1608026 (Refugee)

1608026 (Refugee) [2019] AATA 3647 (20 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608026
COUNTRY OF REFERENCE:                  China
MEMBER:Roslyn Smidt
DATE:20 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 20 March 2019 at 3:48pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian membership and activities in China and Australia – registered and unregistered churches in China – one-child policy – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 May 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 applied for a visa on 2 April 2015. Applicant B, who is his [child], was born on [date] and applied for protection on 27 November 2015.
CRITERIA FOR A PROTECTION VISA
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.
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.
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 themselves 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).
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 s.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
Applicant A ([Name]) is a [age]-year-old man from Fujian Province in China. His parents remain in Fujian. They own a [business] and are in a reasonably good financial situation. One of his [siblings] completed university in China and the other completed a vocational course. One of his [siblings] remains in Fujian. The other resides in [Country]
Applicant A has been in a relationship with Ms [A] from 2009. Ms [A], who is also a citizen of China, arrived in Australia as a student. They have three children together, [Child 1] born on [date], [Child 2] born on [date] and [Applicant B], born on [date]. They married [in] November 2015. Ms [A] and the two older children previously applied for protection, but the application was refused.
Applicant B ([Name]) is Applicant A’s [age] year old [child].
MIGRATION HISTORY
Applicant A was granted a student visa on 14 March 2007 and arrived in Australia [in] April 2007 at [age] to study English and attend high school. At the hearing he said that he had studied English off and on for several years, but he never attended high school. He applied for a further student visa on 14 March 2012. This application was refused by a delegate of the Minister on 5 June 2012. The delegate’s decision was upheld by the Migration Review Tribunal on 30 August 2013. Applicant A held a bridging visa until 8 October 2013 after which he became unlawful. He applied for protection on 2 April 2015.
During his interview with the delegate Applicant A was asked why he had taken so long to apply for protection. His responses were confused, but he appeared to state that he had not been involved with religion until relatively recently. He also said that he had separated from his wife in 2013 when she was pregnant with their second child because she had lodged an application for protection and was afraid this meant he might be caught by the Department of Immigration.
At the hearing I asked Applicant A why he had remained in Australia after his visa expired in 2013. He said that he had been thinking of pursuing further studies at that time.
[In] 2012 Applicant A was issued with a new passport by the Consulate General of the People’s Republic of China in [City]. At the hearing I asked him why he had obtained this passport. He said that he could not recall his thoughts in 2012. I observed that his decision to obtain a new passport in 2012 appeared to suggest that he had not been fearful of returning to China at that time. He said that this was correct, but the circumstances had changed since that time.
S.438 NOTICE
On 20 December 2016 the Department provided the Tribunal with information it had received which included allegations about the genuineness of claims made by Applicant A and his family. At the hearing I advised him of the existence of the certificate and told him that it contained allegations regarding him and his family. I also advised him that as there was no indication of the source of the allegations and they were impossible to verify I would give them no weight. He did not comment.
CLAIMS AND EVIDENCE
In essence Applicant A claims that he is at risk of serious or significant harm on return to China because of his membership of the True Jesus Church and because he and his wife have breached China’s family planning laws.
According to submissions made by her parents Applicant B is at risk of harm on return to China because her family belongs to the True Jesus Church and because her birth contravened China’s family planning rules.
Claims in relation to religion
Country information
Unless otherwise stated the following overview is based on DFAT Country Information Report, People’s Republic of China dated 21 December 2017, the DFAT Thematic Report, Fujian Province, People’s Republic of China dated16 December 2016 and the US Department of State International Religious Freedom Report 2017 issued in May 2018.
Christianity has had a presence in China for hundreds of years and has millions of followers. Catholicism and Protestantism as two of five religions officially recognised in China. Government regulations require that followers of these religions worship at a church registered with one of the government’s Patriotic Associations and that they comply with restrictions on the manner in which they practise and promote their religion, notably that they must not proselytise in public.
Many Christians in China attend unregistered churches. Some reports suggest that between 70 to100 million Protestants worship at unregistered churches in China. Friends and family are permitted to hold small and informal prayer meetings without official registration which has led to the spread of unregistered Christian congregations within the country.
A few Christian sects have been designated evil cults and their members face a high risk of harassment and detention. Some Christians who attend unregistered churches not considered to evil cults have also been subjected of harassment, detention and physical abuse and some have died in detention.
