1604403 (Refugee)

1604403 (Refugee) [2019] AATA 2489 (4 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1604403
COUNTRY OF REFERENCE: China
MEMBER:Roslyn Smidt
DATE:4 June 2019
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 04 June 2019 at 1:00 pm
CATCHWORDS
REFUGEE – protection visa – China – Religion – practicing Christians – imputed religious beliefs – particular group – children born and raised in Australia – particular social group – children born to Chinese nationalists – one child policy – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2 r 2.08
CASES

MZAFZ v MIBP
SZGIZ v MIAC (2013) 212 FCR 235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are citizens of China. [Applicant A], [Applicant B] and [Applicant C] applied for visas on 14 May 2015. [Applicant D] was added to this application at birth under r.2.08 and lodged an additional application on 25 May 2015.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND AND MIGRATION HISTORY
Applicant A is a [age] year old man from Xiaogan City in Hubei Province. He was born and raised in Hubei Province and has household registration there. His parents are originally from Fujian where they are still registered as residents. Prior to his departure from China they operated a business in Hubei, but they are now retired and reside in Fujian. He has one sibling who also resides in Fujian.
Applicant A was a student at [a school] in Xiaonan until June 2005. He obtained a passport in [2005]. He arrived in Australia on student visa [in] September 2006. This visa ceased on 15 March 2009 and he remained in Australia unlawfully until June 2011 when he applied for protection. This application was refused on 11 August 2011 and a differently constituted Tribunal affirmed that delegate’s decision on 9 January 2012. Applicant A then sought Ministerial intervention, but without success. The bridging visa associated with this process ceased on 23 August 2012. Applicant A remained in Australia unlawfully until he was detained by the Department in April 2014. He was granted a bridging visa on 1 May 2014.
Applicant A lodged a second protection visa application on 14 May 2014. This application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made under the complementary protection criterion if the prior application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012 and the second application is lodged before 28 May 2014. As a result applicant A’s current application relates only to the complementary protection criterion (s.36(2)(aa) of the Act).
Applicant B is a [age] year old woman from Hunan Province in China. Her parents continue to reside in Hunan where they operate a business. She has one sibling.
Applicant B first arrived in Australia on a [temporary] visa [in] September 2006 at the age of [age]. She departed Australia [in] April 2007 and returned [in] May 2007 while still holding a [temporary] visa. Her [temporary] visa ceased on 30 September 2010 after which she remained in Australia unlawfully until she was granted a bridging visa on 14 June 2011 on the condition that she would lodge a substantive visa application. She was included in the protection visa application lodged by applicant A on 21 June 2011 as a member of his family unit, but also claimed to be a Christian. The previous Tribunal assessed her claims against the refugee definition and found that she was not entitled to protection. She also sought Ministerial intervention on 30 January 2012 without success. The bridging visa associated with this process ceased on 23 August 2012 after which she remained in Australia unlawfully until she was granted a bridging visa on 30 April 2014.
Applicant B lodged a second protection visa application on 14 May 2014. As with applicant A her current application relates only to the complementary protection criterion (s.36(2)(aa) of the Act).
Applicant A and applicant B have been in a de facto relationship since June 2007. They planned to get married December 2007 and made arrangements to do so at a registry office, but did not go through with the ceremony as applicant B did not want to get married without her parents being present. They told the delegate that they intend to marry when they obtain valid passports.
Applicant C [is] the applicants’ seven year old son. He was born after the primary decision on first application lodged by applicant A was made and therefore he was not included that application. He is included in the current applicant and claims for protection have been made on his behalf. As this is his first protection visa application his claims will be assessed in relation to the both the refugee criterion s.36(2)(a) and the complementary protection criterion (s.36(2)(aa)
Applicant D [is] the applicants’ four year old daughter. She was born [in] 2015 after applicant A and B lodged the current application on 14 May 2014, but before the primary decision was made in May 2015. Her application was added to the application lodged by her parents’ application at the time of her birth in accordance with regulation 2.08. She also lodged an application in her own right on 25 May 2015. Both applications are included in the delegate’s decision of 9 March 2016. As this is her first protection visa application her claims will be assessed in relation to the both the refugee criterion s.36(2)(a) and the complementary protection criterion (s.36(2)(aa)
S438(1)(A) ISSUES
The Tribunal has received three files from the Department of Immigration and Border Protection (the Department) all of which contain certificates issued by the delegate pursuant to s.438 of the Act. These certificates all refer to information restricted from disclosure on the basis that the disclosure of the information would be contrary to the public interest because they contain information relating to an internal working document and business affairs.
The folios refered to contain checklists used for case management purposes and other material not relevant to the claims made by the applicants. One appears to have included the names of people not related to the application, but this information was redacted before the file was received by the Tribunal.
In my view these Certificates are not valid. In MZAFZ v MIBP, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were 'internal working documents'. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words 'internal working documents' disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.
In any event, none of the folios mentioned in the certificates contains any information which is relevant to my consideration of the applicants’ claims.
SUMMARY OF CLAIMS
In essence the applicants claim that they are at risk of harm on return to China because they belong to the Local Church and because the Chinese Consulate in [City 1] has failed to issue them with travel documents. In submissions to the Department it was also claimed that applicants A, B and D were at risk of harm because of the operation of China’s family planning regulations.
CLAIMS AND EVIDENCE
The applicants’ previous application
I have reviewed the evidence provided by the applicants’ in support of their first application. The application focuses on applicant A’s claimed membership of the Local Church. The evidence regarding his involvement in the church in China is broadly similar to that provided in support of his current application. His explanation for failing to lodge a protection application in a timely fashion is also broadly similar, although he also spoke about gambling problems which commenced shortly after he arrived in Australia. He gave differing accounts of his attendance at church in Australia. He told the first delegate that he had attended church briefly after arriving in Australia in April 2006, but did not attend again until his [Sibling 1] arrived in Australia in 2009. He could not recall how often he went to church during the year his [Sibling 1] was in Australia, but said that he was not attending church at the time of his interview in July 2011. He told the first tribunal he attended religious gatherings in 2006 and 2007 and attended regularly during the year his [Sibling 1] was in Australia in 2009, but stopped when he applied for protection in 2011.
Submission to the Department of Home Affairs
Applicant A’s evidence
Applicant A claims that his mother’s family have been followers of [a named church] or Local Church in Fuqing, Fujian Province for many years. His parents relocated to Xiaogan City in Hubei Province prior to his birth because his mother and her family were facing problems because of their religion. His family did not attend church in Xiaogan City when he was young because they did not know other Christians and his parents were busy, but he and his [Sibling 1] attended secret gatherings of the church when they visited relatives in Fuqing.
Applicant A claims that his family eventually found some Christians in Hubei and began to attend religious meetings. In about 2002 they were discovered and arrested. [An official of an organisation] was a friend of his father and assisted them. He and his [Sibling 1] were not ill-treated but they were warned that the group was an illegal cult. His parents returned home the following day. The applicant said that his father was arrested again when he was in [high] school. He was released with the help of the same friend. He claimed that he had argued with the people who arrested his father [and] they told him that Christianity was heresy and if he did not leave he would be arrested.
Applicant A said that [his] father sent him to Australia to study and to be free.
Applicant A said that his [Sibling 1], who studied in Australia in 2009, thought that the government had changed its view on religion when [he/she] returned from Australia, but [he/she] was arrested when [he/she] participated in a gathering in Fuqing in May 2011.
Applicant A said that he had gone to the Chinese Consulate to renew his passport in 2012 at the request of the Department of Immigration. The staff at the Consulate asked if he had applied for protection and if not why he had remained in Australia for so long without a visa. He was also told to fill in an overstay form and told that they would not be allowed to apply for a new passport for five years.
Applicant A’s representative provided a submission with his application. It refers to information from China Aid regarding the treatment of Christians in China. He also provided copies of a number of the documents including letters of support from other church members dated 2011, certificates and letters purporting to confirm the applicant’s and his family’s membership of [a church] in Fujian, documents purporting to relate to the detention of his father in 2005 and his [Sibling 1] in 2011.
Applicant A attended an interview with a delegate of the Minister for Immigration on 11 February 2015. He repeated his earlier claims regarding his involvement with the [named church] or Local Church and his fears in relation to this. He said that he did not fear returning to China for any other reason. When asked if he wanted to raise any claims in relation to his children he said that he did not want them to go through the suffering he had experienced because he was brought up differently from other children.
The delegate asked applicant A about his religious beliefs. He said that as he grew older he realised that Christians were good people. He said that he knew and believed in God, but could not explain his belief in simple terms. He said that Christianity was a great religion. He said that God became human and humans became God. He believed that Brothers and Sisters were the creators of God’s body and he believed in God and the Trinity.
The delegate noted that applicant A had spoken about having a gambling problem in his previous application. He said that he had ceased gambling when applicant B became pregnant with their first child [in early 2011].
Applicant A said that when he applied for a new passport in [City 1] he was required to complete a form which was designed for people who had overstayed their visa in Australia. He did not disclose that he had applied for protection, but answers he provided showed that he had held bridging visas which had ceased. He was not given a passport. No satisfactory explanation was provided for this.
The delegate observed that the previous delegate and the first Tribunal had found that applicant A was not a genuine Christian and would not practice Christianity if he returned to China. Applicant A said that he believed that the delegate and that Tribunal had been determined to refuse him and had twisted his evidence. He maintained that he was a Christian and had been attending church regularly in Australia and asked the delegate to review videos which he had given the first Tribunal which showed three generations of his family.
The delegate asked applicant A about his attendance at church in Australia. He said that he had attended church regularly from September 2006 until about December 2007, but stopped when he became addicted to gambling. He next attended church regularly from about 2009 to 2011 while his [Sibling 1] was in Australia. After that he stopped again, but resumed just before his interview with the Department in 2011. However, he had not been to church for about three years [since early 2012].
When asked why he had stopped attending church in 2012 he said that he had been in hiding from the Department of Immigration and he was afraid that they might locate him if he went to church regularly. When asked if he had attended church at all after 2012 he said that he had not attended church on any occasion and he had not kept in contact with any members of the church.
The delegate noted that applicant A had provided some supporting letters from several Local Church members in Australia, all dated 2011. Applicant A said that he had not kept in contact with members of the Church because he was afraid for his family. He said that he believed that the Department of Immigration had destroyed the Local Church because many people who attended were not genuine Christians and stopped going once that they had achieved their goal of obtaining protection. He maintained that he was a genuine follower of the religion.
The delegate advised applicant A that she had a number of concerns about his claims including his failure to apply for protection until over four and a half years after he arrived in Australia and his irregular attendance at church in Australia. She also advised him of country information which suggested that since 2005 Chinese regulations had permitted families and groups of friends to worship at home without registering with the government.
In a written response to the delegate’s concerns applicant A said that he had not become aware of the possibility of seeking protection in Australia until 2011 when his [Sibling 1] was arrested in Fujian. With regard to his irregular attendance at church he repeated his earlier explanation and said that he was not the kind of person who would attend a church simply to get a letter. He maintained that he would be at risk of harm because of his religion if he returned to China.
In a letter dated 24 November 2015 responding to a number of questions regarding claims made in an application lodged in May 2015 on behalf of applicant D, applicant A’s representative said that applicant A would be at risk of sterilisation and would face a fee of between three and ten times his annual salary if he returned to China because of the birth of applicant D. In support of these claims applicant A’s representative noted information in a number of newspaper articles including one which states that he might face repeated periods of detention if he does not pay the fine or might have his assets seized.
Applicant B’s submissions to the Department of Home Affairs
Applicant B was included in the application lodged by applicant A in 2011. She claimed to be a Christian in that application, but did not provide any supporting evidence or attend the interview or Tribunal hearing.
In written submissions to the Department in support of the current application Applicant B said that she was a member of the Local Church and had been baptised [in] 2013. She said that she feared she would face serious harm on return to China because of this.

Applicant B also said she had applied for a new passport at the Chinese Consulate in [City 1] in 2012. She was required to complete a form which was designed for people who had overstayed visa in Australia. The answers showed that she had held bridging visas which had ceased. She did not disclose that she had applied for protection. She was not given a passport. No satisfactory explanation for this was provided.
Applicant B claimed that her parents had told her the local police and telephoned them to tell them that her household registration had been cancelled.
Applicant B attended an interview with a delegate of the Minister for Immigration on 11 February 2015. She said that her parents were Buddhists, but she had not practiced any religion until shortly before she was baptised in [2011]. She said that she had not attended church or had any contact with other members of the church since 2012.
Applicant B again claimed that her household registration had been cancelled around the time she applied for her passport in 2012. She did not know why this had happened.
In applicant D’s application lodged on 25 May 2015 if was submitted that applicant B may be forced to have an abortion if she returned to China.
In a letter dated 24 November 2015 applicant B’s representative said that she would be at risk of sterilisation if she returned to China and that she would face a fee of between three and ten times her annual salary following the birth of applicant D. It was submitted that she was not highly skilled or well-educated and would not be able to pay the fee. In support of these claims her representative noted information in a number of newspaper articles including one which states that she might face repeated periods of detention if she does not pay the fine or might have her assets seized.
Applicant C submissions to the Department of Home Affairs
It was submitted that applicant C would not be free to practice his Christian religion in China, that he would be orphaned if his parents were persecuted by the Chinese government and that he was a member of a particular social group of children born and raised in Australia who would face social, cultural and social barriers if they returned to their country of origin.
Applicant D submissions to the Department of Home Affairs
In the application lodged on 25 May 2015 it was submitted that applicant D might face persecution as her parents might be imprisoned because of their religion if they returned to China, that she would be refused an identity card and therefore would not be able to obtain access to a range of services as result of China’s family planning regulations and that she is a member of a particular social group of children born to Chinese nationals who have applied for protection because they fear persecution.
On 26 October 2015 the delegate wrote to the applicants to advise them of country information regarding the application of China’s family planning laws which stated that children born in breach of these regulations would not be denied registration and access to services even if applicable social compensation fees had not been paid. In particular it noted that the Department of Public Security and Hubei Provincial Commission of Health and Public Planning had jointly released regulations on 13 February 2015 which prohibited the denial of household registration to children born outside the family planning regulations, even in cases where a social compensation fee had not been paid. It also notes a newspaper article which states that Hubei had introduced regulations in 2013 to ensure that children born out of wedlock were granted birth certificates.
In a response dated 24 November 2015 their representative said that information from a range of sources suggested that despite recent changes children such as applicant D would not be able to obtain household registration and as a result she would face denial of a range of supports and services and be subjected to a ‘culture taboo’ which would harm her physically and mentally. It was also submitted that applicant D’s parents were not highly skilled or well-educated and would not be able to pay the social compensation fee, which could amount to three to ten times their annual salary. A number of media articles were provided in support of these claims
The 24 November 2015 submission submits that applicant D would face problems because she came from a Christian family and they were likely to practice in an underground church.
The delegate’s decision
The delegate did not accept that applicant A or applicant B were genuine, committed Christians and after reviewing evidence regarding the operation of China’s family planning regulations found the adult applicants did not face a risk of significant harm and the children did not face a real chance of serious or significant harm on return to China for any reason related to China’s family planning regulations.
Evidence provided to the Tribunal
Applicant A
When asked about his fears at the hearing applicant A said that he feared harm in China because of his religion and because he was unsure whether his children would survive and develop well in China. I asked why his children would face problems in China. He said that they had been born in Australia, attended school in [City 1] and did not speak Chinese well. I observed that this did not appear to suggest that they faced serious or significant harm in China and asked if they would face any other problems. He said that his children would not be able to prove that they are Chinese and could not access any services. I asked him if he was referring to his claimed inability to obtain a passport. He confirmed that this was correct. I observed that in the course of my work I had spoken to other Chinese citizens in what appeared to be similar circumstances who had been granted passports and I had difficulty understanding why his application would have been refused. The applicant said that he had attempted to obtain a passport but had failed so he could not get documents for his children.
Applicant A said that he and applicant B had gone to the Chinese Consulate in [City 1] in 2012 to obtain new passports. He was told that it would take about 28 days to check with local police station and after that the Consulate could give him a travel document. However, the Consulate failed to contact them for about 40 days. After that he learned that applicant B’s household registration in China had been cancelled.
I asked if the applicant had received any information about his passport from the Consulate. He said that he had been given a receipt, but the Consulate had not contacted him and he had not contacted the Consulate. He said that when he lodged his passport application he had been asked if he had applied for protection. He lied and said that he had not applied for protection. He was asked to fill in a form setting out why he had overstayed his visas. He just put ‘random’ information and said that he had remained in Australia to gamble. I observed that it seemed unlikely that he would have stated that he wanted to gamble rather than provide a more reasonable explanation. He maintained that he was telling the truth. He provided copies of two documents dated [July] 2012 entitled Pick-up Form which state “please present and pay when you pick up” and indicate that the pick-up date was ‘to be inquired’ [according to a Chinese speaking Tribunal officer a better translation would be ‘to be advised’].
I asked applicant A if he had any idea why he and his wife‘s passports had not been issued. He said that the Consulate had sent information back to the local police in his wife’s hometown and they had visited her father and told him that they had cancelled her registration because she had been absent for a long time and it was not possible to get a passport without household registration.
I advised applicant A that based on country information it was my understanding that household registration was sometimes cancelled when someone was absent for an extended period, but it was not my understanding that it was difficult to have it reinstated. I also advised him that I had difficulty accepting that the Chinese authorities would refuse to issue a travel document in the circumstances he had described. He maintained that it was no possible to get a passport without household registration.
I noted that applicant A appeared to be concerned that officials at the Consulate might suspect that he had lodged a protection visa application and observed that I believed that the Chinese authorities would be aware that some Chinese citizens applied for protection in order to remain in Australia and that unless they had other concerns about the person concerned it was unlikely to prevent them obtaining a passport. Applicant A said that many Chinese citizens who had lodged protection visas in Australia had been given new passports. However, because his passport had expired before he applied for a new one he could only obtain a temporary travel document and the Consular staff had to check his residency status. He said that his wife’s father had been told that the police were going to cancel her household registration which meant that she would not be able to travel.
I noted that it appeared that his household registration had not been cancelled and asked why he had been unable to get a passport. He said that he did not know.
I asked applicant A to confirm that applicant B’s residency had been current when the Consulate asked the local police in her area to confirm her status, but when the local police received the request for information needed to issue her passport from the Consulate in [City 1], the local officials cancelled her residency. Applicant A said that when the local authorities checked they saw that applicant B had been absent for a long time so they cancelled her residency and the only way it could be reinstated was if she returned to her local area to apply. I observed that it appeared highly unlikely that this was the case as it would mean that people whose registration had been cancelled could never return.
When I spoke to applicant B later in the hearing she said that her parents had not been given any reason for the cancellation of her household registration. When I advised applicant A of this he said that a Chinese woman who was married to a lawyer had told him that household registration was sometimes cancelled when people were absent for prolonged periods.
I observed that as applicant A had made no attempt to contact the Chinese Consulate to enquire about what had happened in regard to the passports it was difficult to determine what had occurred. He said that he had been afraid to contact the Chinese Consulate and had only applied for a passport because the Department of Immigration was pressuring him to do this. After that visit he was afraid to return. He said that the Consulate published a list of names of people who had failed to collect their passports for a long time and he checked this list, but his name had never appeared.
I observed that even if I accepted that he and applicant B had been unable to obtain new passports or travel documents because their household registration had been cancelled due to an extended absence from China, this appeared to be an administrative issue and did appear to suggest that she was of adverse interest to the Chinese authorities for any reason. I also observed that administrative problems generally had a solution, but it appeared that neither he nor his wife had attempted to resolve this issue. He suggested that it was a question of human rights law.
I asked applicant A if there had been changes or developments which affected him or any member of his family since his primary application had been refused. He said that there had not been any changes. I asked if his family were still operating their [business]. He said that they had moved to Fuching about [a few] years ago. He said he was not in frequent contact with his parents and he was not sure why they moved, but his father was getting older and his work was hard. Now his [Sibling 1] supports them and they work for [a church] teaching others about the Bible and also cooking and doing other chores. To the best of his knowledge none of them have experienced any problems.
I asked the applicant where his parents did their work for the church. He said that it was in a house in the village. Most villages have such buildings. Dozens of people attended gatherings of the church, sometimes as many as a hundred people.
I asked applicant A when he had last attended church. He said that he could not remember, but it was many years ago. I asked if he still considered himself to be a Christian and a member of the Local Church. He said that he did. I observed that his behaviour suggested that this was not the case or at least that religion was of little importance to him. He maintained that he was a Christian and member of the church. He said that he shouted the name of the Lord and did not believe he needed to provide more evidence.
The applicant said that he had attended religious gatherings with his family in Hubei Province from the age of about [age] and repeated the claim that he had been detained once and his father twice before he left China. He said that his [Sibling 1] had been detained for a month in Fujian after returning from China, but [he/she] had not experienced any further problems. He was not sure if [he/she] continued to attend church gathering.
I asked the applicant how his church was different from others. He said that it was called a gathering and followers believed that God has become a person. He said that the gathering is a body part of Jesus and the ultimate goal of the church was for people to become Gods. Membership of the church did not require attendance at Church, it merely requires that followers call the name of God at home. I advised him that I understood that the church required more than this of its members. He said that this was true and followers were supposed to at least attend gatherings on Saturdays, but he had stopped going because a lot of people only went to get a visa and most of the genuine believers left.
I noted that applicant A claimed that his father had sent him to Australia in August 2006 so that he could avoid harm because of his religion in China and practice his faith freely in Australia, but he did not apply for protection until 14 June 2011 by which time he had been unlawful in Australia for over two years. I advised him that this appeared to suggest that he was not fearful of returning to China and that his claims were not genuine. He said that [he] had not been aware of the possibility of seeking protection until 2011.
I advised applicant A that I had listened to the evidence he had provided regarding his religious beliefs during his interviews with the delegates and the previous Tribunal and he did not appear to be very knowledgeable about Christianity or the Local Church which caused me doubt that he had was a genuine follower of the religion. He said that he had been concerned that the interviewers would be upset if their religion was different from his.
I noted that applicant A had claimed that he and his parents were members of the Local Church which is considered to be an evil cult in China and had been detained because of this. However, he had continued to practice his religion without experiencing further problems and he had been able to obtain a passport and leave China which suggested that he was not of interest to the Chinese authorities at that time. Applicant A said that he had provided an honest account of his circumstances in China.
I advised applicant A that my most serious concern was the fact that he had not attended church regularly or frequently while in Australia and had stopped attending in 2012, which appeared to indicate that even if had previously belonged to the Church he was no longer a genuine practicing Christian or member of the Local Church and would not practice if he returned to China. I invited the applicant to comment, but he declined to do so.
I noted that applicant A had provided a number of documents in support of his previous and current application. I advised him most of them could have been manufactured by anyone with a computer and it was my understanding that it was not difficult to obtain fraudulent documents in China. I advised him that given my concerns about the credibility of his evidence I was also concerned that his documents were not genuine. The applicant said that it was easy to obtain fraudulent documents in China, but his were genuine and it was unfair not to accept them.
I also noted that applicant A had provided several DVDs to the previous Tribunal. I advised him that these DVDs were not attached to any of the files which I had access to, but I had read the previous Tribunal’s summary of their contents and they did not appear to provide convincing evidence regarding his family’s religion. I also noted that some of them appeared to show people attending relatively large public gatherings and it seemed unlikely that they were gatherings of a banned group. The applicant said that the DVD’s included commentary which would prove his family were members of the Local Church, but he had not been able to find a Fuqing interpreter.
Applicant B
I asked applicant B why she feared returning to China. She said that after applicant A’s previous application was refused the Department had pressured them to obtain a passport. They lodged applications at the Consulate, but did not receive passports. Following this her parents told her that her household registration had been cancelled.
I noted that applicant A had stated that after they applied for passports they were advised that they would obtain travel documents after about four weeks. Applicant B confirmed that this was correct. I advised her that applicant A had told me that he believed they had not received travel documents because her household registration had been cancelled because she had been absent from the country for an extended period, which appeared to be an administrative issue and not an indication of serious problems. She said that her parents were not sure why her household registration had been cancelled.
I asked applicant B why she believed her registration had been cancelled. She said that she was not sure, but it had occurred around the time she applied for a new passport and as part of the process she had to fill in a form which asked if she had applied for protection. She said that applicant A had completed the form and she had signed it. I advised her that he had told me that he had denied applying for protection. She confirmed that this was correct.
