1725383 (Refugee)

[2022] AATA 3259

1725383 (Refugee) [2022] AATA 3259 (2 July 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1725383

COUNTRY OF REFERENCE:             China

MEMBER:Dr Jason Harkess

DATE:2 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Permanent Protection (Class XA) (Subclass 866) visas.

Statement made on 02 July 2022 at 5:30pm

CATCHWORDS

REFUGEE – Protection visa – China – religion – I-Kuan-Tao – arranged marriage –delay in lodging the visa application – child’s medical condition – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND Overview

Application for Review – Refusal of Protection Visa

1. The Applicants are citizens of China. They seek review of decisions made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant them protection visas. The First Applicant is [age] years of age. The Second Applicant is [age] and is the spouse of the First Applicant. The Third Applicant is [age] years of age and is their daughter. Together, the Applicants presently reside in Victoria, Australia as a family unit. The First and Second Applicants have another child who was not born at the time they made their original protection visa applications. For that reason, their second child is not a party to the present review application.

2. The Applicants originally applied for the protection visas on 10 November 2015. The visas were refused on 28 September 2017. The Applicants lodged their review application with the Tribunal on 18 October 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decisions refusing the Applicants their visas.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicants are citizens of China, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In her original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the First Applicant sought a protection visa claiming that she met the refugee criterion or the complementary protection criterion. She also made claims on behalf of the Second Applicant. The Third Applicant’s claims were derivative of the First and Second Applicants’ claims (she did not make separate claims). The delegate was not satisfied that any of the Applicants met either the refugee criterion or complementary protection criterion. Accordingly, the delegate refused the visa applications.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicants when they were notified of the delegate’s decision. That notification prompted the Applicants to lodge the present review application. The Applicants also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether either the First Applicant or Second Applicant meets the refugee criterion;

   (b)whether either the First Applicant or Second Applicant alternatively meets the complementary protection criterion.

2. The Third Applicant seeks protection visas as members of the same family unit as the First and Second Applicants. She has not made any specific claims of her own.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 11 May 2022 by video (MS Teams). The First and Second Applicants participated at the hearing to give evidence and present arguments. The Third Applicant did not participate at the hearing.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decisions to refuse the Applicants a protection visas ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicants' original written visa applications;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicants in relation to their case;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[8]

   (f)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

consideration oF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicants were obliged to complete a form when they lodged their protection visa applications. The form requested that they provide details about their personal background, their circumstances leading up to their arrival in Australia, and their reasons for applying for a protection visa.

Applicants’ Background

1. In her application form, the First Applicant stated that she comes from Hengshui, Hebei, China. She stated that she is a citizen of China by birth. A copy of her passport, which she provided to the Department, corroborated this claim. She further said that she does not hold citizenship of any other country.

2. The First Applicant further stated that she married the Second Applicant on [date] October 2015 and, together with the Second Applicant, that they had one daughter; the Third Applicant. The First Applicant stated that she belongs to the Han ethnic group, is Yi Guan Dao in terms of faith, and is able to speak, read and write Mandarin.

3. The First Applicant arrived in Australia on [date] November 2011, having been granted a [Student] visa which was set to expire on 20 January 2014. She has remained in Australia ever since her protection visa application was made on 10 November 2015.

4. The Second Applicant arrived in Australia on [date] August 2013, having been granted a [Student] visa which was set to expire on 22 September 2016. He, too, has not departed Australia since the protection visa application was made.

5. The Third Applicant was born in Australia and has lived in Australia her entire life.

Protection Claims

1. The First and Second Applicants’ original claims for protection are to be found in a written statement attached to their protection visa application form. This statement appears to have been written by the First Applicant, although it is clear that she makes claims not only on behalf of herself, but also on behalf of the Second Applicant in the last paragraph. That statement is reproduced below:

   I and my boyfriend [the second applicant] both came from the countryside of Hebei Province. The reason why we are applying for protection is to stand up for our right to the freedom of faith - I-Kuan-Tao. We are pious pursuers of the Tao, but our pursuit was viewed by the government as illegal activities and therefore was oppressed and suppressed. As more of our fellow pursuers were arrested, we are afraid to go back to China.

   I was a miserable woman, a victim of the Chinese traditional institution of marriage. My personal extraordinary life experience was my witness to my faith. I was born into a not so well-to-do family. I was the eldest child and I had a younger brother. My parents were both conservative persons. According to the conventions of our clan in the rural areas, I was supposed to be married to a person my parents had arranged for me, so that my family could get a sum of money as a betrothal gift, with which my younger brother was able to get married. Actually, my parents had already arranged a marriage for me. My future husband would be re-married businessman almost ten years my senior.

   In fact, I had a boyfriend [the second applicant] when I was in my middle school. Though we started from a date and loved each other very much, my parents were strongly against our marriage. I was punished several times by them when found dating with him. Later, as that businessman offered to marry me as soon as I graduated from high school, I had no choice but to flee China. So I decided to study in a foreign country. However, my family couldn't afford to send me to study abroad and neither could the family of my boyfriend [the second applicant]. Reluctantly, I had to be sponsored by that businessman to be able to leave the country. However, I.knew well that by accepting the money I was bound by being engaged to him, but, nevertheless, that fit in exactly with my parents' wishes.

   I had planned to work part time while I was having my lessons and then used the money I earned to pay off the debt, so, after my arrival in Australia, I refused to accept that businessman's sponsorship anymore. I decided to support myself all by myself. Soon the harsh reality had taught me a lesson that in Australia, as an overseas student I could never make sure I could be employed, and besides the low pay, I would often be discriminated against. As a matter of fact, I couldn't earn enough to support myself through my life and education. Because of my opposition to my parents' arranged marriage, the relationship between my parents and me had almost reduced to zero. My parents refused to receive my phone calls.

   After I arrived in Australia, my boyfriend [the second applicant] became greatly frustrated when learning I had gone abroad. Later on, he began to pursue I-Kuan-Tao in a house altar. On the Qingming Festival of 2012, his house altar was discovered by the security police. Many pursuers were arrested and he was also put under investigation. To evade the imminent dangers, he went about to seek his hidings. When I learned of the news, I discussed with him about the possibility of his coming to Australia, too.

2. The First Applicant was invited to participate in an interview with the delegate to explore her claims further that was scheduled for 28 September 2017. However, she failed to attend that interview and the delegate proceeded to make a decision on the basis of the written material that had been provided.

Claims before Tribunal

1. At the hearing before the Tribunal, the First Applicant gave evidence concerning her claims for protection that was not entirely consistent with her original claims as contained in her protection visa application. The most significant aspects of her evidence are summarised as follows:

   (a)The First Applicant confirmed that she left China to come to Australia in November 2011. She said that she came by herself. She also said that she had first met the Second Applicant in high school. The Second Applicant remained in China when she left the country in 2011.

   (b)The First Applicant said that she came to Australia because her parents wanted her to marry a divorced businessman, Mr [A], who was 10 years older than her. She said that she borrowed money from [Mr A] on the basis that she would use it to travel to Australia to study and, once she had completed her studies, she would return to China to marry him. However, she did not want to marry [Mr A]. After spending one year in Australia, she told her parents that she did not want to marry [Mr A] and would not be going back to China. The First Applicant said that her parents agreed that she could stay in Australia but also expressed their anger at her decision not to marry [Mr A].

   (c)The First Applicant said that she had borrowed ¥160,000 from [Mr A]. Initially the First Applicant told the Tribunal that she continued to communicate with [Mr A] by email during her first year in Australia. However, the First Applicant then said that [Mr A] does not have her email address. There was some suggestion by the First Applicant that her parents communicated with [Mr A] while she was in Australia. However, when pressed by the Tribunal as to whether her parents maintained contact with [Mr A], she said that she was not clear. She then suggested that it was the Second Applicant who maintained contact with [Mr A].

   (d)Ultimately, what seems to be clear from the First Applicant’s own evidence is as follows:

   (i)[Mr A] was informed that the First Applicant would not be returning to Australia to marry him in about 2012. This is approximately one year after her initial arrival in Australia.

   (ii)The First Applicant finished repaying the total amount of money she had borrowed from [Mr A] by 2017.

   (iii)The First Applicant has had little to no direct contact with [Mr A] since she left China in 2011.

   (e)The First Applicant also made it clear to the Tribunal that there are two essential reasons why she does not wish to return to China, namely:

   (i)She fears having to deal with or encountering [Mr A] if she returns to China. According to the First Applicant, this is because both [Mr A] and the First Applicant’s parents wanted very much for the First Applicant and [Mr A] to get married and start a family together.

   (ii)The First Applicant fears that the health system in China is too expensive to be able to deal with the Third Applicant’s medical condition. The First Applicant explained to the Tribunal that the Third Applicant has a [medical condition] which will require medical monitoring and surgical intervention periodically as she grows into an adult. In support of this claim, the First Applicant produced photographs of the Third Applicant, both as an infant when no surgery had been undertaken. The photos depicted the Third Applicant’s birth defect at an early age as compared with the significantly improved appearance following corrective surgeries that had been undertaken in Australia.

   (f)The First Applicant said she had no other concerns about returning to China. She did not express any concern about returning to China because of her religious beliefs.

2. The Second Applicant gave evidence to the Tribunal that is summarised as follows:

   (a)The Second Applicant stated that a friend of his in China introduced him to a religion while he was still in China. He said the religion was a combination of five kinds of religion based on Buddhism. He said he joined the religion in about 2012.

   (b)Shortly after he joined the religion, the Second Applicant said that Chinese government authorities conducted a search of the church premises. When asked by the Tribunal whether he was present when this search took place, the Second Applicant did not directly respond to that question but made a general observation about the strict requirements imposed by government authorities in relation to being a member of any religion. The Tribunal inferred that the Second Applicant was not present and therefore not identified by Chinese authorities as being a member of the church.

   (c)Following the investigation by authorities into the Second Applicant’s church, the Second Applicant ceased attending the church. He then came to Australia.

   (d)The Second Applicant stated that after he came to Australia, he set up a family temple in his own home. He then became aware that there was a similar kind of Buddhist church in Australia. He said that he attended this church a few times in 2015 but, after the First Applicant became pregnant, he ceased attending. He did not claim to be a member of that church now.

   (e)The Second Applicant expressed concerns about returning to China as a result of his experience with the church in China shortly before he left to come to Australia. He also said that given that he has now been in Australia for over a decade, he would find it very difficult to return to China. He said that he likes Australia and has a young family. He said he has no property or house in China. He said that he does not know how he would be able to raise two children. He said that he does not like the political pressure in China and does not want his family to suffer if they are forced to return.

   (f)The Second Applicant stated that he does not know his wife’s suitor, [Mr A], and has never had any contact with him.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 22 December 2021 (‘the DFAT report’).[11]

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: People’s Republic of China (22 December 2021).

2. As to China’s economy and health system generally, the DFAT report includes the following information:

   ECONOMIC OVERVIEW

   2.6       World Bank figures show China’s GDP has averaged almost 10 per cent growth per year since 1978. Real GDP grew 2.3 per cent in 2020 in spite of the COVID-19 pandemic while many other major economies recorded negative growth. The World Bank describes China as an upper middle-income country. The United Nations Development Programme (UNDP) ranks China 85th out of 189 countries in its 2020 Human Development Report, in the ‘High Human Development’ category.

   2.7       In December 2020, President Xi declared success in establishing a ‘moderately prosperous society’ and eradicating extreme rural poverty. Ensuring the sustainability of these efforts, improving the lives of low income families and addressing widespread inequality are key challenges for the government. Economic development has been uneven, with a large wealth gap between the rich and poor that has been affected over time by large-scale internal relocation from rural to urban areas by people in search of higher wages.

   2.8       Social security is limited in China. Traditionally, people rely on family to support them in old age or sickness. Under China’s new Civil Code, which came into force on 1 January 2021, parents have the right to demand support from their adult children if it is not otherwise forthcoming. A subsistence allowance, dibao, is paid to the poor with the rate set by the local municipality. If a person is returned to China without means of family support, DFAT assesses that it would be difficult, but not impossible, to subsist depending on individual circumstances including age, health, ability to work and level of education. Access to social security and basic services can also be impacted by an individual’s registered place of residence. See also hukou.

   Unemployment

   2.9       According to International Labour Organization (ILO) data, China’s reported urban unemployment rate was consistently around 4.5 per cent between 2011 and 2018 but rose to 5 per cent in 2020 with the impact of COVID-19. The real rate of unemployment is probably higher than official statistics. The official unemployment rate does not fully capture underemployment or unemployment of migrant workers, a 290 million strong workforce.

   2.10       The changing nature of work has made it difficult for some low-skilled workers to find employment. Before the COVID-19 pandemic the government focussed on the creation of new urban jobs. Some laid-off factory workers have taken up employment as delivery drivers and shop workers, but these too have been disrupted by the pandemic.

   Education

   2.11       China’s school system is state-run but decentralised; county-level governments have primary responsibility for school delivery. The standard of education varies considerably from place to place with urban standards higher than rural standards, which may be accentuated by relatively poor infrastructure and household income, and access to qualified teachers in rural areas. The language of instruction is Mandarin. See Race/Nationality.

   2.12       China’s adult literacy rate is 96.8 per cent. Despite a nine-year compulsory education policy (six years of primary school and three years of middle school, with another three years of high school possible), children in China attend school for 8.1 years on average (females 7.7 years and males 8.4 years). Along with quality, attendance rates are lower in rural areas and some rural children do not attend school at all. High levels of literacy and education generally mirror higher wealth in large cities and the eastern provinces.

   Health

   2.13       Average life expectancy in China is 76.9 years; higher in urban areas and lower in rural areas. The top causes of death are non-communicable diseases, such as stroke, heart disease, lung diseases and cancer. High rates of tobacco use and exposure to air pollution are leading health risks. Health care varies significantly between urban and rural areas. Urban centres have better quality healthcare, but only for those with the relevant urban hukou (household registration).

   2.14       The COVID-19 pandemic has challenged China’s health system. China pursued a zero-tolerance approach to COVID-19 and has made remarkable progress in pursuing its national vaccine roll-out. Government responses included localised lockdowns, movement restrictions, large-scale contact tracing and testing (including through use of health apps that can aid with contact-tracing and certifying the vaccination status and COVID-19 risks specific to an individual), and rapid construction of purpose-built hospital and quarantine facilities. Some aspects of the COVID-19 outbreak, particularly its origins and the government’s early response, are politically sensitive and reporting is controlled (see Media) but DFAT assesses that government reporting of its subsequent success in controlling the spread of  COVID-19 within China is likely accurate as a result of robust measures to control outbreaks quickly.

   Mental health

   2.15       The government has increased investments in mental health services over the last decade but services remain inadequate. A 2019 article by Chinese academics published in the BMJ General Psychiatry journal found a 17.5 per cent prevalence of mood disorders. It found that, despite the high prevalence of disorders, the rate of people receiving treatment was low, in part due to social stigma, and a lack of funding, mental health beds and mental health professionals. Most of those resources were found in provincial capitals in the more developed east coast of the country.

   2.16       Although demand for mental health services is growing, many people remain reluctant to seek help due to stigma associated with mental illness. According to a study conducted in Tianjin and published in BMC Psychology in 2020, about 45 per cent of participants thought most people would not accept a former mental health patient as a close friend, 70 per cent thought that most young women would not date a man who had been hospitalised with a serious mental health condition, and almost 55 per cent of participants would not employ a person who was a former mental health patient.

   POLITICAL SYSTEM

   2.17       China’s political landscape is dominated by the CCP. Eight minor parties exist but they are vetted by, and subordinate to, the CCP. While the Party, executive, legislature, and judiciary are ostensibly separate entities, the Chinese Constitution makes clear that all organs are subordinate to the Party. Government agencies, judicial organs, and businesses have parallel Party structures and/or host Party cells, and senior officials in government, the judiciary, SOEs and the legislature also concurrently hold Party positions.

   2.18       The legislature is known as the National People’s Congress (NPC) and holds a full session with about 3,000 members once a year. In practice, the Party’s peak leadership body, the seven-member Politburo Standing Committee (PBSC), and Party leading groups and central commissions, are responsible for making key policy decisions. PBSC members are drawn from the subordinate 25-member Politburo, which in turn is drawn from the Party’s central committee. The State Council oversees the implementation of policy decisions, as well as regulations and laws adopted by the NPC and its standing committee. The Premier (currently Li Keqiang) is head of the State Council and China’s Head of Government. President Xi and Premier Li are also members of the PBSC.

   2.19       China has four broad levels of government. Subordinate to the national government are provincial governments and autonomous regions. Subordinate to those are prefectures, counties, autonomous counties and municipalities and townships. Shanghai, Beijing, Tianjin and Chongqing are municipalities directly subordinate to the national government. Governments at the provincial level and below are responsible for most public expenditure on health, education, unemployment insurance, social security and welfare.

   …

   HUMAN RIGHTS FRAMEWORK

   2.24       In 2019, China released a white paper on human rights for the 70th anniversary of the establishment of the People’s Republic. It emphasised ‘happiness’ (asserting that ‘living a happy life is the primary human right’), poverty eradication, and rights to food, water, housing and health. Chinese authorities consider the right to subsistence and development as the primary human rights, which contrasts with the United Nations Universal Declaration on Human Rights, which promotes equal and inalienable rights to life, liberty, security and freedom.

   2.25 Chapter 2 of the Constitution covers the rights and duties of citizens. It includes a right to vote, 'right to criticise state organs and their employees' and freedom of speech and religious belief. It notes that the state ‘respects and preserves human rights’. The situation in practice differs and all of these rights are heavily restricted, especially if they are perceived as a threat to political or social stability. The Constitution is non-justiciable – constitutional rights cannot be pursued in court.

   2.26       China has ratified the following international human rights conventions: the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of Persons with Disabilities; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child and its Optional Protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography; and, the International Convention on the Elimination of All Forms of Racial Discrimination.

1. As to family planning policies, the DFAT report includes the following information:

   People affected by family planning policies

   3.117     Since the late 1970s China has enforced laws that limit the number of children people can have. Over time, these laws have liberalised from initially allowing one child per family to control population growth, to recent changes in the law that allow three children as China’s population ages and its economy develops. The policy was originally introduced to deal with extreme poverty and famine. Today, many young Chinese themselves are deciding against having children due to cost-of-living pressures and changes to traditional lifestyles.

   3.118     Ethnic minorities and rural families that had a daughter as their first child were exempt from the policy for most of its history, and in 2016 all families were allowed to have two children. In 2016 the national government ordered all local governments to register children with a hukou, even if they were born ‘out of plan’. In-country sources told DFAT that increased discretion was being afforded to local governments to decide whether or not to charge out-of-plan fees to parents even before the 2016 reforms. This was especially true in rural areas.

   3.119     In 2021 the law was changed to allow couples to have three children. Social compensation fees levied against people with ‘out of plan children’ were abolished. This reflects an overall de-prioritisation of the policy by a government that is now concerned with declining birth rates and an aging population.

   3.120     The likelihood of enforcement or penalties for non-compliance, both before and after the new rules were implemented, varies from place to place. DFAT understands that Fujian, for example, does not enforce its family planning policy strictly and penalties have not been imposed in some years. People who give birth overseas would have their children counted as if they were born in China and the policies of the place they return to in China would apply. Children born to single mothers might also be considered ‘out of plan’.

   3.121     Enforcing child limits has become a low priority for government. DFAT is not aware of any recent reports of people being imprisoned for failure to pay fees and is not aware of recent examples of forced abortions, but understands that they are theoretically possible (see Uyghurs, who are not covered in this assessment). While punishment for out-of-plan children is still possible, it is much less likely than it was in the past. Implementation differs from place to place (it is regulated by provinces) but DFAT is not aware of evidence that breaches of family planning laws are severely punished anywhere in China. Outstanding compensation fees, including for previous children, still need to be paid. DFAT assesses that official discrimination against people who have out of plan children is low. DFAT is not aware of patterns of societal discrimination against people with out of plan children.

2. As to religion and Buddhism, the DFAT report includes the following information:

   RELIGION

   3.22       China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture. The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18.2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim.

   3.23       Religion in China is traditionally not as separate from everyday life as in the West. Chinese people, especially those of traditional Chinese faiths like Buddhism, Confucianism and Daoism integrate religious practice into their everyday life and lifestyles, including perhaps with home shrines and/or cultural festivities and events. Buddhist, Daoist and Confucian practices are not mutually exclusive; it is common to practice more than one these faiths. Some religious figures might be seen as better at answering prayers than others and some traditions might suit certain life events (for example, weddings and funerals) more than others. Adherents of non-Chinese religions like Christianity, Islam and new religious movements are more likely to separate their faith from their everyday lives and may label other beliefs as ‘superstition’. By extension, many Western religions and new religious movements require exclusivity and loyalty to that particular faith.

   3.24 Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.

   3.25       Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades.  But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.

   3.26 Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly.

   3.27       Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[12]

   [12] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[13]

   [13] Ibid [15.4].

3. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[14] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[15] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[16] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [14] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [15] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [16] Sun v MIBP [2016] FCAFC 52

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[17] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[18]

Credibility of Applicant’s Claims in this Case

[17] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[18] Migration Act 1958 (Cth), s 5AAA(2).

1. There are several factors in this case that have led the Tribunal to conclude that neither the First Applicant nor the Second Applicant hold a genuine fear of returning to China for a reason of a kind that would attract Australia’s protection obligations under the Act. These factors include the following:

   (a)There was considerable delay in both the First and Second Applicant lodging their protection applications. If they truly feared returning to China for reasons that they might be at risk of serious or significant harm, one might have expected their protection visa applications to have been lodged shortly after their arrival in Australia. In the case of the First Applicant, it took her four years to lodge her protection visa application after she arrived in Australia. In the case of the Second Applicant, it was more than two years.

   (b)Based on the evidence presented by both the First and Second Applicants, it seems reasonably clear that they are no longer ‘pious pursuers of the Tao’. The First Applicant made no mention of this faith to the Tribunal. It is evident that she no longer fears returning to China for this reason. Indeed, the Tribunal doubts that she was every a follower of this faith at all given that she made no mention of it at the Tribunal hearing. The Second Applicant made only fleeting reference to following a faith in China, and appears not to have personally experienced any kind of harm personally in China because of his religious beliefs. Having regard to his evidence given to the Tribunal, he appears to have lost interest in attending a church since starting a family. The Tribunal is not satisfied that either the First or Second Applicant hold any particular religious belief or are members of a particular church or faith. There is no credibility to found in this aspect of their claims. They are therefore rejected.

   (c)To some extent, the First Applicant has been reasonably consistent in relaying her claim that her parents had made an arrangement for her to marry a businessman who was ten years older than her. However, assuming this man’s name is indeed [Mr A], the Tribunal finds that the First Applicant’s concerns about him are exaggerated and not rationally-based. There are significant inconsistencies in the evidence of the First Applicant as to how much contact she has had with him since she left China in 2011. Initially she said she maintained contact via email but then said he does not have her email address. She then said that her parents maintained contact with him. Then she said the Second Applicant deals with him. But the Second Applicant denied all knowledge of [Mr A]. In the end, the Tribunal is not satisfied that [Mr A] presents as any real concern to the First Applicant upon her return to China. On the limited evidence about [Mr A] before the Tribunal, the only reasonable inference open to the Tribunal is that he has most likely moved on from his hopes of ever marrying the First Applicant many years ago. By the First Applicant’s own admission, she has repaid the money that she borrowed from him. She has no contact with him now and, on one view of the evidence, she has never had any contact with him since she left China. Moreover, she has married the Second Applicant and has a young family. In the Tribunal’s view it is highly unlikely that she will encounter [Mr A] after all these years if she were to return to China now.

   (d)The Tribunal accepts that the Third Applicant was born with a congenital birth defect in the nature of a [medical condition]. The Tribunal accepts that this is an inherently stressful condition for any parent to deal with. In giving evidence about this to the Tribunal, the First Applicant was visibly upset about her daughter’s condition. The Tribunal finds that the First and Second Applicants want only the best medical treatment for their daughter and are genuinely fearful as to how they will navigate the public health system in China in relation to their daughter if they are compelled to return to their home country. However, the Tribunal notes that China is a highly developed nation with a well-established public healthcare system which has the capacity to continue the ongoing treatment that the Third Applicant’s needs. There will be difficulties and unknown costs associated with this care. However, in the Tribunals’ view it is not an unreasonable or insurmountable burden that the Applicants must bear upon their return to China.

2. In the end, the Tribunal is not satisfied that the Applicants face any serious or significant risk of harm upon their return to China. The nature of the Applicants’ complaint, it seems, is reducible to the inherent fear and stress associated with moving back to China after a decade of living in Australia. The Tribunal accepts that this will involve significant economic and psychological upheaval for the Applicants. However, the Tribunal is of the view that the Applicants are sufficiently resilient and resourceful to deal with the inherent uncertainties and stressors that come with leaving Australia after such a long time away from their home country of China.

Do the Applicants Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who has a nationality, ‘is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to return to avail himself or herself of the protection of that country.’[19]

   [19] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[20] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[21]

   [20] ‘persecution, n.’, OED Online (Oxford University Press, March 2021, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[22] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[23] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[24]

Does the First or Second Applicant Have a Well-Founded Fear of Persecution?

[22] MIEA v Guo (1997) 191 CLR 559, 574.

[23] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[24] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. The Tribunal is not satisfied that neither the First nor Second Applicant has a well-founded fear of persecution if they were to return to their home country for reasons set out in paragraphs 33 and 34 above.

2. Accordingly, the Tribunal finds that the First and Second Applicants do not meet the refugee criterion.

Do the Applicants Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal has ‘substantial grounds for believing that, as a necessary and foreseeable consequence of … being removed from Australia to a receiving country, there is a real risk that [they] will suffer significant harm’.[25]

   [25] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[26] or

   (b)the death penalty will be carried out on them;[27] or

   (c)they will be subjected to torture;[28] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[29] or

   (e)they will be subjected to degrading treatment or punishment.[30]

   [26] Migration Act 1958 (Cth), s 36(2A)(a).

   [27] Migration Act 1958 (Cth), s 36(2A)(b).

   [28] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for the purpose of obtaining from the person or from a third person information or a confession; or (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or (c) for the purpose of intimidating or coercing the person or a third person; or (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (‘the Covenant’); but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   [29] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. It does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   [30] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[31]

Is there a Real Risk of Significant Harm?

[31] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. The Tribunal is not satisfied that the First or Second Applicant faces a real risk of significant harm if they were to return to China, for the reasons expressed paragraphs 33 and 34 above. To be clear, the only ‘harm’ that the First and Second Applicants face upon their return to China are the uncertainties and stressors inherent in the exercise of moving from Australia to China. This is not the type of harm contemplated by the protection visa criteria.

2. For these reasons, the Tribunal has determined that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk that the First or Second Applicant will suffer significant harm.

3. The Tribunal finds that the First and Second Applicants do not meet the complementary protection criterion.

Summary

1. The Tribunal is not satisfied that the First or Second Applicant meets either the refugee criterion or the complementary protection criterion. The Third Applicant’s case is contingent on the outcome of the First and Second Applicants’ respective cases.

2. Accordingly, the decisions under review must all be affirmed.

DECISION

1. The Tribunal affirms the decisions not to grant the Applicants Permanent Protection (Class XA) (Subclass 866) visas.

Dr Jason Harkess

Member