1620214 (Refugee)

1620214 (Refugee) [2019] AATA 5314 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1620214
COUNTRY OF REFERENCE:                   China
MEMBER:Simone Burford
DATE:12 February 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 12 February 2019 at 3:57pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian church membership and activity –arrest and detention by police – departure on own passport and renewal of passport – unregistered children born out of wedlock – infant child sent to live in China after application for protection – credibility – vague and inconsistent evidence – delay in applying for protection – lengthy unlawful residence in Australia – church membership and activity in Australia – fear not well founded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2), 65, 424A, 499

Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 23 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 9 July 2015. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations. The first applicant, [Ms A], is a [age]-year-old from Fujian, China (hereinafter referred to as ‘the applicant’). The second applicant is her de facto partner, [Mr B], a [age]-year-old who is also from Fujian, China. The second applicant is included as a member of the applicant’s family unit and has no claims for protection of his own. The applicants have two children who are not included in the application for the visa.
The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The second applicant did not appear before the Tribunal. The first applicant told the Tribunal that the second applicant was working and was unable to attend the hearing. When questioned by the Tribunal, the applicant confirmed that the second applicant had no claims for protection of his own and was relying on her claims.
The applicants were represented in relation to the review by their registered migration agent. Their registered migration agent did not attend the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 ss.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 ss.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.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant has a well-founded fear of persecution in the People’s Republic of China (China) from the authorities because she ran an illegal bookshop which she inherited from her [sibling] when [s/he] left China, on religious grounds (as a Christian), or because the applicant has two children from her de facto relationship in Australia (with the second applicant) or whether complementary protection provisions otherwise apply.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a Chinese passport and the delegate had no concerns with her claimed nationality. The applicant confirmed at the hearing that she was a Chinese national and stated that she was not a citizen of any other country. She also stated she had not travelled to any country other than Australia and China. The Tribunal accepts that the applicant is a national of China and has assessed her protection claims accordingly.

Material before the Tribunal

The Tribunal had before it a copy of the delegate’s decision in relation to the application. This was provided to the Tribunal by the applicants with their application for review. The Tribunal also had a copy of the Department’s file relating to the application.
At the Tribunal hearing the applicant provided oral evidence of her concerns about returning to China. The applicant’s testimony in relation to these claims is summarised below.
At the commencement of the hearing on 8 August 2018 the applicant provided to the Tribunal a copy of [a document] in relation to an [application] in the name of [Mr C]. The document appears to be issued by the [Country 1 Immigration and Citizenship Department]. It is dated [November 2010]. The applicant told the Tribunal the document related to her [sibling]’s asylum visa in [Country 1], however the document does not appear to indicate any details which would identify it as relating to or evidencing a grant of asylum in [Country 1]. The document appears to relate to an appointment for biometric testing.
The applicant also gave the Tribunal a printout of two pages of text messages from an account of [Ms D] and showing text messages between [E] and [F]. In one of these which appears to have been sent on 24 February 2018 [F] invites [E] to come and listen to a Bible [talk]. No response from [E] is included in the material provided. The applicant indicated the texts were between her and a friend from the church who came to visit her with the ‘good news from Jesus’.
At the conclusion of the Tribunal hearing the applicant was given 7 days to submit any further documents or information. The applicant submitted one further document in response to a s.424A letter issued by the Tribunal following the hearing. That letter and document are dealt with further below. Other than that document and the email accompanying it from the applicant’s registered migration agent, no other material has been received by the Tribunal at the time of decision.

Overview of claims

The applicant was born in [year] in [Fujian] Province, China. The applicant set out her initial protection claims in a statement and written in Chinese script and dated 28 June 2015. This statement accompanied her visa application. The written document was accompanied by a translation from an accredited translator.
At the hearing the applicant confirmed that the second applicant did not have any of his own claims or any claims which were different from hers.
In the statement accompanying her application she claimed to fear persecution in China for the following reasons:[1]
[1] Statement of [Ms A] dated 28/6/2015 (recognised translation)
·She was born in a Christian family and her parents participated in a local church when she was young.
·She followed her parents to the church including church activities such as the ‘circuit gathering’, Bible studies, the Psalmody and choir performance and individual speeches.
·Church gatherings took place at a church sister’s home and many people came to take part. She later found out that the gathering place was changed each time.
·Her parents told her that the church was not supported by the Government who accused them of ‘evil religion’ and fought to suppress them. However, they persisted in their beliefs.
·In 2000 her family moved to a big city and she later discovered that because of their church activities they were ‘cursed by the local villagers’ who ‘accused and fought’ her parents and blamed them for introducing her to the church so that she became ‘a bad child’. As a result they were forced to move and start a new life.
·In April 2004 her [sibling] and a friend opened and ran a bookstore. The Government later investigated the bookstore and accused her [sibling] and others of illegally selling books about Falun Gong and other religions, spreading religious beliefs and disturbing and sabotaging the social order and safety.
·The Government pressured her family to cooperate with them in their investigations and report to the Government on her [sibling]’s whereabouts warning them that if they refused they would be detained or even sentenced. The applicant refused to betray her [sibling].
·Later the applicant’s parents sent her older [sibling] to [Country 1] for fear [s/he] would be in trouble. Before departing for [Country 1] the applicant’s [sibling] left the bookstore to her.
·[In] May 2007 police in uniform came to the applicant’s home and took her away. Her parents were unable to resist.
·The police detained the applicant in a dark room after taking her to the police station. They asked her to change her clothes and put on clothes they provided. She was isolated and every few hours there were police patrolling.
·The police woke her in the middle of the night for interrogations where she was intimidated and threatened. The police starved her and she almost mentally collapsed. She prayed for her release.
·One morning the police took her out of the room. They asked her to change her clothes and write a letter of pledge. They then released her.
·Once home the applicant’s parents told her that she had been shut in the dark cell for months and that her family had paid ‘dozens of thousands of yuan’ as the penalty money in order to have her released. The parents had lost weight and she could see that they had been broken hearted and living in great fear.
·Her elder [sibling]’s bookstore had been sealed and closed and [her/his] friend had been arrested and [her/his] whereabouts were unknown.
·Later on her mother got worried so she contacted a friend and asked connections to arrange for her to go abroad. She then came to Australia.
The applicant lodged an application for a Student Visa [in] April 2007. She was granted the visa [in] August 2007 and arrived in Australia [later in] August 2007. She made her application for protection on 9 July 2015.
She was interviewed by the delegate on 29 July 2016. The delegate summarises in the decision record that the applicant raised no additional claims to those already made in the application.
The applicant stated during her interview with the delegate that her father had worked in [a workplace] and when she was about [age] her father had travelled overseas to Australia.
The applicant indicated that her [sibling] had been granted asylum in [Country 1] after travelling in 2004, at the age of [age], on a false passport. [She/He] had been detained on arrival for between 12 and 24 months.
She indicated that her parents travelled to [Country 1] in April 2016 and were now living with her [sibling]. Her [sibling] had been granted citizenship and had obtained [travel documents] for her parents. The applicant indicated that her parents still owned a home in China and had organised a cousin to rent the house out on their behalf.
She indicated her parents have applied for the applicant to go to [Country 1] and the application is being processed. She did not indicate the type of visa or basis for this application.
The delegate refused the applicant’s application for a protection visa as they did not accept the applicant’s Christian claims, claims regarding her association with her [sibling]’s bookstore or her claimed arrest and detention. The delegate also found that the applicant’s delay in applying for a protection visa suggested the applicant did not have a strong fear for her personal safety or well-being in China when she arrived in Australia in August 2007.
As noted above, at the Tribunal hearing the applicant provided oral evidence of her concerns about returning to China stemming from her participation in the Christian church, association with her [sibling]’s bookshop and her prior arrest and detention by Chinese authorities. The applicant’s testimony in relation to these claims is summarised below.

Family and visa history

The applicant left China in late August 2007. The applicant indicated that prior coming to Australia she was living with her parents in Fujian Province and attending school.
The applicant told the Tribunal that she did not have any trouble obtaining a passport to leave China. She left China on a passport in her own name and she renewed her passport after her arrival in Australia. She indicated she had no issues renewing her passport. When asked whether her parents had any trouble leaving China for [Country 1] she told the Tribunal that they have not had any trouble and had left China on passports issued in their own names. She was not aware how her [sibling] had left China as she had been away at school when [s/he] left. She wasn’t sure why [s/he] left China but had been told [s/he] left secretly.
When asked about her student visa, the applicant indicated that her parents sent her to Australia because they wanted her to study and they wanted her to get a permanent visa here. When asked how long she studied for she indicated that she didn’t study for very long and had left after about six months when the school she was attending had closed. When asked whether she worked in Australia she indicated that she did work [in] a [shop] for about 2 years but she couldn’t recall exactly when that was.
She confirmed that her parents and elder [sibling] are living [in] [Country 1]. Her [sibling] went to [Country 1] when she was in [School]. She could not recall exactly when this was but said it was between 2001 and 2004. Her parents went to [Country 1] in 2015 or 2016. She did not indicate on what basis her parents had obtained visas for [Country 1].
Her [sibling] was granted asylum in [Country 1]. She was not sure why or on what grounds her [sibling] had been granted asylum. Her [sibling] was working in a [workplace 1] in [Country 1]. Her father is working in a [workplace 2] but her mother is not currently employed outside the home. In China her father had worked as [an Occupation 1]. She has extended family including aunties and uncles remaining in China.
The applicant’s in-laws live in China in Fuqing City, Fujian. Her father-in-law is a [Occupation 2]. Her mother-in-law does not work. Her father-in-law works on a project run by a relative. Her father-in-law was overseeing the project. Her de facto partner has a younger [sibling] who works with her father-in-law on the [project].
At the hearing the applicant told the Tribunal [her Child 1] was living in China with her in-laws. She was born in Australia on [date]. She travelled to China in August 2015 on a Chinese passport issued by Chinese authorities in her own name. The Tribunal notes [Child 1] was sent to live in China one month after the applicants filed their claims for protection. She is otherwise not registered with Chinese authorities.
The applicant’s young son attended the hearing with her. At the time of the hearing he was around [age].

Religious persecution claims

At the hearing the applicant was asked about her religious faith and practice in China.
She indicated that she was a Christian but of no particular Christian faith. She indicated she was of Han ethnicity. When asked how she practised as a Christian in China she indicated that she followed her parents. They would gather and there would be singing, reading poetry, praying sometimes ‘just sitting there eating’. When asked where meetings were held she said they were sometimes held in a home, or some kind of specific place. She indicated that in general there were more than 10 people in attendance but it was more like a family gathering. She was unable to say the maximum number of people who’d attended any of the gatherings but if they were celebrating a festival there would be ‘lots of people’.
When asked about what religious festivals she celebrated she indicated Christmas Day and Christmas Eve. She indicated no other festivals were celebrated. When asked who ran the religious meetings she indicated ‘old people’. When asked whether members of her family ran the meetings she said ‘no’. When asked whether she studied the Bible she said ‘no’. She indicated she had not been baptised. When asked about which of her family members attended the gatherings she indicated that she assumed that her aunties and uncles had but she was not sure because they all lived in different places.
When asked about her claims that she had moved with her family due to their religious activities the applicant said that she lived in the country and her mother was participating in group gatherings but it wasn’t encouraged by the government in that town so they had to move.
When asked whether the church group she was associated with had ever had any trouble with the authorities she indicated that because her family had practised in private and not in a formal church they were afraid the authorities would be ‘against it’. When asked again whether the group had ever had any trouble with the authorities she said ‘no’.

When asked about her religious practice in Australia the applicant indicated she hadn’t been much involved in the practice of her religion in Australia. She said she has been to church but after her children were born she is busy and has no time. She said friends would come over to her place every 2–3 weeks. She indicated she attends a gathering or church in [Suburb 1]. The delegate’s decision records that the applicant told the delegate that since arriving in 2007 she had been to church a total of 5–6 times.
As noted above, at the commencement of the hearing the applicant provided two documents to the Tribunal. One was a two-page record of a text message exchange apparently in February and March 2018 from a phone identified as [Ms D] (referred to in the messages as [E]) and someone called [F]. The Tribunal The record shows several text messages in 2018 one of which is a text from [F] which notes ‘you are very welcome to come to this Bible talk, Sunday 25 February 2 PM’. The material does not indicate whether the applicant went to that or any other Bible discussion or talk. The applicant said the messages were to her from a friend from the church who came to visit her with the ‘good news from Jesus’. The applicant did not call this person as a witness in support of her claim and the Tribunal was unable to question her regarding the context of the messages.
When asked whether she planned to practise her religion on her return to China she said ‘if someone invites me, I will go’. She said she is a little worried but she ‘wants to hear the good news every week’. When the Tribunal queried whether she was hearing the good news every week in Australia she told the Tribunal she was not attending church every week in Australia and said she attends the [Suburb 1] church when she gets invited.
As discussed at hearing, the Tribunal has a number of concerns about the applicant’s claims regarding her religious practice in China and in Australia. For example:
·The applicant told the Department she participated in meetings at a ‘Church sister’s’ home and in activities including circuit gathering, individual speeches, Bible studies, singing in the choir, praying and promoting the Gospel. At the Tribunal hearing she indicated she had been taken to meetings by her parents but could remember very little else about the meetings. She said that at the meetings they would be singing, reading poetry, praying and sometimes ‘just sitting there eating’.
·The applicant’s oral evidence to the Tribunal about her alleged involvement with Christian activities in China was vague and inconsistent with prior statements. For example, she had not read the Bible or been baptised and could only recall celebrating Christmas Day and Christmas Eve. However, she claimed in her application to have participated in Bible studies, Psalmody and promoting the Gospel. While the practices or beliefs of Christian groups may differ, the Tribunal is concerned the applicant’s inconsistent statements about her familiarity with the Bible and her inability to recall any details of their practices was not consistent with an active participation as a practising member of a local Christian church in China. While the Tribunal accepts a lack of recollection of detail may be understandable for meetings she attended as a child she did not leave China until [older] when she could be expected to recall the details of her religious practice, particularly one which she claimed in her application to have practised with the knowledge it was not supported by the authorities.
·The applicant’s evidence of her family’s religious activities was inconsistent. She told the Tribunal she attended religious meetings during childhood with her parents yet the delegate’s decision records that she told the delegate her mother was a Christian but she didn’t know what religion her father was because he was away a lot. However, the delegate’s decision notes that her father previously applied for protection in Australia claiming to be the leader of a secret Catholic group in China. This application was refused and he was removed in 2002. She told the Tribunal she did not know whether her aunties and uncles practised Christianity because they all lived in different places, yet the delegate’s decision records that she told the delegate she had 11 aunties and uncles and 20–22 cousins living in the same village as her.
·Her account of having been forced to move due to religious activity was implausible. She indicated her parents had moved towns because of their religious activities but she could not indicate any event or occasion when the group had come to the attention of authorities or any event or occasion which involved negative attention from local villagers which may have precipitated the need for her family to move due to their religious activities. Further her application claimed her family were forced to move due to the actions of villagers opposed to her family’s religious practice. However, the applicant told the Tribunal the family moved due to attention from the authorities who did not approve of their religious practice. The Tribunal notes that the applicant was young when this event occurred however the Tribunal does not accept that her vague account of the events supports a claim that her family moved due to religious persecution by local villagers or authorities.
·The applicant’s evidence regarding her religious practice in Australia was also vague and lacking in appropriate detail or sufficient corroboration. When asked whether she attended church in Australia she said she had been busy with children and that friends had come to her house every few weeks. She said she attended meetings at a gathering group in [Suburb 1] but not every week. She later said she went when she was invited. She told the delegate she had been to church 5–6 times between her arrival in 2007 and 2016. She was unable to tell the Tribunal how many times she had been to church in [Suburb 1] or how many meetings she had attended. This, together with other deficiencies in the applicant’s evidence suggests that the claims are not genuinely held by the applicant.
·When asked whether the applicant would practise her Christian faith or attend religious meetings or gatherings in China she replied that if someone invited her she would go. When asked whether she had concerns about practising she said she was worried but she wanted to hear the good news every week. The Tribunal found the applicant’s account of her plans to practise her religion in China vague. They are also not consistent with her practice in Australia where she acknowledged she faces no persecution and is free to practise as she wishes yet she has only rarely attended church or religious meetings and only when invited. There is no evidence that she has sought to hear the good news every week while in Australia yet she claims this would be her practice on return to China. Further there is no evidence of any practice of religious observance of a type prohibited by Chinese authorities.
The Tribunal accepts, based on country information that some Christians in China may come to the adverse attention of authorities, particularly where they are members of an unregistered church.
However, on the basis of the Tribunal’s credibility findings above, the Tribunal finds that neither the applicant nor the applicant’s family were Christians or would have been perceived as Christians. The Tribunal finds that neither the applicant nor the applicant’s family practised as Christians nor participated in a local church in China. The Tribunal does not accept that the applicant came to the attention of authorities in China due to Christian religious practice or membership of a local church. The Tribunal also finds that the applicant or her parents were not of interest to the authorities due to religious practice or local church membership in China. The Tribunal notes that her parents have now left China and are living permanently in [Country 1]. The Tribunal notes that they did so lawfully and without any administrative issue with Chinese exit processes and while travelling on their own passports issued by the Chinese authorities. As noted in the delegate’s decision, this suggests they were not of particular interest to Chinese authorities.[2]
[2] DFAT Country Report China, December 2017, 5.28:
Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials.
The Tribunal has considered the text messages provided by the applicant. The nature and context of the document are very unclear. At its highest the document may establish that the applicant was invited to a Bible study class in February 2018. It does not provide any evidence that she attended the meeting, or any others like it. Also, given the lack of corroborating evidence, the Tribunal places little weight on these messages or the possibility that the applicant attended any meetings referred to in them.
Based on the evidence above the Tribunal finds that the applicant has not actively practised as a Christian in Australia. The Tribunal has also found that the applicant is not and would not be perceived to be a Christian. The Tribunal does not accept that the applicant intends to practise as a Christian in China. The Tribunal finds that the applicant’s claim to fear persecution by authorities or by any other groups or individuals on account of claimed Christian faith or anything connected to that are not genuinely held.
Even if the Tribunal were to find that the applicant is a Christian, on the evidence the applicant is unlikely to pursue any Christian activities which would be of a kind prohibited by Chinese authorities.