I asked applicant B if she believed that the Consulate had arranged to have her household registration cancelled because they suspected she had applied for protection. She said that she did not know why her registration had been cancelled. I reminded her of applicant A’s evidence that it was because of her extended absence from China. She said that could have been the reason.
I asked applicant B if she had asked her parents to try and reinstate her household registration or made any attempt to find out why her travel document had not been issued. She said that she had not done this because she was afraid because she had applied for protection. I advised her that it was my understanding that other people who had applied for protection had been able to obtain passports and she did not appear to be someone who would be of interest to the Chinese authorities and I had difficulty accepting that she would have been denied a passport. She said she did not know why she had been unable to obtain a passport but maintained that her claims were true.
I asked applicant B if she feared returning to China for any other reason. She said that applicant A would face problems because of his religion. I asked if she was also a follower of the Local Church. She said that she had gone to church with her husband and she had been baptised. I observed that it appeared she had attended briefly in 2012 but she no longer went to church. She said she would go to church in future if applicant A returned to the church. I asked again if applicant B feared harm for any other reason. She said that her fears were mostly related to her husband who would have problems because of his religion.
Claims relating to applicant D

I reminded applicant A & B of their earlier evidence regarding their concerns in relation to applicant D. They confirmed that they were concerned that she would be denied registration. I observed that they both came from families with more than one child and it appeared that they had suffered greatly because of this. I noted that according to his previous evidence, applicant A and his [Sibling 1] had both obtained registration and nobody in his family appeared to have suffered significant harm in relation to the family planning regulations. Applicant A said that his family had faced some punishment after he was born, but he did not know much about it. Applicant B said that her mother had to hide to avoid problems before giving birth and her parents had lost their jobs and that was why they had set up a business. However, she agreed that her brother had been registered.
I advised the applicants that I was aware that people had faced a range of problems in the past and those who breached family planning regulations were generally required to pay a social registration fee, but this was not linked to registration of children and it was my understanding they would be able to register both their children if they returned to China.
In response applicant A said that his problem was that he did not have any documents and he and his family could not return to China. Applicant B said that she did not have household registration and could not register her children. I asked if they wanted to make any comment on claims relating to problems their children might face in relation to China’s family planning regulations. They said that they did not.
I asked the applicants if there was any other issue relating to China’s family planning laws that they wished me to consider. Neither of them responded.
CONSIDERATION OF THE APPLICANTS’ CLAIMS AND EVIDENCE
Claims relating to religion
Country information
According to advice from DFAT the Local Church was established by a Chinese exile in the USA in 1962 and introduced to China in 1979. Members of the Church believe that salvation could be had by saying ‘O Lord’ three times’. They are sometimes called Shouters because of their practice of stamping their feet while shouting as part of their worship. The CCP targeted the group in the early 1980s as counter-revolutionary after which it splintered into a number of groups. According to media reports[1] in January 2002 a man from Hong Kong was arrested and sentenced to two years jail for smuggling Bibles to the Local Church in China, which suggests that association with the group was likely to cause serious problems at that time.
[1] Smuggler of Bibles sentenced in China >
DFAT was unable to verify the extent to which church is still active in China in 2018. However, other sources suggest that members of the Shouters/Local Church continued to be considered an “evil cult” in 2017. While specific information on the treatment of Local Church members it is not available it clear that members of all groups considered to be “evil cults risk serious consequences if discovered. Reports also suggest a tightening of control over unregistered churches in recent times, at least in some areas.[2]
Applicant A
[2] US Department of State International Religious Freedom Report 2017 China; Human Rights Watch World Report 2019: Events of 2018
I accept that applicant A attended Local Church services in Australia sporadically prior to 2012. However, for the reasons set out below, I do not accept that he is or ever was a genuine Christian or a member of the church.
In the first place, despite claiming that he came to Australia in 2006 to avoid harm because of his faith and so that he could practice his religion freely, applicant A failed to apply for protection until nearly five years after he arrived and more than two years after his visa expired. I do that accept that he would have failed to apply for protection for such an extended period if he genuinely feared harm in China and wished to remain in Australia in order to practice his religion. I find his failure to do so a strong indication that he did not come to Australia in order to avoid problems in China or to practice his religion freely and also a strong indication that he was not a member of the Local Church prior to arriving in Australia.
In reaching this conclusion I have considered applicant A’s claim that he was very young when he arrived and that he was not aware that he would seek protection prior to 2011. It is well-known that possibility of seeking protection in Australia is widely known amongst Chinese students studying in Australia. I also note that, according to applicant A, many of the people at the Local Church which he attended from time to time prior to 2011 did so in order to obtain protection. While I acknowledge that applicant was relatively young when he arrived, I do not accept that he was unaware of the possibility of seeking protection prior to 2011.
Secondly, I found his evidence regarding his attendance at church in Australia unconvincing. As noted above, his failure to seek protection until 2011 strongly suggests that he was not a practicing Christian when he arrived in Australia in 2006. While I accept that he attended some services of the Local Church in Australia, I do not accept that he began to do so in 2006 and believe that he has exaggerated his attendance between then and 2012. In any event, he has not attended any church or associated with members of the Local Church since 2012. He claims that he ceased attending because many of the other people at the church were not committed members and because he was hiding from the Department. I do not accept these explanations. If he was genuinely committed to the church I believe he would have continued to attend or at least continued to have some association with other genuine followers of the faith. I also note he failed to return to services after he was located by the Department and granted a bridging visa in May 2014.
Thirdly, I found his evidence regarding his family’s religious practice in China and the problems which this caused unconvincing and at odds with country information regarding the treatment of members of the church in China. According to the applicant, he and his family were only detained for a very short period after their membership of the group in Hubei was first discovered in 2002 and even when his father was arrested a second time in 2005 he was only detained briefly. In light of the evidence regarding the Local Churches classification as an evil cult set out above, I have difficulty accepting that the applicant and his family would not have faced more serious consequences if their involvement in the Local Church had been discovered, particularly if they continued to practice their religion after the first arrest. Furthermore, I find the claim that applicant A’s father continues to practice his faith and attends gatherings of dozens and up to a hundred people without experiencing problems implausible. While I acknowledge that Fujian where his parents current reside is generally more tolerant of unregistered religious groups than other regions, I do not accept that this would extend to groups which have been labelled evil cults.
