1702881 (Refugee)

1702881 (Refugee) [2019] AATA 5752 (19 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702881
COUNTRY OF REFERENCE:                   China
MEMBER:Anne Grant
DATE:19 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 19 December 2019 at 10:09am
CATCHWORDS
REFUGEE – protection visa – China – religion – membership of church listed as banned ‘cult’ by Chinese government – political opinion – organiser of protests against corrupt inflation of social compensation fee and embezzlement by officials – family planning regulations – two daughters – wife’s forced sterilisation reversed by church member doctor – third daughter unregistered – birth of son – payment of social compensation fees by borrowing from family and friends – arrest, detention and torture – departure from China via another city on own passport – harassment of family since applicant’s departure – application under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 28 October 2014 and the delegate refused to grant the visa on 3 February 2017.
The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing by conference telephone.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.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.
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that he faces a real risk of suffering significant harm in China.
The applicant’s claims
The review applicant is a national of China and was born on [date] in [Village], [Town], Fuqing City, Fujian Province, China. He identifies as being of Han ethnicity and as belonging to the Local Church.
The applicant is the only son born to his parents, and claims to have faced pressure due to local customs to have a son himself, to carry on the family name. However, he and his wife only had two daughters, and after the birth of his second child, the authorities forced his wife to have a tubal ligation. The applicant subsequently felt useless because he could not “carry on his family line.”
The fact the applicant’s wife did not bear a son caused marital problems: the applicant claims that he blamed his wife for only having daughters, while she insisted that having a boy depended on the man instead of the woman.
During this time, the applicant was a self-employed [Occupation], and through one of his contracted jobs – on a large [project] – the applicant met Mr [A], a devout Christian. The applicant later learned that Mr [A] was a member of the Local Church and the [relative] of a church elder.
The applicant began attending Local Church meetings in February 2007 and was baptised into the church [in] June 2007, by Mr [A]’s [relative], [Mr B]. Influenced by his newfound faith, the applicant successfully reconciled with his wife, and he encouraged her to attend church meetings. In January 2008, his wife was baptised into the Local Church.
In August 2008, a doctor affiliated with the church undid the tubal ligation, and [in] 2009 the applicant’s wife gave birth to a third daughter. [In] 2012, a son followed. Because of China’s one-child policy, the applicant and his family were forced to leave his hometown to avoid attracting the attention of the local authorities, and moved frequently.
In December 2012, the applicant and his family returned to [Town] and paid the social compensation fees owing due to breaching the one-child policy. These fees amounted to RMB 235,000 (A$48,875) but were necessary to obtain a family register, enabling the children to access healthcare. The applicant’s third child was in the interim an unregistered “black child”, with any medical treatment she sought – including immunisations – carrying significant financial cost. The applicant’s third and fourth children were registered in January 2013, after the applicant borrowed significant sums from relatives and friends.
After paying the social compensation fee, the applicant learned through a church sister that the fees were artificially inflated and embezzled by corrupt local officials. The applicant was angry to learn of this and began agitating for “basic human rights”, including contacting others who had similar experiences in his local area. He encouraged those affected people to file complaints with the local government asking that the money they paid be returned, and to publish detailed information about the social compensation fees imposed by the government.
The applicant also took aggrieved citizens to the Fuqing City government offices demanding an investigation into local corruption in [Town]. Despite promises to investigate local corruption, the applicant claims the Fuqing city government failed to act, and so led an open protest to produce social impact and put pressure on the government.
[In] June 2014, the applicant was arrested by the Public Security Bureau (PSB) following a tip-off that he “would harm public order and threaten national security” through his Local Church affiliation. The applicant was detained for more than five weeks and pressured into giving names of church members; he claims that he was tortured. [In] July 2014, the applicant’s wife bribed the local authorities to release him on bail. His bail conditions required him to report to the police weekly. On the suggestion of a local church member, the applicant secretly organised to leave China, and left – via Guangzhou – [in] September 2014.[1]
[1] Departmental File: [number], f. 23.
Since arriving in Australia, the applicant claims that his wife, parents, and sisters have experienced trouble with the police. He fears that, if he returns to China, he will be arrested and imprisoned for many years. The applicant has additionally continued to attend Local Church gatherings in Australia.
The applicant arrived in Australia [in] September 2014 as the holder of a [temporary] visa and lodged an application for a protection visa on 28 October 2014 with the assistance of a migration agent. A delegate of the Minister refused his application on 3 February 2017, and the applicant provided the Tribunal with a copy of his decision record.
Membership of the Local Church in China and Australia.
The applicant gave evidence that he initially came into contact with the Local Church in China when he was a contractor on a job and met a man who listened to his troubles with his wife and introduced him to the gospel and the Local Church. At that time, he was actually unaware that it was not approved by the government. He initially started attending gatherings at people’s homes, in groups of 12 – 30 people. When asked what attracted him to the church, he indicated that it was a particularly difficult time for he and his wife and they felt they were being punished for not having a son. His friend explained that Jesus would help people in need. Initially he attended alone but later his wife began to attend. He first became involved in January 2007. He described feeling his spirit freed, and feeling joy that his brothers and sisters in the church were so keen to help him. He confirmed that the gatherings never encountered any trouble with authorities, though they also never worshiped in the open. He and his wife were both ordinary members of the Church.
It was noted that in his initial claims, the applicant had said that his membership of the church was somehow related to his arrest. He confirmed that when he was arrested, the police alleged that he was under the influence of a cult, and knew of his involvement in the church. He does not know how they learned that. At hearing, the applicant confirmed that his wife still attends gatherings as far as he is aware, but only occasionally and never ‘in the open’. She has not told him of any problems encountered by the church since he left.
The applicant gave evidence that he has attended the local church in [Australian City 1] since coming to [Australian City 1] very soon after he arrived in Australia. I note that this does not correlate with the delegate’s description/assertion in the written decision that he remained in [Australian City 2] until August 2015. The applicant explained that he arrived in but did not stay in [Australian City 2] more than a few days when he arrived. He knew someone who he thought lived in [Australian City 2] but when he got there, discovered that friend lived in [Australian City 1], so he immediately flew to [Australian City 1]. Then, he was referred to a legal representative who was in [Australian City 2] so he flew back to [Australian City 2] and stayed with a friend at the time he lodged his application for protection. He gave that friends’ address in [Australian City 2] as his address because that was the most permanent address he had to give. He neither worked nor attended Local Church gatherings in [Australian City 2]. He was really guided by friends as to what he did at that time because he was unfamiliar with Australian rules and laws. At hearing, the applicant’s representative confirmed that his office had misunderstood the applicant’s living location at the time his application was lodged and in fact assumed that he lived in [Australian City 2]. The applicant said that he made contact with the Church in [Australian City 1] quite soon after he arrived, and started to attend church.
In relation to the applicant’s understanding of his faith and his description of how he became involved in the Local Church in China, I accept his evidence. He has consistently described his sadness about the damage to the marital relationship due to the oppressive restriction on he and his wife’s capacity to have more children, his connection with the church which in fact relieved that burden from them (by introducing a doctor to reverse his wife’s sterilisation), the birth of two more children subsequently and his subsequent involvement with members of the church. I have also considered the applicant’s evidence about his faith. He was able to describe basic Christian tenets, his own connection with those ideas, the practices of the church and how it was conducted in Fujian. Whilst I would not consider him to be necessarily ‘devout’ in terms of ideology, I accept that he has a strong and quite deep connection to the fellowship and community of the Local Church, and a solid theological belief in his faith.
Shortly prior to the hearing, the applicant provided to the Tribunal letters from several contacts in the Church in [Australian City 1], attesting to his attendance and genuine faith, including from the Church in [Australian City 1] leadership, [names deleted]. He also provided letters from [Ms C], [and other named persons], all of whom described knowing the applicant through his involvement in [meetings] and gatherings. During the hearing, I endeavoured to call the Church in [Australian City 1] brothers who had written the most recent letter but they did not answer. The applicant told me that Ms [C] knew him the most from the list of persons who had provided letters of support. I endeavoured to call her but there was no answer on the number given. The applicant advised that the next closest of his friends who had written a letter would be at work and unavailable. He advised that he had not forewarned the witnesses that we would be calling.
As I informed the applicant at hearing, after reading the letters and considering his evidence to that point, I accept that he is [an] adherent and that he regularly attends meetings in [Australian City 1]. I did not consider it necessary to continue trying to contact the witnesses and would accept the content of their letters as supporting his claims. Indeed, having considered the whole of the information before me and the applicant’s evidence, I accept that the applicant is a genuine Local Church adherent, both in China and in Australia. I accept that he commenced his involvement with the Local Church in 2007, in China.
DFAT’s most recent China report contains the following information about religious freedom in China. I have had regard to that general information and discussed aspects of it with the applicant at hearing. According to Department of Foreign Affairs and Trade Country Information Report: China 3 October 2019:
Religion
3.28 China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
3.29 In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
Religion in Fujian
3.33 While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.
3.34 Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.
3.35 Because of poverty and poor agricultural productivity, Fujian residents have a long history of
emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.
3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state-sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country.
Government Framework regarding Religion
3.38 Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to e gage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups. ..
3.40 The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level…
3.44 Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.
3.49 While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.
Other groups, including ‘cults’
3.93 The Criminal Law provides for prison sentences of up to seven years for individuals who use
‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or
administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.
3.94 In September 2017, the government published a list of 20 banned groups on its official Anti-Cult
website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the
Yuandun Dharma Gate, and the South China Church.
3.95 Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.
The Shouters (Local Church)
3.105 The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and
‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.
3.106 The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouterssplintered into several groups including Eastern Lightning (also known as the Church of Almighty God, see Eastern Lightning). DFAT is unable to verify the extent to which Shouters remain active in China.

I accept that the country information reflects that the Local Church is one of the banned Xie Jiao organisations in China and therefore that participation in the church is subject to potential arrest, detention and punishment, particularly of those deemed to be leaders of the church. However, the country information also reflects that generally, crackdowns on the small unregistered house churches have been more prominent in other provinces, such as Henan Province, Zhejiang Province and Sichuan Province,[2] and that, consistent with DFAT’s report, small groups of unauthorised or banned House churches in Fujian province are generally able to practice their faith, (albeit by maintaining small numbers in groups and maintaining secrecy in their gatherings) without official impediment. This is of course consistent with the applicant’s own experience of joining and practicing his faith before he started a social activist movement in his area.
[2] UK Home Office Country Policy and Information Note China: Christians November 2019 at 6.1.5 – 6.1.8.
However, the applicant’s claim is that his involvement in his church is now known to the authorities and has been linked to his social activism, though he does not know how that occurred. He suspects that someone discovered he had been rallying fellow church members to agitate for change in the Family planning administration and reported the link to the church. In any event, I accept that the applicant now has a profile as a person who is both a Local Church member in Fujian province and has also been arrested for using that organisation to agitate for social change in relation to the family planning administration in Fujian Province.
The applicant’s claim to fear persecution and detention due to public protests about corruption in Fujian.
The applicant described in detail his outrage when he discovered that he had been grossly ‘overcharged’ the social compensation charge and his view that it was directly the result of corruption of local officials. He gave detailed and comprehensive evidence consistent with his earlier written evidence of the approaches he and others made to the local authority and then to the Fuqing authority. He was able to describe the attitude of the relevant officials, who appeared supportive and promised to investigate but who then did nothing. He described how he then proceeded to arrange a public protest at the Fuqing Authority but was arrested one day before it was to occur because someone informed the PSB of the plans.
I note that DFAT’s most recent country information report on China includes the following information:
3.134Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. While construction issues account for around 40 per cent of labour issues, in line with changing patterns of migrant work (see Employment), NGOs working on labour issues claim an increasing trend towards protests over service sector work (more than 20 per cent), rather than industry and factory work.
3.135Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
3.136China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing. The SCS can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government (see The Social Credit System).
3.137In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise. A series of protests over land appropriation in 2011 in Wukan, a village of 20,000 people in Guangdong province, led to the resignation of local officials and direct elections of village office-holders. While hailed at the time as a sign of greater openness to democratisation, in 2016 provincial authorities arrested the popularly elected local chief, sparking further protests. In contrast to 2011, authorities violently suppressed the 2016 protests and excluded foreign media (including from Hong Kong), some of whom claimed themselves to be victims of police violence while attempting to cover the event. Police blockaded the village, preventing access to goods and services, and local leaders received lengthy sentences (up to ten years in prison) for their role. In November 2017, media reported the village remained under lock-down and a provincial level ‘Wukan Mass Working Group’ had been established, with 100 staff responsible for ensuring stability by marshalling a network of informers, security patrols, surveillance systems and floodlights in the village.
I accept the applicant’s claims and evidence about his complaints and protests and representations to the local village authority and then to the Fuqing authority seeking investigation of corruption in the Fujian family planning authority. I accept that through his church, he met other families who had been overcharged and that he began to organise them to make formal complaints, and to seek redress. I accept that he was arrested [in] June 2014 and detained on the premise that he was ‘seeking to overthrow the government’ by using a banned organisation (the Local Church). I accept the applicant’s evidence that he was questioned and held in detention and that he was subjected to physical restraint by thumb cuffs behind his back, and find that he was not subjected to any other conduct which could be described as torture, or abusive or degrading conduct whilst he was in custody. I accept also that he was released on bail [in] July 2014, and that the bail was paid by his family, and that he subsequently had to report to the police every Monday, thus restricting his capacity to work.
The applicant gave evidence that, after he departed China, the police initially attended at his family home often to harass his family and seek to locate him, sometimes in the middle of the night. The police more recently try to persuade his family to get him to return home. They don’t harm his family, but look around and see if he has been in contact with them or with anyone suspicious. This harassment was frequent at the start but now it is less so. I consider this evidence to be reliable and I accept that the applicant continues to be of some interest to police and authorities in his home area of China due to his political activism in the past and his failure to honour the terms of his bail.
I also accept that a Church friend organised his Australian [visa] and that he had absolutely no idea how it was organised or the information on which it was based, because he relied on the agent to get him a visa as quickly as possible so he could leave before he was re-arrested and subjected to ongoing detention, due to the ongoing PSB investigation.
I have taken into account that some country information suggests that restriction from departure may occur if a person is recorded as a person of interest by the PSB. The applicant’s description of his circumstances suggests that he might well be a ‘person of interest’ and therefore be placed on a non-departure list - but country information also reflects that this travel ban is not foolproof, nor is it immune from corrupt ‘bypass’.[3] I note that the applicant already had a passport, and may not have been identified as a ‘flight risk’ when he was released and before he fled. He also left from Guangzhou (Guangdong Province) and not Fujian, which may also plausibly explain his avoiding local Fujian ‘black listing’ (if it was in effect). I found the applicant’s evidence about his departure to be reasonable and plausible. I accept that he may potentially still be under investigation in China for social activism which has been linked to his religious involvement with the Local Church. I also accept that he fled the country in fear of ongoing arrest, interrogation, detention and prosecution merely for his religion and for having sought accountability of local corrupt family planning officials.
[3] See for example Immigration and Refugee Board of Canada information request response 22 September 2015: [Source deleted]
The applicant’s fear of harm based on China’s restrictive family policies
I have noted the information in DFAT’s most recent report on Family Planning Policies:
3.195 China has had nation-wide family planning policies since the late 1970s, aimed at controlling population growth (initially in response to famine), in support of China’s economic ambitions. Article 25 of the Constitution states ‘the State promotes family planning so that population growth may fit the plans for economic and social development.’ Article 49 states ‘marriage, the family and mother and child are protected by the State. Both husband and wife have the duty to practise family planning. Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents.’
3.196 The government manages family planning under the Population Law (see Women), which has historically required government departments, state media and schools to advocate family planning policies. Such policies include encouraging late marriage and childbearing, and limits on the number of children permitted per family. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple. Exceptions were permitted if both spouses were sole children; the first child had a disability; both spouses were members of ethnic minorities; or, for rural residents, the first-born child was a girl. From 2013, couples were also permitted to have two children if either spouse was a sole child. However, concerned about its ageing population, the National People’s Congress published a new amendment to the Population Law in 2016. The 2016 amendment included the implementation of a ‘two child’ policy (subject to other health, age and timing requirements), the abolition of forced contraception, and changes to certain leave entitlements for parents (including maternity and paternity leave). Lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. Interpretation and implementation of the policy varies enormously across China (see Family Planning in Fujian).
3.197 Authorities enforce compliance with family planning regulations through both incentives and punishments. There are financial and administrative penalties for births that exceed limits or violate regulations. The law, as implemented, requires each woman with an unauthorised pregnancy to abort or pay a ‘social compensation fee’ (SCF, ‘shehui fuyang fei,’ also known as ‘social maintenance fees’).’ The parents of each unapproved child must pay a SCF. The national law does not set out a fee schedule that applies to all localities; exact SCF amounts vary widely across and within provinces, and on individual financial circumstances.
3.198 County-level governments collect the revenues from fees. Authorities calculate individual SCFs 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 (see Family Planning in Fujian). In some cases, this can amount to up to ten times a person’s annual disposable income. Information on actual fees charged is difficult to obtain as they are subject to local discretion (leaving open the possibility of individual or institutionalised manipulation). DFAT is aware of, but cannot verify, reports of people falsely presenting themselves as officials to claim SCF illegally.
3.199 Both the previous and current 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 SCF, irrespective of hukou status (see Hukou (household registration) system). The hukou 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.
Prior to the 2016 amendment, SCF payment ensured children born in violation of the birth restrictions had access to government-provided social services and rights under the hukou system. However, following the 2016 amendment, children born before 1 January 2016 have a right to hukou and access to health and education services irrespective of SCF payment. 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.
3.200 Some parents still avoid the SCF by hiding children born in violation of the law with friends or relatives. Such hidden children do not have access to social services and rights under the hukou system (see Children). Awareness of SCFs is widespread and, in many cases, couples wishing to have an additional child will save the required SCF. In these cases, the SCF operates as a pseudo tax, rather than as a punitive arbitrary measure. Local authorities have the discretion to decide whether to impose a more lenient fine if parents report an outof-policy (child born to a single woman) or unauthorised birth (additional child born to a married couple) 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 also pressure the parents of out-of-policy and/or unauthorised children. In some provinces or counties, authorities have also imposed fines on entire work units in addition to the individuals concerned.
3.201 Officials can receive rewards or penalties based on meeting population targets set for their administrative region. However, the change to the two-child policy, as well as a broader reluctance among a large proportion of the population to have no more than two (and in some cases no more than one) child, have made it easier to achieve population targets in recent years and reduced pressure on local officials (also see paragraphs 3.207-208 regarding foreshadowed policy and budgetary changes).
3.202 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).
3.203 Media reports that authorities have employed coercive practices (such as forced abortions, sterilisations or invasive medical inspections) in order to force compliance with family planning policies. International NGO reports suggests the incidence of coercive practices has reduced since the introduction of the two-child policy. Nevertheless, the US State Department reports regulations requiring women who violate the family planning policy to terminate their pregnancies still exist and were enforced in some provinces in 2017, including Hubei, Hunan, and Liaoning, and other provinces, such as Guizhou, Jiangxi, Qinghai, and Yunnan, also maintained provisions requiring ‘remedial measures’ (which the US reports is an ‘official euphemism for abortion’). DFAT notes reliable data on the frequency of coerced or forced abortions or sterilisations is not available. While family planning officials face criminal charges and administrative sanctions if they violate citizens’ human or property rights, abuse their power, accept bribes, misappropriate or embezzle family planning funds, or falsely report family planning statistics in the enforcement of birth limitation policy, forced abortion is not specifically listed as a prohibited activity.
The applicant’s description of his difficulties concerning the lack of an heir and his wife’s sterilisation after the birth of their first two daughters is consistent with the China’s reported family planning regulations. Whilst reports of forced sterilisation in Fujian are said to be scarce, the country information suggests that it can occur. The applicant has consistently explained the lengths that he and his wife went to in order to continue having more children, including a reversal of a sterilisation procedure, hiding in a nearby village, hiding the third child and not returning until the fourth child, a son, was born and in order to register them. He described how arrangements were made to pay the necessary social compensation fee of two hundred thousand RMB. I accept his evidence that he tried to negotiate on the amount and time to pay the fines off but found the local authority unwilling to delay collection of the fees or to register the children before the payment of said fees. I accept that they had to borrow money to pay the social compensation charge, and the fees had to be paid in order to register the children in their home town. I accept the applicant’s evidence on these matters as consistent with the country information and plausible.
Nonetheless, the children are now registered and despite their breaching the regulations in the past, the local family planning authority has taken no additional action to forcibly sterilise the applicant or his wife. The relevant social compensation fees have been paid and the children registered. The applicant and his wife have no desire to have more children now that they have a son. In those circumstances, I do not accept that there is a real chance that the applicant will face persecution (forced sterilisation or further fines) on account of him having breached the family planning laws if he returns to China, now or in the reasonably foreseeable future.
Findings on refugee criterion
The applicant fears persecution by the Fujian Government or the Public Security Bureau, and local police in China because of his religion (membership of the Local Church) and his political opinion (he is perceived as opposing the authority of the Government of China – particularly in this case the Fujian Family Planning office - by alleging and protesting corruption of officials.) Religion and political opinion are both convention reasons for the persecution he fears.

The applicant fears being subjected to arrest, interrogation, physical torture and abuse in detention, and to being detained for a period up to seven years due to his involvement in a banned organisation; and also due to social activism through his Local Church connections. I consider that the persecution he fears involves serious harm as required by s.91R.
As noted above, I have accepted that the applicant has been identified as a member of the Local Church in Fujian province, and also as an activist, organising protests against corruption of Fujian family planning officials. I have accepted that he has already been imprisoned for that activism against perceived corrupt local officials (and for ‘using’ an illegal cult to do so), and that he was released on bail with stringent reporting conditions. I am satisfied that he has now also potentially drawn added official interest because he failed to honour his bail conditions. I consider that the applicant has a profile as a person who would be of interest to the local village authorities, the PSB and the Government of China if he were returned to the country, because he has that history. When these claims raised by the applicant are considered cumulatively, and taking into account the country information referred to above, I find that there is a real chance that on return to China, the applicant will be again arrested and prosecuted and potentially subjected to physical torture and abuse and lengthy detention due to his profile as a person who is an adherent of the Local Church and also as a social activist with a record of being arrested in Fuqing (and having failed to honour bail conditions). Indeed, his mobilisation of his church members to protest official corruption is the very conduct that country information suggests places him at risk of police and official investigation and interest, including arrest and detention. Given his departure in breach of his bail and the ongoing interest in him after that departure, I consider that it is likely that he has by this stage been ‘tagged’ as a dissident/cult member and that on his return, those officials interested in him would be alerted to his presence.
The persecutors in this instance are the Government of China, its local authorities, security department (the PSB) and police. Consequently, the applicant is unable and unwilling to seek protection of the very authorities from whom he fears persecution. State protection is not available to him in China. As the agents of the government are the persecutors from whom he fears harm (and bearing in mind the overarching power of the CCP in China and also that the PSB has branches and influence throughout the country,) I find that the applicant is not able to reasonably relocate within China to avoid the persecution he fears.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Anne Grant
Member

[2019] AATA 5752

19 December 2019

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