Freedom of religion and treatment of unregistered house churches varies significantly across China depending on the nature of the church and the attitude of local authorities. In some areas, unregistered churches have been tolerated in a number of areas, provided they have not been named as a dangerous cults, they operate discretely and do not become too large and they do engage in practices seen as challenging the authority of the government. In the event that a particular church group is seen as a problem or there is a general crackdown on religion, it is more likely to affect leaders than individual worshippers.
In April 2017, President Xi Jinping gave a speech in which he emphasised the need to ‘sinicise’ religion and to ensure religious rights did not impinge on CCP authority. In September 2017 the government approved revisions to the 2005 Regulations on Religious Affairs, which included provisions to allow members of unregistered religious groups to seek approval from authorities to participate in religious activities, but also provided for potential criminal or administrative penalties including large fines for organising illegal religious events or fundraising. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. However, the devolution of enforcement to local government and Party means that unregistered Christian churches are also likely to be affected.
The impact of these changes remains somewhat unclear, but as in the past it appears to vary according to location, the attitude of local authorities and the nature of the religious group. According to the US Department of State International Religious Freedom Report 2017 issued in May 2018, the government increased monitoring before the new regulations came into effect, causing many churches to cease their normal activities. However, it appears that these problems primarily affected areas which have a history of religious repression and targeted members of groups viewed as evil cults and church leaders.
Sources consulted by DFAT suggest that authorities in Fujian Province may be slightly more flexible than local authorities in some other areas in China, but also note that central authorities in Beijing retain the ability to assert control throughout all Chinese provinces, including Fujian.
In 2011 Asia Harvest estimated that 1.57 million worshippers attend Protestant-linked unregistered churches and one million worshippers attend Catholic-linked unregistered churches in Fujian. Some unregistered churches operate openly, including some with large congregations. Observers question the validity of the registered/unregistered dichotomy as people often move between the two. Local authorities have historically been relatively tolerant of unregistered churches and those who attend them, provided then operate in the manner described above.
None of the sources consulted regarding government actions following the 2017 changed in regulations relating to religion included reports of a crackdown in Fujian.
According to information from a number of sources the True Jesus Church is an indigenous church with a strong following in Fujian. In October 2003 the UK Home Office cited sources which stated that the True Jesus Church operated openly and that it had “a large prominent church building in Fuzhou”.[1] An article dated 5 December 2006 notes that the True Jesus Church congregations “have sometimes registered directly with local authorities to meet on [Three-Self Patriotic Churches] TSPM premises, while maintaining their own identity and autonomy.” [2] According to Dr Daniel Bays, the church does not have great problems with the government.[3]
[1] UK Home Office 2003, China Country Report, October, para.6.39
[2] Hornemann, M. 2006, ‘China: State-imposed religious monopolies deny China’s religious reality’, Forum 18 News service, 5 December
[3] Bays, Daniel 2007, Email to RRT Research & Information ‘Re: Information Request about the True Jesus Church in China’, 7 November 2007. See also Lambert, T. 2006, China’s Christian Millions, Monarch Books, Oxford, pp.240-1; see also Cheng, M.M.C. 2003, ‘House Church Movements and Religious Freedom in China’, China: An International Journal, Vol. 1, No. 1, March, p.28.
Applicant A’s involvement with the Christianity in China
In a statement provided with his protection visa application on 2 April 2015 Applicant A said that he hated attending a Patriotic Church because he did not think there was any Biblical truth at such a church. He noted that people who worshipped at non registered churches faced punishment and claimed that some of his acquaintances in his hometown had been detained for attending unauthorised churches.
Applicant A attended an interview with a delegate of the Minister for Immigration on 19 February 2016. He claimed he had attended a registered church in China with his mother. When asked why he could not practise his religion at a registered church if he returned to China he said that such churches were government-run and he did not believe that they told the truth.
Applicant A said that he could not remember whether he was a young child or a teenager when he first attended the church in China, but recalled that he ceased attending in [year] when he commenced boarding at senior high school. He did not know whether his older [siblings] were Christians or attended church in China because they were away at senior high school while he was in junior high school.
In considering Applicant A’s claims the delegate was concerned that he difficulty recalling the details of his attendance. In particular she observed that if his mother had taken him to church it seemed likely that she had also taken his [siblings] and unlikely that he would have been unaware of this given that his [siblings] were only two and four years older. She concluded that he had not been a practising Christian at the time he departed China.
At the hearing Applicant A again claimed that he had attended the Patriotic Church in China and was already a Christian when he arrived in Australia.
