZYXS [37].

    Economic Overview
    2.6 China is the world’s second-largest economy (after the United States), the largest exporter of goods, second-largest importer of goods, the third-largest exporter of services and second-largest importer of services. China’s economy averaged real annual GDP growth of 9.4 per cent between 1978 and the onset of the global financial crisis in 2008. Since then, economic growth has slowed with slowing capital and labour productivity. According to China's National Bureau of Statistics, China’s GDP grew 6.7 per cent in 2016.
    2.7 The Asian Development Bank ranks China as an upper middle-income country. China’s major cities have per-capita income levels equal to those of the poorest OECD member countries, and around three times those of rural areas. China is among the 25 per cent least equal countries in the world, despite strong income growth amongst its poor.
    2.8 China was the first developing country to meet the UN Millennium Development Goal of halving the number of people living in poverty before 2015. By the end of 2016, however, 43.35 million people (about 3 per cent of the population) were still living below the government's decreed annual poverty line of 2,300 RMB (approximately AUD 400). Severe, entrenched poverty remains, particularly in remote areas in China’s western and central provinces, with poor infrastructure, education and health services. Poverty is more pronounced among ethnic minorities.
    2.9 China’s 13th Five Year Plan (2016-2020), the first plan released under President Xi Jinping’s leadership, set an annual growth target of 6.5 per cent. The Plan outlined measures to rebalance the economy away from resource-intensive, fixed-asset investment and export-driven growth towards domestic consumption and environmentally sustainable services-led growth. President Xi has made eliminating poverty by 2020 one of the government’s top priorities. Persistent rural poverty is a challenge to the CCP’s main political goal of doubling China’s 2010 per capita income by 2020 to become an ‘all-round moderately prosperous society’ by the centenary of the founding of the CCP in 2021.
    2.10 China is the world’s largest energy consumer, accounting for half of global coal consumption. A key focus of economic reform measures is to improve the quality of the living environment. Air pollution continues to reach hazardous levels, particularly in the north-eastern provinces that are the location for heavy-polluting iron, steel and cement-producing industries.
    2.11 China’s society is ageing rapidly owing to significant advances in the quality of and access to healthcare combined with decades of low fertility rates, due in part to family planning policies. China’s fertility rate of 1.6 births per woman is below the replacement level of 2.1. 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). The government changed its family planning policies in 2016 to allow all families to have more than one child …
    2.12 China’s demographic challenges, combined with high levels of income inequality, rapid urbanisation, challenges to environmental sustainability, as well as risks posed by a declining property market and significant levels of debt (particularly at the provincial level), pose challenges to future growth.
    Health
    2.13 China ranks 90 out of 188 countries listed on the UNDP’s 2015 Human Development Index. Average life expectancy at birth in China is 74.83 years with geographical variations, particularly between urban and rural areas. Health care varies significantly between urban and rural areas. High quality public health care is available in the main urban centres, but only those with the relevant urban hukou (household registration) have access … Health care in rural areas is of a lower standard, and public provision is patchy. China’s unusually high household savings rate partly reflects the need for families without urban hukou (including migrant workers in cities) to save for future health costs.
    Education
    2.14 Despite a nine-year compulsory education policy, children in China attend school for 7.6 years on average, although the figure varies according to location. China’s adult literacy rate is 96.4 per cent. Education standards vary considerably across the country.[30]

    [30] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

17. When discussed at hearing, the applicant said she would be harmed in Fuqing city. However, and based on the above discussion, the Tribunal is not satisfied she has a real chance of suffering serious harm in Fuqing city. No evidence was provided that there were concerns with respect to infirmity, health services or education, and neither did the country information considered in this decision support a finding that relocation on these grounds, would be unreasonable for this applicant (and/or her family). Consequently, I find it reasonable to expect the applicant to safely relocate within China.

18. For the above reasons, the Tribunal is satisfied the applicant (and or her family) can safely and reasonably relocate within China.

    Other findings:

19. Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in China. The following findings are based on the applicant relocating within China or returning to her home are in Xiamen city. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, in China. Next, based on the country information and accepted facts, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on her (cruel or inhuman treatment or punishment); and for the same reasons, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on her (torture) in China. Further, and again for the same reasons, the Tribunal is not satisfied the applicant has a real risk of suffering arbitrary deprivation of life in China.

    Conclusion:

20. Finally, even considering those of the applicant’s claims that I have accepted cumulatively, I do not accept she has a real risk of suffering significant harm in China. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real risk of suffering significant harm in China. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that she will suffer significant harm if returned to China.

21. Having previously concluded the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal considered the alternative criterion in s.36(2)(aa). For the reasons stated above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) or (c) of the Act.  

    DECISION

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

    Mr S Norman
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

[4] DFAT Country Information Report, People’s Republic of China, 21 December 2017.