1712243 (Refugee)

1712243 (Refugee) [2022] AATA 4968 (16 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1712243
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:16 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 November 2022 at 10:25am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – the Local Church – ’Shouters’– born out of wedlock – family planning laws – ‘black child’ – parents’ migration history – ability to travel in and out of country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) on 31 May 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 August 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations. The applicant applied to the Tribunal for review of the decision on 9 June 2017.
The applicant is a minor. The applicant’s mother appeared before the Tribunal on 18 October 2022 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her migration agent, Mr Harry Huang.
The issues that arise on review are whether the applicant is owed Australia’s protection under either the refugee criterion or the complementary protection criterion.
Criteria for a protection visa
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is owed Australia’s protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it both the Department and the Tribunal files.
The Department file contains documents including a copy of the Protection visa application, the delegate’s decision dated 31 May 2017, biodata page and visa pages of [Ms A]’s Chinese passport issued [in] 2007, biodata page of [Mr B]’s Chinese passport issued [in] 2006, [Child C]’s New South Wales birth certificate dated [date], the applicant’s New South Wales birth certificate dated [date], a statutory declaration from [Ms A] dated 17 August 2015, a statutory declaration from the applicant dated 17 August 2015, a statutory declaration from the applicant’s mother dated 29 May 2017, a reference letter from [Mr D] regarding [Mr B]’s financial hardship dated 29 August 2015, a reference letter from [Ms E] regarding [Ms A]’s financial hardship dated 28 August 2015, a [Bank 1] transaction summary for [Ms A] dated 28 August 2015, a reference letter from [Mr F] and [Mr G] from the Local Church in Sydney dated 21 May 2017, copy of the RRT decision record dated 3 September 2014, copy of the delegate’s decision record dated 7 February 2014 regarding the applicant’s mother previous Protection visa application, copy of the applicant’s mother Bridging visa application dated 31 August 2015, copies of rent receipts for a property in [Suburb 1] NSW, and copies of medical consultation receipts.
The Tribunal file contains a copy of the application for review form, a copy of the delegate’s decision, various photographs of the applicant’s mother in social interactions, translated letter of support to the applicant’s mother from [Ms H] dated 3 October 2022, translated letter of support to the applicant’s mother from [Ms I] dated 2 October 2022, translated letter of support to the applicant’s mother from [Ms E] dated 30 September 2022, translated letter of support to the applicant’s mother from [Ms J] dated 1 October 2022, undated letter of support to the applicant’s mother from [Ms K], and an untranslated letter of support to the applicant’s mother from [Ms L] dated 30 September 2022.
The following information was provided by the applicant in her application form lodged with the Department. She is [age] years old and is a minor. She was born in New South Wales, Australia and holds Chinese citizenship. She identifies as being from the Chinese Han ethnic group and of the Christian religion of the Local Church. Her mother is [Ms A], her father is [Mr B] and her sister is [Child C] all of whom are residing in Australia.
The applicant claims that she will face persecution and significant harm if she returns to China due to her mother’s devout Christian belief and active involvement in the Local Church.
The applicant’s parents and the applicant’s sister were refused a Protection visa on 7 February 2014. The refusal decision was affirmed by the Refugee Review Tribunal (the RRT at the time) on 3 September 2014. The applicant was born on [date] and applied for the Protection visa on 17 August 2015.
The applicant claims that her and her sister were born out of wedlock as her parents have not registered their marriage.
The applicant claims that due to the relevant family planning laws in China, her parents will have to pay high social compensation fees
The applicant claims she will be deemed a “black child” and will not be able to obtain household registration (hukou).
The applicant claims that as a “black child”, she will be deprived of basic human rights such as attending public schools or accessing the public health system and therefore will not be able to survive.
The applicant does not agree with the RRT’s decision on her parents’ Protection visa application where it was found that the applicant’s parents could pay the social compensation fee.
The applicant claims that her parents do not have sufficient funds nor are they in a strong financial position to pay the social compensation fee. The applicant claims that the social compensation fee will also be higher for her as the second child.
The applicant claims that her mother is a devout Christian and is involved in church activities with the Local Church (also known as ’Shouters’) which is regarded as an evil cult by the Chinese authorities.
The applicant claims that if she returns to China, she will be implicated by her mother’s church activities and will suffer from significant harm. She knows this because her maternal uncle has been arrested and imprisoned by the police in China and her maternal grandparents have been investigated and harassed by the police in China.
The applicant’s mother, [Ms A], attended an interview with the Department on behalf of the applicant on 23 May 2017. During that interview, she reiterated and expanded on her written claims.
A summary of that interview is provided in the Department’s decision record.
Prior to the hearing the applicant provided photographs of groups of persons in what appeared to be meetings or social interactions. Those photographs included photographs of children interacting and adults.
Various letters of support written in Chinese but translated were supplied from persons identifying themselves as members of the Church. They are all very similar and state that the applicant’s mother has been attending their church since October 2012. A further letter from a member of the church states that the applicant’s family have attended at [Suburb 2] church since 2015. Two letters state that the applicant’s mother evangelises.
Parents’ Migration history as set out in Department’s decision
The applicant’s mother first arrived in Australia [in] July 2017 as the holder of a Student 571 subclass visa. She left Australia [in] January 2009 and returned to Australia holding the same visa type [in] February 2009. The applicant’s mother was refused a Student 572 subclass visa on 1 April 2010. She later departed Australia [in] February 2011 and then returned holding a Bridging visa B [in] March 2011. The applicant’s mother applied at the Tribunal for review of the Department’s refusal to grant her a Student 572 subclass visa and the Tribunal affirmed the Department decision [in] April 2012.
On 22 August 2012, the applicant’s mother requested Ministerial Intervention under s351 of the Act, which was unsuccessful.
The applicant’s father first arrived in Australia [in] April 2008 as the holder of a Student 571 subclass visa.
On 12 July 2013, the applicant’s mother, father and elder sibling applied for a Protection visa with the Department. On 7 February 2014, the Department refused to grant the applicant’s mother, father and elder sibling a Protection visa.
On 3 September 2014, the applicant’s mother, father and elder sibling applied at the Tribunal for review of the Department’s refusal to grant them a Protection visa.
The hearing on 18 October 2022
As the applicant is a minor the applicant’s mother elected to give evidence on her behalf. A summary of the oral evidence is set out below.
The applicant’s representative was present at the hearing. The Tribunal went through the introductions and explained the process of the hearing. The Tribunal explained it was the applicant’s opportunity to put to the Tribunal information and evidence she wanted the Tribunal to consider. It also pointed out that it would put things to the applicant through her mother that it was concerned about. The applicant’s mother indicated she understood and had no difficulty understanding the interpreter.
The Tribunal asked the applicant’s mother why the applicant cannot return to China and needs Australia’s protection.
The applicant’s mother stated words to the effect that it was due to the applicant’s mother being a member of the local church. The applicant’s mother stated words to the effect that for all the years she has been in Australia she has been attending church and living her religious life. She went on to state words to the effect she was chosen by God and wants to spread God’s word and build the body of Christ. She claims that all of these things are forbidden in China. She claims that if she returns to China she will be persecuted, and her daughter will be impacted due to this.
She claims that since her daughter (the applicant) was born, she is living a religious life and believes in the existence of Jesus Christ. She claims the applicant’s spirit is the container for God. She claims that in China as a child she could not attend church activities. She claims that the applicant’s behaviour is illegal in China, and she would come to serious harm.
She claims that China will not allow the applicant to lead a religious life.
She further claims that the applicant was born in Australia and has never left. She had been receiving an Australian education about democracy and freedom. She stated that China is a non-democratic country and when she (the applicant’s mother) was at school she had to sit properly and not talk. She claims that if the applicant is pulled out of the freedom she experiences and sent to China she will suffer harm physically and mentally.
She claims that her daughter’s body and soul cannot take it.
The Tribunal queried when the applicant’s mother first started attending church in Australia. She responded since 2012. The Tribunal pointed out that she was in Australia before that and did not attend. She responded with words to the effect that God chose her at a certain time and her time did not come till then and she realised she was a child of God.
The Tribunal asked the applicant’s mother about her family in China. She responded that she has parents and a younger brother in China. She claims that her parents are working, and her younger brother lives with them. She stated he is not married. She has an older sister in [Country 1].
The Tribunal then pointed out that in the application it was claimed that the applicant would be impacted by China’s family planning policy: the “one child policy”. The Tribunal referred to independent country information which indicates that the policy is now relaxed and that from that information it appears the applicant would not be impacted.
The applicant’s mother agreed that the main issue was religion.
She stated that her view was that she might still face a fine. The Tribunal said there was no information before it to indicate that this was the case.
The applicant’s mother then stated words to the effect that the other aspect she is concerned about in relation to the applicant is that she was born in a free and democratic country and has an open mind. She indicated she did not want to take the applicant to a non-democratic country.
The Tribunal asked the applicant’s mother to expand on how she felt the applicant would be harmed physically. She responded that she considered mental harm as physical harm.
The Tribunal then discussed the religious situation in China and Fujian province and pointed out that there are many millions of Christians in China who practise their religion. She responded that those churches are under the control of the government, she stated her church is guided by God. The applicant’s mother then recited general tenets of her faith.
The Tribunal then discussed with the applicant’s mother the family’s migration history and how it could look like their main aim was to stay in Australia. The Tribunal put to her that it could look like she only put in a protection claim after other avenues to stay in Australia had failed.
She responded that she attends church due to her love for Christ. The Tribunal pointed out that her previous claims to be a Christian had been rejected by the Department and Tribunal. She responded with words to the effect that she cannot change her history.
The Tribunal then discussed that she had earlier provided evidence that her brother was in prison; however, previously said in her evidence that he is living with her parents in China. She responded with words to the effect that he is now out of prison.
The Tribunal then discussed with the applicant’s mother that the family attend a Chinese church. She responded with words to the effect that others also attend, and they look Chinese but are not. The Tribunal discussed with the applicant’s mother that the family generally mix with the Chinese community in Australia. She confirmed that was the case and that her family spoke Chinese/Mandarin in their home.
The applicant’s mother then recited tenets of the Christian faith and stated that the church in Fujian is different to hers. She stated that if she returns to China she will be persecuted. She stated words to the effect that she came to Australia at the age of [age] and she has been leading a religious life.
The Tribunal then discussed with the applicant’s mother her previous trips to China. She stated that at that time she was not persecuted as she was not a Christian. Since that time, she claims that her family have been threatened. She claims the government sent people to her parents’ home and told them that she should not do anything to threaten China’s reputation.
The Tribunal asked why the Chinese government would be interested in her. She responded it was due to her brother.
The hearing then ended.
Country Information
DFAT Country Information Report China December 2021
Religion – The Local Church (‘Shouters’)
DFAT understands that ‘Shouters’ are not as actively pursued in China as they once were. They may not, in practice, be considered or treated as a xie jiao. DFAT understands from sources that they may have been delisted as a xie jiao but different sources offer conflicting information. In Chinese-language internet searches, DFAT found a 2020 reference in the Chinese press that quoted Xining (the capital of Qinghai in Western China) police as saying that the ‘Shouters’ ‘pretend to be Christianity’ (which is consistent with other anti-xie jiao messaging) and clearly states that ‘Shouters’ are illegal.
People identified as ‘Shouters’ are a diverse range of groups of Protestant Christian origin that may be indistinguishable from other small Protestant groups and may have no resemblance to other groups of the same origin. Whether or not they see themselves as ‘Shouters’ is not as relevant as whether they are perceived to be ‘Shouters’ by authorities. The term is understood and applied regardless of self-identification of adherents. Therefore, a person who attempts to proselytise for a church or is seen as active within a church that is identified by authorities as a ‘Shouter’ church faces a high risk of official discrimination. Local Church members do not attract the same amount of attention as Falun Gong or The Church of Almighty God, but DFAT notes inconsistent sources and information. DFAT assesses that identification as a ‘Shouter’, regardless of which church an adherent belongs to, may still lead to government attention, including imprisonment under the same provisions of law as other xie jiao.[1]
[1] DFAT, Country Information Report – People’s Republic of China, December 2021, p. 23, paras [3.72], [3.74].
‘Shouters’in Fujian
DFAT assesses that individuals in Fujian have historically practised religion more freely within state-sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).
DFAT assesses 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 the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.
Family planning
DFAT report on China from 2021 regarding family planning states at page 30 paras 3.119-3.121:
In 2021 the law was changed to allow couples to have three children. Social compensation fees levied against people with ‘out of plan children’ were abolished. This reflects an overall de-prioritisation of the policy by a government that is now concerned with declining birth rates and an aging population.
3.120 The likelihood of enforcement or penalties for non-compliance, both before and after the new rules were implemented, varies from place to place. DFAT understands that Fujian, for example, does not enforce its family planning policy strictly and penalties have not been imposed in some years. People who give birth overseas would have their children counted as if they were born in China and the policies of the place they return to in China would apply. Children born to single mothers might also be considered ‘out of plan’.
3.121 Enforcing child limits has become a low priority for government. DFAT is not aware of any recent reports of people being imprisoned for failure to pay fees and is not aware of recent examples of forced abortions but understands that they are theoretically possible (see Uyghurs, who are not covered in this assessment). While punishment for out-of-plan children is still possible, it is much less likely than it was in the past. Implementation differs from place to place (it is regulated by provinces) but DFAT is not aware of evidence that breaches of family planning laws are severely punished anywhere in China. Outstanding compensation fees, including for previous children, still need to be paid. DFAT assesses that official discrimination against people who have out of plan children is low. DFAT is not aware of patterns of societal discrimination against people with out of plan children.
Nationality

The applicant’s parents claim to be citizens of China. They provided copies of their passports to the Department. The Tribunal finds that the applicant as a child of citizens of China is a citizen of China. The Tribunal has assessed her claims against China as her country of nationality for the purposes of the Convention and her receiving country for the purposes of s 36(2)(aa).
FINDINGS AND REASONS
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal has considered all the information and evidence provided by the applicant.
The applicant’s mother gave evidence on behalf of the applicant. At hearing she claimed the applicant could not return to China as she would not be able to practise her religion. The applicant’s mother claimed that the applicant would suffer due to her family’s faith and belonging to a local church ‘Shouters’. She further claimed the applicant would suffer on her return to China as she is receiving an education in Australia and Australia is a democracy which China is not. She made vague references to the applicant suffering physical and mental harm due to this change. When the Tribunal asked for clarification and details of what harm she responded that mental harm was physical harm.
The applicant’s mother agreed she was no longer concerned about the applicant being a “Black or out of plan child” however she was concerned about a fine.
The applicant’s mother made assertions that her brother (the applicant’s uncle) had spent time in prison due to his activities as a Christian. At the beginning of the hearing the Tribunal had discussed with the applicant’s mother her family in China. She stated that she has parents and a brother. Her evidence was that they all live in the same area they have always lived in. She stated that her brother lived with her parents.
When the Tribunal later in the hearing put to the applicant that she had earlier provided a statement that her brother was in prison, she stated that he is now out of prison.
She then went on to elaborate that those authorities had been to her parents’ home in China and warned them that the applicant’s mother must not disrespect China. When queried why they would do that she responded with words to the effect that it was due to her brother. The Tribunal only has the applicant’s mother’s own assertions in relation to any activities of her family and brother that might bring her or her children to the notice of authorities.
When queried about her previous visits to China and departures, the applicant’s mother stated that it was before she had found Christianity. She could provide no persuasive evidence as to why the authorities in China would be interested in her other than she has now found religion. She provided little detail and when queried she changed her evidence to suit her narrative. When it was put to her that previous decision makers had not accepted her claims she simply stated she cannot change the past. She did not provide any convincing explanation as to how her claims relate to the applicant other than to say she will suffer due to her mother’s beliefs.
In relation to the claims involving her brother and parents in China she was able to visit China twice in the past, as set out in the Department’s decision, she stated that this was because at that time she had not yet found Christianity. The Tribunal only has the applicant’s mother’s own assertions that the authorities have harassed her family due to her brother’s Christian beliefs in China. She stated in previous statements that her brother had been detained. At hearing she provided vague assertions and when given the opportunity did not provide any cogent or convincing details in relation to her family coming to the attention of authorities or why they would many years later, after she claims her brother was out of prison and she was in Australia, they would again start to harass and threaten her parents in relation to her claimed Christianity in Australia.
The applicant’s mother was able to secure a student visa and study in Australia for some years. Her family had the resources to assist her with this study. The applicant’s mother’s evidence is that her family continue to work and live at the same address where they have always lived, and she has contact with them. The Tribunal does not accept that if her family or brother were of such interest to the Chinese authorities that she would have been able to pursue her overseas study or that her family could live in the same area they have always lived in if that harassment and interest was continuing.
The applicant’s mother provided evidence of attending church in Australia. The Tribunal accepts the applicant and her family have attended church meetings and events in Australia. However, the Tribunal has concerns in relation to whether the applicant’s family occasionally attend Church to meet their religious and spiritual needs, or for other reasons.
The Tribunal accepts the applicant’s mother has some knowledge of Christianity. At times during the hearing, she would, unasked, recite basic tenets of faith. The Tribunal found her evidence in relation to her Christianity to be rehearsed and generalised.
Earlier in the hearing the applicant’s mother stated that since she arrived in Australia, she has practised Christianity. The applicant’s mother later stated that she started attending since 2012. The Tribunal discussed with the applicant’s mother that from her migration record it would appear she only started to form an interest in Christianity after her other avenues to secure residency in Australia had failed. She rejected this and stated she was chosen at a certain time to be a child of God.
The Tribunal was supplied with translated letters from other persons who identified themselves as members of the church where the applicant’s mother attends. None of the letters were from pastors or ministers. In one letter the author identified himself as a “serving brother”. They were all very similar. The wording in most of them was identical and lacked detail.
They provided minimal evidence other than that the applicant’s mother and applicant’s family attended church and had done so since October 2012. A letter was from a member of the church at [Suburb 2] which stated that the applicant’s family attended since 2015. The letters have the appearance of being templates. Two letters refer to the applicant’s mother participating in evangelization; however, no details of how this was done was provided.
The Tribunal puts little weight on those letters as they do not appear to be written independently of each other as for the most part they are identical. The Tribunal accepts that the persons may want to assist the applicant’s family secure residency but does not place weight on them as proof of a strong commitment to the local church in China.
The applicant provided photographs of what appeared to be meetings and social events. They appear to be taken in a community setting and could be church meetings.
Regarding the applicant’s mother’s evidence in relation to going to Church with friends, the photographs of her and her children with groups of people that have been provided to the Tribunal tend to indicate that she and her children are involved in social and community-based activities with her countrymen and countrywomen through the Church or communities and that they have provided her with a social network and support.
No evidence was provided which would indicate that the applicant’s mother was a leader or high-profile adherent of any church including the local church. The applicant’s mother made some vague assertions of spreading the word and letters referred to her participating in evangelising. On the evidence before it the Tribunal is not satisfied that the applicant’s mother or any of her family would evangelise or put themselves at risk on return to China to the extent that they would come to the attention of authorities and put the applicant at risk of harm.
The Tribunal accepts country information which states that Fujian province is more tolerant of Christianity and many millions practise Christianity including what is referred to as local/shouter churches within the parameters set by the authorities.
The Tribunal finds that the applicant and her family could practise Christianity within the bounds of the official and registered churches, in China as many millions do, if they so choose. The Tribunal does not accept that the family’s commitment to Christianity is such that they will come to the attention of authorities in China and accepts country information as set out above.
Overall, the Tribunal is not satisfied that the applicant’s family’s commitment is such that they will continue to practise Christianity on their return to China or that they would put the applicant and their family at risk of harm by criticising the Communist Party or preaching publicly or evangelising. The Tribunal is not satisfied that the applicant will suffer any serious harm due to her mother practising Christianity in China.
The Tribunal does not have anything before it to indicate that Chinese authorities would target a [age]-year-old child.
In the applicant’s written application for protection, it was claimed the applicant would suffer due to the breach of family planning laws in China. She claimed that the applicant will suffer due to her parents’ marriage not being registered. At hearing the Tribunal discussed country information which indicated this was no longer the case. The applicant’s mother confirmed that the main issue was religion, however, she stated she was concerned about a fine.
The Tribunal was not provided any updated financial evidence. Some financial documents dated 2015 were provided to the Department.
On the evidence before it the Tribunal is not satisfied that the applicant would suffer any discrimination or be deprived of services or registration due to a breach of any family planning policy. The Tribunal accepts country information that the Chinese authorities have relaxed those regulations and are encouraging more children. The Tribunal does not accept that the applicant will suffer any serious harm on her return to China due to any breach of family planning policies. The Tribunal accepts country advice set out above that the authorities are encouraging of larger families and that particularly Fujian province has not imposed any penalties for some years.
The Tribunal does not accept that her family will have to pay any onerous fine or be subject to restrictive conditions. The family are resourceful and adaptable the applicant’s parents have managed to live in Australia on temporary visas since 2007 and 2008. The Tribunal is satisfied they will be able to deal with any registrations and administrative tasks required of them when they return to their home country.
The Tribunal accepts that the applicant is a child of Chinese citizens. The Tribunal finds that she is entitled to Chinese citizenship. The applicant is the second child of her parents. After considering the independent information above the Tribunal is satisfied there has been a relaxation of the relevant family planning laws and there is nothing to indicate the applicant as a second child would be at risk of serious harm or have any onerous conditions applied to her as the second child of the family. The Tribunal finds the applicant will be registered in China and able to access education and welfare services available to all citizens in China. On the independent country information, the Tribunal is satisfied that the applicant will not suffer due to her parent’s marriage not being registered. The Tribunal is satisfied the applicant’s parents could registered their marriage in China.
As set out above, the applicant’s mother stated at hearing that she was called to be one of God’s children after she came to Australia. This is despite her claims she was exposed to Christianity in China by her brother. The Tribunal finds that the applicant’s parents have only started to attend church regularly since their efforts to stay in Australia have been unsuccessful. The Tribunal accepts that they may enjoy the camaraderie and community; however, the Tribunal finds that a major motivation was to achieve their desired migration outcome.
The applicant’s mother stated that the applicant’s fears were the same as her fears. The Tribunal put to the applicant’s mother that it appears that she lodged her own application for protection and claims to have attended church after her other avenues to obtain residency failed, as set out the Department’s decision record. The Tribunal therefore finds that the applicant is not at risk of serious harm due to being affiliated with her mother or her family in China.
The Tribunal after considering all the evidence before it finds that applicant’s parents lodged an application for protection for the applicant, a minor, after the applicant’s mother’s application for protection was unsuccessful in order to achieve a visa to stay in Australia and they do not hold a genuine fear of serious harm.
The applicant’s mother stated several times that she wants the applicant to stay in Australia as she has been born and educated in Australia and Australia is a democratic country. At hearing she made claims that the applicant would suffer serious harm both physical and mental. When given the opportunity she did not elaborate on that harm other than to say she considers mental harm to be physical. This could be the case; however, no medical evidence was provided to the Tribunal. The applicant is a [age]-year-old child. Children are adaptable. The evidence before the Tribunal is that the applicant’s family speak Mandarin in the home and mix in with the Chinese community in Australia, she has family in China and the Tribunal is satisfied that her parents and mother are committed to her care. The Tribunal can sympathise that the applicant’s parents want the applicant to have a better life in Australia, however, is not satisfied that she is at risk of persecution due to her religious beliefs whether real or imputed from her family and, therefore, can satisfy the criteria for a Protection visa.
The applicant’s mother claimed at the hearing that the applicant is committed to Christianity, she claimed the applicant believes in the existence of Jesus Christ. On the evidence before it and the many millions of Christians in China the Tribunal is not satisfied that a child believing in Jesus Christ would bring them to the adverse attention of authorities in China. Overall, the Tribunal does not accept that a [age]-year-old is able to express or have such a strong commitment that she would be at risk of harm in China. The Tribunal is satisfied after considering country information that the applicant could attend, if her family so choose, a registered church in China and not suffer any persecution.
After considering all the evidence before it the Tribunal is not satisfied that the applicant is at risk of harm due to her family including her mother being committed “Shouters” or any underground Church. The Tribunal does not accept that the applicant’s parents would put themselves and their family at risk of harm due to any commitment to the underground/local Church.
The Tribunal is not satisfied that the applicant’s mother and, therefore, the applicant is of interest to the Chinese authorities due to being a practising underground ‘Shouter’ Christian. Further, for the same reasons the Tribunal is not satisfied that the applicant is at risk of harm due to any perceived association to or with her mother’s and/or her family in China.
The Tribunal finds that applicant’s mother’s previous ability to travel to and then exit China back to Australia indicates that she was not of interest to the authorities at that time and due to the Tribunal’s findings as set out above, that the applicant’s mother is not a committed Christian, is not in danger now if she was to return to China and, therefore, the applicant is not in danger of being deprived of her mother or family if she returns to China.
The Tribunal on the evidence and information provided does not accept that the applicant will be deprived of her basic human rights for any of the reasons claimed if she returns to China. The Tribunal is not satisfied that she is at risk of serious harm or significant harm for any of the reasons claimed if she goes to China now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that she will suffer serious harm for reason of her membership of a particular social group, religion or any other grounds under the Refugees Convention if she goes to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined. Accordingly, the Tribunal finds that she does not satisfy the criterion in s 36(2)(a).
Does the applicant meet the complementary protection criteria?

100. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
101. A person meets the complementary protection criteria if there are 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.
102. ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
103. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
104. The applicant claims that she was born in Australia and has been educated in Australia a democratic country and therefore will suffer mental harm if returned to China. The applicant is [age] years of age. Both her parents are Chinese citizens and hold Chinese passports. They have close family in China and her parents communicate with their family in China. The applicant’s parent’s main language is Mandarin, and they have limited English. The applicant’s parents in Australia socialise and mix within their Chinese community. Children are adaptable and the Tribunal is satisfied that her family are committed to her care and protection. The Tribunal finds that that she has a strong connection to China. The Tribunal is not satisfied that there is a real risk the applicant would suffer any of the kinds of significant harm set out above, including any discrimination or mental torment due to returning to life and education in China.

105. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s 5(1). The Tribunal is not satisfied 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 she will suffer significant harm. She, therefore, does not satisfy s 36(2)(aa).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision

108. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Catherine Carney-Orsborn
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4968

16 November 2022

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