1704066 (Refugee)

1704066 (Refugee) [2021] AATA 1020 (22 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704066
COUNTRY OF REFERENCE:                   China
MEMBER:Rachel Westaway
DATE:22 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 March 2021 at 1:35pm
CATCHWORDS
REFUGEE – protection visa – China – applicant born before announcement of the second child policy – parents’ ability to pay the Social Compensation Fee – religion – Christianity – engaged in church activities in Australia – practice in an unregistered family church in China – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
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 13 October 2014 and the delegate refused to grant the visa on 16 February 2017. The applicant provided a copy of the delegate’s decision to the Tribunal when applying for review.
The applicant appeared before the Tribunal on 23 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
RELEVANT LAW
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.
Refugee criterion
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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 applicant is a female child born in Australia on [date]. A copy of her birth certificate was supplied with her visa application[1]. She claims to be a Chinese citizen born to Chinese parents.
[1] DIBP [file reference] f:35
Her parents are listed on her birth certificate as being [Ms A], her mother and [Mr B], her father. Also listed is a sister, [Ms C].
The applicant is an infant and her protection application was prepared by her parents. In the section of the protection visa application which asks for ‘your reasons for claiming protection’ (Questions 43 to 49), the applicant stated “please check attachment”. In summary, she advised that she was seeking protection in Australia so that she did not have to return to China.
The attachment was a statement written by the applicant’s mother on her behalf. The statement read as follows:
·     Her parents and sister applied for protection in 2011 and hold a bridging visa E.
·     Her parents cannot renew their passport because they have applied for protection.
·     She stated that her future is surrounded by darkness and without a glimmer of light as she is not able to apply for a passport to China or Australia.
·     She is afraid to return to China as her parent’s application was refused.
·     Under the Population and Family Planning Law of the PRC there is a one child policy and the second child must register and pay a fine and also this applies twice to her family as her sister was born outside of her parent’s marriage so she will receive an additional fine.
·     Her family are not rich and her father is the only financial provider and they do not have the ability to pay the fines.
·     She is afraid her sister will be arrested and not permitted to have vaccinations.
·     She claims she is also concerned about her own health and wellbeing.
·     As she will not have a household registration, she will not be able to live lawfully or be able to attend school and this will affect her future.
·     She is unable to support herself due to her age.
The applicant provided a copy of the delegate’s decision.
The decision, in summary found that the applicant’s father lacked credibility sighting his claims of religious manner were fabricated for the purposes of applying for protection and that the applicant’s father did not have a well-founded fear of persecution in China on religious grounds or for any reasons. The delegate also found that the applicant’s father’s failure to marry the mother of his children before their first child was born was a deliberate action to enhance his protection claims.
The delegate also considered the ‘Social Compensation Fee was a legitimate government objective and policy in place to manage population growth and support demand on resources and was applied across the entire population of the PRC in a non-selective manner and that the fees imposed for a breach of family planning laws were not excessive and that families experiencing hardship were given additional time to make payments and that parents whose children were born overseas may be exempt.- the applicant applied for review of the decision to the RRT again claiming that as a black child the family would face harm however in reviewing the matter the Tribunal affirmed the matter.
On the day of hearing the applicant provided additional submissions in support of her claims[2]. They are summarised as follows:
[2] Tribunal file 1704066, folio 20-42.
Certificates of Baptism for the applicant dated [in] August 2014, the applicant’s sister [dated in] November 2011, the applicant’s mother dated [dated in] November 2013 and the applicant’s father [dated in] November 2013. An additional certificate of baptism for [Ms D] was also supplied dated [in] December 2017. This is the youngest sister of the applicant.
Also provided were certificates of membership to [Church 1] in Australia for the applicant’s father and mother.
Photographs of the applicant’s family at church during the baptism were also supplied including the applicant’s attendance at Sunday school and the applicant’s parent’s involvement in the church choir and at ‘disciples studies’. Photos also indicated that the applicants older sister is involved in the church choir, that they have visited the Pastor’s wife in hospital and that the applicant’s mother was involved in the inauguration of the youth fellowship and was secretary.
The applicant provided an online article from Bitter Winter indicating the battle between the Ten Commandments and the fact that the Party’s wishes come first and Chinese must obey the party first. The applicant supplied a copy of a photo which depicted a sin which was torn down of the Ten Commandments and which the article claims was replaced by quotations from XiJinping.
Some congregation were threatened to be blacklisted and travel restricted and schooling and future employment of their offspring will be impeded if they disobey orders by the communist party.
One preacher was reported to say that the CCP is not eradicating house churches but destroying the three-self churches by eroding the Christian doctrine. It stated that the first step of the government will be to dismantle crosses and then insist the flag must be erected and core socialist values to be promoted and placed in churches. It also stated that churches have been used by the party and taken over as meeting places and agreements have been forcefully signed.
Oral evidence provided to the Tribunal hearing
The applicant’s mother provided oral evidence on behalf of her daughter at the hearing.
The Claims
The Tribunal asked the applicant’s mother why she was afraid to return to China.
She explained that she wants the Tribunal to consider her religious beliefs and explained that second child born before 2^nd child policy was announced and so she will continue to face hardship and will not be able to register her child if she returns to China. She explained that she is religious, and God says it is “the way the truth and the life”. She wants her children to take her beliefs forward.
The applicant submitted examples from Bitter Winter website which she claims support her arguments that the government contradicts what they tell the world. She stated that her daughter would not obtain registration and they would be persecuted for their religious beliefs. The website had images and articles claiming the government had taken over churches and removed religious signs and repurposed the buildings (Tribunal file ff:20-26).
She provided pictures of her parents at church and participating at church activities as well as baptism certificates.
She stated that her religious beliefs are important. She believes God is truly with her and religion is the truth. She hopes her children gain good things from her beliefs. She believes religious beliefs will help her have a strong spirit and if her children return to China, she fears that they will not have an opportunity to build strong spirits.
She believes it is important in life to build one’s spirit as people face depression and stress. She claims that religion gives people hope.
Family Background
The applicant’s mother explained that she arrived in Australia in 2007 and she came to study. She studied at high school and then community welfare at TAFE and she met her husband at school and they went to the same church.
Her husband came to Australia in 2006. They are both from Fujian province. They returned to China in December 2009 in December. The applicant’s mother return by herself. She remained for one month.
Evidence of Church Activities
She was asked where she developed her beliefs from. She said that when she arrived in Australia there was an Easter celebration and members of the church invited people to attend and she went. She was alone but when she went to church, she felt peaceful and happy. The priest invited her to return to the church and her husband was invited as well and they went together. After this period they all went together, and they served God together. Every Friday they attended Youth fellowship and Sundays and Wednesday night prayer meetings. The children have grown up in the church. It is [Church 1].
The Tribunal asked the applicant if she understood the difference between other denominations and she stated that she believes in Jesus. She said that she has attended every Friday and Sunday for many years.
The Tribunal put to the applicant DFAT country information and summarised the articles and asked why she is afraid. She said they cannot freely serve God and she said that the Chinese Government will teach you not to believe other beliefs. She said that she believes the party leaders see themselves as God. She does not want her daughter from a Christian family forced believe in the communist party. She said that this is a depressing feeling and she doesn’t want her daughter to live in this type of environment. She will be affected, and they will be oppressed and then they will probably be forced to live away from their religious beliefs and this is serious.
She was asked why she didn’t raise these claims earlier and she said she was not baptised until more recently.
The Tribunal asked the applicant if there was something specific that would cause her daughter to be targeted or prevented from practicing her religious beliefs.
The applicant stated that the Chinese government has already constrained religious beliefs against God’s will. If her daughter returned to China, she will be distant from God and believes the Communist Party will be her God. If her daughter does not come to know God, it will cause her harm and will be manipulated by external forces.
She was invited to explain her concerns to the Tribunal. She stated that the applicant was born before an easing of the one child policy and a fine will still exit. She stated that the applicant is the second daughter will be fined and the family cannot afford this.
The Tribunal asked the applicant’s mother is knew what the fine was, and she said she believes it is approximately RMB 20,000. She was asked if she could afford RMB 20,000. She said for now they are struggling just to cover education in Australia for their eldest child.
She explained that she and her husband have younger brothers and dowries must be paid to the girl’s family and their brothers have not yet been married. Her parents would focus on dowries before they would not assist in paying fines. The Tribunal put to the applicant that this is a choice but queried why a fine would not take precedent. She said in her family it would not. Her mother is unwell and so this is costing money and her husband’s parents are fish farmers so are not wealthy. She said that in China it is customary to look after your parents, but they don’t have the ability to do this and they can’t and should not ask for their money to help them.
The applicant’s father is a [Occupation 1] working on [specified projects] and he also works with [product]. She confirmed that they do send money to China for their families but not regularly.

She stated that her father worked in processing [product] and in sales.
The Tribunal put to the applicant that a fine of RMB20,000 would at that point be approximately A $12,000 and asked if it was possible that given her husband works for himself and can earn an income and with some support from their respective families they could afford the fine for their daughter with a payment plan in place. The applicant stated that this is the lowest possible amount and in the end the fine depends on the government and it could possibly be larger and is unpredictable.
She explained that based on her situation now, they worry about children’s school fees and face everyday living difficulties and would struggle trying to meet everyday outgoings.
She explained that she would find the lowest fine impossible to pay. She confirmed she had a job in retail sales.
She said if she can’t pay the fines then she cannot register her children and they will become black children and they will not receive education or health care in China. They will struggle more. They would need a long time to fit into a new lifestyle and employment is hard to find in China and they have contacted friends who have returned to China and their money barely covers their daily expenses.
The Tribunal took oral evidence from [Ms E], the Godmother of the applicant who has known the applicant through the church as she is a youth leader. She confirmed that she met the family through their involvement in [Church 1]. She and the applicant’s mother were in the youth fellowship together. She confirmed the applicant’s mother is from Shanghai and the father is from Beijing.
Her professional job is as a [Occupation 2] at [employer]. She confirmed she has known the applicant’s family for 15 years. They originally met through school. She said that she is good friends with the family and she worries about them as they have no certainty. She also stated that the applicant’s father can become stressed and he struggles to say things clearly.
[Ms E] stated her knowledge of the religious environment in China is subjective. She stated that the Reverend at their church goes to China every year on an evangelistic trip. She said that the Embassy interviews him and asks what he is doing. She said that training or bibles are not available in China anymore. She said that he takes bibles with him. She also stated that she has heard that visitors are saying they can’t hold meetings without the Chinese government agreeing. She explained that they cannot have evangelistic events and put to the Tribunal that how can you be in the Christian community if you can’t do this.
She gave another example of friends from China who come to Australia on bible studies tours. They spoke of wanting to arrange a children’s camp and they were told they could not do it, so they turned it into a moderated chat with parents instead. She said this hard-line approach is occurring more frequently. If the children return to china their faith will be impacted and it would be detrimental to them and their family.
She said that Bibles can be distributed privately but not publically. You need to obtain them by underground means and it’s difficult. She explained that you cannot tell anyone about Jesus, or you will be arrested. This is a new phenomenon and it is of concern. She gave a personal perspective. She stated that the mental stress on children attending church in China is so great that it will have a psychological effect on them.
The last time she went to China was three years ago and prior to that 10 years ago. She said that she didn’t go to church because there was no sister church in China that she knows of. She is not aware of an equivalent.
DFAT Country Information Report People’s Republic of China
Country information was provided in detail to the applicant’s mother and she was invited to respond. The Tribunal discussed Fujian Population and Family Planning Regulations and the most recent DFAT’s Country Information report for the people’s Republic of China. The Tribunal has also considered updated DFAT reports since the hearing and notes that no further changes have been made to household regulations or churches since the time of the hearing which would alter the assessment of the applicant’s claims.
