1719766 (Refugee)

1719766 (Refugee) [2018] AATA 4024 (5 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719766
COUNTRY OF REFERENCE:                  China
MEMBER:David McCulloch
DATE:5 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 September 2018 at 9:24am

CATCHWORDS
REFUGEE – Protection visa – China – religion – Christian – mother attended banned church – unregistered church – social group – child born out of wedlock – child of a single mother – one child policy – subject to social compensation fee – hukou registration – sufferer of autism disorder – witness credibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 on 22 August 2017 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China applied for the visa on 19 September 2016.
The applicant attended the Tribunal with her mother on 17 August 2018. The applicant is [age] years old. Evidence on behalf of the applicant and evidence in the hearing was provided by the applicant’s mother, [Ms A]. Appearing as a witness for the applicant was [Ms B], [from] [Church 1].
The Tribunal was assisted with the use of an interpreter in the Mandarin language.
The applicant was represented by a registered migration agent, who did not attend the hearing.
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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the DFAT Country Report – China, 21 December 2017 and DFAT Thematic Report – China: Fujian Province, 16 December 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The decision of the delegate indicates that the applicant was born at [named] Hospital on [date]. The application forms indicate that the applicant is a citizen of China.
The following written statement was provided on behalf of the applicant as to her claims for protection (not corrected for spelling and grammar):
My name is [name], I was born in Australia, my mother is [Ms A], I do not know who my father is, my mother is still single, I have an elder sister [Ms C].
Since we have born, we attended the Church every week, my mother is a Christian, and she sometimes reads the Bible to us. I am always thinking about who is my father, but I did not have any idea at all. I think my mother is very impossible to take us to CHINA, as the children of a single mother, we could not be registered into the household in CHINA, we will become the black children, as a result, we are not able to attend the school. We cannot get the social welfare. My mother does not want us to live in the unfair environment.
I like Church, while I do not know the meaning of Bible at all, I like the atmosphere, I know I am also the Child of God, I am also loved by him, I think I will be the lucky child to be born in the Christian family, I can feel the love from God, and I understand even I do not have father around me, but I am happy.
I know if I return to China, I will face very difficult situation, I will not be able to accept the education, not household registration, no medical support. I will lose the opportunity to attend the Church; I will become empty, hopeless and miserable. I do not know what will happen on me.
It is very hard for my mother to raise us up, without the support and the love from Church, we will not be like today.
I would like to ask for your consideration, as the Child like me, I want to have my future, I want to serve God and when I grow up I can return to the society, although I do not have father, but I will be stronger because I have God on my side.
The applicant provided to the Department a Baptism Certificate indicating that she was baptised [at Church 1] [in] May 2017. Provided are pictures of adults including, who the Tribunal assumes to be, the applicant’s mother, participating in church activities.
The applicant provided a letter dated [in] July 2017 from [Ms B], [Church 1]. The Tribunal notes from the Baptism Certificate that [Ms B] is a godmother of the applicant. The letter indicates that the applicant’s mother has been attending the Sunday morning church service since early 2014. It indicates that the mother, the applicant and her sister are valued and loved members of the church. The letter indicates that the applicant’s mother belonged to a family church in China. There is reference to the baptism of the applicant. There is reference to the applicant’s mother participating in [City 1] in an English Bible study group. She is also involved in a monthly Mandarin Chinese Bible study group. There is indication that the applicant’s mother and the applicant would not have the freedom in China that they have in Australia to worship. There is reference to the applicant facing discrimination in China due to her mother being single.
Provided to the Tribunal were copies of the originals and translated extracts of regulations amended in 2016 being ‘Regulations on Population and Family Planning of Fujian’. The extracts provide for the payments for birth violations including unmarried women’s births, extramarital births and unplanned births.
Following the hearing, provided were medical reports and reports from service providers indicating that the applicant has been diagnosed with autism spectrum disorder and indicating the treatment that she receives. The applicant’s mother also provided a statement in which she explains relevant schooling, speech therapy and other support that the applicant receives for this condition. Also provided was information referring to increased pressure in China on house church gatherings and religious activity.
The Tribunal notes that the applicant’s mother [Ms A], together with the applicant’s older sister, [Ms C], previously lodged their own applications for Protection visas. The applicant’s mother lodged the application on 27 May 2014. The applicant’s sister was born on [date] and joined that Protection visa application on 13 January 2015.
The Protection visa in relation to [Ms A] was applied for on the basis of claimed adverse treatment by authorities in China due to her involvement in a Christian family church. It is claimed that authorities interfered in church activities. It is claimed that when [Ms A] returned to China in January 2012 a church meeting that she was attending was surrounded by police, although [Ms A] managed to escape. [Ms A] provided evidence of church activity in Australia.
In the Protection visa application in relation to [Ms C] it was claimed on her behalf that she would be discriminated against on the basis that her mother is single. It was also claimed that she would not be able to register under the Chinese hukou system (to allow her public education and healthcare). This is because her parents are not married.
The Tribunal, considering the earlier application, (constituted by the same Member as this matter) reviewed the delegate’s initial refusal of Protection visas applied for by the applicant’s mother and sister. The Tribunal was not satisfied with the truth of key claims of [Ms A] relating to her religion or that she had been a truthful or credible witness. In relation to [Ms C], the Tribunal accepted that her mother would need to pay a social compensation fee for giving birth to the applicant because she was born out of wedlock. However, the Tribunal found on the basis of independent evidence that Fujian authorities would not deny hukou registration because of non-payment of the social compensation fee. On that basis, the Tribunal did not consider that [Ms C] would be denied access to health or education services. Whilst the Tribunal acknowledged that [Ms C] may face some level of discrimination and unkindness due to having a single mother, the Tribunal was not persuaded that this would constitute serious or significant harm.
Based on independent evidence concerning general tolerance in Fujian Province towards small sized unregistered churches, the Tribunal considered that both applicants would be able to practice their religion in such unregistered churches. The Tribunal was not satisfied that the applicants would wish to publicly proselytise or engage in political advocacy associated with their religion or to practice in any way to counter State restrictions on church activity that would cause them to face a real chance of serious or significant harm.
Independent evidence
Religion
DFAT Country Report – China, 21 December 2017 provides variously as follows:
China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.
In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.
Several hundred million people observe to some degree aspects of Buddhism, Daoism and ‘folk religion’. Despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
Government Framework regarding religion
Article 36 of the PRC Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law.
The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureaux, have significant discretion in implementing the regulations.
Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and must be independent of foreign associations (notably the Vatican). Protestants must be non-denominational. Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools. Unregistered religious organisations are illegal and vulnerable to punitive official action.
Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.
In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention.[1]
[…]
[1] DFAT Country Report – China, 21 December 2017, paras 3.15 – 3.24
Christians
In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.
Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or imputed) and Protesters/petitioners).
Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or imputed)). DFAT assesses that the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.
Protestants
The Three-Self Patriotic Movement (TSPM), established in 1949, oversees China’s ‘post-denominational’ (i.e. non-denominational) Protestant church and its estimated 23 million members. The ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation. The Chinese Christian Council (CCC) and the TSPM supervise approximately 60,000 registered Protestant churches and several hundred thousand affiliated meeting points. Approximately 200 pastors graduate every year from China’s single seminary and 20 CCC-run Bible schools. Qualifications from foreign seminaries are not recognised in China.
Estimates of numbers of unregistered Protestants in China vary from around 30 million to over 60 million. Unregistered Protestant churches risk adverse treatment by authorities due to their illegal status. Adverse treatment can include raids and destruction of church property, pressure to join or report to government-sanctioned religious organisations and, on occasion, violence and criminal sanction, particularly in response to land disputes with local authorities. DFAT considers credible reports of authorities pressuring house churches by cutting off electricity or forcing landlords to evict members. Some members of house churches have been able to use registered church facilities for weddings, or to purchase bibles. Others have reported difficulties in hiring even commercial facilities such as hotels or restaurants because of their association with illegal churches. Christian organisations report that house church members have been arrested in 2017 for refusing to register with the TSPM, and of Christian schools being closed for ‘brainwashing’ children.
The Zhejiang provincial government’s 2013 urban renewal campaign led to the demolition of several hundred unregistered churches. The US Commission on International Religious Freedom reports over 1,500 church demolitions or removals of crosses since 2014. The government has punished church leaders who oppose the campaign with heavy sentences (up to 14 years) on public disorder charges, as well as apparently unrelated charges such as embezzlement. Authorities have also targeted lawyers defending them (see Human Rights Defenders (including Lawyers)).[2]
[2] DFAT Country Report – China, 21 December 2017, paras 3.37-3.42

DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, a copy of which was given to [Ms A] in the hearing, provides as follows.
Article 36 of the Constitution of the People’s Republic of China states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. However, the establishment of government-affiliated organisations to regulate and monitor the five officially recognised religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) has, in theory (and, in some circumstances, practice), restricted religious freedom in China.
Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.[3]
…
Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.
Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.
Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.
Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.
Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.
Charismatic leaders perceived to be associated with an unregistered church that come to the overt attention of local authorities are sometimes accused of committing offences unrelated to religious practice, such as fraud or corruption.[4]
[3] DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, paras 3.4-3.5
[4] DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, para 3.11-3.15
In a 2016 report, Freedom House categorises provinces in China in terms of the levels of religious persecution within those provinces. Fujian province is listed as ‘low’.[5]
Family planning in Fujian
[5] Freedom House, The Battle for China's Spirit, 2016, p. 25
A March 2016 research response from the Country of Origin Information Services Section of the Department provided as follows in relation to registration of children in breach of family planning laws in Fujian Province:
B. Some country information indicates that new laws require children born out of plan to be registered under hukou (household registration), even where a social compensation fee is not paid. Could post provide information concerning the process involved in registering a child who is born 'out-of-plan', prior to the payment of a social compensation fee? Is any information available particular to Fujian Province?
5. Household registration (hukou) reform has been proceeding in China as part of wider economic reforms for some time. On 25 August 2014, the Fujian Public Security Department (PSB) implemented a new provincial Household Registration Management system. Under the new system, provincial PSB officials were directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for hukou registration. This means all Fujian babies, including abandoned babies or those born "out of plan" or out of wedlock, should now have access to household registration, whether or not they pay the fee.
6. In Fujian, parents can choose either of their hukou for the household registration of their child. Fujian no longer distinguishes between urban and rural hukou; all households are registered as 'residents' (jumin). Standard supporting documentation for baby hukou registration includes:
* the child's birth certificate
* the household registration books of the parents
* the ID cards of the parents
* the marriage certificate of the parents
For babies born out of wedlock, in addition to the above materials, the parent in whose hukou the child is being registered must supply a "declaration" (the content of which is unclear, but is likely to be similar to a statutory declaration on the child's situation). Registering fathers must also provide a paternity test certificate. If the child's parents are missing, dead, or migrate to other countries, and the child registers in the hukou book of their grand-parents, registration will require the hukou cancellation document of the parents, the household registration books of the grand-parents, the ID cards of the grandparents, plus a Notarial Certificate of Kindred, as well as the standard documents above. If the child registers in the hukou books of other guardians, the hukou cancellation documents of both parents and grand-parents, the household registration books and ID cards of the guardians and a Notarial Certificate of Kindred must be provided in addition to the standard documents,
To register a hukou for children aged 6-14, parents must provide the child's birth certificate, the hospital files or record, baby's injection record or paternity test certificate to the county-level PSB for pre-approval. For children aged 14 or above, parents must provide a paternity test certificate, and local police will conduct certain investigations and forward the results to Hukou Section of the PSB for pre-approval.
How do authorities in Fujian enforce compliance with the social compensation fees (colloquially referred to as 'fines')?
Officials from the Fujian Health and Family Planning Commission employ a number of means to secure payment of the fee, which may include following up late payers with personal visits and calls, and freezing bank accounts. In 2014, Fujian recorded 1628 cases involving payment arrears of the social compensation fee for sums over RMB100,000.
In July 2015, the Fujian Health and Family Planning Commission signed an MOU with the Fujian High Court, Fujian Development and Reform Commission, and the Fuzhou Branch of the People's Bank of China to include people who refuse to pay the social compensation fee on a credit system "black list". Those on the black list will have no access to bidding for government contracts, will be unable to apply for loans or credit cards, or obtain market access and certification for their businesses, nor will they be allowed to board the planes, or book soft berth tickets on trains. (All these actions require production of ID cards, to which the "black list" is linked). The local authority may also publish their names in newspapers, TV, internet etc from time to time.[6]
[6] CX0562B6F11: China. Country Information Request - CI160219094800679 - Fujian registration of children and ‘out-of-plan’ births, Department of Foreign Affairs and Trade, 24 March 2016
The Country of Origin Information Services Section of the Department of Home Affairs provided the following report sourced from DFAT dated 3 May 2018. A copy of this research was given to [Ms A] and discussed with her in the hearing:
BACKGROUND
Some applicants who appear before the AAT claim that children who are born to a parent(s) out of marriage or who are single are unable to obtain a hukou/household registration. The current DFAT China CIR (Dec 2017) states at paragraph 3.122 that children born outside of marriage “are not eligible for hukou and the health and education services that registration provides”. Previous DFAT advice suggests that children in this situation are or should be able to obtain a hukou/household registration. The current Fujian thematic report (Dec 2016) states at 5.4 “If the child is born out of wedlock, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.” Previous post advice CX0562B6F11 of 24 March 2016 states that “all Fujian babies, including abandoned babies or those born "out of plan" or out of wedlock, should now have access to household registration, whether or not they pay the fee”.
The AAT understands that implementation of legislation and policy relating to household registration in China is highly dependent on the local officials in charge at the time and varies by location.
QUESTIONS: [04/05/2018]
A. Are the current main laws and regulations in Fujian province applicable to children born out of wedlock to single or unmarried parents remain those as outlined in both the Fujian thematic and the China CIR?
B. Can post provide advice on or establish whether children born out of wedlock are routinely issued birth certificates and hukou? Is this affected by whether the parent has paid the social compensation fee?’
C. Can post provide any advice on whether the outcome for the child in getting a birth certificate and hukou differs depending on the socio-economic situation of the parent(s)?
D. Can post provide any advice on whether the outcome in getting a birth certificate and hukou for the child born to a single mother differs depending on whether the father is or is not willing to acknowledge paternity of the child and provide support?
E. Can a child born out of policy in Australia or elsewhere use the birth certificate relating to the birth to obtain a hukou for the child upon return to China?
RESPONSES: [DD/MM/YY]
Post responses to questions posed in first reftel are based on public information and information gained from the Household Registration Section of Fujian Provincial Public Security Department (PSD), and the Grassroots Supervision Section of the National Family Planning Commission. Answers should be read in conjunction with previous DFAT advice on family planning and household registration policies in China and in Fujian province (second, third and fourth reftels).
A. Are the current main laws and regulations in Fujian province applicable to children born out of wedlock to single or unmarried parents remain those as outlined in both the Fujian thematic and the China CIR?
2. Chinese laws and regulations in relation to both family planning and household registration (hukou) are continuing to develop. On 14 January 2016, the State Council issued a national-level Opinion on Solving the Household Registration Issue for Non-Registered Personnel, which made clear that payment of a social compensation fee was not/not a pre-requisite for accepting an application for household registration. Provinces subsequently sought to implement this Opinion by issuing updated regulations. Concurrent amendments to national family planning policies have complicated this process.
3.The Fujian provincial government issued a document reflecting the Opinion in October 2016, entitled Fujian Provincial Residential Household Registration Methods. The Methods came into force on 1 January 2017. On 4 December 2017, the Fujian Public Security Department issued new regulations (Regulations on Implementation of Household Registration Management for Fujian Citizens), which set out in more detail processes described in the Opinion and the Methods. These replaced its own earlier regulations set out in the 2014 Fujian Provincial Public Security Regulations on Household Registration. Significantly, the earlier 'right to apply for a hukou' (former article 21) does not appear in the new regulations, reflecting economic pressures on cities to employ tighter criteria for granting hukou and thereby restrict access to public benefits.
4. Article 24 of the December 2017 regulations provides that a parent seeking household registration of a child born out of wedlock must provide copies of the child's birth certificate, the household registration book of the registering parent, and a declaration of the child's status (ie. confirming the child was born out of wedlock) in order to register their child. A father seeking household registration for his child must provide a paternity test certificate in addition to the above materials.
B. Can post provide advice on or establish whether children born out of wedlock are routinely issued birth certificates and hukou? Is this affected by whether the parent has paid the social compensation fee?'
5.As previously advised, it has been policy in Fujian province since 2014 not to deny birth certificates and hukou to children born out of wedlock. The most recent (December 2017) Fujian regulations above remain consistent with national guidelines, and make no reference to requiring evidence of payment of a social compensation fee (if applicable) prior to registration. However, Post cannot advise with certainty whether birth certificates and hukou are "routinely" issued in any given situation, as laws are interpreted in line with applicants' individual circumstances, and implementation can vary between officials, government offices and over time.
6. It should be noted that parents are still liable to pay a social compensation fee (if applicable), even if this is no longer required to obtain household registration. Some local governments have reported this loss of leverage has made collection of the fee more difficult.
7. Article 37 of the December 2017 regulations provides that parents of children born after 1 January 1996 who do not currently have a birth certificate may apply at local public security offices for an Absence of Birth Documentation certificate. This certificate may then be presented to hospitals or county-level family planning departments to support an application for a birth certificate. Applicants may also seek assistance from hospitals and family planning departments to obtain birth certificates.
C.Can post provide any advice on whether the outcome for the child in getting a birth certificate and hukou differs depending on the socio-economic situation of the parent(s)?
8. Local media have reported anecdotal instances of single mothers who, faced with social discrimination because of their (lack of) marital status, may have in the past resorted to unofficial payments in order to obtain a birth certificate or hukou, especially when such documents are required for school enrolment. Local media have also reported cases of illicit trading in birth certificates in Fujian and other provinces by families who adopted, trafficked or bought children from unknown sources. The procedure described in article 37 is intended to regularise situations such as these.
D. Can post provide any advice on whether the outcome in getting a birth certificate and hukou for the child born to a single mother differs depending on whether the father is or is not willing to acknowledge paternity of the child and provide support?
9. Article 24 of the December 2017 regulations does not require any declaration of support or acknowledgement by the father. Article 37 is intended to be more flexibly interpreted than the previous regulations, which restricted issue of a birth certificate in the absence of information regarding the mother (eg. in the case of abandoned children) and instead required fathers seeking household registration to present proof of paternity and various documents acknowledging paternity in the absence of information regarding the mother.
E.Can a child born out of policy in Australia or elsewhere use the birth certificate relating to the birth to obtain a hukou for the child upon return to China?
10. Verbal advice from the Fujian Public Security Department confirms that a foreign birth certificate, translated and duly notarised by a Chinese mission abroad, may be used to support an application for a Fujian hukou. Articles 40 and 41 of the 2017 regulations deal specifically with children born overseas to Fujian hukou holders. Requirements differ, depending on whether the child is recognised as Overseas Chinese (i.e. a person of Chinese birth or descent who lives outside the People's Republic of China (including Hong Kong and Macau) and Taiwan) or not. Children of Chinese nationals studying or working abroad remain specifically exempted from recognition as overseas Chinese.
11. These articles are the same as in the earlier 2014 regulations, with one addition. Article 41 provides that, in the case of a child born overseas but not recognised as Overseas Chinese, who uses a foreign passport for the final entry to China, the parents should provide confirmation of the child's Chinese nationality from the Chinese Public Security Department's Entry and Exit Bureau, in lieu of providing an original document from a county-level or above branch of the Overseas Chinese Affairs Office certifying that the child is not recognised as Overseas Chinese, and a copy of the child's passport.
Hearing, credibility, findings and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at [596]. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at [288]), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, 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 him or her: Prasad v MIEA (1985) 6 FCR 155 at [169-70]; Luu & Anor v Renevier (1989) 91 ALR 39 at [45]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at [451] in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
In this case, clearly the credibility of the applicant, a toddler, is not an issue. However, the credibility of the applicant’s mother who is making claims on her behalf, is relevant.
The Tribunal is satisfied that the applicant is a citizen of China, and accordingly her claims will be assessed against China.
Religious claims
The applicant’s mother in the interview with the delegate with respect to the current application referred to the family church that she attended in China having its parishioners subject to difficulties from authorities, including arrest. It was on this basis it is claimed that the applicant will be impeded in her ability to attend church in China.
The Tribunal has a significant credibility concern with a key aspect of this evidence. In the interview, the delegate noted to the applicant’s mother that she had not indicated the name of the family church that she attended in China and therefore the delegate was not in a position to determine if the church was a church of a type that was banned by Chinese authorities. In response, the applicant’s mother said that the church that she attended was a ‘crying church’ or a ‘yelling church’.
It is clear to the Tribunal that the applicant’s mother was referring to [Church 2, also] known as ‘[Church 3]. This is a church/sect that is designated as an ‘evil cult’ and banned by authorities in China.[7] In the Tribunal hearing with respect to the current application, [Ms A] confirmed that the church the applicant attended in China was designated as an ‘evil cult’. When the Tribunal put to [Ms A] that she appeared now to be saying that she attended, in China, [Church 2], known as ‘[Church 3]’ she said that she thought that this was the type of church. She said that it was a different type of church than a more mainstream family church.
[7] [Source deleted]
The Tribunal put to [Ms A] in the hearing (on behalf of the applicant) certain information provided by [Ms A] as part of her own application for a Protection visa referred to above. This information was put pursuant to the procedural requirements of s.424AA of the Act. The information was the fact that in the applicant’s mother’s detailed claims as part of that Protection visa application, including during the interview with the delegate and in the Tribunal hearing, the applicant’s mother indicated only that she was a member of a family church in her province without ever mentioning that she belonged to [Church 2] or ‘[Church 3]’ which she suggested in her evidence to the delegate in interview with respect to the current application. Given that [Church 2] is a distinct and clearly banned sect/church, the Tribunal considers that the failure by the applicant’s mother to mention her involvement with this particular sect/church in her own Protection visa application is undermining of the truth of her claims to have been involved in such a church.
Further, given that the Tribunal member considering this matter is aware from numerous other Chinese Protection visa applications that [Church 2] exists in [Australia], the Tribunal might draw an adverse inference from the applicant’s mother to have not had any involvement in [Church 2] in Australia, instead belonging to a more mainstream church.
The consequence of relying on this information would be to question the credibility of the applicant’s mother to her claimed church activity in China, including the adverse attention by authorities to such a church or the applicant’s mother’s attendance. That would undermine claims that the applicant would face a real chance of serious or significant harm from authorities due to her church activity on return to China.
In response, the applicant said that she thought that in her own Protection visa application process it was indicated that the church she attended in China was [Church 2]. She said that she did not join [Church 2] in Australia because she joined a church that was close to where she lives which was very friendly.
The applicant did not make claims in her own Protection visa application that the church she was involved with in China was [Church 2], which was specifically banned by Chinese authorities and of a different character in Fujian Province to a more mainstream family church. The fact of the applicant now claiming to have belonged to this church, but never having previously made such a claim, is undermining of the truth of the applicant having been involved in such a church.
Further, the Tribunal does not accept that if the applicant had been involved for many years in [Church 2] in China that she would not have had some involvement in her many years in Australia in this church, which exists in [location]. The Tribunal is reinforced in this view by the fact that, in the hearing with respect to the current application, [Ms A] indicated that if she returned to China she would continue to be involved in [Church 2] and not in a more mainstream church, in spite of the fact that she has become involved in a mainstream church in Australia.
The Tribunal is of the view that the new and late claims that [Ms A] was involved in [Church 2] in China is undermining of the truth of her claimed Christian activity in China and her credibility generally.
The Tribunal also put to [Ms A] (on behalf the applicant) the fact that five adverse credibility findings were made against her in the Tribunal decision dated 7 May 2017 in relation to her claims that she had suffered difficulties in China due to the practice of her religion, including a gathering that she attended being raided by police. This was put to [Ms A] in the hearing pursuant to the procedural requirements of s.424AA of the Act. It was noted that these credibility findings caused the Tribunal (constituted by the same Member considering this matter) to find that [Ms A] was not a truthful or credible witness in relation to religious activity in China and what had transpired. The Tribunal noted that this was relevant because it goes to the credibility of [Ms A] in this application in claiming past adverse treatment for religious activity in China. The consequence of relying on this information could be to disbelieve claims that [Ms A] has suffered any past difficulties due to the practice of her religion in China which is relevant to the claims that the applicant would face difficulties.
[Ms A] elected to respond in writing following the hearing. [Ms A] provided a written statement and supporting documents following the hearing. Most of those documents relate to the applicant suffering from autism. In relation to religion, [Ms A] claims that she would only be involved in an unregistered church in China, and not the state sanctioned church as she objects to aspects of this church. [Ms A] does not deal with any of the five credibility concerns of the Tribunal in respect to her own application for protection.
The credibility concerns identified by the Tribunal with respect to [Ms A’s] own Protection visa application relating to her religion in China are undermining of claims by her in the current application of difficulties in the practice of her religion in China or that she, or the applicant, would face a risk based on the practice of religion on return.
The Tribunal refers to the evidence given by the witness, [Ms B], who gave evidence in the hearing with respect to the current application. In that evidence, [Ms B] made comment in relation to an adverse credibility finding of the Tribunal with respect to [Ms A’s] own application. This was the fact that the Tribunal drew an adverse inference from the fact that [Ms B] in her initial supporting statement as part of that application said that, when [Ms A] joined [Church 1] in 2014, she was new to Christianity.
[Ms B] commented that when teaching [Ms A] at that time about Christianity with a small group of others, that [Ms A] was very quiet and there was not the opportunity to explore her prior Christian activity.
The Tribunal remains unpersuaded that if [Ms A] had been a practising Christian in China for many years, as well as being a practising Christian in another church for a number of years in Australia prior to joining [Church 1] as she claimed, that this would not have been reasonably apparent to [Ms B] in providing religious instruction to [Ms A].
Considering all of the evidence and credibility concerns identified, the Tribunal is not satisfied with [Ms A’s] claims to have been involved in any past church activity in China, including [Church 2] or that she suffered any difficulties in China based on church activity. This is relevant to the risk that would be faced by the applicant.
The Tribunal finds that [Ms A] first became involved in Christian activity in 2014 when she joined [Church 1] and is not satisfied as to her prior church attendance in Australia as claimed. The Tribunal is satisfied that [Ms A] and the applicant have become involved in [Church 1]. [Ms B] gave evidence in the hearing that [Ms A], the applicant, and other child were valuable members of the church community. She indicated that initially on attending the church [Ms A] was concerned that she was unworthy. This explains the fact that she had not previously been baptised and was only baptised after she joined [Church 1].
The Tribunal is prepared to accept that the applicant, on return to Fujian, China, would become involved together with her mother with a Christian church. The Tribunal is not persuaded that this would be [Church 2] given its finding that [Ms A] has had no prior involvement in this church.
The Tribunal is prepared to accept that [Ms A] and the applicant may become involved on return to Fujian Province in a local, an unregistered, family church.
The Tribunal discussed with [Ms A] in the hearing and provided her with a copy of the DFAT report on Fujian Province, relevant extracts of which are contained in this decision. The Tribunal noted to [Ms A] that that information indicates that worshippers in small family churches in Fujian generally do not face difficulties from authorities.
In response, [Ms A] indicated that that may be the situation in urban areas but in rural areas where she is from there is a different attitude. The Tribunal is satisfied with the veracity of independent information before it that there is general tolerance of family churches of less than 50 parishioners across Fujian Province.
The Tribunal is not persuaded that [Ms A], including on the applicant’s behalf, would seek to engage in political advocacy or proselytising that would create concern for authorities or would gravitate towards or have a desire to join any family church that was a target of authorities.
The Tribunal considers that [Ms A] and the applicant would be able to practice Christianity in a family church in Fujian Province of less than 50 worshippers without facing adverse attention from Chinese authorities. The Tribunal therefore does not consider that the applicant faces a real chance of serious or significant harm based on the practice of her religion in China.
Family planning claims
The Tribunal provided [Ms A] a copy of and discussed with her the Country of Origin Information Services Section of the Department report dated 3 May 2018. The Tribunal noted to [Ms A] that this information indicated that authorities in Fujian do not deny hukou registration to children born out of wedlock/breaching family planning rules. It is clear from independent evidence that at a national Chinese level a pronouncement has been made that there is no longer a requirement to pay the total compensation fee as a prerequisite to hukou registration.
Provided to the Tribunal by the applicant are 2016 regulations from Fujian Province concerning the requirement of the payment of social compensation fee where a child had been born out of wedlock but with no indication that payment was a prerequisite for hukou registration. [Ms A] indicated in the hearing that there are regulations that indicate payment of the social compensation fee as a prerequisite to hukou registration. This was not apparent from the independent evidence provided by the applicant or otherwise before the Tribunal.
The Tribunal also notes that the social compensation fee may be payable given that the applicant is [Ms Chen’s] second child and that, although the one child policy in China is no longer in force, it can apply to births prior to the change of policy. However, there is no independent evidence that this would be a barrier to hukou registration.
The Country of Origin Information Services Section does indicate that it cannot advise with certainty whether hukou registration is ‘routine’ in any given situation as this can depend upon individual circumstances. Whilst the Tribunal acknowledges that there may be discretionary variations from the rule, the Tribunal is confident that the general position is that the payment of the social compensation fee is not a prerequisite to hukou registration. The Tribunal considers that the applicant will be eligible for hukou registration in Fujian despite being born out of wedlock and being a second child and in a situation where the social compensation fee is not paid.
The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm as a result of a failure of hukou registration resulting in an inability to public access health and education services.
Discrimination for having a single parent
A claim has been made that the applicant would be discriminated against because her parents are not married.
Regarding societal attitudes towards children born out of wedlock, DFAT advised in February 2010, that ‘in remote regions, children born out of wedlock without a household registration may have experienced discrimination in the past due to traditional and cultural disapproval’. DFAT assessed, however, that social acceptance of children born out of wedlock is ‘likely to have improved’. In 2010, the Tribunal contacted Dr Alice de Jonge, a Senior Lecturer of Business Law and Taxation at Monash University, for information about children born out of wedlock in China. According to information provided on the Monash University website Dr de Jonge has ‘lived and studied in China and was a Visiting Scholar at Nanjing University, China’.[8] In her response, Dr de Jonge stated: ‘[Children born out of wedlock] are still regarded with pity and disdain. They are teased at school.’[9]
[8] Search for ‘Dr Alice de Jonge’, Monash University website, 14 October 2009 < accessed 18 February 2010
[9] de Jonge, A, email to RRT, RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060), 15 January 2010; de Jonge, A, email to RRT, RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060), 20 January 2010
The Tribunal accepts there may be a degree of social stigma towards the applicant as a result of her being a child of a single mother with no father in China. The independent evidence indicates that the difficulties have been greater in remote regions of China. There is no suggestion that the applicant is from a remote area.
The unkindness of children to other children who have a different characteristic is well-known and is a hurdle that must be faced by many children in their formative years. Whilst accepting that the applicant may face some unkindness, the Tribunal is not satisfied, that the difficulties that would be faced by the applicant would be so significant that they would result in a real chance of her facing serious harm or fall within any enumerated definition of significant harm.
Autism
Reference was made in the hearing by [Ms A] to the applicant suffering from autism. The relevant medical and service provider reports that were provided following the hearing indicate that the applicant has been diagnosed with autism spectrum disorder, mild to moderate delay in most areas of adaptive behaviour and a profound delay in communication and social skills. [Ms A] has referred to the positive treatment that the applicant is receiving in Australia with the implication that it is wished that this should continue.
No direct claim has been made that the applicant would meet the refugee criterion or the complementary protection criterion on return to China based on her medical condition. No evidence has been provided that the applicant would not receive treatment for this condition on return to China.
No evidence has been provided that children in China suffering from autism are targeted or treated in any way that it could be claimed that the applicant faces a real chance of serious harm for reason of her suffering autism. Whilst the Tribunal accepts that the autism diagnosis is, in itself, a cause of harm to the applicant, it cannot be said that the applicant would be subject to serious harm from the State or others for the reason of that condition. There is no evidence that the applicant’s ability to be treated for her autism would be so deficient in China that she would face serious harm. The Tribunal would not be satisfied that the applicant meets the refugees criterion based on her suffering from autism.
In relation to the complementary protection criterion, there must be an intention by a person or entity to cause harm to the applicant. Harm suffered by the applicant as a result of the diagnosis of autism or inferior treatment in China to that which exists in Australia would not in itself create that requisite intention. For that reason, the applicant would not meet the complementary protection criterion as a result of her having a diagnosis of autism.
Summary
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to China for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason. 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, she faces a real risk of suffering significant harm.
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David McCulloch
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 4024

5 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction