1707561 (Refugee)

[2018] AATA 5120

1707561 (Refugee) [2018] AATA 5120 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707561

COUNTRY OF REFERENCE:                  China

MEMBER:James Silva

DATE:9 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 November 2018 at 6:43pm

CATCHWORDS

REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – underground Catholic church – particular social group – unregistered (‘black’) child – child born out of wedlock – family planning laws – health and education services – social compensation fee – proselytising – secret Bible study group – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 438, 499
Migration Regulations 1994, Schedule 2

CASES

Chen Shi Hai v MIMA (2000) 201 CLR 293
Chen Shi Hai v MIMA (unreported, FCA, 5 June 1998)
MZAFZ v MIBP [2016] FCA 1081

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is [an age] year old boy born in Australia. His parents are nationals of China (People’s Republic of China, PRC), and act on his behalf in this matter. The applicant is a PRC national.

2. On 14 January 2014, the applicant[1] lodged a Protection visa application. On 1 September 2014, a delegate of the Minister for Immigration refused the application pursuant to s.65 of the Migration Act (the Act). The Federal Circuit Court dismissed the application for judicial review, but [in] May 2016, the Federal Court allowed the appeal and remitted to the Tribunal for determination according to law. The current Tribunal is now reconsidering the matter pursuant to the order of the Federal Court.

   [1] The Tribunal refers to ‘the applicant’, where his mother or father has acted on his behalf. It refers to his parents individually, when describing their circumstances and/or evidence that they have given on the applicant’s behalf.

3. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A. 

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

   CLAIMS AND EVIDENCE

   Claims

5. The applicant is [an age] year old boy born in Australia of Chinese parents who are PRC citizens.

6. The applicant’s parents presented claims on his behalf. The original written statement of claims focuses on the applicant’s future status in China as an unregistered (‘black’) child, and restates the mother’s claims to fear persecution as a member of an underground Roman Catholic church, to which she adds: ‘My son must be implicated [in] my case and he must become a victim of persecution if he were to move to China.’ In a statement dated 23 August 2017, the mother confirmed that the applicant relies on all the claims previously presented.

7. The relative importance of these claims has varied over time, in response to changes in the parents’ circumstances (such as their marriage in Australia) and country information in China, and they overlap to some extent. Following is the Tribunal’s summary of the applicant’s claims, which overlap to some extent, in approximate order of current priority:  

   §  Roman Catholic: His parents are practising Roman Catholics who do not accept the officially approved Catholic church; the applicant has been baptised as a Catholic. They claim that he will be unable to be brought up and practise as a Catholic in China, without the risk of persecution or significant harm

   §  ‘Black child’: The PRC authorities will regard the applicant as a ‘black child’, and therefore denied normal access to health, education and other basic services, for one or more of the following reasons.

   -   He was born out of wedlock, in violation of China’s family planning laws (although his parents have since married), and they will be unable to afford the social compensation fee that must be paid.

   -   Corrupt officials may set the fee at the upper end, or arbitrarily demand more money (extortion), for instance because the family has lived overseas and is suspected of being wealthy, making household registration even less affordable.

   -   At hearing, the mother suggested that, even if the applicant is not affected by family planning laws (now that the parents have married), they might still treat him as a black child because of her adverse profile (due to her illegal activities and proselytising in Jiangxi province), and deny him a hukou.

   §  Mother’s adverse profile: His mother claims that her adverse profile, and her intention to continue practising Catholicism, put her (and perhaps also the father) at added risk of detention and punishment, thereby leaving the applicant without guardians.

   §  Extortion: In addition to the risk that local officials will charge the family an exorbitant social compensation fee, because of their past residence overseas and the presumption that they are wealthy, they claim that there is a more general risk of extortion. 

   §  PRC authorities’ knowledge of protection visa application: The mother claims that officials at the Chinese [consulate in Australia] were hostile when the parents approached them to obtain passports or travel documents. Officials advised the mother that they are aware of the family’s protection visa applications, and intimidated her. She implied that this signals the PRC authorities’ adverse interest in her, and their likely intentions to harm her (and the applicant) if they return to China.

   Background

8. The applicant is [an age] year old boy born in [Australia] [in] November 2012. The application form identifies him as a Han Chinese and a Catholic.

9. The applicant’s parents are PRC nationals, and as such, he holds the citizenship of that country (see below for details on his nationality). The mother advised that the couple now also have [another child, named], born in [Australia] on [date]. The applicant parents married in [Church 1], [in] July 2016.

10. Given the applicant’s reliance on his parents’ circumstances as the basis for his protection visa application, the Tribunal summarises their background below.

11. The applicant’s mother, [named], was born in [year] (currently [age] years old) in [her] village, [in Town 1 in] Fujian. She described this as a rural area. Her parents separated when she was young, and she grew up with her mother and [sibling]. The applicant’s mother claims to have now lost contact with them, as they disapprove of the trouble that her religious activities have caused them.

12. The mother first arrived in Australia in October 2007, as the holder of a student visa. She departed Australia in December 2008 to visit China, returning in late January 2009. The mother held a student visa, but did not undertake any studies on her return, for lack of funds. The visa expired in March 2010, and she remained in Australia unlawfully until March 2012, when she was granted the first of successive bridging visas.     

13. The applicant’s father, [named], was born in [year] (also [age] years old) in Fujian. He arrived in Australia in June 2007 as the holder of a student visa that expired in March 2010. He too remained in Australia without a visa from March 2010 to March 2012, when he was granted a series of bridging visas, together with the applicant’s mother.

14. The applicant relies in large part on his parents’ claims for protection. They applied for protection visas on 23 March 2012, and the delegate refused to grant the visas on 28 August 2012. They applied to the (then) Refugee Review Tribunal for review of the decision, and on 17 December 2013, the Tribunal affirmed the decision not to grant them protection visas. The parents did not seek judicial review of the Tribunal’s decision. As noted above, on 14 January 2014, the applicant’s parents then lodged a protection visa application on his behalf, which is the subject of this review.

15. In the parents’ case, the delegate and the (first) Tribunal on review dismissed the mother’s claimed experiences as a Catholic in China, finding that they lacked credibility. In relation to this application (the child’s), the delegate noted that the parents had previously been found not to be owed protection obligations and were not eligible to apply for a further protection visa. The decision therefore focused only on the claims that pertained to the applicant himself (as a Catholic in Fujian, as a black child, and related claims). A copy of this decision is attached to the application for review.

16. The succinct summary below of the mother’s claimed experiences in China gives some context to the current claims.

    §  The mother’s parents were separated, and she grew up with her father, who was abusive. In high school (boarding school), she visited her roommate’s family, who were devout Catholics. She joined in Christmas celebrations in December 2005, and started attending a Bible study group from January 2006. Her roommate’s family were members of an ‘underground [Catholic] church’ that met secretly in the homes of church members.

    §  The mother was baptised [in] May 2006, together with two classmates.

    §  From September 2006, the mother, her roommate and their two classmates met secretly to pray the Rosary, at first weekly and then almost every evening.

    §  After arriving in Australia in October 2007, the mother learned that her three school friends had moved to [Town 2 in] [a named city in] Jiangxi Province. They had moved there on the pretext of working in a [product] business, but in reality the aim was to set up a secret Bible study group and evangelise to the local people.

    §  The mother returned to China in early December 2008, to see visit her own mother and siblings in Fujian. After a few days, she travelled on to [Town 2] to see her friends and participate in their secret meetings. On her arrival in Fujian, the mother was given the funds to be used for her tuition fees and future living expenses in Australia. However, she travelled to Jiangxi and spent the money that she had been given, to help with her friend’s religious activities. She bought a [specified equipment] for her friends, so that they could ‘manufacture Catholic teaching materials for the Bible study group of the underground church’. She also gave them RMB [amount] in cash. In other words, the applicant’s mother used the fees intended for her studies in Australia to support her friends’ proselytising activities in Jiangxi province.

    §  On 18 January 2009, just before her return to Australia, the mother was back in Fujian and learned from [Ms A] (one of the group) that the police had arrested the leaders of the Bible study group and some participants in Jiangxi the previous evening, at the shop where they worked. [Ms A] and a few others had managed to escape. [Ms A] alerted the mother that the police could well find out about her involvement in the group. The mother hastily left China [in] January 2009.

    §  The mother claimed that [two days later], Public Security Bureau officials visited her family in Fujian, and interrogated her parents and her siblings. The PSB officials told her family members that they have solid evidence of the applicant’s mother’s role in establishing and developing the ‘illegal’ Catholic church in Jiangxi Province. She told the Tribunal (in her own case) that in April 2013, the police put such pressure on her mother and [sibling] that they had to relocate, and she does not know their whereabouts. Her friends in Jiangxi were still in detention, to her knowledge. 

17. The father also claimed to be a Catholic, having been baptised at the age of about six. He did not present any protection claims of his own, as he did not have any personal experience of past harm on religious grounds. He claimed that he did not attend an officially approved Catholic church, and as a consequence, the congregation had no fixed place of worship and had to exercise some degree of caution. 

18. Relevantly, the Tribunal reviewing the parents’ case, and the first Tribunal in this matter (reviewing the applicant’s case) accepted that the parents are currently genuine Catholics, who had practiced in both Fujian and Australia, despite concerns about their credibility as a whole. The Tribunal in the parents’ case also accepted that neither parent ‘is prepared to worship at officially approved Catholic churches in China’. The first Tribunal (in the present case) expressed doubt about this claim, but ultimately did not find this determinative. In both instances, the Tribunals relied on country information and their assessment of the parents’ future conduct to conclude that such religious activities in Fujian did not give rise to a well-founded fear of persecution on religious grounds.  

    Evidence

19. The evidence before the Tribunal includes the following relevant material:-

    Material provided to the Department

    §The applicant’s protection visa application form lodged on 14 January 2014, attached to which is an initial statement of claims (written by his mother and from her perspective).

    §The applicant’s and his parents’ identity documents:

    -The applicant’s birth certificate, which identifies both parents, and has no details of any marriage.

    -Partial photocopies of his parents’ PRC passports. His mother’s passport, issued in Fujian [in] 2007, expired [in] 2017. His father’s passport, issued in Fujian [in] 2006, expired [in] 2011.

    -The applicant’s father presented his [Australian] driver licence at the first Tribunal hearing.

    §A baptismal certificate for the applicant, dated [date].

    §The applicant’s mother attended a Protection visa interview (‘Department interview’) on 12 May 2015. A recording of the interview is on the Department file.

    §The Protection visa decision record (‘delegate’s decision) of 1 September 2014.

    §The Department file includes a copy of a Bridging visa application in the applicant’s name, with a statutory declaration from his mother supporting documents (such as bills). This seeks permission for his parents to work on the basis of financial need (potentially relevant to this case, insofar as the parents claim they cannot afford to pay any fines in China).

    Material provided to the Tribunal (first and second instance)

    §The review application form, received on 12 September 2014, has attached to it a copy of the delegate’s decision record.

    §A copy of a marriage certificate, dated [in] July 2016; and a birth certificate for a second child, [named], born on [date].

    §The first Tribunal received several letters of support from Catholics in [Australia]:

    -[Leader A], Chaplain Pastor of [Congregation 1].

    -[Leader B], Secretary of [Congregation 1].

    -[Leader C], a group leader of mass reading group at [Congregation 1].

    -[Leader D], leader of the Mandarin-speaking youth group at [Congregation 1].

    §Statutory declaration from the applicant’s mother.

    §Photographs of the applicant’s parents at religious events.

    §Correspondence from the mother’s friend, [Friend A], who relates her experiences returning to China after giving birth to a son in [Country 1], provides a partial photocopy of her PRC passport (with entry stamps for [Country 1]), and a purported receipt for RMB [amount], dated [in] July 2015, for a social maintenance fee for her friend’s son.

    §Country information presented to the first Tribunal: -

    -China Aid 2014 Annual Report; information from the Cardinal Kung Foundation; and various internet articles about the treatment of Catholic priests and nuns.

    §A pre-hearing submission dated 23 August 2017 includes the following attachments:

    -A brief statutory declaration from the mother, confirming that the applicant’s protection claims remain as previously stated.

    -Various photographs showing the applicant’s parents at various church activities.

    -Letters of support, in Chinese with English translations.

    ·   Letters from the following persons confirm the parents’ attendance at [Church 1]: [Leader E] and [Leader F], [Congregation 1] President (both on [Congregation 1] letterhead), [Mr B], [Ms C], [Mr D] and [Mr E].

    ·   [Ms F] is a person claiming to know the mother since 2009. She attests that the mother is a pious Catholic, and tried to persuade her to convert. She notes that the mother proselytised, and ‘always demonstrated her opposition to the Chinese Government’s restrictions on religious freedom’. She states that the mother ‘would be faced with severe risks’ if she returns to China.

    §A further statutory declaration from the applicant’s mother, dated 8 January 2018, addressing in particular country information about Catholicism in China

20. The Tribunal consulted a range of current country information, and discussed this at the hearing. This includes, relevantly, the Department of Foreign Affairs and Trade’s Country Information Report – People’s Republic of China, dated 21 December 2017. Relevant details are below, in the body of this decision text.

21. The applicant and his parents attended a hearing before the first Tribunal on 8 October 2015, accompanied by the applicant’s representative [Representative A]. A friend, [Ms C], gave evidence as a witness.

22. The applicant’s mother attended a hearing before the Tribunal, as currently constituted, on 30 August 2017. She said that the applicant’s father was busy at ‘school activities’, implying that these were related to the applicant. The hearing was conducted with the assistance of an accredited interpreter in the English and Mandarin languages. The applicant’s representative, [Representative A], was present.

23. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information on folio 100 of the Department file [number] was subject to paragraph 438(1)(a) of the Act. It stated that disclosure of the information would be contrary to the public interest, because it contains information ‘relating to an internal working document and business affairs’. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. Furthermore, the folio contains an internal email in which Department officers communicate the Federal Court’s decision to set aside the first Tribunal’s decision. The Tribunal finds that this information is not relevant to the substance of this decision. The Tribunal advised the mother and the representative at the hearing, and they noted this without comment.

    [2] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

    Country of Reference / Receiving Country

24. The applicant was born in Australia. His parents were born in China (the People’s Republic of China, PRC), hold passports of that country, and claim to be PRC nationals. They speak Mandarin, and are familiar with that country. The Tribunal accepts that they are PRC nationals. Article 5 of China’s Nationality Law states: ‘Any person born abroad whose parents are both Chinese nationals and one of whose parents is a Chinese national shall have Chinese nationality’.[3] The Tribunal finds that the applicant is a PRC national. China is therefore the country of reference for the purpose of assessing the applicant’s claims to be a refugee, and the receiving country for the purpose of assessing his eligibility for complementary protection.

    [3] CX282388: Nationality Law of the People’s Republic of China, People’s Republic of China: Government of, 10 September 1980

1. At the hearing, the mother claimed that on two occasions she attended the Chinese [consulate in Australia] in 2014, to obtain a passport for the applicant. She claimed that on both occasions, staff at reception intimidated her by pressing for details of the applicant’s protection visa application. In her statutory declaration of 17 September 2017, she stated that the Department insisted on her claiming the applicant’s citizenship, and that [consular] staff refused to issue him a passport until she had submitted to them all the documents used in his protection visa application. The Tribunal examines these claims in detail below, but it does not accept as truthful the mother’s claim that PRC officials refused to prepare a passport or other official paperwork for the applicant until she admitted that he had sought protection and given them a copy of his papers. Second, the Tribunal considers that the mother is conflating two issues: (a) the applicant’s nationality in accordance with PRC law, and (b) the travel document(s) or other official papers that PRC officials are willing and able to issue in Australia. In sum, the Tribunal findings nothing in the mother’s account of the parents’ alleged dealings with the PRC authorities in Australia to raise doubts about the applicant’s PRC nationality.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Credibility

2. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the evidence presented on behalf of the applicant.

3. The Tribunal has significant concerns about the veracity of the claims and evidence presented by the applicant’s mother. It found much of her claims and evidence to be exaggerated, misconstrued and contrived to bolster the applicant’s protection claims, particularly in relation to her claimed dealings with the Department and the PRC [consulate], and also her claims that only the style of Catholic practice found at [Church 1] is acceptable to her. It takes into account that her assertive, occasionally indignant manner may have contributed to such an impression. However, even allowing for this, it has broad concerns about the credibility of her claims.    

4. During the course of this review, the applicant’s mother tended to focus on her claims and evidence. She indicated that the previous decision-makers had been unfair; it sometimes appeared that she was seeking to have the parents’ case reassessed. The Tribunal acknowledges that the family circumstances – and hence, to some extent, the parents’ protection claims - form necessary background to the applicant’s case. However, as noted at hearing, the parents’ claims have been finally determined and are not subject to further merits review.

5. The mother stressed to the Tribunal in person and in her written statement of 13 September 2017 her perseverance in seeking protection for her and her family, and her strong disagreement with successive decision-makers’ conclusions to date. She went on to state that she ‘would never [have persisted] to the lengths that [she has] had [her] fears been falsified’. The Tribunal notes this comment, but places minimal weight on the parents’ determination over time, or their strong wish to remain in Australia, as evidence as to the truthfulness of the applicant’s claims or his need for protection.

6. The parents’ delayed lodgement of protection visa applications - years after arriving in Australia, studying and then remaining in the country unlawfully – remains of concern to the Tribunal, in assessing their credibility and the applicant’s prospects if he were to go to China. This was subject to discussion at successive Tribunal hearings, and in the mother’s submissions. She voiced her exasperation that this had proved such an obstacle in the parents’ case, and in the current application. She claimed above all that the parents did not want to involve or rely on God to secure permanent residency in Australia, and did so only as a last resort. During the course of this review, she also gave other reasons. First, she and the father were young at the time, and hesitant to make such a momentous decision as seeking protection or permanent residency. Second, having been brought up in China, they felt that seeking protection abroad was a kind of betrayal of the motherland. Third, she commented that the PRC authorities are constantly harassing her family and monitoring them (even though she also claimed that their whereabouts are unknown); she implied that she was hesitant to do anything to aggravate the situation. Finally, she also noted that many people from her church in [city] had sought protection visas in Australia, mostly without success. Although she did not spell out the relevance of this, she implied that the parents knew that lodging a protection visa application was unlikely to produce a quick, favourable outcome (that is, permanent residency in Australia), and that it therefore made sense from their perspective to wait until that had to do so.

7. The Tribunal considers these factors, even cumulatively, to be unpersuasive. The mother’s evidence that she returned to Australia in early 2009, without funds for her study, but intending to live and work for as long as possible, reinforces the Tribunal’s concern that the parents’ focus has been on securing permanent residency here, and not on seeking protection from any feared harm in China (on religious or any other grounds).

8. In sum, the Tribunal regards the claims and evidence presented on the applicant’s behalf to be largely unreliable. Aside from the family’s involvement with a Catholic congregation in [city], the Tribunal is not prepared to accept any of the claims at face value. Its full assessment follows below.

   Catholic religion    

   The mother’s past experiences

9. The applicant’s claims rely to a large extent on those of his mother, who claims to have been introduced to Catholicism by classmates in Fujian, to have been baptised in May 2006, and to have practiced ‘secretly’ from that time. She also claims that when she returned to China for a visit in late 2008, her religious activities in Jiangxi province brought her to the adverse attention of PRC security officials in Jiangxi and also Fujian.   

10. As noted above, the mother’ protection claims have been finally determined, and her claimed experiences in China found to be not credible. The Tribunal nonetheless discussed these matters at hearing, given their potential ongoing relevance for the applicant’s claims.

    §  There was discussion at hearing about her claimed religious activities in Fujian (from late 2005 to October 2007), such as the local of official and unofficial Catholic churches in her local area; and whether she knows any other local Catholics (apart from the three classmates who went to Jiangxi. She gave brief, desultory responses, and the Tribunal had difficulty gaining any real insight as to her knowledge of the local Catholic population or of any efforts to identify or establish contact with local Catholics. The Tribunal found unsettling the mother’s claim that the people she worshipped with in Fujian had gone to Jiangxi and been arrested, with the sole exception of her friend, [Ms A]. Even in relation to this friend, the mother said that she can no longer contact [Ms A], but heard that she is now in [another country]. The upshot is that she has little knowledge of and no demonstrated efforts to establish contacts with Catholics there.

    §  The mother’s account of her return trip to Fujian in December 2008; her travel to Jiangxi shortly thereafter to engage in secret religious activities; and her use of the money intended to fund her studies in Australia, to buy [equipment] to spread Catholicism is highly problematic. These claims lack context, detail and corroborative evidence (such as evidence that she ever had money for her Australian studies, or proof of her travel to Jiangxi). The Tribunal does not accept that she spent the funds meant for her study in Australia on purchasing religious materials and undertaking risky religious work in Jiangxi. It finds all the associated claims to be lacking credibility.

11. As noted above, the significant delay between the mother’s last arrival in Australia and the lodgement by the parents of their protection visa application s reinforces the Tribunal’s doubts.

12. The Tribunal, having considered this evidence, finds that the applicant’s mother was not a Catholic in China, at any time; and that she has given an untruthful account of her experiences in that country. It notes that some witness statements refer to her participation in services at [Church 1] since 2007 which, if true, could indicate that the applicant was a Catholic at the time of her return trip to China in late 2008. However, given the Tribunal’s concerns about the mother’s credibility and in the absence of independent contemporaneous evidence (such as photographs or letters), these statements do not displace its conclusion that she did not become a Catholic until later.

13. The Tribunal therefore does not accept any of the claims of past harm, including that she practiced secretly in Fujian or Jiangxi; that she proselytised secretly in Jiangxi on her return trip to China, or contributed to underground activities; that she learned of her fellow Catholics’ arrests in January 2009; that she fled Fujian a day or two later to avoid arrest; that Jiangxi or Fujian officials have interrogated or harassed her family; or that her family has relocated or otherwise avoids contact with her. The Tribunal finds that the applicant’s mother is not a person of adverse interest to any PRC officials, for any related reason.

    The father’s experiences in China

14. The applicant’s father claims that he practiced Catholicism in his village in Fujian, from about the age of six. His family continues to worship there.

15. Relevantly, the father did not present any protection claims in his protection visa application, and he did not appear at the hearing before the current Tribunal to speak on behalf of or give evidence for the applicant. The mother commented that his family practices on a small scale, in secret, and have so far not attracted the attention of the local authorities. She added, however, that there is no certainty that this will remain the case in the future.

16. The Tribunal accepts, on the basis that it is plausible though far from certain, that the applicant’s father practiced Catholicism in Fujian, in a small village setting, and that his family has done so for decades without hindrance. Given that he has not sought protection, the Tribunal does not accept that he practiced Catholicism in secret or in any manner to avoid official attention. It also finds that he does not have a genuine fear of local officials targeting him if he returns to his home area.

    Roman Catholicism

17. The Tribunal has rejected the mother’s claim to have practiced Catholicism in China, and it accepts the father’s claims only with reservations. Nevertheless, it has a large volume of material that the parents have been involved in the congregation at [Church 1]in [Australia], including photographs, witness statements, the mother’s oral evidence and the father’s oral evidence to the first Tribunal. The Tribunal also takes into account general country information, referred to in DFAT’s latest Country Information Report, which indicates that Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. DFAT records that: ‘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 Associations’ (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches each year. 

18. The Tribunal is satisfied on the available evidence, and notwithstanding general doubts about the parents’ honesty, that they adhere to the Roman Catholic faith in Australia, and practice in a congregation here. It takes into account among other things the duration and nature of their involvement with the church in [Australia], the supporting statements from clergy and parishioners, and other supporting evidence. It notes that the Department and the first Tribunal reached the same conclusion.

19. The applicant’s parents had the applicant baptised on [date], when he was [age] old. He has accompanied them to church and related functions. The Tribunal accepts that he is a baptised Catholic, and that, as [an age] year old child, he has had some exposure to the Catholic community in a religious and social setting.

    PRC authorities’ knowledge of protection visa application

20. At the Tribunal hearing, the mother spoke at length about her encounters with the PRC Consulate; her belief that they know about the applicant’s (and his parents’) protection visa applications; and the prospect that they will face punishment on return to China. This appeared to be a major concern on her part. The post-hearing submission clarified her dealings with the PRC [consulate in Australia]. The Tribunal’s summary follows.

    §  First visit: January 2014:  In January 2014, the mother went to the PRC [consulate in Australia] to apply for a passport for the applicant. She filled out a form and handed it a person at the reception desk. This person allegedly asked whether the applicant had sought protection in Australia. The mother denied this. In response, the official said, in a threatening manner: ‘lying is futile because we will be conducting an investigation into the matter.’ The mother left the [consulate] office, upset.

    -   By way of background, the applicant’s protection visa application was lodged in January 2014. At that time, his parents were unlawful non-citizens[4], and they asked the Department to issue them with bridging visas E associated with the applicant’s application. According to the mother, the Department officer insisted that the parents register the applicant with the PRC authorities, as a condition of being granted a bridging visa E.

    §  Second visit: The mother returned to the [consulate] office a second time. The same counter staff person told her that they had investigated the applicant and confirmed that he had applied for protection. They demanded that she give them all the documentation used in his protection visa application. Startled, the mother left the [consulate] office without lodging the applicant’s passport application.

    §  Third visit: [in] 2015: The father’s PRC passport expired [in] 2015, and the Department again insisted that he obtain current PRC travel documents as a condition of getting his bridging visa E renewed. He went to the [consulate] office to obtain a new passport. The mother, rattled by her earlier experience, told him to tell the PRC officials that he was unmarried (which was technically true at the time), and that he did not have any children (which was false). The father did this. The [consular] staff again said that they would ‘investigate’ the matter. In March 2016, they called him in and handed him a travel permit, rather than a passport. The parents were upset. They understood that the PRC authorities only give travel documents to people where they are ‘suspicious of their character’.

    -   The mother claims that some of their Chinese friends were only given travel documents. One of these travelled back to China; the authorities swiftly apprehended, questioned and fined them on their return.

    §  Fourth visit: [in] 2017: The mother’s passport expired in [2017], and she went to the [consulate] office (again at the Department’s insistence) to obtain a new passport. Even though the parents had married by then, she again falsely stated that she was unmarried and without children. The [consular] staff asked whether she had sought protection, this time in a more insistent and threatening manner; and said that they would investigate. When she returned to the [consulate] [later in] 2017, the PRC officials stated that she had lied about her marital status, and that they believed she had lodged a protection visa application. They required her to complete another form, with the correct information. The applicant did so, and has heard nothing more at the time of the hearing.

    [4] The (then) Refugee Review Tribunal affirmed the decision to refuse the parents protection visas on 17 December 2013, and they did not seek judicial review of that decision.

21. In sum, the mother impressed on the Tribunal that PRC consular officials in [Australia] singled out her and her family; that they stated that they knew about the applicant’s protection visa application (and his parents’); and that they demanded a copy of the papers associated with their protection visa applications. This indicates, she suggests, their adverse interest in the family due to her religious profile in China, and/or the fact of their protection visa applications.

22. The Tribunal obviously cannot verify with the PRC authorities what transpired, but for the following reasons it has significant doubts about the mother’s account of the parent’s dealings with the PRC [consulate].

23. First, it is clear that the parents resented both: (a) the Department’s expectations that they hold current PRC travel documents (passport or travel permit) at all times; and (b) that they register the applicant for Chinese citizenship and obtain papers for him. It is also clear that they went to the PRC [consulate] only in response to pressure from the Department. This raises questions about both (a) their degree of cooperation with PRC consular officials, and (b) the accuracy of the mother’s account of what occurred at the [consulate].

24. Second, the mother voiced an expectation that PRC officials issue her and other family members PRC passports on demand, and claims that the grant to the father of only a travel permit (rather than a full passport) indicates that they have an adverse interest in the family.

    §  The mother said her concerns were based in part on her understanding that all PRC nationals could get their passports renewed, except for those who were of adverse interest to the authorities. Neither she nor her representative provided any details or country information to support this assertion. Article 11 of the Passport Law of the People’s Republic of China[5] states (among other things) that: ‘if [the holder of an ordinary passport] applies for the same abroad, he shall, in person, submit the application to an embassy or consulate of the People’s Republic of China, or a mission overseas authorised by the Ministry of Foreign Affairs’. It goes on to state, in Article 23: ‘Where a citizen who goes abroad for a short period of time loses his passport, or his passport is stolen or is so damaged that it cannot be used any more, he shall apply for a Travel Permit […]’. In the Tribunal’s view, these provisions are broad statements that do not shed light on the practices of when a PRC national abroad is eligible for a passport and/or a travel permit.

    §  The mother stated that some Chinese friends living in Australia were given travel documents, and PRC officials apprehended, questioned and fined them on their return. This claim lacks details and is unsubstantiated. The Tribunal is not satisfied as to the background to these cases, or the accuracy of the mother’s account.

    §  As discussed at the hearing, the Tribunal sees nothing untoward in PRC officials enquiring about a PRC national’s migration status in Australia, as their eligibility for a passport or travel permit may depend on issues such as the duration and legal status of their stay in Australia (and may be further complicated if they have obtained Australian citizenship).

    §  The Tribunal is concerned that the mother has misconstrued the significance of the father having been granted a travel permit, and that she has not genuinely tried to obtain PRC registration or travel documentation for the applicant.

    [5]

1. Third, the Tribunal does not accept at face value the mother’s account of consular staff having shown great interest in her and the applicant’s protection visa applications, menacing her, and on one occasion, demanding to see the applicant’s papers (such as his statement of claims against China).

   §  The Tribunal expects that PRC consular officials will be aware that many Chinese students and former students have sought permanent residency in Australia through protection visa applications, and that students have similarly lodged applications for their children born in Australia. In these circumstances, the Tribunal accepts as plausible that PRC officials assume, in at least some cases, that PRC (former) students who hold bridging visas and are seeking PRC travel documents have sought protection for themselves and any children. It also considers that some officials may signal their displeasure if they suspect this.

   §  The Tribunal signalled its doubts that consular officials were outright hostile and menacing, and that they demanded to see the applicant’s protection visa application papers.

   -   As noted at hearing, it has found no information to suggest that PRC officials display hostility towards residents in Australia for seeking to remain in Australia on the basis of protection or otherwise. In its most recent report, for instance, DFAT noted that it ‘has found no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention’. Neither the mother nor the representative have provided details or independent reports to indicate that the PRC [consulate in question] or other PRC officials target persons known or suspected of having sought protection (for instance, by denying them consular services, demanding to see statements of claims, or other threatening behaviour).

   -   The Tribunal recognises the need for caution in drawing inferences from the absence of information. However, it considers significant that there is a sizeable number of Chinese visa holders in [the applicant’s city], including asylum seekers. There is a high degree of public interest in the conduct of Chinese officials in Australia, and the Tribunal considers that there is ample opportunity for protection visa applicants, their representatives and other interested parties to register concerns if PRC officials are intimidating nationals (who otherwise do not have an adverse profile) merely on the suspicion that they may have sought protection in Australia.

2. Fourth, the mother claims that their dealings with the PRC [consulate] have become more complicated because the parents have provided false or misleading information about the applicant (both parents denied having a child) and their marital status (in [2017], the mother denied being married or having a child, until consular staff challenged her).

   §  The mother claims that she completed forms for the applicant in January 2014 (for his registration as a citizen and/or for a travel document), which would have included a birth certificate with the names of his parents. The Tribunal considers it plausible that [consular] staff checked their records, for instance, to confirm that both parents are indeed PRC nationals.

   §  She also claims that in [2015], the father applied for a passport, falsely stating that he had no children (but correctly stating that, at that time, he was unmarried). The applicant claims that she persuaded him to lie on the form because of her past experience, when the [consular] officials intimidated her about the details of their protection visa applications.

   §  She claims that in [2017], she presented false information to the PRC [consulate], claiming that she was married and had no children.

   §  Again, the Tribunal has significant doubts about the mother’s account.

   -   In its view, it is difficult to believe that the parents submitted the applicant’s documentation to the PRC [consulate] in early 2014 (presumably with his birth certificate and the parents’ details), and that they made later approaches to the same office, denying that they had children.

   -   The Tribunal disbelieves that the father incorrectly told the PRC [consulate] in [2015] that he has no children; that they nonetheless discovered it; and that they issued him with (only) a travel permit because of that.

   -   The Tribunal also disbelieves that the mother again gave incorrect information to the PRC [consulate] in [2017], denying being married or having a child, and that she considered the delay in the passport processing (or the eventual grant to her of a travel permit) as a sign of their adverse interest in her family, including the applicant.

   §  In the Tribunal’s view, it is unsurprising that [consular] staff were able to identify him as the father of the applicant, as the papers lodged on the applicant’s behalf (such as the completed application form and birth certificate) in early 2014 would have contained the father’s name and personal identifiers. If so, it comes as no surprise that [consular] staff would have been able to link him with the information provided on the applicant’s statement.

   §  The Tribunal does not accept that the mother is so fixated on having a PRC passport (as opposed to some other travel document), that she and the father risked providing false information. This is particularly so in light of her claim that the consular officials had already shown her that they maintain electronic records that they can check.

3. The Tribunal considers that the applicant’s parents have resisted the Department’s demands that they regularise their status and documentation with the PRC authorities; that his mother has given an unreliable account of her dealings with the [consulate]; and that she has misconstrued the [consulate’s] actions (such as their issuance to the father of a travel permit). It is concerned that she has done so to frustrate the Department’s efforts to ensure that all family members hold valid, current PRC documents (which could be relevant for their eventual removal from Australia), and to bolster the applicant’s protection claims.

4. The Tribunal accepts that the applicant’s parents have been reluctant to engage with the PRC authorities, and that they have been cautious. It also accepts, on the basis that it is plausible, that consular officials have been brusque, or have intimated that they know or suspect that family members have applied for protection.

5. However, in light of the above concerns and given its adverse view of the mother’s credibility, the Tribunal finds that the applicant has exaggerated and misrepresented the parents’ exchanges with PRC officials, to the point where her account is unreliable. It does not accept that consular officials were hostile to the mother and actually scared her; that they demanded to see the applicant’s (or any other family member’s) protection visa applications; that the applicant’s parents lied to PRC consular officials (about the applicant or the marriage) in order to avoid further adverse attention; that consular officials refused to give the father a full PRC passport (as opposed to a travel permit) because they view him or others adversely; or that they have blocked or delayed the grant to the applicant or his mother of other documents. The Tribunal rejects all associated claims. It finds that the mother’s account of her dealings with PRC consular officials was contrived in order to bolster the applicant’s protection claims (and to potentially raise new issues in relation to the parents’ now-finalised matter), and to frustrate Australian officials’ efforts to ensure that they hold current PRC documentation.

6. The Tribunal appreciates that the applicant’s parents may view PRC consular officials with some caution and even suspicion, but it does not accept that the parents have any genuine fear in relation to family members’ religious activities in Australia, their having sought protection, or any other matter.

7. In sum, the Tribunal accepts that the PRC authorities may suspect that the applicant (and before him, his parents) have lodged protection visa applications. The Tribunal does not accept that they know this for sure; that they have informed the parents accordingly; or that the parents genuinely believe that the PRC [consulate] or other officials have an adverse interest in them for any such reason.

   Summary of findings

8. The Tribunal accepts that the applicant’s parents were unmarried at the time of his birth, but it finds that their marriage in mid-2016 is valid in Australia and China.

9. The Tribunal does not accept that the applicant’s mother ever practiced Catholicism in China; it accepts with reservations that his father grew up in a Catholic family in Fujian. It accepts that the parents are now practising Catholics, in [Church 1], and that they have participated in various religious and social activities associated with the church. It does not accept that the applicant’s mother was ever involved in religious activities in Jiangxi province or elsewhere in China, that she was accused of illegal religious activities in China; that security officials in Jiangxi, Fujian or elsewhere are looking for her; or that her mother and [sibling] have moved or are trying to avoid her. It disbelieves all associated claims. It finds on the available evidence that the applicant’s father practiced in a small, well-established local Catholic community of unregistered Catholics. He has never presented protection claims, and the Tribunal does not accept the more recent suggestions that his congregation practiced ‘cautiously’ or ‘secretly’.

10. The Tribunal accepts that the applicant’s parents have approached the PRC authorities for travel documents and ID papers; that they have been somewhat cautious; and that they may have received some discourteous or abrupt comments. However, it does not accept that the PRC officials accused the parents of giving false information to them; that they stated that they knew about the applicant’s protection visa application and demanded to see the documentation; or that they refused to provide normal services to the applicant and his parents (for instance, by giving them only travel permits, and refusing to give them full passports, as a sign of official displeasure). 

    ASSESSMENT: REFUGEE CRITERIA

11. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future circumstances if he returns to China (such as his location, and his parents’ conduct), and relevant country information, he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future. The Tribunal notes that, while the applicant is too young to have his own subjective fear, it can be derived from the fear of his parents, as he would otherwise be excluded entirely from Convention protection.[6]

    [6] See, for instance, the comments in Chen Shi Hai v MIMA (unreported, Federal Court of Australia, French J, 5 June 1998), per French J at 14. Approved by Kirby J in Chen Shi Hai v MIMA (2000) 201 CLR 293 at [77] ff.

    Catholicism

12. The Tribunal notes again that the applicant’s mother sought to re-agitate her own claims during the review, for instance: ‘It is impossible for me to return to that faux form of religion that is constricted […]’, and ‘I must stick to my principles and continue exercising my freedom and my individuality even when I am in China’. Nonetheless, the following implied claims for the applicant emerged during the course of the review:

    a)His parents will not be able to raise him as a Catholic, or at least in accordance with their religious practice in Australia, and their beliefs. In other words, they will need to practice secretly or discreetly in order to avoid adverse attention from the PRC authorities, thereby denying him the opportunity to be brought up in and practice his parents’ faith; and

    b)The applicant will grow up in an atmosphere of fear, vigilance and the persistent threat of harm; and

    c)The applicant will suffer serious harm he is left without guardians, for instance, if his parents practice their faith as they wish, and the authorities imprison or otherwise persecuted them.

13. For the reasons stated above, the Tribunal does not accept that the mother had any involvement in Catholicism in China. It finds that the applicant’s father may have practiced in Fujian, although this is uncertain.

14. In terms of the parents’ conduct if they return to China, and the applicant accompanies them, the Tribunal found it difficult to engage the mother on their future conduct, as she clearly does not wish to contemplate that outcome. It is uncertain where the applicant’s parents would go to in China – i.e. the mother’s home area, the father’s home area, or somewhere else, most likely in Fujian.

    §  At hearing, the mother stated that families traditionally settle in the husband’s home village. She said that the applicant’s father is in contact with his parents and a younger [sibling], albeit not often.

    §  She also claimed that her mother and [sibling] have now left their village, and their whereabouts are unknown. The Tribunal does not, however, accept this claim.

15. On the limited available evidence, the Tribunal finds that the applicant will accompany his parents to his father’s home village or another location in Fujian (for instance, where his parents find work or accommodation with other family members). The Tribunal accepts that the applicant’s parents will likely wish to continue to practice Catholicism if they return to China, and that they will continue to involve the applicant in those activities. The mother stated that both parents attend church weekly in Australia, although she went on to say that she now participates less often due to her young child (and implied that any enquiries would show that they are not in fact in church every single week).

16. The applicant’s mother claims that she cannot practice Catholicism as she wishes to in China, because of the constraints that apply generally in China and (implicitly) because the low-key, small gatherings in the father’s home area do not suit her preferred style of religious practice, given her experiences in [Australia]. However, as noted above, her protection visa application has been finally determined. In relation to the applicant’s circumstances prospects, the Tribunal takes into account that his future place of residence will be in his father’s home village or elsewhere in Fujian. Relevantly, the applicant’s father did not seek protection, implying that he did not suffer persecution or significant harm in his home area and that, taking into account local conditions there, (including the nature of the congregation and the activities of local officials), he did not fear persecution or significant harm.

17. The Tribunal has before it a range of country information about the treatment of Catholics in China. The most recent Department of Foreign Affairs and Trade country report[7] has the following section:  

    The CCPA has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to publicly pledge support for the CCPA.

    Approximately 40 Vatican-ordained bishops remain independent of the CCPA. In 2016 the Vatican and CCPA agreed on the ordination of two bishops, but there is still no agreement on the treatment of bishops ordained by each respectively but not recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly supporting the CCPA.

    In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. DFAT understands this is no longer required in areas where the Catholic Church has built trust with local officials over time.

    Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.

    [7] DFAT, Country Information Report – China, 21 December 2017

18. The Tribunal also discussed with the applicant’s mother the general situation for Catholics (and other Christians) in Fujian, in which a generally liberal attitude has prevailed to date, although this is subject to local variations. It drew, among other things, on the Department of Foreign Affairs and Trade’s December 2016 report on Fujian:[8]

    3.5 Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.

    [8] DFAT, Thematic Report: Fujian Province, People’s Republic of China, 16 December 2016

19. The mother and her representative addressed the country situation at hearing and in written submissions. She highlighted the distinction between Catholic churches registered with the government-affiliated Catholic Patriotic Association, and the unregistered churches. She noted that, as a practising Roman Catholic in Australia, she has appreciated living in a religiously free environment, and that she can no longer subscribe to a regulated set of religious beliefs. She noted the tension between the Vatican and the CCP, and stated that she is a true Roman Catholic whose loyalties lie with the church. In other words, she claims that both parents worship in unregistered Catholic churches affiliated with Rome. However, the Tribunal does not accept that she engaged in any religious practice in China. As for the applicant’s father, the Tribunal accepts that this small congregation has not experienced past problems with local officials, and that the applicant’s father does not subjectively fear such harm in the future.

20. The Tribunal also takes into account country information that the Chinese authorities have brought in new regulations in September 2017 that give effect to President Xi Jinping’s call in April 2017 for religion to be ‘sinicised’, and to ensure that religious rights do not impinge on Chinese Communist Party authority. According to DFAT: ‘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.’ It also observed that the ‘devolution of enforcement to local government and Party authorities […] means that unregistered Christian churches are also likely to be affected.’

1. DFAT goes on to conclude:

   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.

2. The mother commented that the CCP’s intensification of its ‘assault on religious freedom’ means that unregistered churches are even more vulnerable. She also suggested a link between such churches and ‘human rights activism’, and suggested that her Catholic practice in Australia, for ten years (which the Tribunal does not accept is the case) puts her (and by implication, the applicant) at even greater risk of being targeted, or having to adjust her religious practice in order to avoid persecution. The Tribunal takes into account the PRC Government’s further restrictions on religious freedom. It appreciates also the parents’ concerns that this may impinge on the Roman Catholic Church, given its allegiance to the Vatican, despite signs that the Vatican and the PRC Government are also seeking a compromise on sensitive issues such as the appointment of bishops.

3. The Tribunal has considered all of these factors. It places particular weight on the following: (a) its assessment of the father’s experiences and religious practice in China; (b) general country information about Fujian (both the size of the Christian population there, and the generally liberal attitudes); and (c) its overall concern that the mother’s account of her religious practice and future intentions is exaggerated, unreliable and tailored to bolster the applicant’s protection claims. The Tribunal is satisfied, and finds, that there is no real chance of the applicant being seriously harmed, if he attends a registered or unregistered Catholic church in Fujian with his parents. The Tribunal does not accept the mother’s claim that, having attended [Church 1] (and its associated social activities) for several years, communal Catholic worship in a different setting fails to meet her religious needs, and by extension, those of the applicant.

4. Having considered all the claims and evidence relating to the applicant’s and his parents’ religious situation, the Tribunal is not satisfied that the applicant will be denied the opportunity to be raised as a Catholic – for instance, because his parents will not be able to find a congregation (whether registered or not); or because they will have to adjust their religious practices so as to avoid persecution from local officials. The Tribunal is also not satisfied that there is a real chance that the applicant will be brought up in a religious community where fear, vigilance or the threat of harm diminishes his welfare, or his ability to learn about and practice his faith. The Tribunal is also not satisfied that there is a real chance that the authorities will persecute his parents, leaving the applicant abandoned. Taking all of these factors together, the Tribunal finds that there is no real chance of the applicant being persecuted as a result of any PRC government restrictions on religious practice, as implemented in Fujian.

   ‘Black child’ and related claims

5. The mother claims that the PRC authorities will target the applicant because he was born out of wedlock, in violation of China’s family planning laws; his parents will be required to pay a social compensation fee; that the fee will be very high, and subject to the vagaries of corrupt officials (who may arbitrarily impose a higher fee); that the parents will be unable to pay the fee; and that the applicant will therefore he will not have normal access to health, education and similar services.

6. The applicant’s parents married in July 2016, as demonstrated by the certificate of marriage presented to the Tribunal. At the hearing, the mother commented that the social compensation fee might not apply to the applicant (because of his parents’ subsequent marriage), emphasising instead that capricious local officials could nonetheless demand the payment of the fee because of her adverse profile. The statutory declaration of 8 January 2018 strikes a slightly different tone. In it, she wrote that ‘children born out of wedlock must pay a social compensation fee that is subject to the discretion of local officials’. She then went on to state that she ‘cannot foresee a scenario where [the applicant] does not suffer’.

7. The applicant mother also wrote that PRC officials may deny the applicant a hukou or demand an unaffordable social compensation fee given her adverse profile. The Tribunal does not accept that the applicant’s mother has an adverse profile in Jiangxi, Fujian or elsewhere in China, and it therefore does not accept that the applicant is at risk of being denied household registration or otherwise targeted for any other reason associated with her past.

8. The Tribunal does not accept that PRC officials in [Australia] have placed any obstacles in the way of the applicant being registered at the [consulate] or in obtaining a PRC travel document. It finds that there is no real chance that officials in Fujian will seek to re-open the applicant’s status, and deny him household registration on the basis of his parents’ marital status in [Australia] at the time of his birth. The Tribunal has considered the materials from [Friend A] that the applicant submitted, namely her statement about [Town 1’s] officials’ demands for an exorbitant penalty for the birth of a child born out of wedlock, and the alleged receipt and partial photocopy of her PRC passport. The Tribunal notes that this letter was evidently prepared for the purpose of this application. The circumstances of [Ms F] are unclear. Given the extent of the Tribunal’s concerns about the mother’s credibility, it places minimal weight on this letter as independent evidence that the applicant will be subject to a social compensation fee or, more relevantly, an arbitrary and exorbitant one that could leave him at risk of being unregistered.

9. The Tribunal finds that there is no real chance of the applicant being denied household registration, and therefore being considered a ‘black child’, and denied formal status and access to health, education and similar benefits.

   The mother’s adverse profile

10. For the reasons stated above, the Tribunal does not accept that the applicant’s mother engaged in proselytising in Jiangxi or any other religious activities in Jiangxi or Fujian in late 2008 and early 2009. It finds that she therefore has no adverse profile arising from that period. The Tribunal also does not accept that she has any adverse profile as a result of her dealings with the PRC [consulate in Australia], including any exchanges she may have had with them about the issuance of passports or travel documents. The Tribunal does not accept her claims that she (and the applicant’s father) lied to consular officials about their marital status or the parenthood, and hence it does not accept that they view her with suspicion because of the provision of false information.

11. It follows that the Tribunal is not satisfied that the applicant faces a real chance of adverse treatment (such as the denial of a hukou) as a result of his mother’s adverse profile with PRC officials.

    Extortion

12. The applicant’s mother also raised the prospect that the family will be subject to extortion – primarily in the form of officials asking them for excessive social compensation fees – due to their past residence overseas. The Tribunal found this claim to be vague and speculative. It is not satisfied that there is a real chance of Fujian or local officials, or others, extorting or targeting the applicant’s parents in such a way that it results in the applicant suffering serious harm. 

    PRC authorities’ knowledge of protection visa application

13. The Tribunal accepts that PRC [consulate] might suspect that the applicant’s parents have prolonged their stay in Australia by seeking protection, and that they have determined that the parents are eligible only for travel permits because they do not hold substantive visas. The Tribunal does not accept on the available evidence that PRC officials know for certain that this is the case.

14. The Tribunal considers it plausible that PRC officials have spoken abruptly to the applicant’s parents, particularly if the parents have been insistent about the form of travel document that they should be given, or otherwise uncooperative. However, given the extent of its concern about the mother’s credibility, the Tribunal does not accept that PRC officials have told the parents that they know about the protection visa applications, or demanded to see the documentation. The Tribunal also does not accept that the applicant’s parents have been genuinely scared by any such exchanges, although it is possible that they were cautious in their dealings with consular staff. As noted above, the Tribunal considers that the applicant mother has fabricated these accounts to frustrate the Department’s demands that all members of the family hold current PRC travel documents, and that the applicant’s PRC citizenship is confirmed and documented.

15. In these circumstances, the Tribunal finds that there is no real chance of PRC officials (such as immigration and customs officials on his arrival in China, or Fujian or national officials) subjecting the applicant to serious harm as a result of him having sought protection in Australia, or any associated reason (such as the fact of his birth in Australia, or his parents’ applications). The Tribunal is also not satisfied that PRC officials will target his parents, in such a way as to leave the applicant without guardians, and unable to meet his basic needs.

16. The Tribunal has considered the claims and evidence presented on behalf of the applicant, individually and cumulatively. For the reasons set out above, the Tribunal does not accept that if the applicant goes to China with his parents, now or in the reasonably foreseeable future, there is a real chance he will face serious harm amounting to persecution for reason of his (imputed) religion, his (imputed) political opinion, his membership of a particular social group (such as his parents’ family) or any other Convention reason.

    ASSESSMENT: COMPLEMENTARY PROTECTION

17. The Tribunal has considered whether there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China. It takes into account all of the claims and evidence before it, and the findings above. It has also turned its mind to is future conduct and circumstances if he goes to China with his parents, and any relevant country information.

18. The Tribunal’s findings of fact, and its views on any risk associated with the applicant’s circumstances in China – for instance, if his parents continue to practice as Catholics in Fujian, and in view of his travel there as a person born in Australia, and whose parents were unmarried at the time of his birth – are set out above.

19. The Tribunal finds that there is no real risk that the applicant will be subjected to harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflict on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of her life or the death penalty. The Tribunal finds no grounds that suggest he will be subject to significant harm, for any reason, if he returns to China.    

20. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    CONCLUSION

21. 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).

22. 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).

23. 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 (in other words, his parents have not obtained protection, and there is no evidence that his baby [sibling] has). As noted in both written submissions and oral evidence to the Tribunal, both parents have previously applied for protection visas, without success.

24. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Silva
    Member

    
    

    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 policy guidelines prepared by the Department of Immigration –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.