Fourth and finally, I found his responses when asked about his faith vague and confused and he failed to demonstrate the level of understanding of Christianity or the Local Church which I would expect from someone who was committed to the faith. For example, when asked at the hearing how his church differed from spoke about people becoming Gods and said that the only requirement was for members to call the name of God, but when I expressed doubt about this said that members were supposed to attend church on Saturdays. While I would not have rejected his claims regarding his participation in the Local Church for this reason alone I find it to be a further indication that he is not a genuine or committed member of the group.
After considering all of the relevant evidence, I do not accept that applicant A is or ever was a Christian or a follower of the Local Church. Nor do I accept that his family has ever belonged to the Local Church. I find that he attended church in Australia solely to support his claim for protection in Australia and I do not accept that he will attend services of the Local Church or any other Christian church if he returns to China. I am therefore not satisfied that there is a real risk applicant A would face significant harm on return to China because of his religious beliefs.
In reaching this conclusion I have noted the supporting letters and other documents which applicant A has provided. The supporting letters from members of the Local Church in Australia appear to have been written by friends of applicant A and to the extent that they purport to corroborate claims which I have found to lack credibility I have given them little weight. The photographs taken in Australia demonstrate only that applicant A attended church on occasion, which I accept. With regard to the documents supposedly originating in China, as pointed out at the hearing all of them could have been manufactured by anyone with a computer and in light of my findings regarding the credibility of the applicant’s claims I have given them little weight. I do not have a copy of the DVD provided to the first Tribunal. However, as noted at the hearing based on the previous Tribunal’s summaries of the relevant content, they do not provide convincing evidence he or anyone in his family was involved with the Local Church and I have given them little weight.
I have also noted that applicant A’s claim that his [Sibling 1] was arrested in 2011 at a youth gathering of [his/her] church in Fuqing. As discussed above, I do not accept that the applicant’s family are members of an underground church. In these circumstances and in light of my finding regarding his general credibility I am not satisfied the applicant’s [Sibling 1] was detained in China in 2011 because [he/she] attended a religious gathering. Furthermore, even if I accepted that applicant A’s [Sibling 1] was detained in 2011 because [he/she] attended a religious gathering (which I do not), there is no suggestion that other members of [his/her] family in China have experienced any problems because of this and nothing in the evidence before me which suggests that applicant A, who is not a genuine or practicing Christian, would experience problems in China because his [Sibling 1] is a Christian and was detained some eight years ago. I am not satisfied that there is a real risk he would face significant harm on return to China because of religious beliefs which might be imputed to him because of his association with his [Sibling 1].
Finally, I have considered the possibility that applicant A might be imputed to be a follower of the Local Church if he returned to China because of his attendance at gatherings of the church in Australia. However, as he only attended the church occasionally and he has not attended at all for over six years I am not satisfied that the Chinese authorities would view him as a Christian or a follower of the Local Church member if he returned to his homeland and I am not satisfied that there is a real risk he would face significant harm on return to China because of religious beliefs which might be imputed to him.
Claims relating to religion: Applicant B
Applicant B claims that she fears returning to China because she is a follower of the Local Church. She claimed that while she had not attended church since 2012 she would attend future gatherings if her husband returned to the church.
I accept that applicant B was baptised in 2011 or 2012 and briefly attended services at the Local Church following this. However, as she has not attended services or participated in any religious activities since 2012 I do not accept that she is a genuine Christian or that she is committed member of the Local Church. I find that she underwent baptism and attended church briefly solely for the purpose of enhancing her claim for protection in Australia.
I have also considered the possibility that applicant B might be imputed to be a follower of the Local Church if she returned to China because of her occasional attendance at gatherings of the church in Australia. However, as she only attended the church for a very short time and she has not attended at all for over six years I do not believe that the Chinese authorities would view her as a Local Church member. I am not satisfied that there is a real risk she would face significant harm on return to China because of religious beliefs which might be imputed to her.
Denial of passports and cancellation of applicant B’s household registration
Country information
Household registration (hukou) is a system which registers Chinese citizens according to their place of birth or their parent’s place of birth and provides them with access to a range of government services.
According to DFAT Chinese citizens who apply for passports in China must apply at the appropriate local Public Security office and provide their household registration and other documents.[3] However, according to informed sources Chinese citizens who travel abroad for extended periods are required to cancel their household registration at the local police station prior to being granted a passport and restoration of household registration on return is generally a routine matter.[4] In March 2010 DFAT advised that different regions will have different procedures in place for processing returnees.[5] An article in Xinhua Press Agency indicates that Chinese citizens who have ‘settled’ abroad can apply to re-register their register to the PRC embassy or through a relative at the place where they intend to reside, although this appears to apply only to those who have been lawfully resident in a country outside China.[6] No information on the procedures for applying for a passport at Embassies or Consulates outside China has been located.
[3] DFAT 2017, DFAT Country Information Report People’s Republic of China, 21 December, p.41 <
[4] Ho, E 2010, Caught between Two Worlds: Mainland Chinese Return Migration, Hukou Considerations, and the Citizenship Dilemma, May, Metropolis British Columbia, Centre of Excellence for Research on Immigration and Diversity, p.13, e-book; Wang, F 2005, Organizing Through Division and Exclusion: China’s Hukou System, Stanford University Press, Stanford, p.66 & p.81
[5] Department of Foreign Affairs and Trade 2010, Country Information Report No.10/14 – Rights of non-resident Chinese nationals and the residence application process (sourced from DFAT advice of 19 March 2010), 22 March
[6] Chinese returning and settlement 2013, 17 October < <CIS36DE0BB2047>
According to DFAT, under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. And according to Freedom House, millions of people have been denied passport on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. DFAT also advise that if a passport application is refused the applicant will be informed of this in writing and also informed of their right to apply to have the decision reconsidered.
With regard to the situation of failed asylum seekers, DFAT is not able to verify the treatment of failed asylum seekers returned to China, but have no information to suggest authorities target individuals solely for having sought asylum abroad.
Consideration of claims
For the reasons set out below, I am not satisfied that applicant A or applicant B has been denied passports by the Chinese authorities or that applicant B’s household registration was cancelled in 2012.
In the first place, it is clear from their past behaviour that both applicants are determined to remain in Australia and are prepared to remain in the country unlawfully and to concoct false claims in order to achieve this goal. I believe that this is another example of them concocting claims in pursuit of that goal.
Secondly, applicant A gave inconsistent evidence regarding the cancellation of his wife’s household registration which further demonstrates his willingness to provide false evidence in support of his case and casts further doubt on the credibility of his evidence regarding his and his wife’s claimed inability to obtain passports. At the hearing he claimed that his wife’s household registration had been cancelled when the [City 1] Consulate contacted the local police in her area and they realised that she had been absent from the country for a prolonged period, thus making it impossible for her to obtain a passport. Applicant B also claimed that her household registration had been cancelled, but said that no explanation had been given for the cancellation. When asked to comment on the apparent inconsistency applicant A changed his evidence and said that the Chinese wife of a lawyer had told him that household registration was sometimes cancelled when people were absent for prolonged periods. I find this a strong indication that applicant A has not provided truthful evidence regarding his application for new travel documents from the Chinese Consulate.
Thirdly, I find applicant A’s suggestion that he and applicant B were refused passports because applicant B’s household registration was cancelled and that there is no solution to this problem because without a passport she cannot return to China to be far-fetched and implausible. Furthermore, if applicant A genuinely believed that he and applicant B had not been issued passports because of an administrative problem relating to applicant B’s household registration, he had no reason to fear contacting the Chinese Consulate and I believe he would have made some attempt to have the problem resolved.
Fourth, the applicants’ claim that they were unable to obtain passports because applicant B’s household registration had been cancelled is at odds with information from informed sources regarding the household registration and the issuing of passports in China. As noted above, it appears that Chinese citizens who intend to remain abroad for extended periods are required to cancel their household registration prior to departure and are generally able to reinstate it on return. In these circumstances, even if applicant B’s registration was cancelled after she left because she had been away for an extended period it is not plausible that she would have been denied the possibility of ever obtaining a travel document and returning to China for that reason.
Fifth, even if I accepted that applicant B’s household registration was cancelled in 2012 her suggestion that this might be linked to her earlier protection visa application and her claimed inability to obtain a passport is nothing more than speculation. While I acknowledge that the Chinese authorities sometimes deny passports or re-entry to China to citizens who are viewed as dissidents or troublemakers, there is no credible evidence before me which suggests that either of the applicants would be viewed in this manner by the Chinese authorities merely because they had applied unsuccessfully for protection in Australia.
As a result of the media coverage of asylum seeker issues it is public knowledge that significant numbers of Chinese students and visitors have applied for protection in Australia and it is reasonable to assume that Consular officials would suspect that Chinese citizens who have overstayed their Australian visas might have applied for protection. Nevertheless, as confirmed by the applicant at the hearing, it is not uncommon for failed asylum seekers to be granted new passports while in Australia. I find this to be a strong indication that Chinese citizens are not denied passports merely because their circumstances suggest that they may have applied for protection in Australia. On the evidence before me I am not satisfied that the applicants were denied Chinese travel documents because they had applied or were suspected of applying for protection in Australia.

In light of the problems with the applicants’ claims regarding their inability to obtain travel documents from the Chinese Consulate and their general lack of credibility I am not satisfied that applicant B’s household registration was cancelled for any reason in 2012.
Claims relating to China’s family planning regulations
Country information
Unless otherwise stated that following is based on information in DFAT Country Information Report People’s Republic of China, 21 December 2017.
Until 2016 China’s family planning regulations restricted most families to one child and provided for a number of incentives and disincentives to enforce this and other family planning rules. One of the main disincentives was the requirement that a fine or social compensation fee be paid for births which breached this regulation. There is also credible evidence of coercive practices such as forced abortions or sterilisations occurring in some areas in the past. Children born in breach of the regulations, including children born to unwed mothers, were generally denied household registration and access to government services associated with registration until this fee was paid.
New regulations introduced in January 2016 included the implementation of a ‘two child’ policy and the abolition of forced contraception. Parents of children born outside the regulations are still liable to pay a social compensation fee, but payment of the fee is no longer a pre-requisite for accepting an application for household registration. Credible local and international NGO reporting suggests the incidence of coercive practices has reduced since the introduction of the two-child policy.
Implementation of the new policies and interpretation and implementation of varies enormously across China. Hubei Province and Fujian are amongst those which have banned denying registration to children born outside family planning rules even if the social registration fee has not been paid.
Social compensation fees vary according to the offence and are calculated on average income or actual income, whichever is greater. However, local authorities have considerable discretion when setting these fees and credible information on the amount charged in practice is difficult to obtain. There is evidence of high fees being imposed in some cases, but also evidence which suggests that in some cases local authorities reduce or waive fees. In addition, fees can be paid in instalments over three years.[7] It also appears that if the appropriate body was not notified of breaches of the regulations in force prior to January 2016, local authorities may not enforce payment of the fee.
[7] See also UK Home Office Country Policy and Information Note China: Contravention of national population and family planning law; Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November; Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February
According to DFAT, measures used to secure payment of social compensation fees include applying pressure through personal calls and visits and limiting the ability of those with an outstanding debt to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their businesses, board planes or book soft berth tickets on trains.
Consideration of the applicants’ claims
As noted above, in submissions to the Department in support of applicant D’s application if was claimed that applicant A, B and applicant D faced serious harm including denial of household registration for applicant D and forced sterilisation and imposition of a large fine which they would not be able to afford in the case of a applicants A & B.
There was no mention of any fears relating to the operation of China’s family planning regulations in the applicants’ initial statement of claims to the Department. Despite being asked general questions regarding their fears on return to China during their interview with the delegate neither of them mentioned problems relating to China’s family planning regulations. The issue was first raised in applicant D’s application lodged in May 2015. As noted in the delegate’s decision, the applicants had already breached the family planning regulations by having a child out of wed-lock when they lodged their application in May 2015 and at the time of the delegate’s interview applicant B was pregnant with their second child.
It is beyond doubt that they were aware of China’s family planning regulations at that time. Knowledge of these regulations would be universal or nearly universal in China and both applicants come from two child families who faced some degree of penalty as a result. If the applicants had genuinely feared that they or their children (born or unborn) were at risk of harm because of the operation of China’s family planning regulations I believe that they would have mentioned this prior to May 2015. While I would not have dismissed their claims in relation to family planning for this reason alone, I find it to be strong indication that they have never held genuinely feared facing serious consequences for breaching China’s family planning regulations and that these claims were made primarily to support their application for protection.
At the hearing I reminded applicant A and B that they had previously stated that they feared that applicant D would not be given family registration because her birth breached China’s family planning regulations and advised them that it was my understanding that she would not be denied household registration under the current regulations. Applicant A said that he and applicant B would not be able to register either of their children because they did not have travel documents and applicant B did not have household registration. I asked if the applicants wished to provide any comment or evidence relating to problems their children might face in relation to China’s family planning regulations. They said that they did not. I then asked if there were any other issues relating to China’s family planning laws that they wished me to consider. They said that they had no concerns.
It is clear from the applicants’ evidence at the hearing that they have abandoned their claims relating to problems associated with China’s family planning regulations and currently do not fear that they or their children will face harm on return to China because of they have breached these regulations and currently do not fear that they or their children will face harm on return to China because of they have breached these regulations
In addition, according to advice from DFAT and others children born in breach of China’s family planning regulations are no longer denied household registration even if their parents have not paid a social compensation fee and forced sterilisation and other coercive measures and have reduced since 2016. While social compensation fees may still be charged, the amount varies and can often be paid in instalments. As noted in the delegate’s decision, Hubei Province introduced regulations to ensure the children born out of wed-lock received birth certificates in 2013 and prohibited the denial of household registration to children born outside the family planning regulations in February 2015, ahead of the 2016 changes which suggests a tolerant and reasonable approach to family planning regulations in applicant A’s home province.
After considering all of the relevant evidence I am not satisfied that there is a real chance that any of the applicants will face serious or significant harm on return to China for any reason linked to or associated with China’s family planning regulations.
Claims relating to applicant C
In submissions to the Department it was submitted that applicant C would not be free to practice his Christian religion in China, that he would be orphaned if his parents were persecuted by the Chinese government and that he is a member of a particular social group of children born and raised in Australia who would face social, cultural and social barriers if they returned to their country of origin. In submissions to the Tribunal it was submitted that he would face problems in China because he had been born in Australia, he attends school in [City 1] and he will be unable access Chinese citizenship or any rights in China because his parents have been denied passports.
As discussed above, I do not accept that applicant A or B are genuine practicing Christians or that they would face problems with the Chinese authorities on return to China because of their religion. If follows that I do not accept that applicant C will be orphaned or face any problems with the Chinese authorities because of problems his parents might face as a result of their religion.
Applicant C is currently only seven years old and was born around the time his parents ceased attending church and severed their ties with other members of the Local Church. In these circumstances I am not satisfied that he is a Christian and it therefore cannot be said that he would be denied the right to practice religion in China.
I am not satisfied that applicant C faces a real chance of suffering serious of significant harm on return to China because he or his parents are Christians.
While applicant C may face some challenges adjusting to different social or cultural norms in China, this is no different from the challenges faced by children who migrate to Australia with their parents. I am unaware of any evidence which suggests that Australia born Chinese children who accompany their parents to their homeland face serious or significant harm because they were born in Australia. I am not satisfied that applicant C faces a real chance of suffering serious or significant harm on return to China because he was born in Australia.
As I do not accept that applicant A and B have been denied Chinese passports, it follows that I do not accept that applicant C will be denied Chinese citizenship or right to live in China or any other right enjoyed by Chinese citizens because his parents do not have travel documents. I am not satisfied that applicant D faces a real chance of suffering serious of significant harm on return to China because her parents have been denied passports.
Claims relating to applicant D
It has been submitted that applicant D might face persecution because her parents might be imprisoned because of their religion if they returned to China, that she would be refused household registration and identity documents because her birth breached China’s family planning laws, that she was a member of a particulars social group particular social group of children born to Chinese nationals who have applied for protection because they fear persecution and that she would be denied access Chinese citizenship or any rights in China because his parents have been denied passports.
As I do not accept that applicant A or B are genuine practicing Christians and applicant D is only four years old it follows that I do not accept that she is a Christian or that she would face any problems on return to China because her parents are Christians. I am not satisfied that applicant D faces a real chance of suffering serious or significant harm on return to China because her parents are Christians.
I am unaware of any evidence which suggests that children born to Chinese nationals who have applied for protection because they fear persecution are at risk of serious or significant harm on return to China because of this. I am not satisfied that applicant D faces a real chance of suffering serious or significant harm on return to China because her parents applied for protection in Australia.
As I do not accept that applicant A and B have been denied Chinese passports, it follows that I do not accept that applicant C will be denied Chinese citizenship or right to live in China or any other right enjoyed by Chinese citizens because his parents do not have travel documents. I am not satisfied that applicant D faces a real chance of suffering serious or significant harm on return to China because her parents have been denied passports.
CONCLUSION
Applicant A
For the reasons set out above and after considering applicant A’s claims singly and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to China. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer significant harm.
Applicant B
For the reasons set out above and after considering applicant B’s claims singly and cumulatively, I am not satisfied that she faces a real risk of suffering significant harm on return to China. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that she will suffer significant harm.
Applicant C
After considering the applicant C’s claims singly and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons in the Under s.5J(1),. Therefore I am not satisfied that he has a well-founded fear of persecution now or in the reasonably foreseeable future.
For the reasons set out above and after considering applicant C’s claims singly and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to China. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer significant harm.
Applicant D
After considering the applicant D’s claims singly and cumulatively, I am not satisfied that she faces a real chance of suffering serious harm amounting to persecution for any of the reasons in the Under s.5J(1),. Therefore I am not satisfied that she has a well-founded fear of persecution now or in the reasonably foreseeable future.
For the reasons set out above and after considering applicant C’s claims singly and cumulatively, I am not satisfied that she faces a real risk of suffering significant harm on return to China. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that she will suffer significant harm.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy either criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Roslyn Smidt
Member

[2019] AATA 2489

4 June 2019

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