I noted that his attendance at the Patriotic Church had been discussed during his interview with the delegate and she had found some of his evidence unconvincing, in particular the claim that he did not know whether his [siblings] were Christians or had attended church. I advised him that I shared these concerns. He maintained that he had given the Department an honest account of his involvement in the Patriotic Church. He added that his parents had begun to take him to church when he was [age] years old, but he did not know whether they had attended church prior to that time as they did not always tell him where they were going when they went out. He said that he had not been baptised in China because he was not faithful enough. He stopped going to church when he went to boarding school when he was about [age] years old.
I noted that Applicant A had claimed in his written submissions to the Department that some acquaintances from his home town had been detained for attending unauthorised churches and asked for more information regarding these detentions. He said that his mother-in-law had told his wife about these detentions during a telephone conversation a few months earlier. I noted that his earlier evidence suggested that people he knew personally had been detained. He said that he did not know anyone who had attended an unregistered church in China or anyone who had been punished for doing so.
I asked Applicant A why he had not attended church in Australia before 2014 if he was a Christian prior to his arrival in 2007. He said that he had not known what kind of churches there were in Australia. I observed that it seemed unlikely that it would have taken him so long to find an appropriate church. He said that he became aware of the existence of an appropriate church when he met his wife [in 2009], but he did not attend church with her because the church she went to was different from the church he was accustomed to attending.
Consideration of Applicant A’s claims regarding his involvement with Christianity in China
I found Applicant A’s evidence regarding his own and his family’s involvement in religion in China to be vague and unconvincing.
I find the claim that he was not aware of his parents’ faith until they took him to church when he was [number] years old implausible. If his parents were Christians then I believe that they would have raised their children to be Christians from an early age and if they had converted to Christianity when he was 10 that they would have explained this him. According to Applicant A he and his parents attended a registered church, so there was clearly no reason for them to keep their faith secret from him or anyone else.
I also find the claim that he did not know whether his [siblings] were Christians implausible. According to his evidence the younger of his two [siblings] was only two years older than him and would have been at home when he began attending church.
I find Applicant A’s failure to attend church until some seven years after arriving in Australia a strong indication that he had no interest in Christianity at that time. In reaching this conclusion I have noted that he had not attended church in the preceding year or two in China. However, he claims that he was a Christian when he arrived in Australia and that he failed to attend church for many years after arriving in Australia not because he had abandoned his religion but because he could he had abandoned his faith but because he was unable to find an appropriate church until he met his wife. I do not accept this explanation. There are numerous churches in [City], including a number where Chinese is spoken and I have no doubt that Applicant A could have found an appropriate church at which to worship if he had been a Christian when he arrived in Australia.
Finally, when asked at hearing about the claim in his initial written submission to the Department that some of his acquaintances from his home town had been detained for attending unauthorised churches, he said that he did not know anyone who had attended an unauthorised church in China or who had been detained for doing so. While this is a relatively minor issue it does not reflect well on Applicant A’s credibility and casts further doubt on his regarding religious practices in his local area.

I do not accept that Applicant A comes from a Christian family or that he attended a Patriotic church for some five or six years in China or that he was a Christian when he arrived in Australia. I find that these claims were concocted to support his claim for protection in Australia.
Applicant A’s involvement with the church in Australia
In written submissions provided in support of his application Applicant A said that his wife had initiated him into the True Jesus Church. He said joined the True Jesus Church because he wanted to serve in a genuine church which put God first and was not manipulated by the government. He said if he preached the gospel in China he would be detained and persecuted.
During his interview with the delegate Applicant A said that apart from one occasion in 2014 when he went to church to see his children he did not attend church in Australia until he reconciled with his wife in December 2014 after a 12 month separation. After that he began to go church, but his attendance was not regular. He said that he had not been baptised as it takes a long time to prepare for baptism.
When questioned about his understanding of Christianity, Applicant A said he had read the Bible a little bit. When asked for the names of the books in the Bible he mentioned the four gospels and Genesis. When asked for more information on the gospels he said that they were about Jesus Christ and his deeds. When asked to relate a story or incident in the Bible that he particularly liked he mentioned the cleaning of the temple when Jesus threw down the tables of the merchants and stories about when Jesus cured the blind and lame. He also mentioned the Sermon on the Mount, when Jesus told the Apostles what kind of person would be blessed. He knew several of the Ten Commandments.
