1800633 (Refugee)

[2024] AATA 1804

1800633 (Refugee) [2024] AATA 1804 (22 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800633

COUNTRY OF REFERENCE:                   China

MEMBER:B. Mericourt

DATE:22 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 March 2024 at 2:57pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – local church – particular social group – breaching family planning policy – house church members – detention – social compensation fee – “black child” – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of China, applied for the visas on 25 August 2017. The delegate refused to grant the visas on the basis that she was not satisfied that the applicants had a well-founded fear of persecution or that there is a real chance they will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if they return to China. Nor was the delegate satisfied that there is any real chance the applicants will suffer significant harm as defined in s36(2A) of the Act if they return to China.

3. On 13 March 2023 the applicants declined the Tribunal’s invitation to a hearing and consented to the Tribunal making a decision on the papers.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. 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.

   Receiving Country

10. The applicants claim to be citizens of China. They provided copies of the bio data pages of their Chinese passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that the applicants are citizens of China. The Tribunal finds that China is the receiving country for the purpose of assessing their claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

11. The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any country other than their country of nationality.

    BACKGROUND

12. The primary applicant is [an age]-year-old married woman from Pingtan City, Fujian Province in China. Her husband is the secondary applicant. They have [two children] who live in China. The primary applicant’s parents and [brother] also live in China.

13. The primary applicant was employed as a salesperson in China after she had completed high school and was a housewife for [period] after her first child was born in [specified year]. Her husband was employed in [type] companies after he completed high school.

14. The applicants were granted tourist visas on 26 July 2017 and entered Australia [in] August 2017. They lodged their applications for protection on 25 August 2017. The applicants did not attend their scheduled interview with the Department on 14 December 2017 and on 15 December 2017 the delegate of the Department made a decision to refuse their visa applications and notified the applicants of her decision on that day.

15. The applicants lodged an application to the Tribunal for review of the Department’s decision on 8 January 2018. They declined to attend the Tribunal hearing scheduled for 18 April 2024. They were advised in the hearing invitation letter dated 12 March 2024 that the Tribunal may not be able to make a favourable decision on the papers alone without further information. The applicants consented to the Tribunal making a decision on the papers before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issues in this case are whether the applicants have a well-founded fear of persecution if they return to China and if so, do they meet the refugee provisions of the Act? If not, do the applicants meet the protection obligations under the complementary provisions of the Act?  

17. The Tribunal has before it the Department’s file relating to the applicants including the delegate’s decision. The Tribunal also has had regard to other material available to it from a range of sources. This includes, but is not limited to the following:

    ·the applicants’ claims for protection in the primary applicant’s written statement attached to her application form dated 25 August 2017;

    ·Department of Foreign Affairs (DFAT) Country Information Report, China, 22 December 2021;

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;

    ·Other relevant country information as referred to below.

    The applicants’ claims

18. The applicants’ claims can be summarised as fear of persecution for reasons of their Christian religion and persecution as a result of the primary applicant breaching China’s family planning policy. Details are as follows:

19. The primary applicant stated that her parents were both Christians and attended a house church together with other family members. The church was the local church and they read the Recovery Bible and the book “Morning Revival”. The primary applicant attended the house church from an early age.

20. When the primary applicant was in high school in [year] the house church was closed by local government (authorities) who claimed that the church was unauthorised and they were gathering illegally. They confiscated their Bibles. The primary applicant’s father was detained for three days on a charge of attending house churches. He was released after being brainwashed by the local government (authorities) and placed under surveillance. One of the primary applicant’s aunts was also arrested for participating in preaching activities organised by the local church. She was later suspended from her job whilst undergoing further investigation.

21. The applicants were married in September 2014 and came to Australia together in August 2017. They immediately began attending the local church in Australia as a result friends’ recommendations. They attend gatherings once a week. The applicants believe they will be persecuted and imprisoned as a result of practising their Christian religion in Fujian province or anywhere else in China.

22. The primary applicant also stated she is apprehensive about the birth-control policy in China. According to the local regulations in her home town they were forced to pay a penalty of 100,000 yuan when she applied for a hukou for her second child. This was far beyond their means and as a result their second child will become a “black child” or child without a permanent residence permit. Consequently he would be discriminated against and denied social benefits such as healthcare or education. One of their relatives in their home town was forced to pay 300,000 yuan as a penalty for violating birth-control policy and because he could not pay this amount he was imprisoned and tortured both mentally and physically while his pregnant wife was forced to receive an abortion and sterilisation. The applicants believe the Chinese government is carrying on a relentless birth-control policy in rural areas such as theirs and this greatly frightened them and ‘drove them to desperation’.

23. The primary applicant concluded that “in the circumstances described above, I believe that while it may be possible for me to practice my religion in Fujian and even the whole China if I return to China, the possibility that I will be imprisoned or face other serious harm within the reasonably foreseeable future is not avoidable. I have similar serious concerns about my husband and I and our children or further children due to the family planning policy enforced in China today if we to return to China to live”.

    Assessment of the applicants’ claims and findings

24. The applicants have not provided any further evidence to the Tribunal regarding their claims. They provided no evidence to the Department other than the statement of claims provided at the time of application. They have not attended interviews scheduled in 2017 by the Department or in 2024 scheduled by the Tribunal to provide any further information or details about their claims.

25. The mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[1] Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making[2], the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the Tribunal to establish relevant facts. The Tribunal is not required to make the applicant’s case for him or her[3], nor is it required to accept uncritically any and all of the allegations made by the applicant.[4] The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, it is satisfied it is also materially applicable to the assessment of complementary protection claims.

    [1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

    [2] Yao-Jing Li v MIEA (1997) 74 FCR 275 at 288

    [3] Prasad v MJEA (1985) 6 FCR at 169-179; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451

26. Without more evidence from the applicants than the evidence presently before it, the Tribunal cannot be satisfied about why the applicant cannot or will not return to China. If they had attended a hearing, the Tribunal would have had the opportunity to discuss their claims with them in more detail and test their veracity. The Tribunal would have used the opportunity of a hearing to provide the applicants with the opportunity to explain particular details of what they fear would happen if they return to China now or in the reasonably foreseeable future and the reasons why they think that would happen. When the applicants consented to the Tribunal making a decision on the papers, they were advised that the Tribunal was unable to make a favourable decision based on the information before it alone.

    Claims related to persecution or risk or chance of serious or significant harm for reasons of religious belief and practice

27. The applicants have not provided any details or supporting evidence related to their own beliefs and practice of Christianity in the local church either in China or in Australia. Consequently, the Tribunal has insufficient evidence before it to be satisfied the events and circumstances  the applicants raised are factual, and on the evidence before it, it does not accept their claims related to their practice of Christianity in either China or in Australia. Without any supporting evidence, the Tribunal does not accept the applicant’s claims that they would practice their religion in the local church in China should they return now or in the reasonably foreseeable future.

28. The Tribunal is therefore not satisfied that there is a real risk or real chance the applicants will suffer serious or significant harm for reasons of their claimed religious beliefs and/or practice if they return to China now or in the reasonably foreseeable future.

    Claims related to risk or chance of serious or significant harm as a consequence of breaching China’s family planning policy

29. The Tribunal accepts that at the time the applicants entered Australia in 2017, China had a “one child policy” and that it is possible that a fine was levied on the applicants by local authorities in relation to the birth of their second child.

30. However, the Tribunal is satisfied that the law in China relating to family planning has significantly changed. In 2021 the law was amended to allow couples to have three children. The 2021 amendments to the Population and Family Planning Law also included ‘supportive measures’ such as assistance in ‘finance, taxation, insurance, education, housing and employment, to ease the burden on families in terms of childbearing, child-care and education.’[5]. Social compensation fees levied against people with ‘out-of-plan-children’ were abolished. This reflects an overall deep prioritisation of the policy by a government that is now concerned with declining birth rates and an ageing population.[6] Furthermore, DFAT reports that Fujian province does not enforce its family policy strictly and penalties have not been imposed in some years. People who give birth overseas would have their children counted as if they are born in China and the policies of the place they return to in China would apply.[7]

    [5] ‘China adopts law amendment allowing couples to have three children’, Xinhua, 20 August 2021; ‘China to bolster support for childbirth, parenting’, China Daily, 18 August 2022

    [6] Department of Foreign Affairs and Trade, DFAT Country Information Report – People’s Republic of China, 22 December 2023, 3.119, p.30; ‘China's three child policy: why was it introduced and what's that mean?’ South China Morning Post, 5 June 2021

    [7] Department of Foreign Affairs and Trade, DFAT Country Information Report – People’s Republic of China, 22 December 2023, 3.120, p.30

31. Country information also indicates that household registration had been delinked from payment of social compensation fees, and under the law, children born after 1 January 2016 without family planning permission can obtain household registration and thus can access health and educational services.[8] The Tribunal notes that the applicant’s second child was born after 1 January 2016.

    [8] Ibid

32. There is no information before the Tribunal that indicates that forced sterilisation or abortion is enforced in China as the authorities now wish to encourage people to have more children.[9]

    [9] Ibid

33. The Tribunal is therefore satisfied that there is no real risk or real chance the applicants will suffer serious or significant harm now or in the foreseeable future as a consequence of breaching China’s family planning policy.

    CONCLUSION

34. The Tribunal is not satisfied that there is a real chance that the applicants will face serious harm for a refugee reason or for any other reason, either now or in the reasonably foreseeable future  if they return to China. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution. Therefore, they do not satisfy the requirements of s 36(2)(a) of the Act.

35. The Tribunal has also considered the alternative criteria in s 36(2)(aa) of the Act.  On the same evidence, and for the same reasons  as articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they would suffer significant  harm as defined in s 36 (2A) of the Act.

36. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

37. The Tribunal affirms the decision not to grant the applicants protection visas.

    B. Mericourt
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

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

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …