1800867 (Refugee)

1800867 (Refugee) [2022] AATA 2525 (21 June 2022)

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1800867
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:21 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 June 2022 at 5:02pm
CATCHWORDS
REFUGEE – protection visa – China – child applicant born in Australia to parents not holding substantive visas at the time – applicant not stateless but Chinese citizen – member of particular social group – second of two children born to unmarried parents – household registration and social compensation fee – local implementation of national laws – applicant’s father removed and mother’s new relationship – older sibling granted passport – religion – mother’s attendance at Christian church in Australia – resumed attendance after applicant’s birth – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulation 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant was born in Australia in [Year]. Her parents were citizens of the People’s Republic of China at the time of her birth. At the time of her birth, they did not hold substantive visas.
The applicant’s mother applied for a protection visa on the applicant’s behalf on 22 June 2016. A number of documents were provided to support the application including:
·A translated statement made by the applicant’s mother dated 21 June 2016.
·A translated statement made by the applicant’s grandfather and his Chinese resident identity card.
·The biodata pages of the applicant’s mother’s and elder sister’s Chinese passports.
·A series of photographs.
·The applicant’s NSW birth certificate.
The applicant’s mother attended an interview at the Department of Immigration on 29 March 2017.
On 18 December 2017 the delegate of the Minister for Immigration refused to grant a protection visa under s 65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 11 January 2018. In April 2022 the applicant’s mother provided further documents to support the application for review, including:
·A copy of the delegate’s decision record dated 18 December 2017.
·Undated statement made by the applicant’s mother.
·Statement made by [Reverend A] of [Church] dated 25 March 2022.
·Series of photographs.
·Photograph of certificate of baptism for the applicant’s mother.
There is no restricted material on the Department’s file.
The applicant’s mother appeared before the Tribunal on 21 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant’s mother gave evidence about her background, her migration history and other matters relating to the applicant’s claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Consideration
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection.
The relevant law is set out in the attachment to this decision.
Background
The applicant is a [Age]-year-old child born in Australia to two Chinese citizen parents who did not hold substantive visas. She is living with her mother and elder sister in Sydney.
The applicant’s mother is [Age] years old and first came to Australia as a student in November 2016. Her family home is located in a village in Fujian Province. The applicant’s maternal grandparents work as rural farm workers and construction workers.
The applicant’s mother obtained a student visa for Australia when she was [Age] years old. She attempted [courses] in Australia but was not able to complete her studies. She stated her study did not go well, she met the applicant’s father in Australia and they lived together in a de facto relationship. They have two children: the applicant’s elder sister and the applicant. The applicant’s father was removed from Australia in 2020.
The applicant’s mother told the Tribunal she has a boyfriend. She stated that she and her boyfriend have lived in a share house for the last four years but had only been together in a relationship from about the time of the pandemic.
The applicant’s mother currently works in [Work sector 1] and her boyfriend is working in [Work sector 2] as [an Occupation].
Country of reference
In the application form completed on the applicant’s behalf, it is stated that the applicant is stateless. However, the Tribunal does not accept that the applicant is stateless.
According to Article 5 of the Nationality Law of the People’s Republic of China, if a parent of a person born abroad is a Chinese national or both parents are Chinese nationals, then that person shall have Chinese nationality.[1]
[1] Immigration Department of the Government of the Hong Kong Special Administrative Region, Topical Issues – 9, Nationality Law of the People’s Republic of China and the National People’s Congress’ Explanations of how it is to be applied to the HKSAR, 15 December 2008, >
In the Australian Department of Foreign Affairs and Trade (DFAT) advice provided in 2011 it states:
According to local authorities and post’s understanding of Chinese regulations and practice, it is normal for a person to first have a hukou (household registration) before he/she is eligible to apply for a Chinese passport. For a child born outside China, it is normal practice for Chinese missions abroad to issue a travel document for the baby to travel. Once back in the mother’s town/village where her hukou is registered, the parents would then apply for the child’s hukou at the local police station.[2]
[2] Department of Foreign Affairs and Trade, DFAT Report No. 1261 – China: RRT Information Request: CHN38360, 30 March 2011.
The US Law Library of Congress[3] similarly notes:
Children born outside the country to at least one Chinese parent are considered citizens provided that the parents did not settle in a foreign country and the child did not acquire foreign citizenship at birth.
[3] ‘Citizenship Pathways and Border Protection’, The Law Library of Congress Global Research Center, March 2013, p.9
Applications for Chinese citizenship abroad can be made at China’s diplomatic representative agencies and consular offices, including in Australia. Applications submitted from within China are handled by the public security bureau of the municipality or county in which the applicant resides. Applications for persons under the age of 18 may be lodged on their behalf by their parents or other legal representatives.[4]
[4] ‘Nationality Law of the People’s Republic of China’, Government of the People’s Republic of China, 10 September 1980, Article 15, CX282388
The applicant’s mother provided a copy of her own Chinese passport and the Chinese passport of her elder daughter who was also born in Australia. The evidence before the Tribunal indicates, and the Tribunal finds, that the applicant is a Chinese citizen because her mother is a Chinese citizen. She does not have any other nationality. On the evidence before it, the Tribunal finds the applicant has acquired Chinese nationality by descent.
The Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purposes of s 36(2)(aa).
What are the applicant’s claims?
The applicant’s claims are set out in the application for protection and in the applicant’s mother’s statement accompanying the application for protection.
The applicant’s mother discussed the claims for protection with the delegate at an interview on 29 March 2017.
The applicant’s mother made a further statement on 8 April 2022. The applicant’s representative also made written submissions on the applicant’s claims which included a discussion of the claims as well as country information.
The applicant’s mother gave oral evidence concerning the applicant’s claims at the Tribunal hearing held on 21 April 2022.
Essentially the applicant’s mother claims that if the applicant returns to China she faces serious harm from Chinese authorities because she will not be able to participate in organised Christian activities such as church services. Further the applicant’s mother claims that she has breached China’s family planning rule because she has two children out of wedlock. She would be unable to pay the applicable social compensation fee and her children would not be able to obtain household registration (hukou) and therefore would not be able to attend school or access health care.
Assessment of claims and evidence
Family planning policies and regulations in China
The latest report prepared by DFAT[5] noted:
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.
[5] ‘DFAT Country Information Report – People’s Republic of China,’ Department of Foreign Affairs and Trade, 21 December 2021
The United Kingdom’s May 2022 country report on family planning in China referred to DFAT’s 2021 country report. It noted that, DFAT had been told by several in-country sources 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’.[6]
[6] UK Home Office
Family planning policy is being relaxed amid declining birth rates. In November 2020, the central government dropped ‘family planning’ from its five-year plan for 2021–25 and the once-in-a-decade census also highlighted the country’s low birth rate. Reporting for 2021 showed China’s lowest birth rate on record at 7.52 births per 1,000 people or 10.62 million total births. This represents a decline from 12 million babies born in 2020 and 14.65 million born in 2019. China’s fertility rate, that being the number of children an average woman will have, is below the level needed to maintain a stable population. China’s birth rate is still considerably low due to the increasing costs of raising a child, lack of legislation in protecting women’s rights in the workplace, lack of government-funded family support and the increasing issue of taking care of the aging population.[7]
[7] 'China birth restrictions ‘fading out’ as mention of family planning dropped from 14th five-year plan', South China Morning Post, 4 November 2020, 'New five-year plan signals trend of 'lifting family planning'', Global Times, 3 November 2020, 'China's birth rate drops to record low in 2021', Reuters, 16 January 2022, 'China’s three-child policy: why was it introduced and what does it mean?', South China Morning Post, 5 June 2021, 'China’s three-child policy: why was it introduced and what does it mean?', South China Morning Post, 5 June 2021, 'China rapidly shifts from a two-child to a three-child policy', The Economist, 3 June 2021, ’DFAT Country Information Report - People's Republic of China,’ Department of Foreign Affairs and Trade, 21 December 2021, 'China allows families to have 3 children in major policy shift', Aljazeera, 31 May 2021, 'China rapidly shifts from a two-child to a three-child policy', The Economist, 3 June 2021, 'China birth rate slumps as experts blame changing attitudes', The Guardian, 10 February 2021
Country information located indicates that children born outside of marriage in Australia can use their birth certificate to obtain a hukou to access education and health care services in Fujian. Children that are born outside of marriage in China can have difficulty accessing legal documentation which in turn makes it difficult to get a hukou. Following the 2016 amendment to the Population Law, children born after 1 January 2016 have a right to hukou irrespective of social compensation fee (SCF) payments.