Bookshop claims and arrest and detention by authorities

At the hearing the applicant was asked about her claims regarding her association with her [sibling]’s bookshop.
She said that her [sibling] did not finish Middle School and her parents did not think it was good for [her/him] just to sit around so they used their connections in China to open a bookstore for [her/him]. When the applicant wasn’t studying on the weekends she would go and help her [sibling] with the bookshop.
When asked about what kind of bookshop it was she indicated it was a small store, like a room. She said she wasn’t sure but she thought it was funded by her parents but her [sibling] was managing it. The store sold all kind of books, including study books and magazines. It also sold religious books including ‘good news’ books and books about Falun Gong. She indicated that none of her family members were Falun Gong practitioners. She said her [sibling] was selling Falun Gong books because they sold really well at that time in China. Her [sibling] was selling any books [s/he] thought would sell well in China to make money.
She indicated [s/he] opened the bookstore when she was studying in [School].
She was asked about when her [sibling] left. She indicated that she was studying late one night and when she came home all the family weren’t there. The next morning she was told her [sibling] had left to go overseas. No one told her why [s/he] left. She was [of certain age] when her [sibling] left.
After [s/he] left, the bookstore was still open and her [sibling] asked [her/his] friend to look after the bookstore for [her/him] and she would go there on weekends to help run it. This arrangement lasted for a couple of [years].
When asked how much the bookstore made the applicant indicated the bookstore made quite a lot of money because in China at that time there was no tax. She indicated that the bookstore would make more than [amount] yuan per month.
The applicant indicated that the bookstore closed around 2007 when she came to Australia. It was shut down by force, because it was selling illegal books. She claimed it was closed by the government. She indicated she was not in touch with the friend who was running the bookstore and did not know if he was still in China.
The applicant was asked about her claims that the authorities had investigated the bookstore in 2004. She indicated that police in uniform said something about the bookstore selling illegal books and they needed to take the owner to jail but at that time the bookstore wasn’t under her name. She did not say when this occurred.
She told the Tribunal that around 2007, police came to the bookstore in regular uniforms investigating whether it was selling illegal books. She claimed the authorities had come to the bookstore and taken everybody in the bookstore to jail. She couldn’t recall who else was arrested but other people were. She wasn’t sure what happened to the others. She said she couldn’t be sure what day of the week it was but that it happened maybe in May. Her earlier statement said this occurred in May 2007.
She was taken to a room but she wasn’t sure for how many days and she lost track of time. She was picked up by her parents. She couldn’t recall whether her parents told her how long she had been held for.
She said she wasn’t held in a police building but ‘maybe just a dark room’. She was blindfolded so she couldn’t see how she got into the room. She said she was transported from the bookshop in a car. She was alone in the room. She said she had a bed but couldn’t sleep well. She said she was fed but not nice food. Sometimes three times a day, sometimes two times a day. She was asked whether she could say how long she was in the room based on how often she was fed. She said around 6 to 7 days. The Tribunal put to her that in her application she had claimed to have been detained for a number of months. She said it was a long time ago and she couldn’t remember. She did not indicate which statement was correct.
She was not sure when she was released because at the time she was upset. She indicated that she was told that she was released because her parents used contacts to help her get released and because she wasn’t the legal owner of the bookstore the authorities let her go. She was asked about her earlier claim that her parents had paid money for her release and she said that in China bribery is common. She said she thought they gave gifts or some money.
She was asked whether her [sibling]’s friend was arrested. She said she thought so but she wasn’t sure. She said her parents weren’t arrested. When asked why her parents weren’t arrested as she had said they had established the bookstore she said they just funded the bookstore but her elder [sibling] was the legal owner. She was asked whether her [sibling] was ever arrested or interviewed by the authorities and she indicated [s/he] wasn’t but [s/he] went into hiding for a while.
She was asked whether her [sibling] had returned to China since living in [Country 1]. She said [s/he] has been back since [s/he] got [her/his] permanent residence in [Country 1]. She said she thought it was around 3 years ago.
She indicated she had no difficulties leaving China. When asked whether she would have expected some difficulties leaving China following her arrest by the authorities for involvement with an illegal bookstore she said it was her parents who handled the visa.
When asked what she thought would happen to her when she went back to China she said she had been told they would arrest her and beat her up and ask her family for money. She was unable to say why she would be arrested if she returned to China. She said she was frightened they might still have her files and her family are not in China anymore. She said that in China the authorities just use some excuse to put you in jail. Because she lived in a small city they can use information to try to arrest her to try and obtain money from her. The Tribunal queried why, if this was the case, her brother was able to go back and not be arrested. She said [s/he] was [a Country 1] citizen now so [s/he] wouldn’t be arrested. The Tribunal also asked whether she was concerned for [Child 1]’s safety living in China and she responded that [Child 1] was safe because no one knew who [her/his] mother was.
The Tribunal has a number of concerns about the applicant’s core claims that she was arrested and detained by the authorities due to her involvement with a bookstore selling illegal books and that she remains at risk of persecution from the authorities for these activities if she was returned to China. For example:
·There are aspects of the applicant’s claims which are implausible. The applicant claims that neither her parents nor her [sibling] were ever detained by authorities despite her claim that her [sibling] was the registered owner of the bookstore and her parents financed the store. While she maintains this was because her [sibling] went into hiding and then left China, she told the Tribunal her parents funded or owned the bookstore yet they were never themselves detained or arrested over the years it operated. This was despite her original claim that she was arrested in her home with her parents present. This raises questions about the credibility of the applicant’s claims.
·Further, the applicant sent [Child 1] to live in China as an infant one month after she applied for protection and has no concerns for her safety living there. The applicant claims this is because people don’t know who the child’s mother is. However, the Tribunal does not regard this claim as credible. The Tribunal regards that if the applicant was genuinely concerned about the persecution of her extended family from Chinese authorities because of their activities in China she would not have sent her infant [child] to live in China without parental protection.
·Several significant inconsistencies exist between the applicant’s oral evidence to the Tribunal and written claims to the Department which casts doubt on her claims. In particular, she originally said she was arrested from her home, alone and held for several months by police. However, she told the Tribunal that she was arrested in the bookstore along with everyone else there and was detained for 6 or 7 days. The applicant originally claimed to have become responsible for running the bookstore several years before she left China. At that time she would have been around [age]. She told the Tribunal she was still attending [School]. She later told the Tribunal that her [sibling]’s friend took over the bookstore and she helped out. These inconsistencies are significant and raise further questions about the credibility of the applicant’s claims.
·At times the applicant’s oral evidence about important events was vague and lacking detail. For instance, she said she wasn’t sure when the events took place, she wasn’t sure why or when her [sibling] had left China, she couldn’t say where or for how long she had been held or the circumstances that led to her release though she thought her parents had used their influence, money or gifts to secure her release. She was only able to provide vague details of her time in claimed detention or describe in little detail what happened to her while she was detained. She did not know what had happened to the other people arrested along with her or what had happened to her [sibling]’s friend who she claimed was a co-owner of the bookstore. The Tribunal finds the applicant’s lack of recollection of these key events as inconsistent with a genuine claim to have been detained and questioned by authorities.
·The applicant claimed that after her release from detention her mother was concerned and contacted a friend to make arrangements for her to travel to Australia. However, the delegate’s decision indicates that the application for her student visa was commenced in April 2007 prior to her claimed arrest and detention. She left China [in] August 2007. The applicant also told the Tribunal that her parents sent her to Australia because they wanted her to study and they wanted her to get a permanent visa here. This is not consistent with the applicant’s claim to have sought the visa and left China as a result of her arrest and detention in May 2007 and due to fear of reprisals from authorities.
·The applicant was able to exit China with no problems on a passport issued [in] 2003 in her own name and has had that passport renewed [in] 2008 while in Australia without issue indicating she has no concerns about approaching the Chinese authorities in Australia. As outlined in the delegate’s decision this suggests that the authorities did not have any adverse security interest in her because of her involvement with her [sibling]’s bookstore or any other claimed activities. At the hearing the applicant was asked whether she expected, having been arrested by the authorities and having been involved in an illegal bookshop, to have trouble leaving China. She said it was her parents who organised the visa. They took her to the airport and the customs officers didn’t ask her anything, they just let her go.[3]
[3] DFAT Country Report China, December 2017, 5.28.
Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials.

