1621971 (Refugee)

1621971 (Refugee) [2019] AATA 6534 (13 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621971
COUNTRY OF REFERENCE:                   China
MEMBER:Justin Meyer
DATE:13 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2019 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Yiguandao – social group – born out of wedlock – claims family in China persecuted by local government for practising Yiguandao – fears persecution for parent’s birth-control policy violation – no real chance of serious harm for failure to pay social compensation fee or obtain household registration – decision under review affirmed

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

CASES
MIAC v SZQRB [2013] FCAFCI

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 and Border Protection on 8 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 30 May 2016. The delegate refused to grant the visa on the basis that that the applicant did not meet the criteria for being a refugee or for complementary protection.
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant’s identity is established as a [young] boy, as evidenced by an Australian birth certificate. As both of his parents are Chinese nationals, he is classed as a Chinese national. Country information states that if at least one parent of a child is a Chinese citizen, then the child will automatically receive Chinese citizenship regardless of whether the child is born in China or overseas. This is under "Nationality Law of the People's Republic of China", of 10 September 1980. There is Chinese passport evidence before the Department confirming parental identity.
Claims and Evidence
The applicant claimed in his protection application that:
·His parents are not married and have breached the Fujian family planning regulation by having two children out of wedlock. They face a lump-sum social compensation fess which they cannot afford.
·It is very hard for a child born out of wedlock to register hukou (household registration) in Fujian. Without hukou, he and his [sibling] will be denied access to social benefit and welfare, such as public education and health care. This will cause serious harm and is discriminatory conduct. They will be starting their life in a 'very unfair and dark situation'. His parents will need to bribe the authorities to obtain the hukou.
·The family planning policy is a national policy enforced at all government levels. There will be no protection from the authorities. The agents of the state are responsible for the prosecution that they fear.
Context
On 16 June 2014, a delegate of the department found that the applicant's parents and older [sibling] were not persons in respect of whom Australia has protection obligations. This decision was affirmed by the RRT on 17 December 2014. In the view of the delegate, the particulars of the applicant’s claims were similar to, and contingent upon, the protection claims of his parents and [sibling].
The applicant is a [young] child, and thus claims were made on his behalf by his parents in the hearing.
The applicant through his parents gave this evidence in the hearing on 12 June 2019:
The applicant’s father, [Mr A], said that he and his wife were international students in Australia. They were not married at the time, and he made a protection visa application in 2013. They breached the one child policy of China.
I asked the applicant’s father why the parties did not marry, to which he said that they did not have a legitimate visa and were not in a strong financial position.
No evidence was proffered as to family planning laws being discriminatorily applied against family including the applicant, even though the Tribunal pursued this line of questioning. The applicant’s father said the pregnancy was unplanned. He said in his home town there would be forced abortion. I asked how this would make the applicant suffer in some way the applicant’s father said the applicant could not go to a mainstream school without registration (“Hukou”).
I asked the applicant’s father how he was aware of this claimed situation, to which he replied that others had told him. These were Chinese people. He said there was a lady in his village who was forced to have an abortion. His partner’s aunt had a second baby and was harmed by the police. The grandmother was sent to jail.
The applicant’s father has a job in Australia as a [Occupation 1], and received some [amount] to [amount] per month in wages. He had a debt associated with coming to Australia and he is paying people back.
The applicant’s father was asked where he would return to in China if he and his family were forced to return – he said again to the rural area in Fujian province from where they came.
Facing a fine was discussed and applicant’s father said this would be beyond the family’s capacity at [amount].
Country information was discussed with applicant’s parents:
The Tribunal notes from the most recent China report of DFAT[1] that the process of collection of social compensation fees has a considerable degree of nuance:
3.107 Authorities enforce compliance with family planning regulations through both incentives and punishments. Social compensation fees (also called ‘social maintenance fees’) are the most common disincentive. Authorities calculate fees according to ‘last year's local disposable annual income per capita’ in urban places, and ‘the net annual income per capita’ in rural places. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. The parents of each unapproved child must pay the social compensation fee. In some cases, this can amount to up to ten times a person’s annual disposable income. In some provinces or counties, authorities have imposed fines on entire work units in addition to the individuals concerned. However, credible information on the actual fees charged is difficult to obtain as they are subject to local discretion (leaving open the possibility of individual or institutionalised manipulation). Both the previous and amended Population Law require those who give birth to a child in contravention of family planning policies (including second children born before 1 January 2016) to pay a social compensation fee, irrespective of household registration status. DFAT assesses that inconsistent and non-transparent application of fees leaves open the possibility of individual or institutionalised corruption.
3.108 County-level governments collect the revenues from fees. The national law does not set out a fee schedule that applies to all localities. Instead, provinces formulate their own rules on specific fines based on the basic social compensation fee measure outlined above. Local authorities can decide whether to impose a more lenient fine if parents report an out-of-policy birth soon after it occurs. Authorities are likely to apply heavier penalties for uncooperative behaviour such as hiding children, and can apply additional surcharges to those who fail to pay the required fee. The local family planning bureau and employers may pressure the parents of out-of-policy children. Awareness of the fees is widespread and, in many cases, couples wishing to have an additional child will save the required social compensation fee in order to do so. In these cases, social compensation fees operate as an additional tax, rather than as a punitive arbitrary measure.
3.109 The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (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.
3.110 In practice, implementation at the local level of these laws and regulations (including provincial regulations) varies. Parents denied registration in contravention of provincial regulations or national law can, in theory, seek legal redress, but are then subject to the general conditions governing protection against abuse of power by officials (see Judiciary). Chinese authorities have regarded public opposition to family planning policies as provocative and treated petitioners and their advocates as political opponents (see Political Opinion (actual or imputed)).
[1] DFAT Country Information Report, People’s Republic of China, 21 December 2017
The Tribunal, on the country information and upon what was proffered in evidence, is unable to determine that any fee would be at such a level that the applicant would be left in a position where he had a well-founded fear of persecution as a result.
The applicant’s parents are both from Fujian Province, and they would return to that province if they return to China. DFAT has prepared a Thematic Country information report on Fujian Province dated 16 December 2016. According to that report[2]:
[3.29] “a SCF of 2 – 3 times will be imposed on those who give birth to an additional child and a SCF of 4 – 6 times will be imposed on those give birth to a child out of wedlock.”
[2] DFAT Thematic report Fujian province', DFAT, 16 December 2016, CIS38A80123116.
It was put that under this country information a Hukou would be granted to the applicant regardless of whether the social compensation fee were paid or not.
The Tribunal accepts that payment of the social compensation fee is required for a second child born before 1 January 2016[3], however children whose authorised 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.[4] The country information states that all Fujian babies, including abandoned babies, those born ‘out of plan’ or wedlock should now have access to household registration, whether or not their parents pay the compensation fee.[5]
[3] DFAT County Information Report, People’s Republic of China, 21 December 2017 at 3.107
[4] DFAT County Information Report, People’s Republic of China, 21 December 2017 at 3.109
[5] CX0562B6F11: “China. Country Information Request – C1160219094880679 – Fujian registration of children and ‘out-of-plan births’, Department of Foreign Affairs and Trade, 24 March 2016, at 5.
I suggested that there would now be access to school and health services for example.
The applicant’s father said that there was censorship in China. Official information is not reliable. It is just for consumption for other countries. In local rural areas there is corruption and it is much worse than is officially related to the international community. The main revenue of local government is from fines and fees. Official information is that four to six times annual income is required for these fees, However it will be double or 10 times that figure when it comes to corrupt rural areas. The applicant’s father said he submitted documents on this point. He said there are a lot of loopholes in Chinese laws and in rural areas the documentation is not comprehensive.
I noted to the applicant’s father that there might be a possibility of paying off fines in instalments. The applicant's mother said that this would only apply to major cities in Fujian province and not to her village.
I discussed with the applicant’s parents the applicant’s father’s job in Australia. He works as a [Occupation 1]. I asked if the applicant could work as a [Occupation 1] in China. He said it was not a recognised profession. I pointed out that the applicant’s father had picked up this skill in Australia. The applicant’s father was able-bodied and intelligent by appearances and it was suggested by the Tribunal that he could possibly pick up work in China. The applicant’s father said that it was very difficult to find work in China. He also had to pay four to six times his income for the out of wedlock child fine, and had to raise children.
I pointed out that impecuniosity did not mean that the applicant would necessarily be persecuted. The applicant’s father said he would be in jail if he could not pay off the fines and then their child could not be supported.
The applicant’s parents disputed the country information about the decoupling of the payment of the fine and the provision of the household registration and subsequent government services. The Tribunal indicated that this evidence appeared to be anecdotal and based upon individuals the applicant’s parents had heard of.
The applicant’s mother said that her area was an undeveloped region. If anything happens to you the media does not report it, she said.
The applicant said it was extremely difficult to find jobs in China and it was unlike Australia where people are more tolerant and provide job opportunities. The Tribunal said it would be unable to accept that the applicant’s parents would be unable to find a job in China. There are hundreds of millions of persons in China who do not have qualifications who have a job for example.
The applicant’s mother said it is extremely hard to find a job and even university students in China have difficulty. The applicant’s father would be sent to jail for failing to pay the fine it was submitted.
The Tribunal asked about other claims that the applicant was making. There were claims about being involved in Yinguandong a religious sect.
The applicant sent to the Tribunal the following from, [a member] of [named] temple in [City 1]:
I am writing to confirm that [Ms B] and [Mr A] are active members of our congregation, [named] [Temple]. I joined the temple with my husband in year 2012 and we are [in a particular role] now. I am very happy to meet them with another friend and introduced them to join our temple around December 2016.
[Ms B] and [Mr A] have been actively involved with the temple classes and events after joining the temple. I always see them in [specific] classes which held once a week and one day holy seminar which held once a month, [Ms B] and two of her [chidren] attend [a children’s] Class every Saturday morning. They are kindhearted and willing to contribute their time and energy to service others. For instances, [Ms B] will arrive early to prepare meals for other members and helps to take care other children in some classes whereas [Mr A] often offers his spare time in helping for repairing and maintenance work of the temple.
[Ms B] and [Mr A] are very welcomed and well-liked by the fellow Tao members because of their polite and cheerful character, Both of them are fast learner and not only understand but also applied the teaching of Tao in their daily life, which emphasize on benevolence and respect to all living beings. They are dedicated to Tao belief, very talented and are role models to other, I sincerely hope they can remain in Australia and spread their contribution.
The applicant (through his mother) sent this statement to the Tribunal on 27 February 2017:
“Having considering the importance of the following reference relates to our current application for protection visa, my mother on my behalf wish to provide her additional commentary and articulation to what has happened in our recent life. Therefore your close attention and favourable consideration will be very much appreciated.
What I wish to emphasis here is my mothers commitment on her Vi Guan Tao (Tao) faith. In fact, both my mother and her parents (my grandparents) have converted to Vi Guan Tao since 2015 and established a house temple themselves. Ever since they converted to Tao faith, a great change has taken placed in their life. By helping others in joy, they spare no effort in glorifying Tao faith and their religion transformed them into a new who motivated by love and righteousness, devoting themselves in saving people from evil thought.
Under the impact of their religion, my parents also initiated into Tao practice since 2015 and read publication to know the faith better. In late of 2016, my parents finally located a house temple in [City 1] and officially registered themselves as fellowship with regular engagement of rituals there. With ultimate delight, they regard the founding as the most significant harvest after their arrival in Australia.
Another fact worth to mention is that my grand mum (on my mother side) has preaches her Tao faith to my grand mum (on my father side) stride she returned to China in 2012. My grand mum (on my father side) also set up a house temple afterwards and invited relatives and friends for practice together. Finally, both my family and our parents' one have organized our house temples respectively and share faith in fellowship.
It was well-known that Buddhism and Taoism were actually two sides of the same coin, and multiply. The local government
previously paid less attention to the popularity of worshiping Buddha and seldom question it. However as the number of I-Kuan-Tao pursuers and their activities increased steadily, adherents of Taoism exceed more than Buddhists and not even this, publications in pints and preachers for Taoism are also introduced rapidly. House temple not only provides sermons but also provide its pursuers with Tao books such as Introductory books to Tao doctrines, Yuanjueqianyan, or Li Jinbao's Account of His Mystery Law of Universe, all of which had been smuggled from Taiwan, but not available at all in the Mainland China.
My grandparents were very pious and devoted with their Tao-pursuit. My grandfather was a [certain occupation]. He took every opportunity to preach the benefits of Tao-pursuit, and succeeded in initiating several of his colleagues into his own faith of I-Kuan-Tao. To fight the corruption of the village officials, they preached the principles of I-Kuan-Tao and printed a lot of pamphlets advocating. I-Kuan-Tao's Five Virtues and Eight Ethics, Ten Commandments(Thou shalt not be greedy, shalt not be angry, shalt not be stubborn, shalt not kill, shalt not steal, shalt not be lascivious, shalt not use abusive language, shalt not lie, shalt not gossip, shalt not Speak indecently) and Three Morals and Four Requirements (Be moral in sexuality, economy and ideology; and be required to behave correctly in motivation, behavior, interaction and
conversation.)
I'm now filing this protection application for the following reasons: Shortly after the New Year's Day of 2017, my grandparents (my father side)' altar was closed down by the local government. The temple was searched, the pursuers were cautioned and fined, and all the ritual things and Tao books were confiscated. Moreover the government began to investigate how the pamphlets were distributed. They had thought that the things would be over after the pursuers were fined and released, but they didn't. Instead, the community administration came to inspect their houses all the more frequently, and even encouraged the people around them to inform what they were doing to the government. That totally shattered our hope that all of us could go back to China and keep to our faith at the same time safely. My parents later learned that I-Kuan-Tao was outlawed and banned by the Chinese Government as early as in the 1950's, and up till now, the ban against I-Kuan-Tao hasn't been lifted yet, After consideration and consultation, my parents decided that it was dangerous for them to go back to China. They hate to denounce their faith. As matter of fact, my entire family wishes to become adherents of Taoist and treat the religion as our unrepeatable spiritual pillar and for sake of this, we must stick to our commitment on our faith.
Apart from the problem of our faith, another worry for my parents was about the fate of us the innocent poor children of theirs. Actually, all the members of our family would become victims due to our parents' tragedy. My parents had filed a protection application before on the grounds of persecution caused by their violation against the birth-control policy. As my parents violated the birth-control policy by giving birth children prior to their marriage, they were sure to be penalized. Recently, the previously rigid birth-control policy in China was somewhat eased a little, but it didn't necessarily smooth away the difficulties in solving our practical problems thoroughly. The Main difficulty came from the problem that my parents hadn't gained their legal status in Australia. As a result, they were unable to get stable jobs to get enough pay to solve their family's economic crisis. Meanwhile, our family members in China were not well off enough to support another family of four like ours.
Another difficulty was that we had to pay a sum of penalty if we'd like to apply for the children's residence permits. That added to the hopeless conditions of our wretched plight. I was born on [date]. As a child, I wish to appeal tribunal's attention through my mother meanwhile I hope that this application can arouse more sympathy and understanding from the Australian Government. Please, for the future of me, a poor child, as well as for my parents' faith and my family's well-being. It will be our family's sincere hope that a way to a brighter future can be granted under your mercy, generosity and favorable consideration.
[Ms B] (Mother) for [the applicant]”

I discussed the Yi Guan Dao sect with the applicant’s parents in the hearing. I noted that since applying for the protection visa the applicant made supplementary claims of the family’s conversion to Yi Guan Dao. I noted the applicant’s parents’ claim of a history of following this faith in the family. The applicant’s maternal mother was a believer.
I noted the applicant was [age] years old and I queried whether he was old enough to make a decision for faith at that age. The applicant’s mother said he will follow the parent’s religion and it is good for him.
I noted that the claim that “shortly after the New Year's Day of 2017, the applicant’s grandparents (my father side)' altar was closed down by the local government. He said he did not know it was illegal to have this faith.
He said that Fujian is close to Taiwan and there are shared norms including in religion. He said it was reasonable and normal to share this religion.
The applicant’s parents have come to accept the faith as well. The applicants’ two sets of parents live near each other in Fujian.
DFAT country information on Yi Guan Dao was discussed:
[3.36] Academic studies suggest that Yiguandao (which is an illegal sect in the PRC) ceased to exist in mainland China by the mid-twentieth century, but that it has been gradually re-establishing as an underground movement through the efforts of missionaries from outside mainland China (notably Taiwan and Hong Kong). DFAT is not able to verify the extent to which Yiguandao members practise their faith in China. As it is an illegal organisation, members coming to attention of the authorities are likely to face.[6]
[6] DFAT Country Information Report, People’s Republic Of China, 21 December 2017 at 3.36
The applicant’s mother said that she did not think there was harassment.
Any young children were prohibited from attending any religious gathering in China, she said. There was no information further than this proffered.
I have no information before me to suggest that all children are prohibited from attending religious services in China or following a religion.
I put to the applicant’s parents further country information from the Department of Home Affairs:
Having considered the country information the Tribunal notes that the DFAT Report of December 2017 records that Yi Guan Dao is an illegal organisation, and as such members coming to the authorities’ attention are likely to face a degree of harassment, but DFAT is unable to verify the extent or severity of such harassment. However the Tribunal notes that more recent country information records that the government’s attitude to Yi Guan Dao has changed and Yi Guan Dao is no longer considered to be an “evil cult”. The Tribunal notes an academic authority on the sect suggests that the Chinese government may be seeking ways of legalising Yi Guan Dao. The Tribunal accepts that since the 1990s Yi Guan Dao has been associated with preserving cultural heritage in China. Taiwanese Yi Guan Dao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal also notes the situation for Yi Guan Dao members changed in the mid-1980s and the National Studies Fever of the 2000s provided a means for Yi Guan Dao to contribute to the revitalisation of traditional culture. The call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. The Tribunal notes scholars, educators and parents were devoted to the trend while the state invested national resources to construct infrastructure and to promote the movement, Confucius institutes were established and there are now 500 branches offering 1000 courses, educating in the Chinese language and propelling Chinese culture into the world. The Tribunal notes there is a revitalisation movement that the state and society used to try to restore the missing traditional culture, though Yi Guan Dao also tries to syncretise Buddhism. The Tribunal notes invitations were given to Taiwanese Yi Guan Dao leaders to visit mainland China from 2006. While activities of Yi Guan Dao in mainland China were under surveillance and some religious leaders were arrested or exiled it notes there is now mutual understanding which began in the early 1990s when Yi Guan Dao associations made donations to assist victims of several natural disasters. The Tribunal notes Yi Guan Dao leaders were invited to visit mainland China from 2006 onwards and the United Front Work Department invited several top leaders of Yi Guan Dao branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[7]
[7] Yiguan Dao under the Shadow of Nationalism: Traders, Conspirators, traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, CISEDB50AD8167, p 245
Having considered this more recent country information the Tribunal is not satisfied that practitioners of Yi Guan Dao are persecuted or harmed in China. The Tribunal has taken into account the applicant’s assertion that the government does not support the spread of Yi Guan Dao. Having considered the country information set out above the Tribunal is not satisfied that the applicant will be persecuted because of adherence to this belief or set of beliefs. The situation for Yi Guan Dao members has improved and appears to be improving to the extent that the authorities in China are looking for ways of legalising Yi Guan Dao as they consider it promotes Chinese tradition and slows down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal also notes the Country of Origin Information Services Section in a report dated 7 June 2017[8] did not locate any information from searches on Yi Guan Dao practitioners being arrested, detained or imprisoned in mainland China.
[8] Country of Origin Information Services Section, Department of immigration and Border Protection, China: China: CI170518131121268 – Yiguandao (Yi Kuan Tao, I-Kuan Tao, Tian Dao)
On the basis of the country information the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm because he and/or his family are members or imputed members of Yi Guan Dao.
The country information is at odds with the claims of persecution or potential persecution of members of Yi Guan Dao, including against extended family members. These claims were presented in an undetailed fashion and the Tribunal’s consideration of the lack of detail and the conflicting detailed country information leads the Tribunal to conclude that harm is not face by the applicant on the grounds that he and/or his family are members or imputed members of Yi Guan Dao. I therefore do not accept that the harm alleged to family and other Yi Guan Dao followers as claimed occurred or would occur in the reasonably foreseeable future.
The Tribunal has contemplated the claimed harm in the past to extended family for their Yi Guan Dao practice and belief. The claims are undetailed and/or uncorroborated, and vague. The Tribunal is in invidious position in regards to making a finding as to whether these alleged events occurred, as it does not have direct evidence that they did not occur. For the purposes of this decision it will find that they did occur in order to give the benefit of the doubt to the applicant where little can be demonstrated one way or the other. This refers to the shutting of the temple of the applicant’s grandparents. Even so, the power of the available country information points away from the applicant facing a real risk of persecution for Yi Guan Dao-related reasons now or in the reasonably foreseeable future.
Furthermore I note that the applicant is [age] years old and the prospect of persecution of young children is thinly evidenced in his claim. Resultant persecution to him because of possible harm to family members was thinly described and was at best an indirect link. Moreover, it would be [several] years before the applicant reaches adulthood and would be treated as an adult, and it is speculative at best to consider that he would make a decision to follow these spiritual beliefs when he reaches that age (when he would more likely to be held accountable for religious views).
Whilst I acknowledge that the applicant has been involved in the studies and gatherings of Yi Guan Dao in Australia as indicated by photos (and videos) and written and oral evidence, the above reasons lead me to conclude that that there not is a real chance the applicant will suffer serious harm because he and/or his family are members or imputed members of Yi Guan Dao.
The applicant’s parents in the hearing were asked if there were any other reasons why the applicant could not return to China, and no further information on this was proffered.
Findings
I accept on the evidence provided to the Tribunal:
·The applicant’s parents are unmarried.
·They are from Fujian province, from small towns
·The applicant and certain family members are involved and followers of Yi Guan Dao.
·The applicant’s father is a [Occupation 1]. Family and extended family are not people of means.
The following describes where the Tribunal does not accept the evidence of the applicants:
·I find the applicant will not be prevented from obtaining household registration in China. Considering the country information, the Tribunal does not accept that the applicant would be required to pay the social compensation fee as a condition of registration of the applicant. There is no impediment on the applicant obtaining household registration. The claim is that the applicant will be discriminated against and harmed if the social compensation is not paid. When pressed by the Tribunal about what harm or discrimination would occur, the applicant via his parents claimed in the event of a failure to pay the social compensation fee, the applicant would not be able to obtain household registration. The Tribunal indicated that the two issues were now separate as noted previously. The applicant via his parents was not able to tell the Tribunal anything further about the alleged discrimination and serious harm that would occur in the event of non-payment of the social compensation fee. The Tribunal does not accept that a failure to pay the social compensation fee would cause the applicant to not obtain household registration.
·The Tribunal is not satisfied that the failure of the applicant to pay the social compensation fee will result in any discrimination or serious harm to the applicant.
·The Tribunal notes the impecuniosity of the applicants’ family but any relation between this and persecution or serious harm is speculative and undetailed. It is also a matter of speculation that previously unassessed fees would be payable upon arrival in China. The level of the potential social compensation fee was not clearly established, nor was there any apparent knowledge of waiver of the fee, reduction of the fee in rural versus city areas, paying in instalments or assistance from family in paying the fee.
·The Tribunal notes from the most recent China report of DFAT[9] that the process of collection of social compensation fees has a considerable degree of nuance:
[9] DFAT Country Information Report, People’s Republic of China, 21 December 2017
3.107 Authorities enforce compliance with family planning regulations through both incentives and punishments. Social compensation fees (also called ‘social maintenance fees’) are the most common disincentive. Authorities calculate fees according to ‘last year's local disposable annual income per capita’ in urban places, and ‘the net annual income per capita’ in rural places. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. The parents of each unapproved child must pay the social compensation fee. In some cases, this can amount to up to ten times a person’s annual disposable income. In some provinces or counties, authorities have imposed fines on entire work units in addition to the individuals concerned. However, credible information on the actual fees charged is difficult to obtain as they are subject to local discretion (leaving open the possibility of individual or institutionalised manipulation). Both the previous and amended Population Law require those who give birth to a child in contravention of family planning policies (including second children born before 1 January 2016) to pay a social compensation fee, irrespective of household registration status. DFAT assesses that inconsistent and non-transparent application of fees leaves open the possibility of individual or institutionalised corruption.
3.108 County-level governments collect the revenues from fees. The national law does not set out a fee schedule that applies to all localities. Instead, provinces formulate their own rules on specific fines based on the basic social compensation fee measure outlined above. Local authorities can decide whether to impose a more lenient fine if parents report an out-of-policy birth soon after it occurs. Authorities are likely to apply heavier penalties for uncooperative behaviour such as hiding children, and can apply additional surcharges to those who fail to pay the required fee. The local family planning bureau and employers may pressure the parents of out-of-policy children. Awareness of the fees is widespread and, in many cases, couples wishing to have an additional child will save the required social compensation fee in order to do so. In these cases, social compensation fees operate as an additional tax, rather than as a punitive arbitrary measure.
3.109 The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (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.
3.110 In practice, implementation at the local level of these laws and regulations (including provincial regulations) varies. Parents denied registration in contravention of provincial regulations or national law can, in theory, seek legal redress, but are then subject to the general conditions governing protection against abuse of power by officials (see Judiciary). Chinese authorities have regarded public opposition to family planning policies as provocative and treated petitioners and their advocates as political opponents (see Political Opinion (actual or imputed)).
·The Tribunal, on the country information and upon what was proffered in evidence, is unable to determine that any fee would be at such a level that the applicant would be left in a position where he had a well-founded fear of persecution as a result.
·Children whose authorised 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.[10] The country information states that all Fujian babies, including abandoned babies, those born ‘out of plan’ or wedlock should now have access to household registration, whether or not their parents pay the compensation fee.[11]
[10] DFAT County Information Report, People’s Republic of China, 21 December 2017 at 3.109
[11] CX0562B6F11: “China. Country Information Request – C1160219094880679 – Fujian registration of children and ‘out-of-plan births’, Department of Foreign Affairs and Trade, 24 March 2016, at 5.
·The applicant’s parents queried the country information that was put, however there was little awareness of the change in the law, as described, and the details of the case. As such because of lack of engagement here I give this evidence little weight.
·The Tribunal notes that a social compensation fee might be considered a law of general application, as it was applicable to all Chinese citizens who had children in excess of the policy. There was no evidence that the social compensation fee would be imposed in a discriminatory way, and the Tribunal notes that the social compensation fee is considered to operate as an additional tax, rather than as a punitive arbitrary measure.[12] In a country with more than a billion people, there could be millions of children in this situation in China.
·There is no evidence that the authorities would single out the applicant, or not waive the fee, or not ask for it in instalments.
·The Tribunal finds that the applicant will be able to obtain household registration and that consequently, there is no real chance of serious harm on account of a failure to obtain household registration if the applicant is removed from Australia to China.
·The Tribunal was told that the applicant will not be in a position to have paid on his behalf the social compensation owed. It was clear to the Tribunal that the applicant via his parents was operating on the basis that the household registration and social compensation fee remained linked. The Tribunal notes that a social compensation fee could be considered a law of general application, as it was applicable to all Chinese citizens in their position. There was no evidence that the social compensation fee was imposed in a discriminatory way.[13]
·Considering the country information, the Tribunal does not accept that the applicant would be required to pay the social compensation fee as a condition of registration.
·Considering the claim of harm from being a follower of Yi Guan Dao I find that there are not grounds for finding this will occur. Having considered this recent country information the Tribunal is not satisfied that practitioners of Yi Guan Dao are persecuted or harmed in China. The Tribunal has taken into account the applicant’s assertion that the government does not support the spread of Yi Guan Dao. Having considered the country information set out above the Tribunal is not satisfied that the applicant will be persecuted because of adherence to this belief or set of beliefs. The situation for Yi Guan Dao members has improved and appears to be improving to the extent that the authorities in China are looking for ways of legalising Yi Guan Dao as they consider it promotes Chinese tradition and slows down the rapid growth of Christian churches and sectarianism in rural areas.
·On the basis of the country information the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm because he and/or his family are members or imputed members of Yi Guan Dao.This is no more than a farfetched arising from the religion or spiritual practices of the applicant, as earlier considered in this decision.
·I find then that there is no claim shown for being a member of a particular social group of people harmed by birth control policies, having children out of plan, being unmarried and having children or being such a child in such a situation, facing consequences of being impecunious or for religion or spiritual belief.
·There is no information before me to suggest that there is any other claim for one or more of the five reasons set out in s.5J
[12] DFAT Country Information Report, People’s Republic of China, 21 December 2017 at 3.106
[13] DFAT Country Information Report, People’s Republic of China, 21 December 2017 at 3.106
The cumulative effect of the applicant’s claims

I have found that the harm feared by the applicants is not serious harm and therefore not persecution. I have found that the applicants do not face a real chance of persecution. I consider that even when each of those claims are considered cumulatively, I am not satisfied that there is a real chance that, if the applicant were to return to China, he would face persecution due to the circumstances these things.
According to section 5H of the act, a person is a refugee if the person is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of his country. A crucial criterion of that definition is the requirement that the applicant have a well-founded fear of persecution. I have found that the applicant does not have a well-founded fear of persecution for any of the reasons claimed, even when those claims are considered cumulatively.
I therefore find that I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
I have also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to China, there is a real risk that the applicant will suffer significant harm (s.36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFCI have found that there is not a real chance that the applicant will be persecuted if he returns to China for any of the reasons he has advanced in his claims.
A person will suffer significant harm as defined in s.36(2A) 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.
The applicant via his parents at hearing raised no claim to fear harm as a necessary consequence of being returned to China apart from those articulated in the application for protection, as discussed above. However, he did discuss indirectly the grounds of poverty, as a reason of being refused to delay or exempt from social compensation fines, or poverty generally or inability to find work.
For the same reasons as discussed above, I find that the even the imposition of an social compensation fine would not cause the applicant significant harm, due to the applicant’s parents capacity to either pay any sum levied or to work to repay it after they return to China, or because the fine would be waived or put into instalments.
Potential discrimination for children or adjustment difficulties they may face on returning to China would not cause the applicant significant harm. For the same reasons as discussed above, I also find that there is not a real risk that, as a necessary and foreseeable consequence of being returned to China, the applicant will suffer significant harm due to the imposition of Social compensation, forcible sterilisation, or because the children will be denied Hukou, or for religious reasons.
The applicant may well have become used to the relatively high standard of living he has experienced in Australia, and that his parents may experience some difficulty in finding and sustaining work or achieving such a standard of living in China. They may also experience significant hardship in re-establishing themselves on return. The health and welfare system in China is not that of an advanced economy. However, the hardships and difficulties referred, including facing a lower standard of living are not of a nature such that they would be intentionally inflicted on the applicant, or that he will be ‘subjected’ to such things by the act or omission of another, as required by the exhaustive definition for each category of significant harm in s.36(2A).
I therefore conclude that the possible or hypothetical harms suggested do not meet the definition of ‘significant harm’, even when considered cumulatively with the applicant’s other claims. I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk that the applicants will suffer significant harm, even when all of the applicant’s claims are considered cumulatively.
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 is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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 6534

13 September 2019

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Statutory Construction

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Natural Justice