China’s Marriage Law states that children born outside of marriage have the same rights as those born to married parents, however the Population Law only refers to the rights of married couples. Due to this inconsistency, local implementation is varied with children born out of wedlock considered ‘outside of policy’.
The hukou system allows for individuals to access services such as health care and education in an individual’s place of birth or in some circumstances, their parents’ place of birth. Following the 2016 amendment to the Population Law (introduction of the two-child policy), children born before 1 January 2016 have a right to hukou including access to health and education services irrespective of SCF payment.
According to a May 2018 DFAT Cable,[8] children born out of policy in Australia can use their birth certificate to obtain a hukou upon returning to Fujian:
10. Verbal advice from the Fujian Public Security Department confirms that a foreign birth certificate, translated and duly notarised by a Chinese mission abroad, may be used to support an application for a Fujian hukou. Articles 40 and 41 of the 2017 regulations [Regulations on Implementation of Household Registration Management for Fujian Citizens] deal specifically with children born overseas to Fujian hukou holders. Requirements differ, depending on whether the child is recognised as Overseas Chinese (i.e. a person of Chinese birth or descent who lives outside the People's Republic of China (including Hong Kong and Macau) and Taiwan) or not. Children of Chinese nationals studying or working abroad remain specifically exempted from recognition as overseas Chinese.
11. These articles are the same as in the earlier 2014 regulations, with one addition. Article 41 provides that, in the case of a child born overseas but not recognised as Overseas Chinese, who uses a foreign passport for the final entry to China, the parents should provide confirmation of the child's Chinese nationality from the Chinese Public Security Department's Entry and Exit Bureau, in lieu of providing an original document from a county-level or above branch of the Overseas Chinese Affairs Office certifying that the child is not recognised as Overseas Chinese, and a copy of the child's passport.
Would the applicant be able to obtain household registration if she returned to China?
[8] DFAT Country Information Request CI180403115513613 - Hukou for single mothers and unmarried parents 3/05/2018
The applicant’s mother claims she was unmarried when the applicant was born in [Year] and she remains unmarried. The Tribunal notes the applicant’s father is not named on the applicant’s birth certificate. There is no evidence before the Tribunal which indicates that the applicant’s mother and father were married when their two children were born and while the Tribunal has some doubts about the mother’s evidence, it has assessed the claims of the applicant based on her mother’s status as an unwed mother. The applicant’s mother and father were both born in Fujian Province, China.
The applicant’s mother stated that she is in a relationship with her current boyfriend, and he has lived in her shared home since 2019. She stated that the applicant’s father was removed from Australia some time ago and has returned to Fujian Province, China.
The applicant’s mother claimed she would not be able to get a Chinese passport for the applicant. The Tribunal put it to her that her eldest daughter, also born out of wedlock, had a Chinese passport, a copy of which had been provided with the application for a protection visa. That passport was issued by the Chinese Consulate in Sydney. The Tribunal put it to her that she could also apply for a passport or travel document for the applicant. It noted that country information indicated that if one parent has Chinese nationality then the child will also acquire Chinese nationality as long as they do not take up the nationality of another country.
The applicant’s mother claimed she would not be able to obtain household registration for the applicant if she returned to China. This would mean that the applicant would be denied access to public education and health services in China. She also stated she may have to pay a social compensation fee.
The Tribunal discussed the country information which indicates that household registration has been de-linked from payment of the social compensation fee.
The hukou system allows for individuals to access services such as health care and education in an individual’s place of birth or in some circumstances, their parents’ place of birth.
In December 2015 President Xi Jinping announced that China would be providing household registration (hukou) to nearly 13 million unregistered ‘black’ or Heihaizi children. It was announced that registration should take place irrespective of family planning and birth limits.[9]
[9] People Daily Online, President Xi Jinping: China to Register 13 Million, 10 December 2015

Following the 2016 amendment to the Population Law (introduction of the two-child policy), children born before 1 January 2016 have a right to hukou including access to health and education services irrespective of social compensation fee payment.[10] Second children born after 1 January 2016 are permitted by the two-child policy (and current three-child policy).
[10] ‘DFAT Country Information Report China October 2019’, Department of Foreign Affairs and Trade, 3 October 2019, p.51
Household registration has been de-linked 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.[11]
[11] ‘DFAT Country Information Report – People’s Republic of China,’ Department of Foreign Affairs and Trade, 21 December 2021, p.30
The 2019 DFAT country report on China[12] explained how the SCF may be calculated in Fujian. However, it also noted that the provincial government has the discretion to arrange instalment payments for families experiencing financial hardship:
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 out-of-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.
[12] ‘DFAT Country Information Report China October 2019’, Department of Foreign Affairs and Trade, 3 October 2019, p.53
In September 2017, DFAT provided advice that national law provides children with a right to household registration, health and education services, however local authorities may have regulations in place which prevent registration until social compensation fees have been paid. DFAT stated “Chinese law states that household registration should not be conditional on the payment of social compensation fees”.[13]
[13] ‘China Country Information Request CI170628123022518 Two Child Policy - Household Registration and Social Compensation Fees’, Australia: Department of Foreign Affairs and Trade (DFAT), 7 September 2017
The Tribunal finds that the applicant has a NSW birth certificate and that her mother may, on her behalf, apply for a Chinese travel document or passport and can also apply for, and obtain, household registration in China. The Tribunal does not accept the applicant will be unable to obtain household registration. As a consequence of obtaining household registration the applicant will be able to access public education and health services, and other services dependent on household registration.
Will the applicant face societal discrimination if she returns to China?
There is no evidence before the Tribunal which indicates that the applicant will face a level of discrimination or social stigma amounting to serious harm if she is relocated with her mother to China. While the applicant’s mother may face some level of stigma there is no country information before the Tribunal that suggests the applicant will face discrimination or social stigma amounting to persecution for reasons of the applicant being a child born out of wedlock.
Unwed mothers in China are not entitled to government payments for medical care and paid leave and in some circumstances may have to pay a social compensation fee. However, in Fujian Province country information indicates that social compensation fees have not been levied for a number of years.
The country information indicates that unwed mothers have traditionally experienced some level of social stigma but social attitudes are changing and many women are now choosing to have children outside marriage. The New York Times reports:[14]
As education levels have risen in recent years, more Chinese women have rejected marriage and childbirth or both. Only 8.1 million couples got married in 2020, according to government statistics, the lowest number since 2003.
With the rejection of marriage has come heightened acknowledgment of single mothers. There are no official statistics on single mothers, but a 2018 report by the state-backed All-China Women’s Federation estimated there would be at least 19.4 million single mothers in 2020. The figure included widowed and divorced women.
…
China’s birthrate has plummeted in recent years after the decades-long one-child policy sharply reduced the number of women of childbearing age. Recognizing the threat to economic growth, the government has begun urging women to have more children; on Monday, it announced it would allow couples to have three children. The government’s latest Five Year Plan, released last year, promised more “inclusive” birth policies, sparking hopes for recognition of unwed mothers.
[14] ‘For China’s Single Mothers, a road to recognition paved with false starts’ New York Times, Vivian Wang, 31 May 2021
Another article on single mothers[15] notes that in 2006:
A woman who had broken up with her boyfriend and was preparing to give birth alone started a blog to document her experiences. Posting under the name Diguazhu, or “Sweet Potato Pig,” her site quickly attracted widespread attention — much of it negative. Many of the comments argued that single motherhood was bad for the child, as it would deprive them of a father figure and adversely affect their development. Any woman who chooses to have a baby in the absence of a male partner, the comments argued, is selfish.
A decade later, policies and public attitudes had softened somewhat. In 2016, the Chinese government clarified that children born out of wedlock were still eligible for a hukou. The following year, a grassroots advocacy group published a “Survey on the Legal Rights of Single Mothers in China.” Of the survey’s 2,801 respondents, 87% expressed support for single mothers, and 59% described their stance as “very supportive.”
[15] ‘China wants larger families. Unless you are a single Mom’ Sixth Tone, 1 September 2021, Chen Yaya
While the country information indicates that unwed mothers may face some disapproval in the community there is no current evidence that the children of unwed mothers face societal discrimination. Further it appears that community attitudes are changing and there is greater acceptance of single mothers.
The Tribunal has considered the evidence of the applicant’s mother as well as relevant country information and finds that the applicant will not face official or societal discrimination or social stigma which amounts to persecution due to her status as a child born out of wedlock.
Will the applicant participate in church activities in Fujian Province?
The applicant’s mother claims that the applicant will face serious harm by reason of her being unable to attend a Christian church in Fujian Province until she is 18 years of age. The applicant’s mother has given evidence and provided photographs of herself and her children attending a small Christian service and participating in church social activities. She stated they started attending [Church] in 2017.
The applicant’s mother gave evidence that in 2012 she had been attending a Catholic Church youth group and a Christian church as well. She did not attend every week; sometimes she went and sometimes she did not. She could not really remember. She stopped attending church when she fell pregnant with her first child in [Year]. The Tribunal asked her why she decided to go to a different church group in 2017. She stated that she was in a difficult situation and had been introduced to this church by a friend.
The Tribunal put it to her that she had started attending a church in 2012 when she had first applied for protection but did not continue with that church. In 2017 she started attending a different Christian church after she had applied for protection on her daughter’s behalf. The Tribunal put it to her that this might suggest she only attended church because she thought it would strengthen her daughter’s claims. She denied this was the motivation for her church attendance.
She claimed that if she and the children moved to China, the applicant would not be able to attend Sunday school or any church activities until she was older. She stated that minor children were not allowed to attend church in China. The Tribunal put it to her that despite the authorities trying to suppress Christianity the number of adherents in China was growing, and it is estimated there are over 70 million Christians in China.[16] She stated churches were being demolished and members were beaten.
[16] ‘DFAT Country Information Report – People’s Republic of China,’ Department of Foreign Affairs and Trade, 21 December 2021 p.16.
The Tribunal pointed to country information which indicated that there were several registered Christian churches in Fujian Province and that she would be able to attend. She stated that the closest church to her village is 20 minutes away by car. The Tribunal put it to her that she could teach her religious beliefs to her children at home until they were old enough to attend church activities themselves. She stated that she reads the Bible with her daughter at home, but she does not have the knowledge to teach her everything and feared if she taught her daughter at home in China she and her children would be targeted for harm due to their religious practice and belief.
The Tribunal put it to her that there was no evidence or country information that suggested a [Age]-year-old child would be seriously harmed by Chinese authorities because of a parent’s religious beliefs or activities. She stated the authorities will prevent the applicant from going to Sunday gatherings of the church. The Tribunal put it to her that there must be a real chance the applicant will face serious harm if she returns to China. It may be that not being able to attend Sunday school does not constitute serious harm. The applicant stated if she returns to China she will take her children to church and will preach the gospel and she will definitely be arrested and beaten. The Tribunal put it to her that her parents would provide her with support. She stated that she had very little contact with her parents.
The Tribunal put it to her that country information indicated that Chinese authorities are currently trying to restrict and control Christian practice but there are many people who attend church in China. She stated church buildings were being demolished and priests were arrested and sentenced. She stated she wants to preach the gospel in China. The Tribunal put it to her that if she is confident to teach people outside her family, she would be able to teach her children at home. She then stated that she is still learning.
The applicant’s mother stated she has a boyfriend, and he has applied for a protection visa. He has been living in the same share house as her for three to four years although they only started a relationship in 2021. The applicant’s mother stated she did not know what claims her boyfriend was making and they had not talked about it. The Tribunal put it to the applicant’s mother that in these circumstances it was difficult to accept that she had no idea why he feared returning to China.
The Tribunal gave the applicant’s mother 14 days to provide an English translation of a Chinese language document she had given the Tribunal. She subsequently provided a post hearing submission which outlined the reasons she and the children should not return to China. Essentially, she stated that her children would not be able to attend Sunday school or church services in China whilst they were minors, that the registered Christian churches were managed by government, that meetings at home were risky and that they had attended school in Australia and the education system in China was very different from Australia.
The Tribunal notes the following relevant country information in the latest DFAT report[17] on China:
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.
…
3.26 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. …
[17] ‘DFAT Country Information Report – People’s Republic of China,’ Department of Foreign Affairs and Trade, 21 December 2021 p.16
With respect to Protestant practice the report notes as follows:
Protestants
3.32 The Three-Self Patriotic Movement (TSPM), established in 1949, is the official governing body for Protestant churches in China. ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation taken from 19th century missionary philosophies. It does not refer to the Trinity. The Three-Self Church comes under the authority of the CCP’s United Front Work Department and is the single state-sanctioned Protestant church in mainland China.
3.33 Most Protestants worship in unofficial ‘house’ churches. These ‘underground’ churches may literally be in a house, or can be large gatherings in, for example, commercial office space. During COVID19, some services moved online, which in some cases increased the size of congregations. In recent years the government has increased efforts to force them to submit to the authority of the TSPM, teach Party aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM. Churches refusing to align with the TSPM have been closed or threatened with closure. DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches. Larger churches are most likely to receive government attention; the larger the congregation, the greater the chance of such attention. This in practice means that small groups may be able to meet in private for unauthorised religious discussions.
3.34 The situation for Protestants differs from place to place and community to community. DFAT is aware of Protestant communities that have been largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without any interference. The nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.
3.35 DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.
In April 2022 the Immigration and Refugee Board of Canada reported on the treatment of Christian churches in China.[18] The report noted the increased restrictions on, and regulation of, Christian churches as well as the focus on “Sinicization” of religious faiths:
The Lecturer stated that treatment of CCPA or TSPM churches is "reasonably good," in that authorities "tend not to interfere" in the "day-to-day running of churches and the lives of church leaders and members," provided they are not "deemed to be violating religious policy" (Lecturer 1 Apr. 2022). The same source, however, added that treatment varies "across time and place" (Lecturer 1 Apr. 2022). The Research Associate noted that church members who comply with the regulations do not usually face "trouble" from authorities (Research Associate 22 Mar. 2022). The same source added that members who do not follow the regulations will face government intervention, but noted that such interventions used to be "arbitrary" whereas they are now guided by the regulations which clarifies the "red lines" (Research Associate 22 Mar. 2022).
[18] China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA)], by the authorities and the Public Security Bureau (PSB); the revised regulation on religious affairs in 2018, including restrictions on Patriotic Churches (2020–April 2022), Research Directorate, Immigration and Refugee Board of Canada CHN200992.E
With respect to regional variation in the treatment of churches the response notes:
According to the Lecturer, while it is "difficult to generalize," the areas "nearer to Beijing tend to be more restrictive" than those farther away, and in recent years Zhejiang province "has seen some of the most repressive actions against registered churches" (Lecturer 1 Apr. 2022). Sources stated that registered Christian churches along China's southeastern coast are generally treated better (Professor 1 Apr. 2022; Associate Professor 23 Mar. 2022). The Lecturer indicated that Fujian province tends to see a more "'liberal' approach" to religious regulation (Lecturer 1 Apr. 2022). In an interview with the Research Directorate, an associate professor at the Université de Paris Cité, who researches Chinese Protestantism, noted that local governments in coastal cities from Jiangsu province southward to Guangdong province are "relatively" "more open-minded," but that this "flexibility" can lead these churches to "flourish and attract members," which will then draw "more government attention" and authorities will "try to maintain a degree of control over them" (Associate Professor 23 Mar. 2022).
Officially, family and friends have the right to meet at home for worship, including prayer and Bible study, without registering with the government. Some house churches are registered with the state, operate very openly or have some connection to the Three-Self Patriotic Movement, but many are run underground.[19]
[19] ‘DFAT Country Information Report – People’s Republic of China,’ Department of Foreign Affairs and Trade, 21 December 2021, p.17; ‘CCP Police Brutally Attacks Chinese Pastor Who Only Wanted To Visit Fellow Christians’, Christian Daily, 31 May 2021; ‘China orders clergy to toe Communist Party and socialist line’, South China Morning Post, 19 February 2021; ‘Official Protestantism in China’, Koesel, K., Hu, Y., Pine, J., Review of Religion and Chinese Society, Volume 6, Issue 1 (2019), pp.76–77

The Tribunal accepts that the applicant’s mother has been attending a small Protestant church in Sydney from 2017 and that her children have been participating in some children’s activities at the church.
The Tribunal considers that if the applicant returns to China she will not be able to attend a Christian church in the reasonably foreseeable future as she is a [Age]-year-old child. The Tribunal does not accept the applicant’s mother’s claim that if she returns to China she will take her children to church or that she will preach the gospel to other persons in China.
The Tribunal accepts that the applicant’s mother joined a Catholic youth group and an unidentified church in 2012 and that her attendance was irregular. The applicant’s mother gave up attending those church groups in 2013. She was not able to clearly or plausibly explain why she first attended a Catholic youth group and a church or why she did not continue with those groups.
The applicant’s mother did not attend a church until 2017 after the applicant’s visa application was lodged. She was not able to satisfactorily explain why she later started attending the [Church] in 2017 apart from referring to an introduction by a friend. The Tribunal suggested to her that her conduct appeared to be linked with her application for protection and later her daughter’s application. The Tribunal suggested to her that her conduct indicates that she has attended a church group to strengthen her daughter’s claims. She denied this, but the Tribunal considers she did not provide a satisfactory response to questions about her motivation. The Tribunal does not consider the applicant is a committed convert to Christianity and does not accept she will preach the gospel in China. It also does not accept she will take her daughter to church and country information indicates that the registered churches will not generally allow a minor to attend.
The Tribunal doubts that the applicant’s mother will continue to attend a Christian church if she returns to China but also considers that if she wishes to continue Christian practice in Fujian she may attend a registered church or one of those house churches which are tolerated in Fujian Province. The country information indicates that she is free to join a registered church and that both registered and house churches have greater freedoms in Fujian Province which has always had a more liberal approach to Christian practice. If the applicant’s mother continues church attendance in China she will be able to impart Christian teachings to her children in her home environment.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future she faces a real chance of persecution for reasons of her religion or membership of a particular social group.
The Tribunal has accepted the evidence that the applicant was born when her parents were not married. While there is evidence that there is some social disapproval of parents who have children when they are unmarried there is no information before the Tribunal which indicates that children born to unmarried parents suffer any official or social discrimination which would amount to serious harm. The country information indicates that the children of unmarried parents can obtain household registration irrespective of whether their parents have paid a social compensation fee, as long as they hold a birth certificate. In this matter the applicant has a NSW birth certificate and her older sister holds a Chinese passport. This evidence suggests that the applicant’s mother will not have difficulty in obtaining household registration and other identity documents for the applicant and her sister as they each have NSW birth certificates.
Taking into account current country information set out earlier in this decision, the Tribunal finds that the applicant is entitled to obtain household registration in Fujian Province which will give her public education, health and travel entitlements.
The Tribunal accepts that the applicant has been attending church activities run by a small Protestant church group in Sydney. The Tribunal accepts that if the applicant relocates to China with her mother that she may not be able to attend public Christian services until she reaches the age of 18 years. However, the applicant is [Age] years old and the Tribunal does not consider that the restricted access to church services she may experience amounts to serious harm.
The Tribunal does not consider that her mother’s attendance at church services in Australia and her attendance at the church’s children’s activities will result in either the applicant or her mother facing a real chance of serious harm if they relocate to China. There is no country information before the Tribunal which indicates that previous attendance at a Christian church outside China would put either the applicant, or her mother, at risk of serious harm.
For reasons set out above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
The applicant is a [Age]-year-old child who was born in NSW and holds a NSW birth certificate. Her mother is a Chinese citizen. There is no claim made by the applicant’s mother or any evidence which indicates that the applicant would face the death penalty, arbitrary deprivation of life or be subjected to torture if she were removed from Australia to China.
The Tribunal considers that the applicant’s mother may face some community and social disapproval of her status as an unmarried mother, however, country information suggests that community attitudes have become more accepting of unmarried mothers in the last six years and that this change in attitude is part of a continuing trend related to various social and population factors in China.
There is no information before the Tribunal which would indicate, and the Tribunal does not accept, that the applicant would suffer cruel or inhuman treatment or punishment; or degrading treatment or punishment due either, to her mother’s unmarried status or her attendance at children’s activities at a Christian church in Australia.
Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk she will be arbitrarily deprived of her life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 of 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 of persecution would not exist if it were assumed that the fear of persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2525

21 June 2022

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Immigration

Administrative Law

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Judicial Review

Jurisdiction

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Procedural Fairness

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