1618167 (Refugee)

[2019] AATA 1876

1618167 (Refugee) [2019] AATA 1876 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618167

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:24 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 April 2019 at 11:50am

CATCHWORDS
REFUGEE – protection visa – China – one child policy – sterilisation – hukou – social compensation fee – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 16 June 2015. In his application, the applicant stated the following:

   My name is [Applicant’s name deleted], born [date of birth deleted] in [Fuqing] City, Fujian Province, China.

   I married [my wife] in 2005. Our elder daughter [was] born on [date of birth deleted] and our second daughter [was] born on [date of birth deleted]. Because both our children are girls we were eagerly looking forward to having a son.

   When we try to register our second daughter’s birth at local government we were told that we have broken the birth-control law and we were told to either of us have a sterilisation done. We have to agree orally and paid a heavy fine in order to have our second daughter’s name to be registered. At the time we told to have sterilisation done quickly otherwise we would be detained until one of us has become totally impossible to have ability to have baby anymore.

   In order to have more babies until we have a son, we had both sides of our families meeting together, and with the help from both sides of families, we left our hometown and went to Xinjiang province to have our own small [business]. We did not return where we originally come for many years. My parents have been called into the local town government office and police station to tell them the location we were. We kept contact underground for years. It was hard to live in North China Xinjiang province instead South China hometown where we both grown up and all our family members are.

   Our son [was] born [date of birth deleted]. We decided to take him back to meet both sides of our families after his birth. We miss our families and our families miss us to after so many years apart. We returned to our hometown quietly with three of children and wished no one will found out we were back. However the government officials came to knock my parents door within one week after our return, they turned up to the door nearly every second day and insisted to have my wife to have sterilisation. They threatened to take legal action and we have to take responsibilities for the crime we committed.

   We love children, we are good parents. However it is not fair to be treated like criminals. So we returned Xingjiang unannounced.

   With friends help I got a visa to come to Australia. I like Australia especially Australian police on human rights and choice of birth. I think this is the country I and my family would like to stay.

   I do fear to return to China. The Fuqing local government will hound me down eventually and we have to be tied on operation bed to be sterilised. Please help me and consider my protection visa application.

3. The delegate refused to grant the visa and the applicant applied for review.

4. The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant stated he came to Australia in June 2015 and applied for a protection visa in July/August 2015. When asked about that application, he stated that his English statement and forms had been read back to him in Mandarin and were correct. The applicant stated he had a wife and three children, a daughter named [anme] aged [age deleted], a daughter named [name] aged [age deleted] and a son named [name] aged [age deleted]. All attended school in Xinjiang where his wife ran a small [business]. The applicant himself worked casually in Australia and had worked in the [business] before he came to Australia. He also stated that before he came to Australia he was in Xinjiang Province for almost 10 years and would return to Xinjiang Province if he returned to China from Australia. 

6. The applicant stated he came to Australia because he had to but when asked for further information, he became evasive. He then stated they were looking for him because he had many children and there were fines according to the policy. When asked if he owed the Chinese government money, he stated no and confirmed that. When again asked why he could not return, he stated when he returned to Fujian, the government was looking for him because he got married underage and had many children. He also stated they asked him to become sterilised which he did not want to do. When asked when he was last in Fujian he stated in August/Sept 2011 because he wanted the household registration for his children.

7. The Tribunal put to him that he had just stated that he had been in Xinjiang Province for 10 years or since 2005 and asked why he would want his children registered in Fujian if he had not been living there since 2005. The applicant stated his original place was Fujian. The Tribunal put to him all of his children had been born since 2005, he had been living in Xinjiang and said he would return there and did not understand the relevance of Fujian. He stated he had to register the children in Fujian. The Tribunal put to him that he had just stated that he had no out-standing payments owed to the Chinese government which suggested he had already paid the social compensation fee. He disagreed. The Tribunal also put to him that his evidence was that all of his children were going to school which suggested they were registered.  He disagreed and stated they were going to private schools. When asked how he was managing that, he stated they ran the [business] and he sent money back. When it was put to him that if that was the case then what was the problem, he stated why should he pay the fine and he wanted more children.

8. When asked what would happen to him if he returned to China, he stated he did not know. When the Tribunal put to him it had to think about the harm that he would suffer if he returned, he stated his parents had said the authorities were still looking for him, although he did not know why, maybe it was because he had an early marriage (his wife was born in [date of birth deleted] and he was born on [date of birth deleted] and he did not pay the fine and owed 0.3 million or 300 000 yuan for all three children.

9. The Tribunal put to him that in his statement he said he had to pay a fine in order to have his second daughter’s name registered and his statement suggested that when his second child was born the authorities told him that they had broken the birth control law at that stage and not when their first child was born. He stated when his second child was born they went to Fujian to register her but did not pay the fine.

10. When asked if there was anything else he was afraid of, he stated he thought they would try to find him to pay the fine and if he could not they would threaten him with imprisonment or would target his parents.

11. The Tribunal put to him that the country information before it suggested that if the social compensation fee was not paid, children could get a hukou and go to school. He disagreed.

12. The applicant confirmed there were no other reasons he could not return to China. The Tribunal put to him that he had earlier said he might be sterilised and he agreed. When asked if his wife had been sterilised, he stated no. The Tribunal put to him that if she had been in China since he was in Australia and was to be sterilised, then wouldn’t it have happened by now. The applicant stated that was why she was not in Fujian and was in Xinjiang. The Tribunal put to him that they had been in Xinjiang before they had children,that is they had been there since 2005. He stated in Xinjiang they lived in a small town and the Chinese government didn’t know they were there because they had never looked for them there. When asked where they had looked for them, he stated they had looked in Fujian but he could not remember when. When asked if he had returned to Fujian after he went to Xinjiang, he stated before he married he went back twice a year and after his babies were born he went back once a year. When asked how he knew the officials were looking for him he stated his parents were there and the officials had asked his neighbours since his second child was born and from time to time. When asked if it happened when he was there, he stated he was not clear about it and would only go back for a few hours and his parents would tell him when they visited.

13. The Tribunal put to him that in his statement he provided one instance of when the authorities turned up when he was there and asked if he remembered. He did not. When asked to describe the incident in his statement he was unable to do so. The Tribunal put to him he talked about an incident/event that happened at a very significant point in his life when he had returned to Fujian when the government had turned up and he unable to elaborate. The Tribunal repeated the contents of his statement in relation to the incident that occurred in Fujian after his son was born. He agreed that was in 2011 when he went back to register his daughter. When asked why he could not repeat that earlier, he did not comment.

14. The Tribunal put to the applicant that he did not appear to be able to repeat the detail in his statement, had been living in a different Province since 2005 and his children were attending school. The Tribunal also put to him that at one point he said they were not registered but at another point he said they were, he said he did not owe money to the government but then said he did. The Tribunal put to him that it may find it difficult to accept his children were not registered, or if they were not why he could not afford do have them registered. The Tribunal put to him that even if he and his wife could not afford to have them registered, they could still get a hukou.  The Tribunal also put to him it may not accept the Fujian government wanted to sterialise him on the basis that he had been unable to talk about the detail in his statement and if they had wanted to sterialise him they may have sterilised his wife.  He stated he did not pay the fine and their children were at private school. The Tribunal put to him that even if that was true, they had been paying for them to go to school so could not see the issue.

15. The applicant also stated that he wanted to have more children and why should be pay for the hukou.

Country Information

1. According to DFAT Country Information Report People’s Republic of China, 21 December 2017:

   According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

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

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

5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for a refugee reason and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.

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

3. In his application, the applicant stated that when they tried to register their second daughter’s birth, he and his wife were told for either of them to be sterilised, they had orally agreed and paid a fine in order to have their second daughter’s name registered. He also stated that in order to have a son, they left their hometown and went to Xinjiang province and did not return for years but that when their son was born on [date of birth deleted], they returned to Fujian and the government came within one week after their return and turned up nearly every second day and insisted his wife be sterilised.

4. However, at hearing, the applicant stated he had lived in Xinjiang Province for 10 years before he departed China in 2015 which, as put to the applicant at hearing, was before their children were born. In addition, the applicant initially stated at hearing that he did not owe the Chinese government money but then stated he owed 0.3 million or 300 000 yuan for all three children, however this is inconsistent with his written statement which was that he had paid a fine in order to have his second daughter’s name registered. It is also inconsistent with a tendered document allegedly issued [in] August 2011 that states the applicant has two more children in addition to the legally allowed one child. The Tribunal does not find the applicant credible and does not accept the applicant’s assertion that the document is evidence of a fine. In reaching this conclusion, the Tribunal also finds that when asked to describe the only incident in his statement concerning what happened when he allegedly returned from Xinjiang to Fujian, he was unable to describe how the allegedly government turned up to the door every second day insisting he and his wife be sterilised. The Tribunal does not accept that he was talking about an incident that had occurred.

5. In sum the Tribunal does not accept that the applicant is credible or that the applicant’s children are not registered. Neither does the Tribunal accept that the authorities have insisted that the applicant or his wife be sterilized. That is because he was unable at hearing to describe the only incident in his statement describing how the government attempted to insist he and his wife be sterilized after he returned to Fujian in 2011.

6. While the applicant has stated that he wants more children, the Tribunal does not accept that he has not paid the social compensation fee for three children in the past. Given this, the Tribunal is satisfied he will pay the social compensation fee or penalty payable to register any further children that he and his wife may have.

7. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in China for the reasons that he claims. At the time of decision the Tribunal concludes that there is not a real chance that the applicant will face serious harm for any refugee reason either now or in the reasonably foreseeable future, if he returns to China.

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has rejected all of the applicant’s claims. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Angela Cranston
Member

ATTACHMENT  -  Extract from Migration Act 1958

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

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

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

but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

5K  Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L  Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA  Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

..

36Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

…