1715000 (Refugee)

1715000 (Refugee) [2022] AATA 4715 (20 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715000
COUNTRY OF REFERENCE:                   China
MEMBER:Frank Russo
DATE:20 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 October 2022 at 3:56pm
CATCHWORDS
REFUGEE – protection visa – China – single mother – relationship with partner restored – family planning policies – hyperthyroidism – access to healthcare – internal family issues – parents’ favouritism towards younger brother – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of China. The first-named applicant (the applicant) is a [age]-year-old Chinese national and applied for a Protection visa on 26 May 2016. The second-named applicant is the applicant’s son, who is [age] years old, and was born in Australia on [date] and is also a Chinese national.
The second-named applicant was not born at the time the visa application was lodged with the Department. The delegate’s decision notes that at Question 13 of the Protection visa application, the applicant indicated she was pregnant at the time. In their decision, the delegate notes that the applicant provided the Department with a birth certificate of the second-named applicant and accepted that the second-named applicant is a member of the family unit of the applicant and was therefore added to the Protection visa application.
The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm, and also whether either applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa.
The applicant appeared before the Tribunal on 19 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
As noted, the issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm, and also whether either applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa.
The applicants provided the Tribunal with their application for review, together with a copy of the delegate’s reasons for decision and notice of the decision from the Department.
The applicant provided a response to the hearing invitation. The applicant has not otherwise provided the Tribunal with any additional documents in support of her claims. The applicant provided a number of requests for letters confirming her application for review for the purpose of accessing Medicare.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file. The Tribunal notes that following an interview with the Department, on 14 June 2017 the applicant provided the Department with a copy of the birth certificate of the second-named applicant and copies of two pathology reports, copies of which are on the Department file. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of her Chinese passport to the Department and to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who she claims to be, and that she is a national of China, which is also her receiving country.
The applicant claimed that the second-named applicant was born in Australia on [date]. She claimed that she does not know whether the second-named applicant would be deemed to be a Chinese national. She noted that the second-named applicant does not have a passport, only a certificate of birth.
The Tribunal notes that the applicant provided a copy of the second-named applicant’s Australian birth certificate to the Department. This birth certificate names the applicant as the second-named applicant’s mother, and [Mr A] as the second-named applicant’s father. The applicant also confirmed that [Mr A] is also a Chinese national and present in Australia. The birth certificate indicates that both of the second-named applicant’s parents were born in Fuqing City, Fujian Province, China.
The 2019 DFAT country information report for China indicates that children’s citizenship is obtained through their parents, who must be registered in accordance with the hukou system.[1]
[1] DFAT Country Information Report People’s Republic of China, 3 October 2019.
I accept that the second-named applicant is the applicant’s son, and although born in Australia in [year], on the basis of the country information and his birth certificate, I find that he is a national of China, which is also his receiving country.
The applicant claimed at the hearing that she and the second-named applicant do not have a right to enter and reside in any third country.
On the basis of the information before the Tribunal I accept this claim and find that the applicants do not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The applicant attached a statement to her Protection visa application in both English and Chinese, in which she makes the following claims:
a.She was born in [Town 1] Town, Fuqing City, Fujian province;
b.She has a younger brother, whom his mother gave birth to in defiance of the one child policy;
c.In 2007 she came to Australia holding a Student visa. She started studying a language course at [education provider], then completed Year 11 of high school. She started Year 12, but her family stopped supporting her. She was unable to pay the tuition fees, so she quit studying in March 2009 to focus on her work;
d.In March 2010 her visa expired, and she overstayed her visa unlawfully. She thought of returning to China, but was afraid her family would not accept her and would judge her as a school leaver;
e.In February 2012 she met her ex-boyfriend, who was also in Australia unlawfully. In the second half of 2012 she found out she was pregnant, but she then had a miscarriage;
f.After medical check-ups, doctors confirmed that her pregnancy and the resulting changes in her hormones had stimulated her thyroid gland and resulted in the miscarriage;
g.When she told her boyfriend about her hyperthyroidism, he thought that she had a family history of the disease and would not have children in the future. They separated at the beginning of 2014 and did not keep in touch;
h.From 2014 she was single and had no relatives in Australia. She thought of returning to China, but her family would not be happy if she returned ‘miserably’. Her family were aware that she had been pregnant before marriage and her boyfriend left her after the miscarriage; and
i.She started going to a church with a friend at [Address 1]. Her friends at the church encouraged her to be positive. She started going to church every Sunday and is planning to be baptised and to become a Christian.
The Tribunal noted that the second-named applicant was not born when the applicant lodged the Protection visa application with the Department and there is no mention of her being pregnant in her statement or of any claims relating to the pregnancy, although at Question 13 of her Part C visa application form, the applicant stated that she was pregnant with an expected birth date of [date].
The delegate’s decision record
The applicants provided a copy of the delegate’s decision with their application for review. The applicant attended an interview with a Departmental officer on 8 June 2017, which was conducted with the assistance of an interpreter in the Mandarin language. At the interview, the applicant provided the following additional information and claims:
a.Her mother and younger brother live together in [Town 1], Fuqing City, Fujian. Her father is working as a [Occupation 1] in [Country 1]. Her mother does home duties;
b.Her son (the second-named applicant) was born on [date]. His father is [Mr A], who has gone missing. The pregnancy was not planned;
c.She cannot return to China because she is a young, single mother with hyperthyroidism;
d.She cannot withstand unpleasant stimulation in the form of family opposition to her social status, nor the malicious gossip which she would encounter in China. The adverse stimulation could lead to her having high blood pressure and a fast heartbeat and cause her eyeballs and neck to become even more swollen;
e.If her condition worsens she may not be able to look after her baby; and
f.Her family belongs to a clan which is impoverished and none of her relatives will help her.
The delegate noted that while the applicant’s written statement indicated she had been attending a church in [Suburb 1] and she planned to be baptised, the applicant did not address this matter in terms of it forming a claim, or part of a claim, for protection, nor did she raise the subject of religion at the interview. After briefly referring to country information about religion in China, the delegate did not accept that the applicant fears persecution in China for reasons of religion.
The delegate accepted that the applicant has a son (the second-named applicant) who was born in Australia in [year], is unmarried and not in a relationship with the child’s father or anyone else, and that she has been diagnosed with, and treated for, hyperthyroidism.
The delegate’s decision notes that when asked at interview what she thought would happen if she returns to China, the applicant stated that her family objected to her having her baby and she may be discriminated against for being an unmarried mother. She also stated that the stress of travelling to China and settling there might exacerbate her hyperthyroidism and could cause serious problems which would prevent her from caring for her child. She claimed that she is from an impoverished family, and no-one would help her.
The delegate noted that the applicant had not raised the issue, but that at the time of the delegate’s decision it was illegal to have a child out of wedlock and single mothers were forced to pay a fine for bearing a child. The delegate noted however that this is a law of general application as it applies to all Chinese people, and therefore did not substantiate a claim for a well-founded fear of persecution. The delegate noted country information which indicated a social stigma associated with being an unmarried mother in China, but noted that the applicant speaks to her mother weekly and found that it is unlikely that the applicant’s mother could not be supportive of her and her grandson. The delegate also noted that the applicant’s father was employed as a [Occupation 1] in [Country 1], and therefore considered that any stigma the applicant may experience as a single mother was unlikely to affect her capacity to meet her needs for accommodation, food or clothing.
The delegate considered country information regarding healthcare in China and assessed that there was no evidence that the applicant would be discriminated against for a s.5J(1)(a) reason in relation to her ability to access health care in China.
Overall, the delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act and was therefore not satisfied that she is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk she will suffer significant harm, and therefore is not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.
Evidence at the hearing regarding preparation and contents of application
At the hearing the applicant gave evidence that she remembered making the Protection visa application, which she made with the assistance of a lawyer, who typed up her written statement for her. She stated that once the Chinese version of the statement was typed up, a copy was handed to her, and she read it. She stated that the lawyer translated the statement into English. She stated that she is aware of the contents of her visa application form and statement and that they are true and correct. She stated that she wished to make changes to the application in terms of things that happened after the application was lodged, such as having a baby.
Second-named applicant included as member of family unit of the applicant
The Tribunal questioned whether the second-named applicant is making any claims of his own or whether the applicant wished to make any claims on his behalf. The applicant confirmed that the second-named applicant was not making any claims of his own and has been included in the application solely on the basis that he is a member of the applicant’s family unit.
Evidence regarding the applicant’s background and travel
The applicant confirmed at the hearing that she is from [Village 1], [Town 1] Town, Fuqing City, Fujian Province. She stated that she lived at the one address until she was [age] and arrived in Australia. She stated that both of her parents and her younger brother live at the same address in [Village 1]. Her father was working in [Country 1] until 2021, but returned to China because of COVID-19, and that he has been unable to return to [Country 1] because of COVID-19. The applicant was vague in relation to the work her father did in [Country 1], but after some questioning stated that he was in a senior management role in a factory. She did not know what kind of factory it was or what it produced. Her father is not currently working in China, nor does her mother. Her brother works on a construction site.
The applicant gave evidence that she now has two children. The second-named applicant who was born on [date]. She has a second son by the name of [Child B], who was born on [date]. She confirmed that [Mr A] is the father of both children. She stated that she is not married to [Mr A] but he is her partner. She stated that she met [Mr A] in about 2014. They separated for a while after the applicant had a miscarriage, but [Mr A] returned to Sydney from Canberra about 6 months after the birth of the second-named applicant. The applicant confirmed that [Mr A] has been living with her since moving back from Canberra in early 2017. She stated that [Mr A] does not have a visa and he currently works in ‘renovations’.
The applicant stated that she completed the second year of high school in China. She confirmed that she arrived in Australia [in] August 2007, holding a Student visa. The applicant could not remember the details of when her Student visa ended. The Tribunal put to her that according to the delegate’s decision, she was granted a second Student visa, which ended in March 2010. The applicant responded that the only thing she remembers is that she studied for one to one-and-a-half years. She studied English language then completed Year 11. She did not complete Year 12.

The applicant confirmed that she arrived in Australia by plane. She was somewhat vague about her travel details, but stated that she left China from an airport in Fujian Province, and stated that it may have been Changle Airport. She confirmed that she travelled with her own passport and arrived in Australia for the purpose of studying. She stated that after she stopped studying, she worked in two factories and a restaurant. She confirmed that she did not hold a valid visa from March 2010 until after she applied for the Protection visa in March 2016, and was therefore in Australia unlawfully for approximately 6 years.
The applicant stated that she is not working at present and is supported by her partner.
Claims regarding protection
When asked about her claims for protection, the applicant simply stated that she just does not want to go back to China. When asked whether there is any reason why she fears returning to China or believes she would experience any harm upon return to China, the applicant stated that her parents adore her younger brother. If she has any money and sends it to her parents, they will give the money to her brother. When asked if there are any other reasons why she does not wish to return to China, the applicant responded no. The applicant also confirmed that she was not making any claims on behalf of her son, whom she has included in the application as a member of her family unit.
When asked whether she remembered the claims which she made in her written application and statement, the applicant stated that the claims she made were that her parents had her younger brother, and that since then her parents have been biased towards him and she hates it.
The Tribunal put to the applicant that this was unlikely to meet the requisite degree of harm required to establish that the applicant is owed protection. The applicant responded that she understood.
When questioned further as to whether she fears any harm would come to her upon return to China, the applicant responded no and stated that what she was referring to is ‘merely family business.’ When questioned whether there are any other reasons why she does not wish to return to China, the applicant again stated that her family is biased against her and in favour of her younger brother. She added that her partner’s family does not like her because in the past she had problems with her thyroid gland, which meant that she is unable to work.
The applicant confirmed that she has been diagnosed with hyperthyroidism. When asked how this affects her, she stated that she has to have tests every two to three months. She stated that she just has to remain calm and cannot get angry, otherwise it affects her ‘internal systems’. She stated that she can also not do ‘hard labour’. When asked what she believes may happen upon return to China as a result of her hyperthyroidism, the applicant stated that because of this condition she won’t be able to work and her partner’s family dislike her for this reason. When asked whether she fears any harm as a result of her hyperthyroidism upon return to China, the applicant answered no. She later stated that the only harm which would come to her would be from her partner’s family, as they would deem her to have a disease.
The Tribunal questioned the applicant about each of the claims made in her visa application, as well as the claims she added at the Departmental interview, to determine whether she was still making any of these claims. The applicant confirmed that she is no longer making any claims to harm on the basis of being a single mother, as the father of the second-named applicant returned to live with her 6 months after the birth of the second-named applicant, and that they have since had a second child together and continue to live together. The applicant confirmed that she was no longer making any of the claims which she made in her visa application or at the Departmental interview.
The Tribunal questioned the applicant about the written claim she made regarding attending a church in [Suburb 1] and her stated plans to be baptised. The applicant stated that she attended the church initially but stopped going there. When asked about the church, she stated that it was in [Suburb 1], near the train station, but she could not recall the name or the denomination of the church. She confirmed that she was not making any claims to persecution on the basis of religion.
The applicant was asked on at least two further occasions whether she wished to add any further claims and whether she had any other relevant information which she wished to tell the Tribunal. On each occasion the applicant answered no.
FINDINGS AND REASONS
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
It is the responsibility of the applicant to specify all particulars of their claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or to assist the applicant in specifying, any particulars of their claims, nor any responsibility or obligation to establish, or assist the applicant in establishing, their claims.
While the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and of all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70). As Kirby J observed in Dranichnikov v MIMA [2003] HCA 26, at 78:
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal's duties. The function of the Tribunal … is to respond to the case that the applicant advances …
Overall, the Tribunal found the applicant to be a truthful witness, who provided frank responses to the Tribunal’s questions and did not exaggerate her claims. The applicant answered questions honestly in relation to each of her claims, including disavowing certain claims in light of her change in circumstances.
On the basis of the applicant’s evidence, I accept that the applicant is from [Town 1], Fuqing City, Fujian. I accept that she has a younger brother who lives in China. I am prepared to accept her claim that her parents treat her younger brother more favourably and are biased in favour of him. I accept that the applicant arrived in Australia in August 2007 for the purpose of studying English language and then high school. I accept that she completed Year 11, after which her family ceased supporting her financially and she was forced to work to support her stay in Australia. I find that her Student visa ceased on 15 March 2010 and that the applicant remained in Australia unlawfully for a period of approximately 6 years, until she lodged the Protection visa application in March 2016 and was granted a Bridging visa on 9 April 2016.
I accept that at the time the applicant made the protection visa application she was pregnant with the second-named applicant, who was born on [date]. I accept that the applicant met her partner, [Mr A], in 2012, as set out in her written statement accompanying the visa application. I note that while in her oral evidence she stated that they met in about 2014, I do not draw any adverse conclusions from this discrepancy, given the applicant indicated she was giving an approximate time and given the passage of some time. I accept the applicant’s claim in her written statement that she became pregnant in the second half of 2012 but miscarried the child. I also accept the applicant’s claim that she and [Mr A] separated some time in 2015, and that [Mr A] then moved to Canberra for work in the [specified] field.
I accept the applicant’s evidence that [Mr A] returned to live with her approximately 6 months after the birth of the second-named applicant, sometime in early 2017. Although the applicant has not provided any documentary evidence in relation to the birth of her second son, I accept her evidence that she gave birth to a second son, named [Child B], on [date]. I also find on the basis of her evidence that she continues to be in a relationship with [Mr A], although they have not married. I accept that she is not currently working and that she and her children are being supported financially by [Mr A].
Does the applicant have a well-founded fear of persecution if she returns to China?
The applicant confirmed in her oral evidence that she was disavowing the claims she made at the Departmental interview regarding being a single mother, as she has since restored her relationship with her partner and they have had a second child and live together. The Tribunal therefore rejects the applicant’s claims regarding being a single mother, given its findings that the applicant is no longer a single mother and is in a relationship with the father of both of her children.
Although the applicant did not make any claims in this regard, given her evidence that she and her partner are unmarried and have two children, I have considered whether she may have a claim as a person affected by family planning policies.
At the hearing the Tribunal discussed with the applicant information from the latest DFAT report regarding persons affected by family planning policies. The Tribunal noted that in 2021 China’s family planning laws were changed to allow couples to have three children, and that social compensation fees levied against people with ‘out of plan children’ were abolished.[2] In 2016 the national government ordered all local governments to register children with a hukou even if they were born ‘out of plan’.[3] The country information indicates that even before the new rules were implemented, the likelihood of enforcement for non-compliance with the family planning laws varied from place to place. In Fujian, family planning policy was not enforced strictly, and penalties have not been imposed for some years.[4] 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 would apply. Children born to single mothers might also be considered ‘out of plan.’[5] DFAT is not aware of any recent reports of people being imprisoned for failure to pay fees.[6] While DFAT notes that punishment for out-of-plan children is still possible, it is much less likely than in the past and implementation differs amongst different provinces, although DFAT is not aware of evidence of severe punishment for breaches of family planning laws anywhere in China.[7] The DFAT report concludes that official discrimination against people who have out of plan children is low, and that DFAT is not aware of any patterns of societal discrimination against people who have out of plan children.[8]
[2] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.119.
[3] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.118.
[4] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.120.
[5] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.120.
[6] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.120.
[7] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.121.
[8] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.121.
The Tribunal put to the applicant that based on this country information, it may not consider that she would be in breach of family planning laws as she is not a single mother and is in a relationship with the father of both of her children. The information does not indicate any other reasons why the applicant would be harmed or receive discriminatory treatment on the basis of family planning laws. The applicant indicated that she understood the information and that she had no comments.
The Tribunal finds that the second-applicant’s birth certificate lists the applicant as his mother and [Mr A] as his father. The applicant confirmed in her evidence that she is in a relationship with [Mr A], and that they live together with both of their children. On the basis of the country information and the applicant’s evidence of her family relationships, the Tribunal does not consider that the applicant would be in breach of any family planning laws or be required to pay any social compensation fee. Nor is there any evidence to indicate that either of the applicant’s children would be denied a hukou or any access to services which come with such registration, including health and education. The Tribunal also notes the less stringent application of family planning policies in Fujian Province, where both the applicant and her partner are from. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of family planning laws or that there is a real chance that she will face any harm on this basis upon return to China.
As to the applicant’s claims regarding hyperthyroidism, I note that the applicant provided the Department with pathology reports from March 2016 and April 2017, which show that under the heading of Thyroid Function, the applicant has low levels of TSH outside of normal function over a range of dates from September 2015 to April 2017, which may indicate hyperthyroidism.[9] I accept the applicant’s evidence that she has been diagnosed with hyperthyroidism and requires pathology tests every two to three months. I accept the applicant’s claim that this condition means that she must remain calm, and that anger or stress may impact her body’s systems, causing things such as higher metabolism and rapid or irregular heartbeat. I also accept the applicant’s claim that this means she cannot do strenuous work and am prepared to accept her claim that this has caused tension with her partner’s family, who dislike her for this reason.
[9] ‘Hyperthyroidism: Signs and Symptoms of an Overactive Thyroid’, Healthline, 6 April 2022, >
The Tribunal discussed with the applicant information from the latest DFAT report regarding the health system in China. The Tribunal noted that the average life expectancy in China is 76.9 years, with life expectancy higher in urban areas than in rural areas.[10] Health varies significantly between urban and rural areas, with urban centres having better quality healthcare for those with the relevant urban hukou.[11] Previous DFAT reports refer to high-quality public health care available in main urban centres[12] and significant advances in the quality of, and access to, healthcare.[13] The Tribunal invited the applicant to respond to this country information. The applicant indicated that she had no comments regarding to the health system in China. She stated that the only issue she would face upon return to China is an internal family issue. She stated that her partner’s family say that she has a disease and do not like her for this reason. She also stated that her own family is biased against her, in favour of her younger brother.
[10] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 2.13.
[11] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 2.13.
[12] DFAT Country Information Report People’s Republic of China, 3 October 2019, para 2.17 and DFAT Country Information Report People’s Republic of China, 21 December 2017, para 2.13.
[13] DFAT Country Information Report People’s Republic of China, 3 March 2015, para 2.11.
While I accept that the applicant may experience some stigma from her partner’s family because of her diagnosed condition of hyperthyroidism, there is no country information to indicate that the applicant would experience societal discrimination because of this condition. On her own evidence, her partner is currently supporting her, and I find that it is likely that he would be able to continue to support her upon return to China, and therefore although she claims she is unable to do strenuous work, she is likely to have continued financial support from her partner.
There is no evidence before the Tribunal to indicate that the applicant would not be able to receive regular pathology testing and treatment for hyperthyroidism in China. I note that the applicant gave evidence that she is from a village within Fuqing City, and that her parents and brother all currently live within this village in Fuqing City. The birth certificate of the second-named applicant indicates that the applicant’s partner, [Mr A], is also from Fuqing City. Accordingly, I consider it likely that upon return to China, the applicant will return to Fuqing City. I therefore find that she would be able to access healthcare at a high-quality urban standard as she will have an urban hukou based in Fuqing City. There is nothing in the country information to indicate that she would not be able to receive treatment for her condition upon return to China.
While I accept that the applicant may not wish to return to China because of what she describes as internal family issues, she gave evidence that the only harm she would experience would come from her partner’s family members, who do not like her because she has what they deem to be a disease. The Tribunal put to the applicant that while it may accept that her husband’s family may not like her and she may experience some stigma from them as a result of her medical condition, there is no evidence that they would cause her any harm or that she would experience harm which would amount to serious harm for the purposes of meeting the refugee criterion. The applicant indicated that she understood the concern and that she did not have any comments. In response to another concern put to the applicant, regarding her delay in lodging a protection application, the applicant stated that she does not fear any harm in returning to China, but rather that she does not like the internal issues associated with her partner’s family.
On the basis of the applicant’s evidence, I find that the applicant does not fear that she will be persecuted on the basis of her hyperthyroidism, and I am not satisfied that there is a real chance that she will face serious harm upon return to China on the basis of this or any other medical condition.
I accept the applicant’s claim that she began attending a church in [Suburb 1] with a friend in 2014, after she had a miscarriage. I find however that the applicant was unable to remember the name of the church or indicate what religion or denomination the church belongs to, and I accept her evidence that she only attended the church ‘initially’ and soon stopped attending the church. There is no evidence that she has been baptised. I find on this basis that while the applicant may have attended a Christian church briefly, she is not a practicing Christian. Although the applicant stated in her written statement accompanying the visa application that she had been attending a church in [Suburb 1] and planned to be baptised, she did not claim this as a basis for fearing return to China and she did not raise the subject of religion at the Departmental interview. The applicant confirmed in her evidence before the Tribunal that she is not making any claims regarding persecution on the basis of religion.

The Tribunal accepts that the applicant is not making any claims on the basis of religion. It finds in any case that the applicant attended a church only briefly with a friend and is not a practising Christian. The Tribunal therefore does not consider that the applicant will come to the attention of authorities in China or come to any harm on the basis of her religious beliefs. The Tribunal also notes that both Protestantism and Catholicism are recognised as official religions in China, with Christianity growing rapidly.[14] The Tribunal also finds that if the applicant were to attend a church in China out of interest, given her limited engagement with religion to date, including no information to indicate that she followed a particular denomination, the applicant could attend either a church aligned with the Three-Self Patriotic Movement[15] or an official Chinese Catholic Church[16], although she may also have options to attend an underground Catholic or a house Protestant church. There is nothing to indicate that the applicant would have any objections in attending a registered church in China because of any religious or political values. The Tribunal is not satisfied that the applicant’s attendance at a registered or unregistered church in China would attract any adverse attention from authorities.
[14] DFAT Country Information Report People’s Republic of China, 22 December 2021, paras 3.22 and 3.28.
[15] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.32.
[16] DFAT Country Information Report People’s Republic of China, 22 December 2021, para 3.36.
I accept the applicant’s submission that she does not make any claims regarding religion and am otherwise satisfied that there is no real chance the applicant will be questioned, harassed, detained or otherwise harmed by the authorities or anyone else for reasons of religion in China, now or in the reasonably foreseeable future.
The applicant confirmed on several occasions during the course of the hearing that she does not wish to return to China because she believes her parents are biased towards her younger brother and because her partner’s family do not like her. I have already addressed the applicant’s claim that her husband’s family does not like her because of her hyperthyroidism, and I do not find that the applicant would experience any harm which amounts to serious harm on this basis upon return to China. The applicant confirmed that this is the case, and her concern is about internal family issues.
While I accept that the applicant wishes to remain in Australia and may not wish to return to China because of any real or perceived issues with her own family, including bias towards her younger brother, or with her partner’s family, she has not provided any evidence of harm which she will come to as a result of such family issues. The applicant confirmed that she does not have any fear of returning to China. The applicant also confirmed at the hearing that there are no other grounds or any other basis on which she is claiming protection.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, upon return to China, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does Australia have protection obligations to the applicant under the complementary protection criterion?
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), namely, whether she may meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
The Tribunal has found above that there is no evidence that the applicant will experience harm upon return to China for any reason, other than her claims that she is disliked by her partner’s family and that her own family favours her younger brother. On her own evidence, the applicant claims she does not wish to return to China because of internal family issues and does not claim that she will experience any harm which will amount to serious harm or significant harm.
The Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of her life, or that the death penalty will be carried out on her, or that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment if she returns to China now or in the reasonably foreseeable future. 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 she will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
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) of the Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Frank Russo
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 4715

20 October 2022

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