Government
China is a one-party state governed by the CCP. While minor political parties exist, they are approved by and subordinate to the CCP.
China’s Constitution provides for freedom of speech, the press, assembly, association and religious belief. Article 33 states that ‘all citizens of the People’s Republic of China are equal before the law. The State respects and preserves human rights’. In practice, however, China’s Constitution is non-justiciable and these freedoms are significantly curtailed. China’s one-party political system lacks effective safeguards to allow independent monitoring and investigation of human rights abuses by the state such as an independent media, judiciary or National Human Rights Institution.
Religion
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.
It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.
In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.
Several hundred million people observe to some degree aspects of Buddhism, Daoism and ‘folk religion’. Despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
Article 36 of the PRC 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 based on religion is prohibited by law.
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) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureaux, have significant discretion in implementing the regulations.
Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and must be independent of foreign associations (notably the Vatican). Protestants must be non-denominational. Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools. Unregistered religious organisations are illegal and vulnerable to punitive official action.
Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.
In April 2017, President Xi Jinping 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 to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.
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. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention.
In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.
Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or imputed) and Protesters/petitioners). Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or imputed)). DFAT assesses that the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.
People affected by Family Planning Policies
China has had nation-wide family planning policies since the late 1970s. China's Population and Family Planning Law (Population Law) came into force on 1 September 2002. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple, although couples could have more than one child where: 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 could have two children if either spouse was a sole child. Legislation requires government departments, state media and schools to advocate family planning policies. Concerned about its ageing population, the National People’s Congress amended the Population Law with effect from 1 January 2016. Changes included the full 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). The National Health and Family Planning Commission, the body responsible for overseeing the policy, reported that 2016 saw the largest annual number of births since 2000. 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 (for more detailed information on Fujian province see DFAT’s Thematic Report on Fujian Province, published 15 December 2016).
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.
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.
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.
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)).
DFAT is aware of 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. DFAT considers credible local and international NGO reporting suggesting the incidence of coercive practices has reduced since the introduction of the two-child policy. There are, however, no reliable data on the frequency of coerced or forced abortions or sterilisations.
Although China’s Marriage Law states that children born outside of marriage have the same rights as those born to married parents, children born out of wedlock continue to be considered to be ‘outside of policy’ under the two-child policy. Single mothers must pay social compensation fees and all medical expenses associated with giving birth. State subsidies for maternal and child services are available only with the permission of family-planning authorities, who require a proof of marriage. As a consequence, many single mothers give birth outside of medical facilities with associated complications for both mother and child. Single mothers can find it difficult to obtain birth certificates. Children born outside of policy are not eligible for hukou and the health and education services that registration provides.

The applicant’s mother responded and stated that God has helped her conquer difficulties in her life and throughout the years she has faced depression and felt hopeless in life and God has led her. She wants her daughter to be able to practice her faith and she does not believe she will be able to freely in China. She believes spiritual growth is important to a child. She does not want her child oppressed. Sometimes mental harm is worse than physical harm.
The applicants mother’s reiterated she could not afford the social compensation fees.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the complementary protection criteria.
The Tribunal is satisfied that the applicant is a citizen of China. Although she has not provided a Chinese passport, the Tribunal is satisfied that based on his parent’s citizenship, she is a Chinese citizen, which is consistent with her claimed citizenship. Therefore, the country of reference for the protection visa assessment is China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claim of harm based on being a ‘black child’ and parents’ inability to pay the social compensation fee
The applicant’s mother accepted that the applicant would be able to obtain household registration in China but could not afford it.
The change in China’s family planning policies are detailed in the 3 October 2019 Department of Foreign Affairs and Trade Country Report on China which was discussed in detail with the applicant.
‘Both the previous and current population law require those who give birth to a child in contravention of planning (including a second child born before 1 January 2016) to pay the social compensation fee, irrespective of hukou (household registration) status. The hukou system ties access to services including health and education to an individual’s lace of birth, or in some circumstances, their parent’s place of birth. Prior to the 2016 amendment, social compensation fee payments 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 the social compensation fee payment. Children whose authorities’ birth might have previously gone unregistered are now by law able to apply for hukou irrespective of whether their parents have paid the relevant fees.” (at 3.199).
The applicant’s mother explained that no matter how small the social compensation fee was she could not afford it as currently they can barely afford education in Australia. The applicant stated that friends and family have told her it is hard to earn money in China and cover daily expenses. However, the applicant has confirmed she and her husband have an extensive family in China. She has confirmed that there is money which has been put aside for dowries for their younger brothers and whilst she stated that she would not ask parents for assistance and that the money for the dowry could not be used to pay fines, the Tribunal raised with the applicant that this is a choice. Further, the Tribunal explained to the applicant that payment plans could be made, and the tribunal also noted that the applicants have been sending money back to their families in China which would assist in easing the burden of asking for assistance. The applicant stated that her daughter would be prevented from obtaining an education and vaccinations without a registration and this is the harm she is concerned about. The Tribunal concludes that the harms would not arise if the social compensation fee was paid and that there would be an ability to pay this albeit with assistance of family and as such this harm is negated. Further, the applicant’s mother works in retail sales and her father is a [Occupation 1]. Whilst these are not highly skilled jobs, they are jobs obtainable in China and which would assist in earning an income to survive and have a payment plan in place. The applicant expressed concerns that the government is not consistent in their approach to fines. The Tribunal does not accept this unsubstantiated statement, or the Chinese government would not issue a table of fines associated with social compensation fees.
The approach to the issue of payment of the social compensation fee, as it relates wo the Fujian province in China is discussed in the 3 October 2019 Department of Foreign Affairs and Trade Country Report on China.
‘The social compensation fee applies to both parents…. While it applies equally, fines can vary due to the different income level of different families. The provincial government also has discretion to arrange social compensation instalment payments to prevent families experiencing hardship.’ (at 3.213). ‘DFAT notes that reliable data on the frequency of coerced or forced abortions or sterilisations in not available.’ (at 3.204). DFAT is aware of a range of measures used in Fujian to secure payment of the social compensation fee, including applying pressure through personal calls and visits. In July 2015, the Fujian Health and Family Planning Commission signed a memorandum of understanding with the Fujian High Court, the Fujian Development Reform Commission and the Fuzhou Branch of the People’s Bank of China to list people who fail to pay the social compensation fee on a ‘black list’, limiting their ability to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their business, board planes or book soft berth tickets on trains.’ (at 3.216).
The Tribunal accepts that the applicant is the second daughter and second child of Chinese parents. The Tribunal is satisfied that the applicant will be able to obtain household registration in China and is satisfied that the applicant’s parents would be able to pay any applicable social compensation fee through instalments. The Tribunal is therefore not satisfied that there is a real risk of serious harm to the applicant on account of a failure to obtain household registration, or a failure of her parents to pay the social compensation fee. The Tribunal is not satisfied that there is a real chance that the applicant would face significant harm because the Tribunal is satisfied that the applicant will be able to obtain household registration in China, and that her parents will be able to pay the social compensation fee.
Claims that the applicant will be harmed because she and the family cannot practice their religion
It was claimed at the Tribunal hearing that if the applicant returned to China, she would attend church with her mother, father and sister. Evidence was provided showing pictures of the applicant and her family at church and participating in activities. Baptism certificates were also provided. Copies of articles from a website indicating the Chinese government will not tolerate the practice of religion and that it is not supported by the local authority in China were also provided. The applicant’s mother told the Tribunal that she was attending church services in Australia at [Church 1]. She provided a copy of a baptism certificate and oral evidence was provided by the applicant’s godmother of the family’s Christian beliefs and church involvement and concerns about China.
The Tribunal accepts, on the evidence before it, including oral evidence from the applicant’s witness, a fellow church goer and her Godmother that the applicant and her family have been attending church regularly and have been baptised in [Church 1]. On the applicant's mother’s evidence, the church is a small congregation that meets weekly. The Tribunal accept that the applicant attends [Church 1] with her parents and has been baptised as claimed.
The Tribunal finds that the applicant's mother’s knowledge of the Christian faith is demonstrated by her responses and attendance at weekly services. For present purposes, the Tribunal cannot with confidence conclude that the applicant is not a genuine Christian. Further it accepts that she would be taken to church with her mother if she was to return to China as claimed. It is satisfied, on the evidence before it, that the entire family have been engaged in church activities in Australia.

100. Having accepted that the applicant has been regularly attending a Christian church in Australia, it is prepared to accept that upon return to China the family would seek to find a similar environment to practice their religious faith there. She indicated in her evidence to the Tribunal that she is would be prevented in practicing in an evangelical way because it is controlled by the State.
101. Given her evidence and practice of religion since she has been in Australia, the Tribunal cannot discount the possibility that she will seek to practice in an unregistered family church in China upon her return.
102. Having regard to the country information, indicated above, the Tribunal finds that there is a significantly large and growing Christian population in China, with estimates of 70-100 million Protestants, of which less than a third belong to registered churches. DFAT concludes that 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 acknowledging that restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise, and those that practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions, religious practice which is at high risk of adverse official attention is generally that which the government perceives as being connected to broader ethnic, political or security policies. The State Administration for Religious Affairs (SARA) permits friends and family to hold small, informal prayer meetings without official registration. The Tribunal has also taken into account that there has been a tightening of religious policy in China and increasing crackdowns in recent years under President Xi Jinping. The available country information suggests that the interests of the government and through it, the authorities, in controlling or monitoring religious activities is to protect the authority of the Chinese Communist Party (CCP) and prevent undue foreign interference. There is nothing in the applicant's evidence of practice of her faith in Australia that indicates she is likely to engage in activities or be associated with individuals or institutions there in a manner that will attract adverse attention of the state. The applicant’s witness stated that their Reverend from the church has been permitted to travel to China for religious work. The Tribunal notes and takes into account that the witness, being a fellow congregant of the applicant's church, has travelled back to China to visit her family members without incident.
103. Having regard to this country information and the Tribunal's findings regarding the applicant's background and past history, the Tribunal is satisfied that she will be able to attend a church with her family and practice her faith without facing a real chance (as opposed to one that is remote) of serious harm for reasons of religion or political opinion were she to return to China in the reasonably foreseeable future.
104. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
CONCLUSION
105. The applicant in this case is a small child. The Tribunal is satisfied that at this age, a child has no agency other than her parents. The Tribunal is satisfied that if the applicant is required to return to China, her entire family in Australia (who remain here on bridging visas connected with the applicant’s protection visa application) will also return to China as a family unit. The applicant’s claims are that she faces risk of harm in China on account of the religious belief of her parents and that she will be prevented from living a Christian life and practicing Christianity. The Tribunal is not satisfied for the reasons outlined above that the Chinese government would prevent the applicant and her family from attending church and practicing their religion. The Tribunal accepts that there are greater restrictions on practice, however it does not accept that the applicant could not grow up as a Christian and live and practice Christianity in China. Taking all of that into account, the Tribunal is not satisfied there is real chance that the applicant will be harmed in China on account of her or her parent’s or older sisters claimed religious belief.
106. The Tribunal does not accept that the applicant will not be able to obtain household registration in China or that any social compensation fee will not be paid or be the subject of arrangements to pay by the applicant’s parents. The Tribunal rejects the applicant’s claims pertaining to this in their entirety.
Refugee
107. For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant due to her race, religion, nationality, membership of a particular social group, or political opinion.
108. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
109. 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).
110. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there is a real risk she will suffer significant harm.
111. Therefore, applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
112. There is no evidence 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).
CONCLUDING PARAGRAPHS
113. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
114. 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).
115. 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
116. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rachel Westaway
Senior Member

[2021] AATA 1020

22 March 2021

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Immigration

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