The delegate advised Applicant A that information available to her indicated that there were thousands of followers of the True Jesus Church in Fujian Province and they were generally able to practise their religion without experiencing problems. He did not agree with this information.
The delegate accepted that Applicant A was a practising Christian, but did not accept that he faced a real chance of experiencing serious or significant harm because of this if he returned to China. In reaching this conclusion she noted evidence from a range of sources which indicated that, apart from sects listed as evil cults, the authorities in Fujian generally tolerated unregistered churches.
On 29 January 2019 the applicant provided a letter from a member of the True Jesus Church which states that Applicant A and his family are genuine Christians and members of the church and would be denied the right to practice their religion if they returned to China.
At the hearing on 4 February 2019 I observed that it appeared that Applicant A had begun attending church in Australia in about December 2014. He said that this was not correct and claimed that he had begun to attend church in July 2014. I observed that this appeared to be at odds with his earlier evidence that he had not begun to attend church until after reconciling with his wife in December 2014. He confirmed that he had reconciled with his wife in December 2014, but said that he had attended church from July 2014 in order to see his children.
Applicant A confirmed that he had not attended church regularly prior to his interview with the delegate in February 2016. He said that he had begun to attend services more regularly in about mid-2017. When asked why he had changed his habits at that time he said that to begin with he did not understand very much, but after a period of growth he had started to go more regularly.
I asked Applicant A to tell me about his participation in religious activities over the past year. He said that he attended church on most Saturdays, read the Bible at home with his family on most days and also attended Bible class on most Friday evenings. I asked if he had participated in any other activities. He said that he had not. I asked if there were any duties he had to carry out as a member of the church. He said that the church had no requirements.
Applicant A said that he had not been baptised, but he was actively preparing and hoped to be baptised soon. I asked why he had waited so long to be baptised. He said that he did not feel that his spirit was ready for baptism. I asked whether there was any reason why the church would be unwilling to baptise him. He said that the church would baptise anyone they accepted as a genuine believer, but you needed to know the true meaning of baptism.
I noted that the submission provided in support of Applicant B’s applicant suggested that the True Jesus Church was considered to be an evil cult by the Chinese government. The applicant said that the True Jesus Church was an underground church and members of the church had been persecuted, but it was not an evil cult.
I asked Applicant A if he had any information about the persecution of True Jesus Church members in China. He said that his mother-in-law was a member of the church and she had told his wife that someone from the church had been arrested. He said that his mother-in-law had also been arrested some time ago, but he did not know about any other arrests.
I asked Applicant A what language was used at his church. He said that both Chinese and English were spoken and most participants were of Chinese background. I asked him if members of the church in Australia had spoken about problems faced by True Jesus Church members in China. He said that they had not spoken about any problems and he had never asked them for information on what was happening in China. I observed that it seemed strange that he had not sought any information about the church in China given that he was seeking protection in part because of his membership of the church. He said the situation was different in Australia and he had never thought of asking anyone from his church for this information.
I advised Applicant A that while I was aware that members of underground churches in China sometimes faced problems, based on information from DFAT and others it was my understanding that the officials in Fujian were reasonably tolerant of house churches. I also advised him based on the information from Tony Lambert and Dr Bays it was my understanding that the True Jesus Church had a large presence in China and members could usually practise their religion without difficulty. I noted that the information from Mr Lambert and Dr Bays was somewhat dated and advised him that I was aware that there had been increased repression of some religious groups in China in some areas in recent years, but I was not aware of evidence which suggested that the situation in Fujian had changed greatly.
Applicant A disagreed with my understanding of the situation in Fujian. He said that anyone who sought to practise their religion outside approved churches was at risk of harm. He also noted that overseas churches were not able to operate in China and while the True Jesus Church originated in China its headquarters were no longer located in Beijing.
I asked Applicant A if there was anything else he wanted to add in relation to his fears relating to his religion. He said that if he and his wife went back to China they would definitely spread their faith and would face problems because of this. I noted that he had said nothing about spreading his faith when I asked him about his activities and duties as a member of the church in Australia. He said that the Bible said that Jesus told his followers to spread the faith and he had done so in Australia. However, when asked for details he said only that he had mentioned his faith to his colleagues at work and that the church sent out posters advertising its activities. When asked about his fears in relation to family planning later in the hearing he said that he feared he would be ridiculed because of his religion.
I noted that the applicant had provided a letter of support from a member of his church, but had not provided anything from a church leader or pastor. He said that the church did not supply evidence of attendance to anyone. He did not know why this was.
Consideration of Applicant A’s claims regarding his involvement with Christianity in Australia
I found Applicant A’s evidence regarding his involvement with Christianity in Australia vague and unconvincing.
According to the evidence he provided to the delegate he attended church on one occasion prior to December 2014 and the purpose of that visit was to see his children. In his submissions to the Tribunal he claimed that he had attended church on a number of occasions between July and December 2014 in order to see his children. I do not accept that he would have told the delegate he attended church only in 2014 once if he had gone on a number of occasions. In any event, according to his evidence he went to church primarily to see his children, not because he had become a Christian.
More significantly, the evidence provided by Applicant A regarding his involvement with the True Jesus Church since December 2014 does not suggest that he is a genuine or committed Christian. At the hearing he said that he had not attended church regularly until about mid-2017 and that despite attending Saturday services regularly and participating in a range of addition activities over the past year, he had still not been baptised. I do not accept that someone who had genuinely accepted Christianity and been attending church for a number of years would not have been baptised. In reaching this conclusion I have noted Applicant A’s explanation that his spirit did not feel ready for baptism. I find it impossible to reconcile this statement with his claim that he is a genuine and committed Christian.
Finally, I found Applicant A’s claim that as a member of the True Jesus Church he was obliged to spread the faith and he had done so in Australia to be lacking in credibility. He made no mention of this obligation when I first asked him about his activities and duties as a member of the church. If the applicant had been obliged to proselytize and had been actively spreading his faith in Australia I believe he would have mentioned in answer to my questions. It may be that he told his work mates that he attended church, but I do not accept that he was actively involved in spreading the gospel or attempt to attract converts to his church.
After considering all of the relevant evidence, I accept that Applicant A has attended some services of the True Jesus Church in Australia for a number of years and had some understanding of the Bible. However, I believe that he has exaggerated his involvement in the church and I do not accept that he is a genuine or committed Christian. It follows that I do not accept that he will attend church or proselytise if he returns to China and therefore do not accept that he faces a real chance of suffering serious or significant harm on return to China because he is a Christian.
In reaching this conclusion I have noted the letter of support for a fellow church member provided on 29 January 2019. It states that applicant A has attended church since July 2014, which I accept. It also states that the applicant is a genuine Christian. I accept that this is the genuine belief of the author of the letter, but for the reasons set out above, I do not agree. With regard to the claims regarding the problems that the applicant A may face in China, there is no indication of the expertise of the author or the source of his information and I have given it little weight.
In any event, even if I accepted that Applicant A had a genuine commitment to Christianity and would continue to attend services of the True Jesus Church in China (which I do not) I do not accept that he would face a real chance of suffering serious or significant harm because of this. As noted above, followers of the True Jesus Church are not generally at risk of harm because of their religion in Fujian. Furthermore, it is church leaders or people who engage in public proselytising who are most likely to face problems. Applicant A has never played a leadership role in the church he currently attends and there is no credible evidence before me which suggests that he has or would engage in public proselytising if he returned to China.
In reaching this conclusion I have noted the applicant’s claim that his mother in law was detained at some time in the past because of her membership of the True Jesus Church. In light of the applicant’s willingness to embellish his claims and the independent evidence which indicates that members of the True Jesus Church are not generally at risk of harm in China I do not accept that the applicant’s mother in law was arrested in recent months or years merely because she belonged to the True Jesus Church in Fujian and as such I find that her arrest, if it occurred, has no relevance to the applicant’s claim for protection in Australia.
After considering all of the relevant evidence I am not satisfied that Applicant A faces a real chance of suffering serious or significant harm on return to China for reasons of religion.
Consideration of Applicant B’s claims regarding religion
Applicant B is a [age]-year-old child.
In a written submission dated 27 November 2015 applicant B’s mother stated that all members of her family now belong to that church, which is viewed as an evil cult like the Shouters. She claimed that applicant B would be adversely affected if her parents fell into danger because of their religious faith and suggested that local government officials might take advantage of them and they might be blackmailed, fined, detained or arrested.
As noted above, when asked at the hearing about the claim that the True Jesus Church was regarded as an evil cult, applicant A agreed that this was incorrect. As discussed above, far from being considered to be an evil cult the True Jesus Church is tolerated in many areas in China, including Fujian.
