1724699 (Refugee)

1724699 (Refugee) [2020] AATA 1532 (21 April 2020)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724699
COUNTRY OF REFERENCE:                   China
MEMBER:Anne Grant
DATE:21 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 21 April 2020 at 3:22pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – membership and activity in house church – harassment by local authorities – first applicant’s three children in China and husband’s arrest and forced sterilisation – social compensation fee still outstanding – second applicant’s three children while unmarried in Australia – partner’s own protection visa application – delay in applying for protection – shift in second applicant’s evidence and claims during review process – country information – family planning policies – coronavirus and applicants’ social-economic circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 22 May 2013 and the delegate refused to grant the visas on 28 May 2015.
The first and second applicants arrived in Australia on Student Guardian and School Sector visas respectively [in] April 2008. In the original application, the second applicant raised no independent claims. On 5 June 2015, the third applicant (the son of the second) was added to the application as a member of the same family unit but did not raise his own independent claims.
The applicants sought review of the delegate’s decision and on 22 February 2017, a differently constituted Tribunal decided to affirm the decision under review in relation to the first and second applicants and also found that it did not have jurisdiction in relation to the third applicant. The applicants appealed that decision to the Federal Circuit Court and [in] October 2017, the Court remitted the matter by consent to be determined in accordance with the law because it was conceded that the Tribunal fell into jurisdictional error in determining that it did not have jurisdiction in relation to the third applicant.
The first applicant appeared before the Tribunal on 11 February 2020 to give evidence and present arguments. The second applicant did not attend on that day as her son (the third applicant) was unwell. The hearing was adjourned part heard and on 12 March 2020, both the first and second applicants appeared before the Tribunal to give evidence and present arguments. Both hearings were conducted with the assistance of an interpreter in the Fuqing dialect and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
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.
The issue in this case is whether any of the applicants are refugees and if not, whether any of the applicants meet the criterion for a complementary protection visa, or are members of the same family unit as a person who is owed protection.
The department has provided its’ files in relation to the applicants and I have considered the material therein. I have also read the transcript of the first tribunal hearing before Member Vlahos, in which the first and second applicants gave evidence. The first applicant speaks only a local Fuqing dialect and I am satisfied that the specialist interpreter who was engaged for our hearings was able to communicate with the first (and the second) applicant. The first applicant gave responsive and extensive answers to my questions during the hearings. At the second hearing, I summarised my understanding of the evidence she had given at our first hearing before I spoke with the second applicant, and the first applicant confirmed as correct the evidence she had given at that first hearing except for one aspect, (related to the potential abduction of the child applicant) which she corrected.
The second applicant also freely communicated with me but disagreed with her mother’s evidence on several points, asserting (in the presence of the first applicant) that her mother must have failed to understand my questions and suggesting at various points that her mother’s lack of education, understanding and shyness explains why she gave any evidence which was at odds with that of the second applicant. The second applicant also suggested that her father doesn’t tell her mother ‘lots of things’ that happen because he doesn’t want to upset her. As will be evident later in this statement of reasons for decision, I reject any suggestion that the first applicant was inhibited in giving her evidence either due to any lack of capacity on her part or as a result of miscommunication. Her responses to my questions were frank, responsive and gave details that had not previously been revealed during the review process – (some of which the second applicant later confirmed she had not actually known herself before I recounted her mother’s evidence.) Further, given her extensive knowledge of matters related to her husband that were apparently unknown by the second applicant, I am satisfied the first applicant clearly has more communication with her husband than the second applicant suggested.
Due to the shift in the claims made in this case and the extensive review history, it is necessary to summarise the evidence (both written and at hearing) given by the first two applicants at various stages in the review process.
Written Claims, including response to questions from the delegate.
·     The first applicant claims to be a member of the Local Church, who joined with her husband “a long time ago.” She claims to be a senior in the church and to have hosted church gatherings at her house.
·     In 1991, the first applicant claims she was arrested by local security guards because she attended a local church gathering. She claims that she and her husband were then under government surveillance, and she decided to send her daughter, the second applicant, to live with her parents.
·     Because the first applicant had three children by her husband, she claims her husband, who still lives in China, was forced to undergo sterilization.
·     The first applicant claimed that she and her husband renovated their house to begin hosting church congregations, and would evangelise in other provinces (namely Jiangxi Province) during poor farming seasons.   She claims to have established connections with overseas branches of the Local Church.
·     The first applicant claims that the family owns a [shop] which contributed financially to church activities through fundraising and building a gospel [organisation]. The store displayed evangelical flyers, prepared by the church. The first applicant claims that the government liaised with industry and commercial personnel to pressure the business, and police confiscated the flyers. The family also evangelised to local teenagers. When the second applicant was in Year [Number], the [organisation] was closed by the government and the second applicant and her father were summoned to the police station. The second applicant’s school was also notified by the police of her arrest, causing her to be suspended and criticised publicly at a parents’ meeting.
·     The first applicant claims that around Easter 2007, her husband was arrested in Jiangxi Province. She claims that he and the first applicant were accused of being Shouters and returned to Fuqing, where they were again placed under surveillance. They continued to host family church gatherings, which were shut down by the authorities on several occasions. Also during Easter 2007, the first applicant claims that she and her husband hosted a church gathering at their store and invited a [preacher] to give a lecture, but were arrested by the authorities. The first applicant claims that her husband was sent to a labour re-education camp, where he was forced to build a reservoir, but she herself was released from detention after three days due to poor health, with a warning that her store would be closed and she would be sent to a labour camp if she held another church gathering.
·     On arrival in Australia, the first applicant attended a different church to the Local Church, as she could not find a branch in Australia. However, she continued to attend local church gatherings in China via webcam and maintained close connections with local church members there. In 2012, the first applicant’s husband asked people from China to make copies of church materials to bring back with them from China for evangelical purposes.
·     During Chinese New Year in 2013, the first applicant’s husband’s church was raided by the police, and the husband was put under house detention. She claims to fear harm because of the Chinese authorities’ investigation into her husband and its investigation into her evangelism. A fellow Chinese national, who the first applicant identifies as [name], was also summoned in relation to smuggling church materials into China.
·     Because of financial hardship, the second applicant dropped out of her studies.
·     The applicants claim that they recently found a local church by accident, and joined that church with the intention of staying and serving the Lord. In China, the applicants fear being deprived of religious freedom and claim that the Local Church is suffering from persecution. While in Australia, the first applicant has been attending the [Church 1].
In support of their claims, the applicants also submitted the following documents which I have also given regard to:
·     A black-and-white photocopy of a Mandarin-language document, identified by the second applicant at interview as evidence of her father’s forced sterilisation;
·     A certified English translation of a ‘Certificate of Contraception for Birth Control’, certifying a male sterilisation procedure on the applicant’s husband on 1 August 2001;
·     Colour photographs purporting to depict church activities in Australia and damage to the applicants’ property in China;
·     A letter of support, dated [January] 2014, from [Reverend A], Minister in [Church 1], and accompanying black-and-white photographs purporting to depict the applicants at church events;
·     A letter of [Minister B], Minister in Charge of [Church 1], dated [October] 2016 and detailing the baptism of the applicants [in] June 2013;
·     Colour photographs purporting to depict church services;
·     A certificate of baptism issued by the [Church 1] in respect of the second applicant, dated [June] 2013;
·     A certificate of baptism issued by the [Church 1] in respect of the first applicant, dated [June] 2013; and
·     A letter of recommendation of [Minister B], Minister-in-Charge of the [Church 1], dated [February 2017] and made in support of the applicants.
Due to interpreting issues, the delegate invited the first applicant to respond to questions in writing, which she did on 13 November 2014. In that response the primary applicant provided the following information:
·     She first approached a branch of the Local Church in Australia in October 2008, but did not provide any details about the church;
·     When asked to provide the details of all churches she has attended in Australia, she later provided only the details of the [Church 1];
·     She stated that she attends church for Sunday prayers and services on a weekly basis and provided brief details as to church activities.
According to the delegate’s decision (provided by the applicants to the Tribunal with the application for review), the second applicant gave the following oral evidence to the delegate:
·     When she was little her parents took her to church frequently, but she did not understand what was happening;
·     Six months after they arrived in Australia, she and her mother started going to the [Church 1]. When asked why a support letter from that church said she and her mother joined the congregation in February 2013, the secondary applicant said that was when she was baptised;
·     The secondary applicant said her religion was ‘Christianism’;
·     The secondary applicant said she had last attended the church three months before the protection visa interview (c. August 2014);
·     The applicants found a branch of the Local Church in [location] approximately three weeks before the interview, although the second applicant could not provide any further details. The second applicant said she had attended three times but could not give an address for any of the three locations used by the church;
·     The Local Church services in [location] involve lectures in simple language, but the secondary applicant could not provide further detail.
·     When asked to describe the most important figures in Christianity, the second applicant said ‘God’, ‘Jesus’ and ‘Jacob’ and that Jesus ‘created human beings’ and ‘saved the lives of a lot of people’ through ‘mighty god power’. The second applicant had difficulty explaining the important events in the life of Jesus.
·     The second applicant said the reason she and her mother left China was because people from the Family Planning Department came to their home and ‘broke’ their house. She said that their only problems with the authorities were in relation to unauthorised construction at their house.
·     The second applicant said that she herself did not fear any harm if she were to be returned to China.
The delegate refused the application on credibility grounds as outlined in the delegate’s decision, including:
a.The first applicant’s difficulties communicating in Mandarin or in the Fuqing dialect suggests she only had very limited contact with those outside her immediate social circle, casting doubt on her claims she was engaged in evangelising or participating in Christian gatherings elsewhere in China;
b.Inconsistent evidence given by the second applicant in relation to the applicants’ fear of harm from the authorities;
c.The delay in applying for protection (having arrived in 2008 but only applying in 2013).
d.The delegate noted that second applicant said repeatedly that their reasons for leaving were problems over family planning and a land/property dispute with authorities. She didn’t mention arrest of parents, and said she wasn’t afraid of being persecuted if she returned to China.
e.The delegate did not accept the second review applicant to be a member of the same family unit as the primary applicant because she did not satisfy the regulations as to dependency. The delegate noted that ‘[s]ince arriving in Australia, both applicants have worked to support themselves’, that the secondary applicant is an adult and that the secondary applicant ‘appears not to have any physical or psychological conditions which would cause or contribute to her total or substantial reliance on her mother or prevent her from working to support herself.
Evidence at first hearing of the tribunal
In evidence at the first hearing before member Vlahos, the first applicant was referred to her written claims (described above) by the member and initially agreed with each and every aspect of the claims. However, in clarifying the claims, she also said, in summary:
·She is a Christian but did not describe herself as any particular branch of the Christian faith. She was baptised as a small child because her grandparents were Christians. She was also baptised in Australia in 2008 in the [Suburb 1] church but did not recall the name of the Pastor;
·She attends church once a week at least. In China, meetings were held in her home but not after she was arrested and their shop was closed. At meetings, she would just sit and listen and help with serving drinks and tea. She described praying generally to God to look after her whole family. She didn’t know any particular prayers. She noted that people talked in Mandarin and she doesn’t understand it at all. She was not sure about who Jesus Christ is or who Mary is. She knew the bible as a book; but she cannot read so she doesn’t know what it says. She had heard of Easter and Christmas but did not know what the significance of them was. She mainly just helped in the kitchen.
·She and her husband were involved in the church since her daughter was born in 2008. [This appears to be a miscommunication. The second applicant (her first child) was born in [Year 1], and her youngest (her son) in [Year 2].
·She could not remember being arrested at a gathering of the Church.
·She was harassed by the authorities twice. Once she was kicked in the abdomen though she cannot remember when that was. She was unsure when and how many times that happened.
·Her husband was forcibly sterilised while she was pregnant. After it happened, he told her he was beaten and taken to a hospital and forced to undergo a vasectomy. Someone had reported them to the family planning authority. As a consequence of the beating he received, he still suffers headaches, and can’t do any heavy lifting in employment. He works as [an Occupation] at a [workplace].
·She could not remember anything at all about the claim to have renovated their home to become a gathering place for church meetings.
·The children were not able to attend school initially as they had no money.
·There are two children in China with her husband (a daughter aged [Age 1] and a son aged [Age 2]) and they currently do not work or attend school. They help to care for their grandparents.
·She never evangelised with her husband, but he did evangelise ‘in the early years’. He no longer does since he was beaten. Her husband was the one who ‘established links to overseas churches’ and she knew nothing about it.
·In relation to her husband’s arrest, she did not recall much about it, except that she only heard a couple of days afterwards because they didn’t have a phone. He was detained for three months, because of his Christian beliefs and because he hadn’t complied with the one child policy of the time. After he was released, he was not well and needed an operation, due to headaches. Though they couldn’t afford it, they asked around and people donated money and he was able to have the operation and recover – but he was in a coma for two weeks after the operation.
·The [shop] owned by the family was forced to close but she couldn’t recall when. It was closed down ‘because of religion’ and because of their failure to follow the one child policy.
·In 2007, people came to arrest her husband and warned him that he had already been told not to do this again (run church meetings). The applicant was helped by people at the service and escaped. Her husband also escaped. However, everything in the house was taken.
·She and her daughter left China because the people there knew that it was such a difficult situation for them so they encouraged them to leave. She came to Australia to work. She was fined for having more than one child – she didn’t have the money to pay them. She still owes the authorities [Amount 1]RMB, and they spent [Amount 2]RMB coming to Australia. The money they used to come to Australia was loaned by an old lady who had since passed away.
·She was not in regular contact with her husband in China because of the cost. Sometimes she calls him from relatives’ homes here in Australia, about once every two months.
·She joined the [Suburb 1] church in Australia in 2014 because they couldn’t find a church before then. She tries to go once or twice a week. She doesn’t understand what they say but she helps out in the kitchen.
·She fears she will be arrested in China, but if she remains in Australia she can practice her religion here.
·Her family in China is not being harassed. However, she disagreed with country information suggesting that the local authorities are tolerant towards members of most unregistered churches.

In evidence at the first hearing before member Vlahos, the second applicant said, in summary:
·Her parents are Christian, and when she was little, people came to their place and tried to take away something or damage the furniture. She was really scared when those things happened. She did not know who those people were.
·Her parents owned a shop but it had to close because the same people came to damage the shop. At that time, her parents had issues because of the one child policy and they tried to arrest her mother. They tried to arrest her grandfather instead but he ran away. They came back on another day and arrested her father and he was beaten badly and detained at that time.
·She came to Australia on a student visa but could not finish her studies because they couldn’t afford it. She has two children.
·She is afraid to return to china in case the same things will happen again.
·She is a Christian. Whenever she has a difficult situation, she prays to God and believes that he will help her to overcome the situation. She attends church in Australia every Sunday and Friday.
·She believes that the bible is about Jesus, who is God. The church celebrates seasonal occasions like New Year’s Day, Chinese New Year, and Christmas. She referred to a passage from the bible in Matthew which was that if anyone comes to hit you, you have to turn around and give them your other cheek. She could not remember who Matthew was. In response to what she knew about the bible, she claimed that it says that Jesus helps a lot of people and also his 12 apostles.
·She joined the church in [Suburb 1] before she was baptised in 2013. They didn’t claim protection earlier because it wasn’t until someone at church told them they could claim protection that they knew it was possible.
Evidence given in February and March 2020
The first applicant gave the following evidence, in summary, on 11 February 2020 and confirmed it on 12 March 2020:
·When asked why she is afraid to return to China, she said it was because of the coronavirus. Her husband is not working due to the [workplace] where he works being shut down during the virus crisis.
·She is also afraid to return to China because long ago, the government beat her husband because they had three children. They sent the first child to live with her parents and then sent the second child also. She and her husband had to work in different places and would see each other for two or three nights a week. They had to live in hiding until the second and third children were born, to avoid a forced abortion. She worked in a labouring job involving [products] and her husband as [an Occupation]. They had three children because they really wanted a boy. When she was pregnant with her third child (her son) someone told the authorities, and they came to her home to seize her. She escaped but they damaged things in the home; doors and beds. Just after her son was born, they seized her husband, beat him and forced him to have a sterilisation procedure.
·She was fined [Amount 3]RMB for having her second child and [Amount 4]RMB for her third. She still owes the fees, and around [Amount 5] remains outstanding. If she returns, she will have to pay back the social compensation fee. The authorities do not harass her husband for payment, because he refused to sign the papers. At the time, she agreed to acknowledge the debt and signed a paper agreeing to pay the fines. When the authorities tried to get her husband to pay after she had left, he told them that it was ‘not his debt’; and they have left him alone after that. She and her daughter send money home sometimes, but it cannot be used to pay the fines because her family need it to meet their costs.
·All three of their children were properly registered in China once the social compensation fee was levied. The first applicant works part time in Australia. Her two youngest children live with her parents in China and help care for them. Her sister’s husband helped the children go to school. She hopes to repay them for their kindness and has told them to keep a record of the money they have paid for her children.
·She does not want to return to China because she has no education, and would find it difficult to find a job there. Because they are a poor family, she believes she will be looked down on by other community members. She also owes debts to other family members. She is dependent on her daughter. If she returns and can’t pay the social compensation fees, the family planning authorities may hurt her.
·The applicant is a Christian. She does not know the name of the branch of her faith. She said she didn’t know much about the church because she only speaks her dialect from Fuqing and even in China the services were conducted in Mandarin so she did not really understand what was happening. She mainly helped in the kitchen. The only festival she knew about and which they celebrated at her church was Chinese New Year. In Australia, the services are conducted in English so she still doesn’t understand them. She concedes that she doesn’t know much about the bible or church because of her language and literacy limitations. But she prays to God in her own language.
·She has never been arrested herself because of her faith or for any other reason. Once she was in a crowd and she was kicked in the abdomen. She does not know who did it but she was taken to a hospital as she was pregnant at the time.
·When asked about the reference in the written claims to her being arrested (and allowed to go home) and her husband’s arrest in 2007, the first applicant said that she was not arrested at that time. Her husband was arrested and spent three months in a labour camp; but this was not because of his Christian faith. It was actually because he was arrested on suspicion of theft. However, it is true that he was injured whilst he was in detention, and still has headaches and physical limitations as a consequence.
·Her husband is currently not active in the Christian faith. He has recently drifted away from it (a couple of years ago) after the man who killed his mother (many years ago) started attending the same church group. His mother was beaten to death at age [age]. Understandably, seeing this man upset him greatly and he has lost all interest in attending church or participating. She tries to encourage him to re-join but he does not have any interest. As far as she is aware, the killing of his mother happened a long time ago in a fight at a market over the corrupt weighing of goods (by the killer) supplied by his mother. The man who killed her was jailed but he is now back in the community and her husband found that very confronting, particularly to see him in his church community. He has effectively given up Christianity.
·The applicant has heard from friends that there is peace for their church groups now and she does not fear that she will be persecuted if she returns to China because of her faith. She will again attend an unregistered church if she returns but does not fear persecution if she does.
·At the first hearing, the first applicant suggested that her grandchildren (including the third applicant) might be ‘stolen’ if they return to China, as that sort of thing can happen. At the second hearing, she said that she did not think that anyone would actually abduct the children, but they were born in Australia and she wants them to stay here where they will not face poverty.
The second applicant gave the following evidence, in summary, on 12 March 2020:
·She fears returning to China because she is Christian and the Chinese government does not like religions.
·She is a Christian and attends the [Suburb 1] church three times a week. If she returned to China, she would continue to practise and would find a similar church there.
·The Chinese government has physically assaulted and imprisoned her father, she believes it was because of his faith. This was when she was still small at a gathering at their house. He still has gatherings there and so she would be fearful that it will happen again.    When I put to the applicant that her mother’s evidence was that her father was no longer attending or holding church meetings, she did not agree, saying her mother must be confused about that. When I relayed the information about her grandmother’s killer and the details given by her mother, explaining why her father had stopped attending church and had no interest in doing so, the second applicant said she knew her grandmother had been killed but did not know more about it than that. She said that she speaks to her father at least once per week, but he had not discussed any problems with his church, including any harassment he might be experiencing. She claimed that the reason he had not done so was that he was trying not to worry them, not because he was actually having no ongoing problems with the Chinese authorities.
·The general country information which suggests that not all house churches in Fijian experience harassment, arrest and detention for meeting in small groups was put to both applicants and the second applicant strongly disagreed with it, claiming that this information was probably from unreliable sources in the Chinese government. I noted that the information came from various sources, including non-government organisations who monitor freedom of religion all over the world, the Department of Foreign Affairs and Trade and the United States Department of State. I noted that the information suggests that some unregistered churches which have been declared cults do face persecution in China, but many are able to operate without significant interference.   The second applicant disagreed with this information, suggesting it was only the patriotic churches who could operate and that was because they were, in truth, atheists.
·The second applicant said she would continue to attend a church and to evangelise in China. I put to the second applicant that her mother had given evidence that she had never evangelised in China due to her lack of language and literacy skills. The second applicant disagreed, saying that she believed that the first applicant had actually evangelised, and adding that her mother has some difficulties expressing herself, as an explanation of why her evidence might conflict with that of the second applicant.
·The second applicant believes that all Christians in China are at risk of being beaten, arrested, imprisoned and fined. She did not accept the country information summary I put to her as reliable.
·In relation to the children, she has three [now]. The second applicant said that she is concerned that the children will be harmed by seeing her be arrested and beaten by the authorities, either because of her faith or because she has breached the family planning rules in having a third child. She doesn’t want her children to grow up in the anti-Christian prejudice in China.
·As a child she saw her father beaten, arrested and badly injured because he had broken the family planning laws. He was forcibly given a vasectomy. She is worried that if she returns, she can expect to be beaten for having breached the same rules. She is worried too that she will be fined and forced to be sterilised. Also, she is worried about how she and her parents could manage to pay fines when they have no money.
·I noted that the one child policy had been relaxed since the events involving her parents two decades ago, and that she now had one child only who would be considered to be in breach of the two child policy. The second applicant agreed, but did not consider that the harshness of the authorities response to an illegal child and its’ parents had actually or potentially been relaxed.
·The second applicant also did not accept that her father was not being harassed because of the social compensation fee. She said that her mother was mistaken; he is just as responsible for the money as the first applicant, even if he uses excuses to avoid paying it. However, the second applicant acknowledged that she was a very young child when they had trouble with the planning authorities and she does not know all the details of what happened to her parents. Nonetheless, she claims that it is not safe for her to return to China due to her fear that she will herself be forcibly sterilised.
·The second applicant has worked in Australia as [an Occupation] and now takes care of her children. She claimed to be unable to work because she had no support in caring for the children but when it was noted that her mother also shares their home she acknowledged that the first applicant does assist in the care of the children. She then said that she was referring to when her mother needs to go out.   Her partner works in [a work sector], but has experienced unreliable employment, including situations where the company has failed to pay wages due to her partner.
I have carefully considered the evidence given by the first and second applicant at various stages of this review. I have taken into account that the first applicant is illiterate and has therefore had all written communications made on her behalf prepared and lodged by someone other than herself, without any capacity to read, amend and approve them. I have also borne in mind and made some allowance for the likelihood that the first applicant may not have therefore fully understood the written claims and information provided on her behalf. The second applicant denies having any input into writing of the initial application. I accept her evidence on this point, because at the first tribunal she initially appeared only aware of family planning and property issues encountered by her parents and I note her own admission before the delegate that she did not fear returning to China in her own right due to her religion or for any other reason.
There has been a significant shift in the claims made by the first and second applicants in the process of review. Some inconsistency or confusion of evidence might be expected given the passage of almost 12 years since the applicants arrived in Australia, 7 years since the application for a protection visa lodgement – and the lapsed time between the hearing conducted by the first Tribunal in 2017 and the current hearings. What is unusual in this case is that, whilst the first applicant has substantially and effectively resiled from her original claims for protection on the basis of her faith as a Christian and from the family planning authority because she had breached family planning laws (apart from still fearing demands for payment of the levied fee), the second applicant has now adopted and asserts that she fears persecution if she returns to China for those same reasons given by the first applicant in her original claims.
In relation to the first applicant, I accept the evidence she gave to me during the hearings as generally reliable. I was aware of some difficulties in interpreting at the delegate’s stage of the review and paid particular attention to the first applicant’s capacity to communicate with me at hearing. As noted above, I was satisfied that she was able to communicate with the interpreter freely, to understand my questions, and that her answers were responsive to the questions asked of her. I observed that she is indeed shy as the second applicant stated, but I do not consider that her shyness impeded her capacity to participate in the hearing or to provide evidence. I accept that she was providing reliable evidence about the various events that she had experienced historically in China, though she was vague about dates or even years for those events. On balance, I consider her evidence before me to be more reliable than that she had given to the delegate and to the previous tribunal member.
I accept that the first applicant and her husband are Christians, and may have historically attended and even hosted a house church in their home village in Fujian province, around the time that their children were young. I accept that they have experienced some low level harassment from authorities related to their attendance and dedication to the Christian faith, though I consider that this occurred many years ago, when the second applicant was a very young child and around the time the family had troubles with the Family Planning Policy. I accept that the first applicant’s husband may have evangelised in the past but I do not accept that he has done so for many years, that he currently does so, or wishes to do so. I do not accept that the first applicant has ever evangelised, (based on her evidence on that point, her language and communication skills.)
I accept that the first applicant attends a [Church 1] in Australia and would choose to attend a similar Pentecostal church (in a house church setting) on return to China. I do not accept that she is or was a Local Church member in China or in Australia. I do not accept that her husband is currently conducting Local Church gatherings at his home or even regularly attending a Christian underground church in China, or that he is under ‘house arrest’ or being investigated for being an evangelist. Based on her evidence before me, I do not accept that she or her husband were ever arrested or forced to attend a labour camp because of their Christian faith, and so I reject any claims of such made earlier in the review process. I accept that the first applicant’s husband was arrested on suspicion of having committed theft from his church group many years ago and that his time in the labour camp was whilst he was investigated for that offence. I accept that he sustained some injuries from the authorities during his detention, though I cannot be sure what those injuries were.
I accept the history of the events the first applicant has described related to the family planning authority, their assault of her husband, his forced sterilisation and the fine she was required to pay of [Amount 1]RMB as reliable, given the consistency with which that evidence has been given at each stage of the review process. I accept that the first applicant has a substantial debt still owing to the Fujian family planning authority in China, and also that she additionally borrowed more than [Amount 2]RMB to come to Australia. I accept the first applicant’s explanation about her husband’s current disenchantment with his church, related to the recent reappearance and attendance at that church of his mother’s killer. I accept the first applicant’s evidence before me that she does not currently fear being persecuted due to her Christian faith on return to China, but she does fear financial hardship, being ‘looked down on’ by community members, being unable to find work, and being harassed for repayment of the social compensation fee still outstanding.
In relation to the second applicant, I found her shift in claimed understanding about the history of her parents’ persecution because of faith to be perplexing and disingenuous, given her earlier evidence before the delegate not to know anything about that aspect of her mother’s claims. I was particularly troubled by her assertions that her mother’s evidence was somehow mistaken or unreliable wherever it did not correlate with her own and I do not accept those submissions. I also note and was troubled by her evidence that her father continues to practice as a Christian in the face of her mother’s evidence to the contrary, which she maintained even when that evidence was put to her. I found the second applicant’s evidence about her father to be internally inconsistent and illogical, because she claimed to talk to him every week and be certain that he continued to hold church meetings and attend church - but not to have discussed that with him or even to have discussed religious persecution he might be experiencing. She also had no knowledge about the recent circumstances related to her grandmother’s murderer reappearing at church meetings, which understandably was significant evidence given in detail by her mother. Despite giving evidence that she had not really discussed her father’s religious practice or persecution or his recent doubts about his faith, she nonetheless claimed that he continued to have church meetings at their home and that he would surely be experiencing religious persecution as a result. I do not accept that evidence as reliable.

When her mother’s evidence was raised with her at hearing, the second applicant then claimed that her father hadn’t told her (or her mother) about any recent problems he might have had, because he wouldn’t want to worry them; a claim which I reject as implausible given her the first applicant’s evidence to the contrary. The second applicant was an unimpressive witness, and the evidence she has given during the review process about her Christian faith did not reveal a devout or knowledgeable understanding of the principal tenets of Christianity. Nonetheless, I accept, for the purposes of this review, that she is a Christian and is raising her children (including the third applicant) as Christians. I accept her evidence that she would seek to find a similar house church of the Pentecostal faith (including evangelising) to attend on returning to China (and that her son would join her there). I do not accept that the second applicant is a Local Church member, or her claim that all house churches in Fujian are considered to be ‘evil cults’. I accept as reliable that she has three children. Her evidence raises new claims to fear persecution in China in her own right and I will consider those claims to fear harm because of her Christian faith and because she has technically breached China’s family planning policy by having a third child whilst in Australia and (though she did not raise it herself) because she has not formally married her childrens’ father.
CONSIDERATION OF EVIDENCE and CLAIMS
Claim of persecution because of membership of a Christian house church/Local Church in Fujian
I have accepted that all of the applicants are Christians and members of the [Church 1] here in Australia. I accept that they would seek to attend a similar, Pentecostal Christian house church if they return to China and that the second applicant would potentially evangelise on return to China. I have not accepted that any of the applicants are (or were) Local Church members, either in Australia or in China.
I have taken into consideration the following information from Department of Foreign Affairs and Trade (DFAT) Country Information Report: China 3 October 2019;
2.50 The Constitution provides for freedom of speech, the press, assembly, association and religious belief. Article 33 states that ‘all citizens of the People’s Republic of China are equal before the law. The State respects and preserves human rights’. In practice, however, the Constitution is non-justiciable and these freedoms are significantly curtailed. The one-party political system lacks effective safeguards to allow independent monitoring and investigation of human rights abuses by the state, such as an independent media, judiciary or a national human rights institution.’
In relation to freedom of religion more generally, DFAT usefully summarises as follows:
3.28 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.
3.29 In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
3.30 It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical
personnel); and 38 million follow Protestantism (57,000 clerical personnel).
3.31 The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10
Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.
3.32 In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by
Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.
Christians:
3.76 China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77 In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted 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. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) 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 participants/attendees.
3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.
3.79 Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and 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).
3.80 Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.
3.81 In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest nderground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.
3.82 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, or liaise with registered churches, 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.
3.83 DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.
Churches designated as xie jiao (commonly referred to as ‘evil cults’ but also understood to translate to ‘heterodox teachings’):
3.93 The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.
3.94 In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.
3.95 Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.
I have accepted that all applicants would seek to practice their Christian faith by attending small house church gatherings when they return to China, and that the second applicant may choose to evangelise, and to raise her children as Christians (including the third applicant). I have accepted the first applicant’s evidence that (despite her earlier evidence to the contrary) she has not ever been arrested or harmed due to her faith in China. I accept that the first applicant and her husband may have received some warnings many years ago about practicing Christianity, but have otherwise been able to freely practice their attendance at house church gatherings in Fujian Province. I do not accept that tor her husband was ever arrested, beaten or otherwise harmed due to their Christian faith. I find that the second applicant has not experienced persecution on account of her faith in China. I do not accept that the first applicant ever has or would evangelise if she returns to China.
The country information generally establishes that small house churches without large numbers are generally tolerated (and particularly in Fujian province) by authorities in China though they do face some scrutiny from time to time, including being monitored for their size and ‘influence’. The information before me does not suggest that the [Church 1] faith (which the applicants broadly subscribe to) is considered a xie jiao organisation and I find that it is not. I am satisfied that, despite their written and earlier claims about being arrested and assaulted and harassed due to their Christian faith (which I have rejected), the experience of the applicants as Christians in China as described by the first applicant actually accords with that country information; that is, they have been able to practice their faith although encountering irregular warnings about that practice – without being subjected to arrest, detention or physical abuse due to their faith by the Government of China or any local authority in Fujian province, even though the first applicant’s husband has been warned for evangelising in the past. This suggests that the applicants could continue as they had done if they were to return to China (even if the second applicant chooses to evangelise) without being subject to arrest, detention or torture on account of their faith.
I have carefully considered the evidence of the applicants at various stages and I do not accept their claims that there is a real chance that they will be persecuted because of their faith as Christians if they return to China.
The applicants also claim that the third applicant would suffer harm due to seeing his mother (and grandmother) detained and beaten due to their religious beliefs. However, I have found that there is not a real chance that Applicants one and two would be subjected to arrest, detention or physical abuse due to their faith by the Government of China or by any local authority in Fujian province. It follows that I do not accept that the third applicant would suffer serious harm from those events (given that I do not accept that there is a real chance of their arrest, detention and abuse.)
Claim of persecution because of Family Planning breaches from Fujian authorities
I accept that many years ago, around the time her son was born in [year], the first applicant experienced harassment, threats and financial hardship as a consequence of breaching China’s “One Child” policy. She had three children at a time when only one was allowed. I accept that she was fearful of forced abortion whilst pregnant, that she and her husband lived in hiding until their second and third children were born, that their property was damaged by officers from the Fujian authorities, and that her husband was forcibly vasectomised. Further, I accept that the first applicant has acknowledged social compensation fees of [amount]RMB to the Fujian Family planning authorities representing one for each ‘outside policy’ child and that she still owes around [amount]RMB.
I also accept that the second applicant was a small child when these abuses took place but is aware of what occurred and shared her parents fear of the authorities in Fujian. All of her children have been born in Australia and I accept that she is afraid that, if she returns to China, she will face forced sterilisation and a social compensation fee because she has a third child against current Chinese policy.
DFAT’s most recent report contains extensive information concerning Family Planning issues in China at 3.196 and following. In summary, DFAT’s assessment confirms that the experience of the first applicant and her husband is consistent with historical and sometimes heavy handed application of China’s family planning policies.[1] However the country information also reflects that population control measures have been significantly eased since around 2016 when the ‘two child’ policy was implemented.[2]
[1] DFAT Country Information Report China (3 October 2019) at 3.196 The government manages family planning under the Population Law (see Women), which has historically required government departments, state media and schools to advocate family planning policies. Such policies include encouraging late marriage and childbearing, and limits on the number of children permitted per family. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple.
[2] Ibid: The 2016 amendment included the implementation of a ‘two child’ policy (subject to other health, age and timing requirements), the abolition of forced contraception, and changes to certain leave entitlements for parents (including maternity and paternity leave). Lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. Interpretation and implementation of the policy varies enormously across China (see Family Planning in Fujian).

According to DFAT, the Family Planning Policy is enforced through both incentives and punsihments: “There are financial and administrative penalties for births that exceed limits or violate regulations. The law, as implemented, requires each woman with an unauthorised pregnancy to abort or pay a ‘social compensation fee’ (SCF, ‘shehui fuyang fei,’ also known as ‘social maintenance fees’).’ The parents of each unapproved child must pay a SCF. The national law does not set out a fee schedule that applies to all localities; exact SCF amounts vary widely across and within provinces, and on individual financial circumstances.”[3]
[3] At 3.197.
In China a citizen’s access to health and education services is linked to their hukou. The hukou is a household registration which is tied to an individual’s (or their parents) place of birth. Prior to the changes in 2016, a child’s access to a hukou for ‘out of policy’ children was tied to the payment of a SCF. However, following the amendments, children have access to health and education services irrespective of SCF payment.[4] Importantly, children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective or whether their parents have paid the relevant fees.
[4] Ibid at 3.199
According to DFAT, International NGO reports suggest that the incidence of coercive practices (forced abortions, sterilisations or invasive medical inspections) has reduced since the introduction of the two-child policy. At 3.203, DFAT notes: “Nevertheless, the US State Department reports regulations requiring women who violate the family planning policy to terminate their pregnancies still exist and were enforced in some provinces in 2017, including Hubei, Hunan, and Liaoning, and other provinces, such as Guizhou, Jiangxi, Qinghai, and Yunnan, also maintained provisions requiring ‘remedial measures’ (which the US reports is an ‘official euphemism for abortion’). DFAT notes reliable data on the frequency of coerced or forced abortions or sterilisations is not available. While family planning officials face criminal charges and administrative sanctions if they violate citizens’ human or property rights, abuse their power, accept bribes, misappropriate or embezzle family planning funds, or falsely report family planning statistics in the enforcement of birth limitation policy, forced abortion is not specifically listed as a prohibited activity.”
The second applicant has given evidence that she is in a long-term de facto relationship with her partner, who is also a Chinese citizen seeking protection in Australia. They are not married and have three children. I note the following information from DFAT’s report:
3.205 Although China’s Marriage Law (see Sexual Orientation and Gender Identity) states children born outside of marriage have the same rights as those born to married parents, the Population Law (see Women) only refers to the rights of married couples. As such, local implementation remains inconsistent, and children born out of wedlock continue to be considered to be ‘outside of policy’ under the two-child policy. Single mothers with children born out-of-policy must pay SCFs, and pay for contraception and all medical expenses associated with giving birth. They are still denied legal documents and hukou for their children (and the health and education benefits it provides) (see Hukou (household registration) system). State subsidies for maternal and child services are available only with the permission of family-planning authorities, who require proof of marriage. Consequentially, many single mothers give birth outside of medical facilities with associated complications for both mother and child. Single mothers can also find it difficult to obtain birth certificates. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair. However, children born out-of-policy are reconsidered to be within-policy (legitimate) and the mother will avoid any penalty if the mother marries within 60 days of the child’s birth. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair.
The overall trend appears to be relaxation of strict family planning policy in China and capacity to exercise discretion in applying or deciding not to apply the SCF, although application of policy can be inconsistent and lack transparency.[5]
[5] DFAT report at 3.207-3.208
The applicants are from Fujian province. DFAT includes the following province-specific information in relation to Fujian province and Family Planning Policy:
Application of Family Planning Policy in Fujian
3.210    The Population and Family Planning Regulation of Fujian (2016) aligns with the national two-child policy (under the Population Law), and has the following exceptions which allow a third child if: the first child has a disability; divorced couples remarry; the parents belong to an ethnic minority group; and if one half of the couple lives overseas with ‘surplus’ children. ‘Surplus’ children born overseas are able to return to China for an accumulated period of less than 18 months in two years; however, if they ‘settle down’ for a period of more than six months, the family may be subject to a SCF.
3.211    The term ‘returned overseas Chinese couple’ refers to couples who had permanently settled in foreign countries but who have given up their long-term, permanent or lawful right of residence and returned to China. Returned overseas Chinese couples who return to China may then give birth on their return to further children in accordance with the regulations. Citizens who are based temporarily abroad, such as those who are abroad for study or employment purposes are not considered to be ‘returned overseas Chinese couples’.
3.212    As with national policy, if a couple has an unauthorised child they will be subject to a SCF. According to the Fujian family planning office, Fujian SCFs are in line with the national policy and are based on either the prior year’s average annual disposable income at county level, or 200 to 300 per cent of the individual’s prior year’s salary (disposable income), whichever is greater. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county. The actual application of SCFs varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation).
3.213    The SCF applies to both parents. If parent A earns more than the county average, their SCF fee will be 200 to 300 per cent of their income in the prior year. However, if parent B earns less than the county average (or has no job), their SCFs will be 200 to 300 per cent of the average county income in the prior year. SCF for single women who have had an out-of-policy child are calculated at 60 to 100 per cent of the individual’s income in the prior year, or the county average, whichever is higher. While the SCF is applied equally, fines can vary due to the different income level of different families. The provincial government also has discretion to arrange SCF instalment payments for families experiencing financial hardship.
3.214    Sources report that, if an individual works in a government agency and has an official payslip, the individual’s prior year’s salary is very clear and thus the SCF is transparent and easy to calculate. However, if an individual’s salary is above average (county level), it is harder to calculate the SCF, especially if the individual does not have a clear payslip. Individuals who cannot provide clear evidence of their income will be fined in accordance with the average county income.
3.215    In March 2016, the Deputy Chairman of the Fujian Family Planning Association stated that, if parents had received previous notification of SCFs under the 2014 Regulations, these penalties stood under the 2016 Regulations. If individuals in breach of the 2014 Regulations had not received notification of SCF, local authorities would not pursue the issue further. The 2016 Regulations only apply to children born after 1 January 2016, or in cases where SCF notices have not been issued for children born prior to 1 January 2016.
3.216    DFAT is aware of a range of measures used in Fujian to secure payment of SCF, including applying personal pressure through personal calls and visits. In July 2015, the Fujian Health and Family Planning Commission signed a Memorandum of Understanding with the Fujian High Court, the Fujian Development and Reform Commission and the Fuzhou Branch of the People’s Bank of China to list people who failed to pay SCFs on a ‘black list’, limiting their ability to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their businesses, board planes or book soft berth tickets on trains. These restrictions are indicative of punitive measures possible under the SCS (see The Social Credit System).
3.217    In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System,’ directing local authorities to not treat the payment of SCF as a prerequisite for accepting an application for a hukou (see Hukou (household registration) system). Children whose unauthorised births might previously have gone unregistered are subsequently able to apply for a hukou irrespective of whether the relevant SCF has been paid.
3.218    In Fujian, authorities no longer distinguish between urban and rural hukou – all households are now registered as ‘residents’ and are entitled to access available social services. Despite this, local authorities have significant flexibility in setting stricter (or looser) restrictions in order to control population flows to urban areas and therefore limit associated pressure on social services (which are often of a higher quality in urban areas, thereby exacerbating inequality between urban and rural residents). This flexibility has also created a greater potential for corruption.
3.219    Under the system, children may be registered under the hukou of either parent, who must normally supply supporting documentation including the child’s birth certificate, household registration books of the parents, identification cards of the parents and the marriage certificate of the parents. If the child is born outof- policy, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.
3.220    Trafficking of young girls, smuggling activity and illegal adoption catering to the child-bride market are common in Fujian, particularly from, between, and to Changle District, Putian City and Zhenping Village (also reported as ‘Child Bride Village’) in Donghai Town (see Children). DFAT is aware of cultural practice local to Changle District, Fuzhou (although likely to occur elsewhere), whereby female children are less desirable than males, and a man’s family will not allow the registration of their son’s marriage until their female partner gives birth to a male child. This causes an abundance of illegitimate, out-of-policy, female children born to unmarried parents in Changle District. This issue is reportedly due to economic pressure, family planning policies and the uneven male/female birth ratio in China, which make it difficult for women to secure husbands. To compensate, parents of daughters incentivise marriage through the purchase of cars and houses to secure a husband for their daughter. In 2018, media reported anecdotal evidence of a rural family in Changle District which gave birth to eight girls before giving birth to a boy. The family reportedly could not afford to raise nine children and voluntarily sent five children to a baby trafficker.
3.221    The 2016 Fujian Regulations are consistent with the Population Law (see assessments under People affected by Family Planning Policies); however, DFAT assesses application remains at the discretion of local Fujian officials and is therefore inconsistent. Due to relaxation of national family planning policies, and a desire to increase the national birth rate, DFAT assesses officials in Fujian have more flexibility to decide not to charge, or arrange a payment plan for, SCFs to reduce financial pressures on those with unauthorised or outof-policy children. DFAT assesses children born in Fujian whose unauthorised birth might previously have gone unregistered are able to apply for a hukou irrespective of whether the relevant SCF has been paid, and are not blocked from accessing social health and education benefits.
As discussed broadly with the applicants at hearing, according to the above country information, significant relaxation of planning policies has occurred in the years since they arrived in Australia although restrictions still apply to the number of children allowed and financial penalties continue to be applied to those breaching the policy.
The first applicant has already incurred SCF liabilities and I have accepted that she still owes a substantial amount of those fees, (around [amount]RMB). I accept that the draconian and heavy-handed treatment she and her husband received in the past (damage to their property, forcible contraception, the risk of forced abortion) did amount to causing the first applicant serious harm. However, in assessing the real chance of serious harm on return to China, I must apply a forward-looking test. I find that the first applicant has grown children and would not be at any risk of incurring further wrath from the planning authorities (that is, she is not planning any further children). I am satisfied in the particular circumstances of the case, there is not a real chance that she would experience further harm due to her (past) breach of family planning policy. In relation to the SCF, I note (based on her evidence) that her husband has not been required to pay the SCF in her absence, and has been able to push back on any requests for repayment without any ongoing harassment or other penalty. I consider that whilst the first applicant will be required to repay the outstanding fee, I also consider the general relaxation and shift in policy and the length of time since the fine was levied, suggest that, taking into account her financial circumstances, some negotiation will be possible as to the terms of any repayment. I do not consider that having to repay a fine levied in accordance with Chinese family planning law of itself would amount to causing the first applicant serious harm, even if it causes some financial hardship. I find that there is not a real chance that the first applicant will suffer further serious harm on returning to China due to her having breached family planning laws when her children were born.
In relation to the second applicant, I accept that she has technically breached the family planning policy by having a third child and that, on return to China, it is likely that she will be required to pay a social compensation fee in order to regularise the children and register them in her family hukou.
Although the applicants did not raise it, the facts that I have accepted reflect that the second applicant is in a de-facto and not a formal marriage and therefore that technically, her three children might be considered to be ‘out of policy’ children. There is some chance, therefore, that they could potentially be refused hukou registration unless and until their parents marry or a SCF is paid for them. The second applicant did not give a reason why she and her partner are not married or any evidence about their intentions to marry. I accept that the SCF will be larger if she and her husband do not marry but the country information reflects that negotiations can be undertaken with family planning authorities in relation to children born ‘illegitimately’ or overseas, allowing their registration.
I consider that, in the circumstances, whilst there is some potential difficulty with registering her children on return to China and the likely application of a SCF due to her unmarried status, the second applicant and her partner will need to negotiate these problems and make necessary arrangements to enable their children to be registered in China (whether or not they decide to marry); but I am not satisfied that having to do so (pay a SCF and negotiate the registration of their children) will cause the second applicant serious harm. I also consider that those hurdles will be overcome by the second applicant out of necessity, and I consider that even if she and her partner remain unmarried, the second applicant will be in a position to make arrangements in China to pay a social compensation fee off – as most Chinese citizens do.
I note that the second applicant is also afraid that she will be subjected to violence, including forced sterilisation by family planning authorities, and that her son, the third applicant, will suffer harm in seeing that happen to her. I consider that the experience of her mother and father explains the second applicant’s fear, but I also consider that it reflects the conduct of planning authorities almost twenty years ago in quite different circumstances, where her parents were avoiding or trying to avoid detection despite clearly breaching policy. I consider that the second applicant’s situation is significantly different than her mother’s, particularly in light of the relaxation of the one child policy. I have taken into account the country information which reflects that forced sterilisation still occurs in China but only in certain provinces, and that it has not been reported in Fujian over recent years. I consider that the country information reflects that the applicant will be in a position to make her own arrangements for contraception practice moving forward, even if it is after negotiation with the authorities on her return to China. After weighing the country information and the second applicant’s fear of harm, which is based on her parents experience many years ago, I find that there is not a real chance that the second applicant will be persecuted (physically assaulted and or being forced to undergo sterilisation) if she returns to China. I find that there is a real chance that she will be subjected to payment of a social compensation fee of an unknown amount, but I consider that having to negotiate and pay a social compensation fee and the registration of her children would not cause the applicant serious harm, because she would be able to make arrangements (like her mother has done) to repay any fee over a long period with or without the support of her partner. It follows that I do not accept the applicants’ claim that the third applicant will suffer serious harm due to seeing his mother detained, forcibly sterilised and physically assaulted, because I have not accepted that there is a real chance of such harm to the second applicant.
Claim of persecution of third applicant by abduction from unknown persons, due to Covid19 or other claims of harm
At hearing, the first applicant initially claimed that the third applicant may be abducted by unknown persons in China; but at the second hearing said that she did not believe there was a real chance of that occurring. She argued nonetheless that the third applicant (and his siblings who are not part of this application) can have a better life and ‘not live in poverty’ here in Australia. The second applicant did not raise claims that her children faced any physical danger in China, apart from her claimed fear that they would be persecuted as Christians, or that the third applicant would suffer harm on seeing her detained and beaten because of her religious beliefs and breach of Family Planning policy, (discussed above,) and her concern that her third child (not the third applicant) would be refused Hukou registration because they are born out of policy.

As noted above, changes in planning policy and in particular to the practice of denying child registration until a SCF is paid reflect that even if such a fee is levied and must be paid by the second applicant, the third applicant will be nonetheless not be denied registration. I am satisfied that he will be added to his mother’s hukou and (with all of the children) be able to access social services as necessary. I find that there is only a remote chance that the third applicant will suffer serious harm (in the form of denial of health and education services) due to his not being a registered and legitimate child.
At hearing, the first applicant claimed that she feared the Covid19 virus because it is active in China, and also because her husband’s capacity to work had been affected. I have considered this claim in relation to all applicants, namely that they fear catching the virus and also that they fear that the existence of the virus will prevent them from finding work or subsisting in China. I am satisfied that there is a real chance (in the sense that it is a higher than remote chance) that the applicants will suffer serious harm (such as becoming unwell or dying) from contracting the virus in China. Potentially there will be limited chance for employment (at least temporarily) due to the shut-down of virus affected areas. However, that same real chance exists for all citizens in most countries around the world at the current time. Even if an applicants were to contract the virus in their home country, be unemployed or be unable to find employment and to subsist as a consequence of the impact of the virus on their community and economy, I find that the essential and significant reason for that harm would be the effect of the pandemic on local societies and economies and not one or more of the reasons in the Refugees Convention.
According to s.91R(1) of the Act, Article 1A(2)of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution. As none of the reasons in Article 1A(2)(a) are the essential and significant reason for the harm the applicants’ fear due to the Covid19 pandemic, I find that, applying s.91R, Article 1A(2) does not apply in relation to that claim.
Claim of persecution due to social status, financial hardship, low level of education, and debts
The first applicant claimed that she would experience social rejection because she would be of low social status and has little or no education. She described a fear of being ‘looked down on’ in China. She also claimed that, due to her overall situation in China (including the social compensation debt she has outstanding and the money they borrowed to finance the trip to Australia,) she would experience financial hardship if she returns because she would be expected to start paying those debts. She has not paid or reduced her debt whilst in Australia.
In relation to ‘being looked down on’ by other members of the Chinese community, I have taken into account that the first applicant lived in China with those same ‘burdens’ prior to coming to Australia. She did not provide evidence of specific harms she encountered as a result, and I note that she and her husband ran a shop and had their own home, reflecting some social status at least. I do not consider that, even if some members of the community reject her due to her low education and perceived low social status, this would amount to social rejection or isolation at a level which would cause her serious harm. In relation to financial hardship, I consider that her life experience suggests that she and her husband will adjust to meet financial hardships they experience or that may be imposed on them by the State due to their life choices, and I do not consider that the evidence before me suggests that any of the applicants would be prevented from earning a living, from working or that they would be unable to subsist if they return to China for any reason.
The second applicant also claimed that she would experience difficulty finding work and supporting her family if she returns to China, particularly if she is forced to pay a heavy social compensation fee due to breaching the family planning rules. As noted above by DFAT, social compensation fees are well known and planned for in China. I am satisfied that the second applicant would be in a position to negotiate about the level and payment of those fees and the information and evidence before me does not suggest that she would be unable to find or be prevented from finding employment, or from accessing necessary social services in China. I do not accept the applicant’s claim that Applicants two and three would be unable to subsist in China. I find that there is not a real chance that either or both of the second or third applicant will suffer serious harm in China related to the first or second applicant’s inability to find employment or due to financial hardship occasioned by possible social compensation fees.
Findings on claims: refugee criteria
I have found that there is not a real chance that any of Applicants one to three will suffer serious harm on return to China on account of their faith as Christians. I have found that there is not a real chance that any of the applicants will suffer serious harm on return to China due to contravening China’s family planning regulations, including the third applicant as a child who was born ‘out of wedlock’. I have found that there is not a real chance that any of the applicants will suffer serious harm in China due to financial hardship, difficulty finding work generally (Applicants one and two) or because they will suffer social rejection due to low education and social status. I find that there is not a real chance that applicant three will suffer serious harm by being abducted or as a consequence of being refused access to social and educational services or for any other reason. In relation to their claim to fear harm from the Covid19 pandemic, I have found that Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to that real chance of harm.
I have considered the claims before me individually as well as cumulatively but I find that the applicants do not have a well-founded fear of persecution in China. They do not satisfy the refugee criteria in s.36(2)(a).
COMPLEMENTARY PROTECTION
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
An applicant will suffer significant harm if they will be subjected to torture: s.36(2A)(c). Torture is exhaustively defined in s.5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
However, torture 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 ICCPR.
I refer to and rely on my discussion of each of the aspects of the applicants’ claims above. The applicants’ claims are that the first and second applicants will be arrested, beaten and forced to pay SCF’s due to breaching family planning policy, that they will be arrested and detained due to their faith and that the child applicant will experience harm by observing such things occurring to his mother and grandmother. The applicants also claim that they will be unable to subsist because they will be unable to find work sufficient to support themselves on their return to China. When considering these claims above under the refugee provisions, I have not accepted that there is a real chance of any of these harms occurring to the applicants. I refer to and rely on my reasoning in making those findings. For the same reasons, I do not accept that there is a real risk that any of the applicants will experience significant harm for those reasons as a necessary and foreseeable consequence of them being returned to China.
I have accepted that it is possible that the first applicant will suffer ‘social disapproval’ due to her low education and social status, but I have found that such harm would not amount to causing the applicants ‘serious harm’. I have considered this claim against the definition of ‘significant harm’ in the Act. Based on the information and evidence before me, I find that the harm feared by the first applicant (and which by association might extend to all applicants and thus I have considered it in relation to all three) involves only a low level of potential social disapproval of the applicants’ lack of education and low social status. I do not consider that the first applicant’s evidence establishes that there is any risk that she will suffer discrimination (societal or official), abuse, physical abuse or any other forms of harm due to her ‘poor social status.’ I consider that the social disapproval described by the first applicant is vague and may mirror her perception of being looked down on as experienced throughout her life. I find that any social disapproval which the applicants may encounter on return would be of a similar low level.
I have considered the nature of this claim and I am not satisfied that being subjected to disapproval in society would amount to any of the applicants experiencing ‘significant harm’ as that term is exhaustively defined. It does not involve being arbitrarily deprived of their lives, subjected to the death penalty, or to torture. I find that it does not involve any applicant being subjected to cruel or to inhuman treatment or punishment or to degrading treatment or punishment. I also do not accept that it would cause or be intended to cause extreme humiliation to any of the applicants. I find that any social disapproval encountered by the applicants on return to China due to low education and social status would not amount to causing the applicants significant harm.
I have also considered the impact of the global pandemic on the applicants under the complementary protection provisions. I refer to my discussion of this issue above. The risks of contracting the virus (and suffering significant physical illness or death from it) and being unable to find or perform paid work while your area is in ‘shut down’ to manage the crisis are problems faced by millions around the world, including in China. I consider that the real risk of suffering significant harm from a pandemic is one faced by the population of China generally and not faced by the applicants personally. Applying s.36(2B)(c), I find that there is taken not to be a real risk that the applicants (individually or jointly) will suffer significant harm due to the Covid19 pandemic as a necessary and foreseeable consequence of them being returned to China.
I am not satisfied that the applicants have established that there are substantial reasons for believing that there is a real risk that, as a necessary and foreseeable consequence of them being returned to China, they would suffer significant harm for any reason. None of the applicants satisfy the criterion in 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). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Anne Grant
Member

[2020] AATA 1532

21 April 2020

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