These concerns were discussed with the applicant at the hearing. She was unable to offer any explanation for the inconsistences in her statements other than that it was a long time ago and she couldn’t remember the details. The Tribunal had regard to the fact that the applicant was in [school] when the events occurred and would have been around [age]. While the applicant was relatively young when the events occurred the Tribunal is of the view that she was old enough to recall the details of an event of this nature and significance. The Tribunal explained that while it accepted that a significant amount of time had passed and some details may be imperfectly recalled or forgotten, these were significant life events giving rise to her claim for protection, many of which were co-extensive with her arrival in Australia as a student and it may be difficult for the Tribunal to accept that the significant discrepancies in the applicant’s account of events could be explained by the mere passage of time.
The applicant’s variable evidence means that the Tribunal’s overall impression is that she was not recalling events that had actually happened. In reaching this conclusion, the Tribunal has considered the applicant’s age at the time of the events. The Tribunal does not accept that the applicant would provide inconsistent details such as the circumstances of her arrest by authorities when she was around [certain age] at the time.
The Tribunal finds that because of the applicant’s vague and undetailed claims and her subsequent evidence relating to these claims, these claims are not true. Despite the Tribunal having explained its concerns with this lack of credibility relating to core aspects of the applicant’s claims she was unable to explain them satisfactorily.
On the basis that the applicant was unable to provide an adequate level of consistent detail relating to the core aspects of her claims, the Tribunal finds that these claims are not credible and not genuinely held by the applicant.

Status of the applicant’s [sibling]

The Tribunal accepts that the applicant’s [sibling] travelled to [Country 1]. The Tribunal accepts that [s/he] was granted a visa to remain there. The applicant told the Tribunal that her [sibling] had visited China on a [Country 1] passport. She confirmed [s/he] was not arrested when [s/he] returned though claims this is because [s/he] was travelling on a [Country 1] passport so [s/he] is safe. The Tribunal put to the applicant that her [sibling] could still be arrested if [s/he] was travelling on a [Country 1] passport. The applicant said she didn’t think [s/he] could.
The Tribunal notes it is for the applicant to make their case. In relation to this issue the applicant has not provided any detail or evidence to establish the relevant facts regarding her [sibling]’s claimed asylum status in [Country 1]. Putting aside the inconsistency suggested by an asylum seeker returning to a country in which they fear persecution, the Tribunal has considered the submission of the applicant that her [sibling] would somehow be afforded immunity from prosecution or official harassment on return to China. The Tribunal does not accept, as was claimed by the applicant, that the applicant’s [sibling] could not have been arrested when [s/he] returned to China while travelling on a [Country 1] passport if [s/he] were of ongoing concern to the Chinese authorities. The Tribunal finds that the evidence in relation to the applicant’s [sibling]’s claimed visa status does not assist in supporting the applicant’s claims for protection. Rather the Tribunal finds that the applicant’s evidence that her [sibling] has returned to China without adverse attention from the Chinese authorities raises concerns regarding the credibility of her claims.

De facto with children claims

The applicant did not make any claims in her application regarding returning to China as an unwed mother with children. She did not raise any claims with regard to these issues at the Tribunal hearing. However, the Tribunal raised with the applicant whether she had concerns about returning to China as an unwed mother of two children.
At the hearing when asked whether she had concerns about returning to China as an unwed member of a couple with two children she said she was concerned. She claimed she was not sure what impact returning to China would have on [Child 1]. She said people don’t know who [Child 1]’s mother is so it is safe for her in China at the moment.
The applicant indicated [Child 1] only has a birth certificate; [she/he] doesn’t have a hukou registration (household registration) in China. She said the hukou registration would require [Child 1] to provide [her/his] parents’ details and marriage certificate and she doesn’t have that. She said that not having a hukou registration meant [Child 1] won’t be able to study and have access to government-funded immunisations. The applicant confirmed [Child 1] was not registered for hukou yet. The applicant indicated that she would think about registering [Child 1] for hukou (if registration was possible) before [Child 1] was [age] which was the time [Child 1] would be eligible for school.
The Tribunal discussed the current country information relevant to obtaining household registration for children who are born outside the current family planning regulations and information regarding the payment of social compensation fees in China.
Following the hearing, pursuant to s.424A of the Act the Tribunal put to the applicant detailed particulars of information regarding hukou registration in China and social compensation fees. In summary, this information suggested that:
·     the process of registering for hukou had been delinked from the payment of social compensation fees allowing children born ‘out of plan’ to be registered, including in Fujian Province;
·     for the vast majority of residents in Fujian, social compensation fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure; and
·     local officials have considerable flexibility in how they apply these fees. They have the power to exempt fees or allow fees to be paid by instalments, depending on the circumstances of the parents.
Further detail of the information put to the applicant is outlined in the decision below.
The invitation indicated that the information was relevant to the review because the applicant claimed that she was concerned she may not be able to register her children for hukou on return to China because she was not married and this would limit their access to services such as education. She further indicated she may be concerned about paying social compensation fees on return to China depending on the amount of the fees. The Tribunal indicated that if it relied on this information outlined in the invitation in making its decision, it may find that the applicant would be able to register her children for hukou and access services linked to such registration. Further the Tribunal may find that registration would not be dependent on the payment of social compensation fees. In addition, if the Tribunal relies on the information it may find that the applicant would be able to pay social compensation fees which may be liable.
The invitation indicated that if the Tribunal relies on the information the Tribunal may find that the applicant would not face a real chance of persecution arising from an inability to register her children for hukou in China or from the denial of services linked to hukou registration. The Tribunal may also find that the applicant would not face a real chance of persecution arising from the imposition of social compensation fees on her return to China and in the reasonably foreseeable future.
The applicant was invited to give comments or respond to the information by

18 January 2019. In response to the invitation the applicant’s registered migration agent emailed the Tribunal on 14 January 2019 attaching a document (a translation of that document) titled ‘Certification of No Household Registration Record’. It reads:

Inquiries made on the provisional security management information system: no household registration record within this jurisdiction has been found for the citizen, [Child 1], [gender], born on [date] (father’s name: [Mr B], born on [date], Identity Card [No.]; mother’s name: [Ms A], born on [date], Identity Card [No.]).

The document bears the seal of Longshan Police Station, Public Security Bureau in Fuqing City and is dated [date] December 2018.

The email stated “the applicant submitted that her family in China has tried to register [Child 1]’s hukou unsuccessfully.” No further submissions from the applicant were received.
The Tribunal addresses this document and submission further below.

Will the applicant’s children be able to obtain household registration (hukou)?

The Tribunal accepts that the first and second named applicants are unmarried and that they have two children from the relationship who are minors.
At the hearing the Tribunal discussed the current country information relevant to obtaining household registration for children who are born outside the current family planning regulations.
It noted that the country information indicates that the payment of a social compensation fee for children born out of plan has now been separated from the issue of household registration. The Chinese government has declared that all children irrespective of the circumstances of their births have the right to obtain household registration.
The applicant indicated she was unaware of this. She said in China normally if you give birth to more than one child or if your child is not born legally you may have to pay fines.
The Tribunal indicated its understanding that it was now permitted to have two children in China in some circumstances. The applicant indicated that she was concerned that they needed a marriage certificate to apply for hukou registration.
The Tribunal put to the applicant that country information indicates that you can now register for hukou in Fujian without paying a fine and the two processes (registration and payment of social compensation fees) have been disengaged. She was asked whether she would plan to register her children in those circumstances. She indicated that she would think about that before [Child 1] was 7 which was the time [Child 1] would be eligible for school.
The Tribunal has considered country information from a number of sources which indicate that all children of Chinese nationality will be entitled to be granted household registration. Household registration provides access to medical and educational services and other government benefits.
On the issues of the changes in the family planning laws and the changes to the household registration system, the DFAT 2016 report on Fujian[4] notes:
3.26 On 27 December 2015, the National People’s Congress amended the Population and Family Planning Law with effect from 1 January 2016. Changes to the Population and Family Planning Law included the full implementation and encouragement of a two-child policy (provided couples continue to meet other health, age and timing requirements), the cancellation of forced contraception and changes to certain leave entitlements for parents (including maternity and paternity leave). The Fujian People’s Congress passed implementing provincial-level regulations on 19 February 2016.
…
3.37 The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see 5.4). In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid.
…
5.3 Hukou reform has been proceeding throughout China as part of wider economic reforms for some time in an effort to control urbanisation. In Fujian, authorities no longer distinguish between urban and rural hukou – all households are now registered as ‘residents’ and are entitled to access available social services…..
5.4 Under the new system, children may be registered under the hukou of either parent, who must normally supply supporting documentation including the child’s birth certificate, household registration books of the parents, identification cards of the parents and the marriage certificate of the parents. If the child is born out of wedlock, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.
[4] DFAT Thematic Report on Fujian Province, People’s Republic of China, 16 December 2016.
In January 2016 the State Council of China[5] released a statement which provides, in part:
Due to certain policy barriers, the civil rights of citizens without “hukou”, such as those born outside the former family planning policy or without medical birth certificates, have not been well protected. The unregistered population has also been considered obstacles to the reform of the household registration system.
The State Council has thus decided to forbid related government departments from setting any preconditions for “hukou” registration.
[5] State Council, People’s Republic of China, “State Council urges registration of ‘hukou-less’ citizens”, <>
In March 2016 DFAT responded to a country information request regarding household registration for children born out of plan in Fujian Province.[6] The post noted that:
Household registration (hukou) reform has been proceeding in China as part of wider economic reforms for some time. On 25 August 2014, the Fujian Public Security Department (PSB) implemented a new provincial Household Registration Management system. Under the new system, provincial PSB officials were directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for hukou registration. This means all Fujian babies, including abandoned babies or those born "out of plan" or out of wedlock, should now have access to household registration, whether or not they pay the fee.
[6] China CIR CI160219094800679 Fujian registration of children and out of plan births, 24 March 2016, CX0562B6F11.
The 2017 DFAT country report on China notes:
The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see Human Rights Defenders (including Lawyers)). According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.
A recent Research Response prepared by DFAT in May 2018 noted:
A. Are the current main laws and regulations in Fujian province applicable to children born out of wedlock to single or unmarried parents remain those as outlined in both the Fujian thematic and the China CIR?
2. Chinese laws and regulations in relation to both family planning and household registration (hukou) are continuing to develop. On 14 January 2016, the State Council issued a national-level Opinion on Solving the Household Registration Issue for Non-Registered Personnel, which made clear that payment of a social compensation fee was not/not a pre-requisite for accepting an application for household registration. Provinces subsequently sought to implement this Opinion by issuing updated regulations. Concurrent amendments to national family planning policies have complicated this process.
3. The Fujian provincial government issued a document reflecting the Opinion in October 2016, entitled Fujian Provincial Residential Household Registration Methods. The Methods came into force on 1 January 2017. On 4 December 2017, the Fujian Public Security Department issued new regulations (Regulations on Implementation of Household Registration Management for Fujian Citizens), which set out in more detail processes described in the Opinion and the Methods. These replaced its own earlier regulations set out in the 2014 Fujian Provincial Public Security Regulations on Household Registration. Significantly, the earlier 'right to apply for a hukou' (former article 21) does not appear in the new regulations, reflecting economic pressures on cities to employ tighter criteria for granting hukou and thereby restrict access to public benefits.
4. Article 24 of the December 2017 regulations provides that a parent seeking household registration of a child born out of wedlock must provide copies of the child's birth certificate, the household registration book of the registering parent, and a declaration of the child's status (ie. confirming the child was born out of wedlock) in order to register their child. A father seeking household registration for his child must provide a paternity test certificate in addition to the above materials.
…
E. Can a child born out of policy in Australia or elsewhere use the birth certificate relating to the birth to obtain a hukou for the child upon return to China?
10. Verbal advice from the Fujian Public Security Department confirms that a foreign birth certificate, translated and duly notarised by a Chinese mission abroad, may be used to support an application for a Fujian hukou. Articles 40 and 41 of the 2017 regulations deal specifically with children born overseas to Fujian hukou holders. Requirements differ, depending on whether the child is recognised as Overseas Chinese (i.e. a person of Chinese birth or descent who lives outside the People's Republic of China (including Hong Kong and Macau) and Taiwan) or not. Children of Chinese nationals studying or working abroad remain specifically exempted from recognition as overseas Chinese.
The Canadian Immigration and Refugee Board of Canada noted in a Research Response prepared in October 2016:[7]
There are approximately 13 million non-registered people in China (Xinhua 9 June 2016; US 13 Apr. 2016, 58; Global Times 27 Jan. 2016). … An article by Xinhua News Agency states that, “[u]nregistered citizens include those who do not have a birth certificate, those born out of a wedlock, orphans adopted outside the official system, and those who lost their hukou due to marriage traditions, being pronounced missing or dead, or previously held invalid registration papers.” (14 Jan. 2016)
…Sources indicate that government authorities also announced in 2015 that they would take steps to regularize the status of unregistered citizens (Xinhua News Agency 9 June 2016; AI 2016, 120; Germany 14 Dec. 2015). In a briefing note, the Federal Office for Migration and Refugees of Germany stated that with this change in policy, unregistered people would "[f]or the first time, […] receive 'Hukou' documents allowing them school attendance and unrestricted access to social services including medical care" (Germany 14 Dec. 2015, 5).
[7] This was 10 months after the changes in policy were announced.
The response also noted that:
Chinese who give birth to or return from abroad with an unauthorized child, answer to the local regulations in the place of their household registration. (Landinfo Norway 3 Aug. 2015, 3.)
…After the State Council's notice [in January 2016], Guangdong and Liaoning provinces responded by officially delinking fines and hukou registration. Several provinces including East China's Shandong and Fujian implemented such policies as early as 2014 to tackle the [black children] problem. In these places those that are born outside the rules can register for a hukou without having to first pay fines - although the fines must be paid eventually. (Global Times 27 Jan. 2016)

While the Tribunal only had before it the birth certificate of the older of the applicant’s two children, the Tribunal accepts that the applicant’s two children were born in Australia and have Australian birth certificates. The applicant’s older child has a Chinese passport and has returned to China. [She/he] lives in Fujian Province. The first and second named applicants both hold Chinese passports. The Tribunal notes that the applicant’s email of 14 January 2019 submits that her family in China has tried to register [Child 1]’s hukou unsuccessfully. The applicant is relying on the “certification of no household registration record” to support this submission. The Tribunal notes that at the hearing the applicant told the Tribunal that [Child 1] has not been registered for hukou. Having considered the document supplied to the Tribunal, the Tribunal finds that it does not evidence an attempt to register [Child 1] for hukou but rather confirms that [she/he] has not been registered for hukou. This is consistent with the applicant’s earlier evidence to the Tribunal but the Tribunal finds that it does not support a claim that an attempt has been made to register for hukou which has been unsuccessful.
The Tribunal finds on the available evidence and on the country information that on return to Fujian Province the applicants would be able to apply for household registration for their children irrespective of the circumstances of the children’s births. They would need to provide a copy of their household registration and the children’s birth certificates. Once registered the children would have access to the services in Fujian including health, education and transport services.

Will the applicant have to pay a social compensation fee?

The applicant was asked about whether she had concerns if she was required to pay a fine or social compensation fee. She said she was concerned they might have difficulty registering hukou. She did not have other concerns. She was asked if she would have concerns about paying fines. She said she wasn’t sure about the amount of the fines so it depends how much.
She told the Tribunal her partner was working in [a specified industry] in Australia. The applicant is not working. She was asked whether her partner would work with her father-in-law and brother-in-law, who both work in [that] industry in China, if they returned to China. She indicated she wasn’t sure.
The Tribunal accepts that the applicants may be liable for the payment of social compensation fees if they return to China. However, the applicant did not express particular concerns about the payment of such fees, other than that she was not sure how much the fees would be. She was asked whether she had any concerns if she was required to pay a fine and she said she was concerned about the children having difficulty registering for hukou. She said she had no other concerns. She was asked again whether she was concerned about paying a fine and she said it depends what the fines would be.
With respect to the payment of social compensation fees in China for children born ‘out of plan’ a DFAT report on Fujian[8] noted that:
[8] DFAT Thematic Report on Fujian Province, People’s Republic of China, 16 December 2016.
3.29 Authorities in China use incentives and penalties to achieve compliance with family planning regulations. Social Compensation Fees (also referred to as Social Maintenance Fees) are the most common disincentive used in Fujian. According to the March 2014 Population and Family Planning Regulation of Fujian, Social Compensation Fees are calculated on the basis of average annual disposable income for urban residents or the average annual net income for rural residents, or residents’ actual income, whichever is the greater). The fee is levied on a multiplier basis, depending on the couple’s circumstances. The March 2014 Population and Family Planning Regulation of Fujian provided that:
A Social Compensation Fee of 0.6 to 1 times will be imposed on those who give birth to a child ahead of schedule.
A Social Compensation Fee of 2 to 3 times will be imposed on those who give birth to an additional child.
A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a second additional child. Heavier Social Compensation Fees will be imposed on those who give birth to additional children.
A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a child born out of an extra-marital affair (including those who give birth to a child out of wedlock). Heavier Social Compensation Fees will be imposed on those who give birth to additional children born out of an extra-marital affair.
3.30 Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. In Fuqing (a county-level city near Fuzhou with a population of approximately 1.34 million people) the average annual disposable income for rural residents was RMB32,279 (AUD6,840) and the average net annual income for rural residents was RMB15,061 (AUD3,190) in 2013. Social Compensation Fees calculated in 2014 were based on these figures.
…
3.32 Credible information on the actual Social Compensation Fees charged in practice is difficult to obtain. The actual application of Social Compensation Fees varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation). The March 2014 Population and Family Planning Regulation of Fujian states that the decision to impose a Social Compensation Fee may be made at the county, township or neighbourhood level. DFAT is aware of verdicts by the Fujian High Court in late-2015 imposing Social Compensation Fees of approximately RMB50,000 (AUD10,595) for couples who gave birth to a second son, in violation of the Population and Family Planning Regulation of Fujian. In 2014, Fujian courts recorded 1,628 cases involving payments arrears of Social Compensation Fees over RMB100,000 (AUD21,190). However, DFAT also understands that local authorities in Fujian are able to show considerable discretion in charging Social Compensation Fees. Factors that would influence local authorities when charging Social Compensation Fees may include whether a couple is cooperative, is underage and/or from a low income family.
…
3.34 DFAT is aware of a range of measures that have been used in Fujian to secure payment of Social Compensation Fees, including applying personal pressure through personal calls and visits. In July 2015, the Fujian Health and Family Planning Commission signed a Memorandum of Understanding with the Fujian High Court, the Fujian Development and Reform Commission and the Fuzhou Branch of the People’s Bank of China to list people who failed to pay Social Compensation Fees on a ‘black list’, limiting their ability to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their businesses, board planes or book soft berth tickets on trains.
3.35 Notwithstanding that these measures demonstrate that many couples in Fujian seek to evade payment of Social Compensation Fees, in-country contacts suggest that widespread awareness of the fees means couples wishing to have an additional child in violation of the relevant regulations often save the required Social Compensation Fee in order to do so. DFAT assesses that for the vast majority of residents in Fujian, Social Compensation Fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure.
Further, country information suggests that local officials have considerable flexibility in how they apply these fees. They have the power to exempt fees or allow fees to be paid by instalments, depending on the circumstances of the parents.[9]
[9] DFAT, DFAT Report 1210 – RRT Information Request CHN37505, 12 November 2010.
The Tribunal is not satisfied that the applicants would suffer financial hardship as a result of a requirement to pay social compensation fees. As noted above, country information suggests that there is some flexibility in how such fees may be paid including that the fee may be paid in instalments. Further, on the evidence before the Tribunal it appears likely that the second named applicant would have reasonable prospects of obtaining employment in China in [a specified industry] where he has experience and where his father and [sibling] are both employed. The Tribunal also considers that in light of the fact that one of the applicant’s children is currently being cared for full time by her mother-in-law the applicant would likely have access to assistance with childcare on return to China which would facilitate her returning to employment in China if she chooses to do so. The Tribunal is satisfied on the country information that if the applicants are employed they would not suffer financial hardship due to a requirement to pay social compensation fees. The Tribunal is also satisfied that the applicants have family support available from within China and outside China to assist them to meet any social compensation fees which may be payable on their return to China.
Accordingly, the Tribunal does not accept that the payment of the fees in the applicant’s circumstances would amount to serious or significant harm either through the hardship caused by paying such fees or by the imposition of the fee itself.
For these reasons the Tribunal does not accept the applicant’s claims that she will be unable to register her children for hukou. The Tribunal finds on the evidence that the applicant’s fears of persecution from authorities or from any other group or individual due to the inability to register her children for hukou or due to the requirement to pay social compensation fees are not genuinely held. The Tribunal finds that on the evidence the applicant does not have a well-founded fear of persecution arising from an inability to register her children for hukou in China or from the denial of services linked to hukou registration. The Tribunal finds on the evidence that the applicant does not have a well-founded fear of persecution arising from the imposition of social compensation fees on her return to China and in the reasonably foreseeable future.

Other issues – delay in filing protection visa application

The Tribunal also raised concerns with the applicant about her delay in seeking protection in Australia for a period in excess of 8 years after her visa expired. These concerns were also expressed in the delegate’s decision. When asked at the hearing why she had waited until 2015 to make a protection visa application the applicant indicated that before that date nobody had told her that she could apply for this visa. When she was pregnant the cost of having a baby was expensive and a relative of her partner told her that she could apply for a visa.
The applicant came to Australia in August 2007, after the claimed problems in China, yet she did not seek protection until July 2015, around 8 years later. She made no attempt on her arrival in Australia to seek assistance in relation to her claimed fears of persecution. Her student visa expired [in] March 2010 at which point she became unlawful. She made no attempt at this time to seek assistance from authorities or regularise her migration status. This raises doubt as to the extent of her claimed fears in China.
At hearing the applicant said she did not know she could apply for protection before she did, and did not even know such an option existed. The Tribunal is not persuaded by this explanation. The applicant made no attempt to seek advice and assistance, which is readily available in Australia and the Tribunal regards that she would have done so in a more timely fashion if she had left China to escape persecution or in order to practise her religion freely. The Tribunal finds her failure to apply for protection for 8 years a strong indication that she was not fearful of serious harm when she arrived in Australia. On the basis that the applicant unreasonably delayed seeking protection after arriving in Australia for 8 years this delay further suggests that the applicant’s claims for protection lack credibility.

Does the applicant meet the refugee criterion?

The Tribunal has considered the applicant’s claims made in both her application and at the hearing, and potential concerns raised with the applicant by the Tribunal at hearing.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[10] The Tribunal on review does not have a responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[11] This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.[12]
[10] Section 5AAA of the Act.
[11] Section 5AAA of the Act, inserted by item 1 of Schedule 1 to the Migration Amendment (Protection and Other Measures) Act 2015 with effect from 14 April 2015.
[12] Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that if the applicant returns to China now or in the foreseeable future, there is a real chance that the applicant will face serious harm on return to China because of her claimed involvement with an illegal bookstore, due to her religious beliefs and practices, as an unmarried parent to two children and/or due to the inability to register her children with Chinese authorities or for any other reason set out in s.5J(1)(a) of the Act.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.

Does the applicant meet the complementary protection criterion?

The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. On the basis of the applicant’s Chinese passport, the Tribunal finds that China would be the receiving country if the applicant were returned because she is a national of China.
The Tribunal has considered whether on the evidence before it there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[13] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J of the Act.
[13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
For reasons set out above and relying on the reasoning and evidence presented in relation to her protection claims, the Tribunal has found there is not a real chance the applicant will suffer harm from the authorities because of her religious beliefs or practices now or in the reasonably foreseeable future.
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will suffer harm from the authorities because of her involvement with a bookstore selling illegal books if she returns to China, now or in the reasonably foreseeable future.
Accordingly, the Tribunal finds that the applicant does not face a real risk of significant harm on the basis of the applicant’s religious beliefs or practices and/or her involvement with a bookstore selling illegal books if she returns to China, now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant is an unwed mother of two children born outside the family planning regulations applicable in China.
While the Tribunal accepts that the applicant may have to pay a social compensation fee for reasons of having a child or children ‘out of plan’ it does not accept that the applicant would be subject to cruel or inhuman treatment or punishment or degrading treatment or punishment as a result of the imposition of such a fee. The Tribunal does not accept that she will be unable to register her children for hukou. The Tribunal has found that she will be able to apply for her children’s household registration on return to China and that they would have access to educational, health and other benefits available to Chinese nationals. The Tribunal does not accept, nor did the applicant claim that the imposition of social compensation fees would cause particular hardship to the applicant such that it may amount to mental suffering. Accordingly, the Tribunal finds that the applicant would not face a real risk of significant harm arising from having to pay a social compensation fee for reasons of having a child or children ‘out of plan’ and/or due to the inability to register her children with Chinese authorities.
There is no evidence, and the Tribunal does not accept that the applicant would face the death penalty, arbitrary deprivation of life or torture if she returns to China.
Having considered the applicant’s circumstances singularly and on a cumulative basis and for all the reasons set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSION

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 under s.36(2)(a).
Having concluded the applicants do not satisfy the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(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.

Simone Burford
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

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.
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.
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.
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.
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.
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

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.
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 5314

12 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Appeal