At the hearing I advised applicant A that I was unaware of any evidence which suggested that young children such as applicant B were at risk of harm from the authorities in Fujian because they had been baptised or because their parents belonged to an underground church. The applicant did not respond to this, but said that adults who belonged to such churches were at risk of harm.
I asked applicant A if there was anything he would like to add in relation to his [child]’s claims relating to religion. He said that he had nothing to add.
I am unaware of any evidence which suggests that [age]-year-old children in China face a real chance of suffering serious or significant harm because their parents are Christians who practise in an unregistered church.
As discussed above, I do not accept that applicant A is a genuine Christian or that he would attend an unregistered church if he returned to China. Furthermore, even if I accept that Applicant B’s mother is a genuine follower of the True Jesus Church in Australia and would continue to practise her faith if she returned to China, there is nothing in the evidence before me which suggests that there is a real chance that she or any other member of her family would be blackmailed, fined, detained or arrested or face serious problems of any kind if she returned to China now. As discussed above, the evidence does not suggest that she would face a real chance of suffering serious or significant harm because of her membership of the True Jesus Church and there is no reason to suppose that there is a real chance that applicant B would be deprived of the care of her mother or experience problems of any kind because of her mother’s religion.
After considering all of the relevant evidence I am not satisfied that applicant B faces a real chance of suffering serious or significant harm on return to China for reasons of religion.
Claims in relation to family planning breaches
Country information
Unless otherwise stated the following is based on the DFAT Thematic Report, Fujian Province, People’s Republic of China, 16 December 2016 and China Country Information request CI160219094800679 Fujian registration of children and out of plan births, DFAT 21 March 2016.
China has long had regulations which seek to control the number of children which families can have and imposed penalties for breaches of these rules. Prior to January 2016 most families were permitted to have only one child, although those in rural areas were often able to have two. Children born to parents younger than a certain age or out of wedlock were also breaches of these regulations. Significant changes to these regulations in January 2016 included the the full implementation and encouragement of a two-child policy and the cancellation of forced contraception. The Fujian People's Congress passed implementing provincial-level regulations on 19 February 2016.
Authorities in China use incentives and penalties to achieve compliance with family planning regulations. Social compensation fees are the most common disincentive used in Fujian. Fees vary according to the offence and are calculated on average income or actual income, whichever is greater. Pre 2016 regulations appear to allow for fees of between two to six times the parents’ annual income for second and third children, but 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 some local authorities can reduce or waive fees. Fees can be paid in instalments over three years.[4] 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.
[4] RE instalment 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.
In the past children born in breach of family planning regulations were unable to obtain a hukou (or household registration) which meant that they did not have access to services including health and education. However, in August 2015, the Fujian Public Security Department directed local authorities cease requiring the payment of social compensation fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant social compensation fees have been paid.
DFAT notes that most people in Fujian are aware of the family planning regulations and assesses that for the vast majority of them, social compensation fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure.
Applicant A’s claims and evidence
In his written submissions to the Department applicant A said that he had breached China’s family planning regulations by not marrying his partner and by having three children. He said that he could not marry his partner because both sets of parents opposed the match and they did not want to marry against the will of their parents because they might be disowned and because it would mean that they had breached the Ten Commandments
Applicant A said that if he returned to China he would have to pay a penalty of at least 100,000 RMB which he could not afford, that he and his partner would be forced to undergo sterilisation operations and that he would not be able to register his children. He claimed that neither his parents nor his parents-in-law would give them economic or other support if they returned to China.

Applicant A and his partner married in November 2015.
Applicant A’s failure to marry his partner until November 2015 was discussed during his interview with the delegate. His response was somewhat confused. He said that they married after his wife’s application was refused because the Department had questioned her about their relationship and also because they had three children and wanted to be married.
Applicant A’s claim that he faced forced sterilisation if he returned to China was not discussed during his interview with the delegate. However, in her decision she noted 2015 information from the UK Home Office which states that the rate of male sterilisation is low in China and the rate of forcible sterilisation even lower and advises that males do not in general face a real risk of forcible sterilisation. In these circumstances she did not accept that he faced a real chance of being forced to undergo sterilisation if he returned to China.
The delegate noted 2010 advice from DFAT that Chinese students from Fujian who had studied abroad for more than a year would not be charged a social compensation fee for second children, but it would be charged for a third child. She also noted DFAT advice that planning regulations had been relaxed in early 2016. She noted that applicant A had worked regularly at different jobs while in Australia and assessed that he would be able to find employment on return to China in order to pay the social compensation fee. In any event, she found that China’s family planning regulations are laws of general application that penalties are prescribed by law and were enforced in a non-selective manner.
At the hearing I asked applicant A about his claims regarding his parents’ desire to arrange a marriage for him. He said his parents wanted him to marry a local girl, but would not have forced him to do so. He said that he remained in contact with his parents, although they did not speak often. When asked about his parents’ current circumstances he said that they operated a seafood business and were reasonably well-off, but added that this had nothing to do with him.
I asked applicant A what he feared would happen to him on return to China because he had breached family planning regulations. He said that he feared his children would not be registered and that he would get no support from society or the community. I advised him that it was my understanding that current regulations would allow his children to be registered and asked him to clarify the claim that he would receive no support if he returned home. He said that there would be nobody to raise his children if he faced persecution. When asked for further clarification he said that his fears related to being persecuted for reasons of religion and the inability to obtain registration for his children.
I asked applicant A what he feared would happen to him personally because he had breached family planning regulations. He said that he feared being detained and being bullied or assaulted while in detention. I advised him that I was unaware of evidence which suggested that people in China were likely to be detained for breaches of the family planning regulations and asked what he thought he might be charged with. He said that he was not sure about any charges, but maintained that people were detained. He said that his mother-in-law had been detained for breaching family planning regulations many years ago. I observed that while this might have occurred in the past, it was not my understanding that there was a real chance that he would face such treatment now. Applicant A made no further comment.
I asked applicant A if he feared any other problems in relation to China’s family planning regulations. He said that he feared that he would face ridicule in relation to his religion, but made no further submission in regard to family planning.
I noted that applicant A had previously stated that he feared he would be forcibly sterilised if he returned to China and advised him that it was not my understanding that he would be at risk of such harm. He maintained that he was at risk of being sterilised in his village and claimed that other people had been taken away and sterilised for breaches of the family planning rules. When asked for details he said that his mother had been sterilised after he was born. I told him that I accepted that this might have happened to his mother given that he was her third child, but it was my understanding that the situation had changed since that time.
I noted it appeared that applicant A and his two [siblings] had been able to obtain registration despite the fact that his parents had breached the family planning regulations. I also noted that his family operated a reasonably successful business, that his [siblings] had completed some form of tertiary education and that his parents had been able to send him abroad to study which appeared to suggest that he and his family had not suffered greatly because his parents had breached the family planning rules. I observed that this suggested that family planning rules were not applied strictly in his local area. The applicant was invited to comment on these issues, but did not respond.
I noted that applicant A had also claimed that he would be required to pay a social compensation fee on return to China. I observed that some evidence suggested that exemptions applied to children born to overseas students, but other information suggested that this was not the case, and I accepted that he might be required to pay a social compensation fee. However, it was my understanding that this fee could be paid in instalments and it appeared that he would have the capacity to pay this fee if he returned to China. Applicant A said that it was not possible to pay the fee by instalments in his local area. I asked if he had anything to add. He said that he did not.
I advised applicant A that, in any event, it was my understanding that China’s family planning regulations were laws of general application which were not enforced in a discriminatory manner and it therefore appeared that the requirement to pay a social compensation fee did not constitute significant harm or persecution as set out in Australian law. Applicant A maintained that he and his children would suffer as a result of the imposition of a social compensation fee if he returned to China, but made no further comment.
Consideration of applicant A’s claims in relation to family planning
I accept that Applicant A has breached China’s family planning regulations. His children were all born before 2016 and before he and his wife married and it appears that all three births breached the requirements in place at that time that all parents should be married and should have only one child. However, discussed above, forced sterilisation of men has always been rare anywhere in China and provisions relating to forced contraception were removed from the family planning regulations in 2016. None of the evidence before me suggests that people from Fujian who breach China’s family planning rules are likely to be detained in China today. In these circumstances, I do not accept that there is a real chance that applicant A would be forced to undergo sterilisation or that he would be detained for breaching family planning regulations if he returns to China.
As noted above a social compensation fee is imposed for breaches of China’s family planning regulations. Some of the evidence suggests that applicant A may escape this requirement as his children were all born in Australia and there is no suggestion that he had been issued with a penalty notice under the pre-2016 provisions in relation to their births. Nevertheless, I accept that he may be required to pay a social compensation fee and while it is not possible to determine the exact amount of that fee, it could be significant. However, after considering the information on the manner in which these fees are determined and collected and applicant A’s personal circumstances, I do not accept that he would be unable to pay the fee.
As noted above, social compensation fees can be paid in instalments and local authorities have some discretion when imposing these fees and may take into account matters such as an individual’s ability to pay which suggests that the applicant would be able to make arrangements to lessen the impact of the fee. According to Applicant A’s evidence at the hearing he has worked full time since he ceased studying in Australia and there is no reason to suppose he would not be able to find employment on return to China. Furthermore, he comes from a relatively wealthy family who paid for his studies in Australia and would clearly have the resources to assist him. He has claimed that his parents would refuse to assist him, but I found his evidence regarding their relationship unconvincing and I am not satisfied he would be unable to seek financial support from then.
In considering applicant A’s capacity to pay a social compensation fee I have noted his claim that it is not possible to pay these fees in instalments in his local area. However, when asked to provide more detail regarding this claim he failed to provide any further information. He also declined to comment when I noted that his family did not appear to have experienced significant problems because his parents had breached family planning regulations and observed that his appeared to suggested that the rules were not applied harshly in his local area. In these circumstances and in light of the advice from DFAT regarding the general situation in Fujian I am not satisfied that it is impossible to pay social compensation fees in instalments or that family planning regulations are applied in a harsh fashion in applicant A’s local area such that it would make it impossible for applicant A to pay the relevant fee.
I acknowledge that the requirement to pay a social compensation fee may have some impact on the standard of living of applicant A and his family. However, after considering all of the evidence I am not satisfied that he faces a real chance of suffering economic hardship that threatens his capacity to subsist or that he would be denial of access to services where the denial threatens his capacity to subsist or that he would be denied the capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist as contemplated by sections 91R(2)(d)-(f). Nor am I satisfied that circumstances his circumstances give rise to a real risk that any difficulties he would experience as a necessary and foreseeable consequence of being removed from Australia to China will amount to ‘significant harm’ for the purpose of s 36(2)(aa).
Family planning breaches: Applicant B
In submissions made to the Department on behalf of applicant B it was claimed that she would be denied household registration and therefore denied access to education, medical services and other benefits because her parents were not married and would not be able to pay the 100,000 RMB fee which would be imposed on them for breaches of China’s family planning regulations.
At the hearing applicant A repeated the claim that applicant B would not be able to obtain registration because he would be unable to pay the social compensation fee likely to be imposed on him for breaches of China’s family planning regulations. I advised him that advice from DFAT indicated that Fujian Province had prohibited local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou so that children who might previously have gone unregistered were now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees. Applicant A said that the situation was different in his area and maintained that children would not be registered unless the social compensation fee was paid. I asked where this information came from. He said that it came from his mother-in-law who lived in a different village in the same county.
I do not accept that local authorities in applicant A’s local area continue to refuse to register children unless social compensation fees imposed on their parents have been paid. As noted above, advice from DFAT clearly states that this is prohibited in Fujian. I do not accept that applicant B would be denied registration and the benefits which flow from this such as access to education and other services if she returned to China because her parents have breached China’s family planning laws and would not be able to pay the social compensation fee likely to be imposed for this.
I have also considered applicant A’s claim that he would not be able to pay the social compensation fee and this would impact on his ability to care for his children. However, while I acknowledge that payment of the fee might have some impact on applicant A’s standard of living as discussed above, I do not accept that applicant A would be unable to pay the social compensation fee or that imposition of a social compensation fee would mean that he was would suffer economic hardship or denial of services or the capacity to earn a livelihood which would threaten his capacity to subsist. After considering all of the relevant evidence, I am not satisfied that applicant A’s would be unable to adequately provide for applicant B or other members of his family as a result of the imposition of a social compensation fee. I am not satisfied that applicant B faces a real chance of suffering serious or significant harm on return to China because applicant A may have to pay a social compensation fee.
After considering all of the relevant evidence, I am not satisfied that applicant B faces a real chance of suffering serious or significant harm on return to China as a result of the operation of China’s family planning laws.
CONCLUSIONS
After considering the applicants’ claims singly and cumulatively, I am not satisfied that either of them faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1) of the Act. Therefore I am not satisfied that either of them has a well-founded fear of persecution in China now or in the reasonably foreseeable future.
After considering the applicants’ claims singly and cumulatively, I am not satisfied that either of them 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 they will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion 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

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.
…
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.
…
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.
…
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.
..
36 Protection 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.
…

[2019] AATA 3647

20 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice