1903766 (Refugee)

[2020] AATA 2247

1903766 (Refugee) [2020] AATA 2247 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903766 &1916296

COUNTRY OF REFERENCE:                   China

MEMBER:Jason Pennell

DATE:9 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)     that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Act; and

(ii)     that the second applicant and third applicant satisfy s.36(2) of the Act based on 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 second and third applicants do satisfy the criterion in s.36(2).

Statement made on 9 June 2020 at 12.43pm

CATCHWORDS

REFUGEE – Protection Visa – China _­­– Federal Court remittal – religion – Christianity – active member of the Local Church – credible evidence – particular social group ­– denial of Hukou registration – recognition of Australian marriage – unregistered child (or ‘black child’) – members of family unit – relocation not reasonable – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 91S

Migration Regulations 1994, r 1.12; Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. [Ms A] (the applicant’) who claims to be a citizen of China, applied for the visa on 18 March 2014 and the delegate refused to grant the visa on 7 November 2014 (‘the delegates decision’). The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Act.

3. On 12 April 2016, the Tribunal, differently constituted (‘the First Tribunal’), affirmed the delegate’s decision to refuse the applicant a protection visa. [In] June 2018, the Federal Circuit Court of Australia (FCCA) the FCCA affirmed the First Tribunals decision. [In] January 2019 the Federal Court of Australia (FCA) set aside the FCCA decision and quashed the First Tribunals decision directing that the Tribunal determine the applicant’s application for review of the delegates decision in accordance to law.

4. [Mr B] (‘the second applicant’) and [Ms C] (‘the third applicant’) claim to be the children of the applicant and citizens of China. They applied for a protection visa on 25 September 2017 and the delegate refused to grant the visa on 19 June 2019. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Act. 

5. The applicant appeared before the Tribunal on 17 December 2019 to give evidence and present arguments on behalf of herself and the second and third applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

RELEVANT LAW

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

Refugee criterion

8.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9.Australia is a party to the Refugees Convention and, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

1. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

2. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

3. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

4. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

5. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

6. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

7. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

8. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

1. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicants’ identity and country of reference

1. The applicant claims to be citizen of China. A copy of the applicant’ passport[1] was provided to the Department. Consistent with the applicant’s evidence to the Tribunal, her passport states that she was born on [date] in Fujian Province in China.

   [1]    Department file [number]@ f.4

2. Based on the applicant’s oral evidence to the Tribunal and the documentation provided by the applicant to the Department, the Tribunal accepts and finds that the she is a Chinese citizen. There is no evidence to suggest that the applicant has the right to enter and reside, whether temporarily or permanently, in any other country.

3. The second and third applicants were born in Australia on [date] and [date] respectively. Copies of the second and third applicant’s birth certificates were provided to the department.[2] Both documents referred to the applicant as their mother and [Mr D] as their father and indicated that their parents were a married couple. In addition, the department was provided a copy of the marriage certificate between the applicant and [Mr D] dated [in] 2013.[3]  Accordingly the Tribunal accepts and finds that the second and third applicants are siblings and children of the applicant

   [2]    Department file [number], -[Mr B]-Birth Certificate-[number]-[Ms C]-Birth Certificate-[number]

   [3]    Department file [number], -[Mr B] (additional applicant-[number])-Marriage certificate-[number]

4. Accordingly, based on the evidence before the Tribunal and in the absence of any evidence to the contrary the Tribunal finds that the applicants are protection claims will be assessed against China as the country of reference and as the 'receiving country'.

The applicants’ migration history

1. On 13 September 2007 the applicant applied for a student visa which was granted on 17 March 2008. The applicant arrived in Australia [in] April 2008. On 5 May 2008 she was granted a further student visa with permission to work.  

2. The applicant’s student visa was ceased on 15 Mach 2010. However, she remained in Australia unlawfully. The applicant lodged an application for a protection visa on 18 March 2014 and was granted a Bridging visa. The applicant has not travelled outside of Australia since his arrival.

3. The second and third applicants were born in Australia on [date] and [date] respectively and both applied for a protection visa on 25 September 2017.[4]  

Member of the same family

[4]    Department file [number]@

1. According to Article 5 of the Nationality Law of the People’s Republic of China 1980, if at least one parent of a child is a Chinese citizen then the child will automatically receive Chinese citizenship[5] regardless of whether they are born in China or overseas.[6]

   [5]

   [6]    Huawen, L 2004, The Child’s Right to Birth Registration – International and Chinese Perspectives, Norwegian Centre for Human Rights, p.15;DFAT Background paper China: The Hukou February 2013

2. Based on the identity documents provided by the applicant, including the second and third applicant’s birth certificates that records the applicant as their mother, the Tribunal accepts and finds that they are the applicant’s children. Therefore, pursuant to Article 5 of the Nationality Law of the People’s Republic of China 1980 the second and third applicants are Chinese citizens. As a result, the Tribunal finds that they are members of the same family unit as the applicant pursuant to Regulation 1.12 of the Migration Regulations 1994 and s.5(1) of the Act.

The applicant’s claim  

1. The applicant’s claims are detailed in her protection visa application dated 18 March 2014[7] as follows:

   [7]    Op Cit @ f.26

   43. Why did you leave that country?

   On [date], I was born in [Village 1], [Town 1,] Fuqing City, Fujian Province China. My father was a [Occupation 1] who was skilled at [specified trade]. My mother was a farmer who grew vegetables or peanuts in a small piece of farmland allotted by the government to my family.

   Around October 2003, shortly after I enrolled in [a named] school, my mother was converted by [Ms E] to become a Christian and a member of the Local Church (a.k.a Shouters). [Ms E] was a vegetable wholesaler who often collected agricultural products for farmers like my mother from one village to another, but she evangelized to others through her business activities.

   44. Have you experienced harm in that country?

   Yes. Having strongly been influenced by my mother, my father, my brother and I also became Christians of the Local Church in the end. All of us were baptised in February 2004.

   My father had to travel to different places and worked at different [workplaces] and he rarely at home. My mother took me and my brother to attend meeting of the local Church at weekends. As the Local Church is regarded as ‘Evil Cult’ by the Chinese Government, our meetings could only hold at church brothers and sister homes secretly. Moreover, in order to avoid attention of the PRC authorities particularly at the Public Security Bureau (PSB), we had to change our meeting places frequently and my home was one of the secret meeting places.

   [Ms E]’s husband, [Mr F], was also a devout Christian and an activist of the Local Church. He was a businessman mainly pushing sale of [various products], ect from Fujian to Anhui. He had a [shop] in Anqing City, Anhui Province. Meanwhile, he evangelized to the residents and developed secret meeting group of the Local Church in Anqing area. 

   45. What do you fear may happen to you if you go back to that country??

   Late in July 2007, my father contracted a project in [Fuzhou]. As a school holiday just started around that time, my father brought my brother with him to Fuzhou. My mother and I remained at home.

   Early in August 2007, [Ms E] and her husband [Mr F] arranged 5-6 people to stay at my home for the times being. All of these people were from Anqing area in Anhui Province. They were new believers and came to Fujian solely for the purpose of attending a perfecting training of the Local Church. During following three weeks, my mother and I not only looked after the daily livings but also took them to go to different places every day.

   [In] December 2007, when I was in the class at school, the police suddenly arrived in the classroom and took me directly to the Public Security Bureau (PSB) in Fuqing. At the PSB, I saw that my mother and [Ms E] had already been arrested, but the police did not allow us to talk with one another. We were then interrogated by the police respectively.

   46. Who do you think may harm/mistreat you if you go back?

   When I was taken into the interrogation room, I saw three police there, one female and two male. The police asked me to confess my involvement in the Local Church, as well as activities of my mother and [Ms E]. The police showed me some photos of [Mr F] and the photos that my mother and I had taken together with those 5-6 people who had lived at my home and attended the perfecting training in Fujian in August 2007. Until then I learned that the secret meeting group which had been established and developed by [Mr F] had been destroyed by the PSB in Anqing City, Anhui Provence. Some Christians including the people who has stayed at my home, were arrested by the police. [Mr F]’s shop was sealed b ythe authorities by the police could not find [Mr F].

   47. Why do you think this will happen to you if you go back?

   When I was interrogated by the police, I was really scared. The female police was a terribly brutal person. She slapped me across the face, mistreated me with electrical police stick and humiliated me with various methods but I said nothing to the police. I kept praying silently in my heart. I believed the lord Jesus must save me in the end.

   In the evening of [a night in] December 2007, I was transferred to [a] Detention Centre together with my mother and [Ms E] by the police. At the detention centre I was continually subjected to interrogation, particularly inhuman treatments.

   My father was working at a [workplace] in [Jaaingxi] Province at that time. He returned to my hometown in Fujian as soon as he learned everything. One of his regular customers was [Mr G] who ran a [business] with wide social contacts in Fuqing area. Through [Mr G], my father bribed a police in Fuqing PSB. [In] December 2007 I was eventually released for the detention centre.

   My mother was detained for nearly three months. She was not released [until] March 2008.

   [Ms E] was regarded as a dangerous person who had seriously harmed social security through ‘Evil Cult.’ She was sentenced to 2 years re-education through labour and sent to [a re-education centre] in March 2008.

   As a matter of fact, my father started organising my study in Australia as early as 2007 through [Mr G]’s friend. In order to guarantee my going to the overseas, my father asked me to tolerate all kinds of difficulties and sufferings which I had to face after I was released from detention centre on one hand. On the other hand, my father bribed an officer at Fuzhou airport with helps of [Mr G]. [In] April 2008, I finally left China. 

   48. Do you think the authorities if that country can and will protect you if you go back?

   Originally my father wished me to study English and accept advanced education in Australia. Unfortunately, my father had not only spent all my family’s savings but borrow a lot of money from others so as to save me, my mother obtained a student visa for me and arrange me to leave China. In such a situation although I arrived in Australia in April 2008, my father was unable to provide me financial support anymore. I therefore had to terminate my study in the end.

   Around February 2009, my parents and brother went to [City 1], Anhui Province where [Mr G]’s cousin [Mr H] ran a [shop], because my parents would not live and work normally in my hometown in Fujian due to having been harassed by the police frequently. Later, my parents got in contact with [Mr F] who was still in Anhui Province. With help of [Mr H], my parents arranged [Mr F] to work at the [shop] under the new name, [Alias F].

   In April 2010. [Ms E] was finally allowed to return to her hometown from [the re-education centre]. Not long after that, she secretly left Fujian and joined her husband and my parents in [City 1], Anhui Province.

   As a matter of act, [Mr F] (aka [Alias F]) and my parents secretly established meeting groups of the Local Church in [City 1] area of Anhui Province as early as 2009. The meeting group was gradually developed during the following years.

   Unfortunately, [Mr F] was arrested by the police when he organised a secret meeting at a church bothers home [in] February 2014. The police quickly found that he was the person who had already been on the blacklist of the PSB for many years. Over 10 Christians were arrested at the same time. Fortunately, when the police tried to arrest my parents as well as [Ms E], they had been informed in advance. All of them had to flee away immediately. Right now, they are going for hiding here and there.

   In order to find my parents, the police have gone to my home in Fujian many times. My family’s relatives and friends have been questioned by the PSB.

   In such a situation, I believe that a devout Christian and activist of the Local Church like my parents, I must be subjected to persecution upon my return. In Australia, I continually attend the Local Church.

The second and third applicants’ claims.

1. The second and third applicant’s claims are summarised in the delegates decision dated 19 June 2019.[8] The applicant made the following climes on their behalf:

   (a)The applicants were born in Australia to Chinese citizen parents, in [year] and [year] respectively. The applicant’s mother and father arrived in Australia from China separately in 2008 and 2007 respectively. The second and third applicants’ parents married in Australia [in] 2013.[9]

   (b)The applicant claimed that her children will become victims of persecution and suffer significant harm in China as a result of her own persecution because of her own religious beliefs. The applicant claims to be Christian belonging to the Local Church. She claims she was baptised as [an age]-year-old in the Local Church in February 2004. The Local Church is regarded as an ‘evil cult’ by the Chinese authorities and its members are persecuted as a result. The second and third applicants mother claims that her own parents, were of adverse interest to the Chinese authorities in February 2014 because of their activities with the Local Church. The applicant applied for a protection visa because of the adverse interest in her parents and because of her claimed religion.[10] 

   (c)The applicant believes that it would be unfair if their protection visa applications of her children were dissociated from her case because she believes there is enough correlation between her case and their cases. The applicants mother claims that she has been practising Christianity in Australia for a decade and she has come to experience and cherish Western attitudes towards religious liberty and freedom of religion from intensive government regulations. She claims that as a devote and committed Christian in the Local Church it would not be possible for her to join any of the official churches in China. She claims that her strong views on religious freedom would inevitably lead her to being targeted by Chinese authorities.[11]  

   [8]  Part 4 of the delegates decision dated 19 June 2019, AAT File No 1916296 @ f.19

   [9] ibid

   [10] ibid

   [11] ibid

2. In addition, the applicant claimed that if her children were returned to China, she fears they would be persecuted due to her inability to reactivate her hukou. She claims that there are issues with an Australian marriage being recognised in China and as a result creating a new household registration with Chinese authorities would not be possible. Alternatively, she dares not reactivate her own Hukou because she fears she will be intercepted by the authorities and arrested.[12]  

The Applicants documents.

[12] Op Cit @ p.6

1. The applicant has provided the following documentation in support of her protection visa claim:

   (a)Applicants passport.[13]

   [13] Op Cit @ f.4

   (b)Document entitled [District 1] List of Prophets dated February – April 2014.[14]

   [14] Op Cit @ f.52-54

   (c)Letter from Church in [Australian City 2] dated [in] September 2014.[15]

   [15] Op Cit @ f.55

   (d)Letter from The Local Church in [Australian City 3].[16] 

   [16] Op Cit @ f.56

   (e)Various Photos.[17]

   [17] Op Cit @ f.58

   (f)Letter by [I] dated 29 October 2015.[18]

   [18] AAT File 1419000 @ f.49

   (g)Letter by [J], undated.[19]

   [19] Op cit @ f.51 & AAT file No 1903766 @ f.39

   (h)Letter by [K], undated.[20]

   [20] Op Cit @ f. 53

   (i)Letter by [L], undated.[21]

   [21] Op Cit @ f.55

   (j)Letter dated [M], undated.[22]

   [22] Op Cit @ f.57 & AAT file No 1903766 @ f.37

   (k)Letter by the Church in [City 2] dated [in] October 2015.[23]

   [23] Op Cit @ p.58

   (l)Various Photos of the applicant in charge of the children’s group for Local Church in [City 2]. [24] 

   [24] AAT file No 1903766 @ f.29-34.

   (m)Letter by [N] dated 21 March 2019.[25]

   (n)Letter by [O] Dated 21 March 2019.[26]

   (o)Letter by [P] dated 20 March 2019.[27]

   (p)Letter by [Q] dated 21 March 2019.[28]

   (q)Letter by [R] dated 20 March 2019.[29]

   (r)Letter by [S], undated. [30]

   (s)Letter from Church in [City 2] dated [in] November 2019.[31]

   (t)Document entitled Blending trip to Melbourne 2019.[32]

The Applicants evidence.

[25] Op Cit @ f.35

[26] Op Cit @ f.36

[27] Op Cit @ f.41

[28] Op Cit @ f.42

[29] Op Cit @ 43.

[30] Op Cit @ f.44

[31] Op Cit @ f.45

[32] Op Cit @ f.63

1. The applicant’s evidence to the Tribunal was that she was born on [date] in Fujian Province in China. The applicant’s mother and father remain living in China. Her father worked as [an Occupation 1] and her mother was a farmer and grew [product]. They are both now retired and continue to live together in China. The applicant has a younger brother. He is married and works as a [Occupation 2] Fuqing City, Fujian Province China.

2. The applicant’s evidence was that her brother in or about February 2009 he travelled to [City 1], Anhui Province with their parents. However, her evidence was that her brother returned to their local town in 2016 to get married. The applicant claimed that as a result of registering his marriage he came to the attention of the authorities. As a result, he is watched and cannot leave the town. 

3. The applicant’s evidence was that she is married to [Mr D] and that they were married [in] 2013.[33] Together they have two children, the second and third applicants. The applicants husband works as  a [Occupation 3] and a [Occupation 4]. The applicant’s husband did not appear before the Tribunal to give evidence or make submissions.     

   [33]  Department file [number], -Mr [B](additional applicant-[number])-Marriage certificate-[number]

4. The applicant attended [various schools] in [Town 1] Fuqing City Fujian Province China. The applicant travelled to Australia [in] April 2008 on a student visa and initially attended [a named] College in Sydney, NSW. She claims that her migration agent advised her that it would be better for her to complete her schooling in Australia for the purposes of gaining entry to an Australian University or College. The applicant evidence was that she did not complete high school in Australia because she was not able to pay the tuition fees. She claimed that, despite having a part time job, she was not able to afford the tuition fees. She claimed that as a result of her and her mother being detained by the Public Security Bureau (PSB) in December 2007 her family had gone into debt and were not able to assist with paying her tuition fees. As a result, the applicant left school and worked various jobs in restaurants cafes.

5. The applicant’s evidence to the Tribunal in relation to her claim was broadly consistent with her claims as detailed in her protection visa application as detailed above. The applicant’s evidence to the Tribunal was that was that on or about [date in] December 2007, she was in class at school when the police came to collect her. She claims that she was in a [class] when her teacher was called out to speak to a person. When her teacher returned the police came to the classroom and arrested her. She was placed on handcuffs and taken for the classroom on the 5^th floor of the school. She recalled that as she was being escorted for her classroom the bell rang for the end of class. As a result, many of her teachers and fellow students came out to see her escorted from the school. She felt embarrassed and ashamed.

6. The applicant’s evidence was that she was arrested because a ‘believer,’ who had been staying in her family’s home in or about August 2007, was arrested by the PSB and gave her name and her mother’s name to the police as members of the Local Church. As a result, she was arrested.

7. The applicant’s evidence was that when she arrived at the police station her mother and [Ms E] had been arrested and were also at the police station. She was not able to communicate with them and they were both taken away soon after she arrived.

8. The applicant claimed that she was treated roughly by a policewoman at the police station. She was taken to a meeting room on the second floor of the station. The meeting room had a desk and a computer. The applicant was cuffed on both her wrists and ankles. Three police officers were waiting for her. One of the police observed while another asked her questions and the other inputted the information into the computer.

9. Then they showed her a photo of [Mr F] and accused her of being a follower of [Mr F], which she denied. They then showed her photos of her mother and the applicant with the believers who had with her family in August 2007. She then admitted to knowing [Mr F]. The applicant claims that she was tortured by the police with an electric prod for the purposes of telling them where she worshipped her faith. As part of her treatment she also claimed that while asking her questions the police put a metal helmet on her and hit with a stick.

10. The applicant’s claimed that she was held at the police until the evening and then transferred to a detention facility with her mother and [Ms E].  The applicant was in the detention centre for approximately 11 days. However, the applicant’s mother remained in detention for approximately three months.

11. The applicant claimed that she was released after her father bribed an officer to secure her release. Hr father had been working [in] Jiangxi province and returned when he heard that the applicant and her mother had been arrested. The applicant’s father informed her that to get her out he had to pay CNY[amount] and CNY[amount] for her mother a total of CNY [amount].

12. The applicant arrived in Australia [in] April 2008 on a student visa. She claims that if she returns to China there is a real chance that she will be seriously harmed by reason of her religion as an active member of the Local Church. She also claims that she will not be able to live in her husband’s home area of Fuzhou because she and her children will need to register of Hukou which will alert the authorities to her presence, and they will watch her. In addition, because it will alert the authorities to her location, she dares not reactivate her own household registration upon her return to China.

13. Finally, the applicant claims that there are problems with the Chinese authorities recognising her Australian marriage. This will mean that she will not be able to register her new household in China. The fact that her and her children are not registered will mean that her children (the second and third applicants) will not be allowed to go to school. By not being registered the applicant claims that her children, the second and third applicants will suffer serious harm as a result of being ‘Black Children.’ That is, if the Chinese authorities fail to register the second and third applicants in a household registration, because of the punishment imposed on the applicant as a result of her association with the Local Church, they will suffer serious harm as a result of being unable to access  social services including public schooling and medical services due to the fact that they are unregistered.

COUNTRY INFORMATION

1. The Tribunal has considered the country information available in the Department of Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 3 October 2019 (the ‘DFAT Report’). In particular, the Tribunal has considered those parts of the DFAT report relevant to the applicants claims as detailed in Annexure A attached to these reasons.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[34]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[35]

   [34] s.5AAA Migration Act 1958.

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

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[36] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [36] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p.482

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[37] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

   [37] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 @ para. 196

Applicants’ refugee claim

Relevant grounds

1. The applicant claims to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of his religion as a Christian and more specifically as a Jehovah’s witness. The Tribunal accepts that the applicant religion as a Christian and Jehovah’s witness falls within the scope of s.91R(1)(a) of the Act.

1. In addition, its claimed by the applicant on behalf of the second and third applicants that they are members of a particular social group due to the fact that they would be denied Hukou registration and being considered ‘black child’ resulting from the applicants association with the Local Church. Its claimed that by being denied household registration they will be deprived of all social benefits or welfare such as public education and medical services. 

2. To be considered as part of a particular social group it is necessary for the applicant to share, or be perceived to share, a characteristic with each member of the group. The characteristic must distinguish the group from the rest of society. It must be innate or immutable or so fundamental to the identity or conscience of the members of the group that a member should not be forced to renounce it.[38]

   [38] Section 5L of the Act.

3. The Tribunal accepts that being denied Hukou registration and being considered a ‘black child’ is a characteristic that would distinguish person and a group from the rest of society. As such it accepts that the second and third applicants claim falls within the scope of s.91R(1)(a) of the Act.

Applicants’ well-founded fear

1. In Chan v MIEA[39] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[40]

   [39] (1989) 169 CLR 379 at 396.

   [40] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicants. That is, whether they have a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that she has a subjective fear of being harmed or being persecuted if she returns to China.

3. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[41]

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [41]  Chan v MIEA (1989) 169 CLR 379 per Dawson J @ p.397

1. In MIEA v Guo, the Court stated that:[42]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [42]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. In this case the applicant fears persecution on the basis that she is a Christian and an active member of the Local Church. She claims that the second and third applicants will also suffer serious harm by reason of her religion since they will be denied Hukou registration if they return to China. For the reasons expressed below, the Tribunal accepts that the applicants have a subjective fear of being persecuted in the event they are returned to China for a reason mentioned in s.91R(1)(a) of the Act.   

The Applicants religion.

1. The applicant claims that there is a real chance that she will suffer serious harm by reason of her religion as a Christian and a member of the Local Church f she is to return to China. The applicant evidence was that her mother had been a member of the Local Church and that as a result she was introduced to the church at a relatively early age. She claimed that her family are all active members of the Church with her parents hosting church gatherings and congregations at their home. She claims that as a result of having hosted members of the Church, or ‘believer’, at their home in or about August 2007, the applicant’s mother and she were named as members of the Church. As a result, she claims that in or about December 2007 she was arrested and detained by the PSM. The applicant gave a creditable and detailed account of the circumstances by which she was arrested and detained. She was able to recount in detail the circumstances of her arrest and interrogation and able to provide creditable evidence in relation to the circumstances of her and her mother release. As a result, the Tribunal accepts the applicant’s evidence that she and her family were active members of the Local Church in China as claimed and that she was arrested and detained in or about December 2007 as claimed.

2. While the applicant conceded that upon her arrival in Australia she was not immediately involved in the Local Church, she now claims that after some time she did become involved with the Local Church in [City 3] and then latter, upon relocating to [City 2] as a result of her husband’s work, she became active member of the Local Church in [City 2]. As a result of her involvement in the Church she claims that her Husband and children are now also actively involved in the [City 2] Local Church. As part of her involvement in the Local Church the applicant claims that she is responsible for running churches children’s group. In addition, she claims that she is actively involved with the organisation of the Church including and the management and organisation of a Church Seminar [in] 2019. The applicant provided various references from members of the Local Church [City 2], photos of her engaged in Church activities and an itinerary of the Church Seminar in support of her evidence of her involvement with the [City 2] Local Church. Based on the evidence provided the Tribunal, it accepts that the applicant attends the Local Church in [City 2] regularly and is involved in its day to day activities as claimed.

1. The applicant claims that because of her faith, if she was to return to China, she would continue to be an active member of the Local Church and to work and express her faith as a Christian. She claimed that she could not be member of one of the mainstream Christian Churches (e.g. Catholic or Anglican) because they are controlled by the communist government and are not free to express their faith in the ‘God and Jesus Christ.’.  As a result, she claims that she will continue to apostolate her faith thorough the Local Church in China.

2. The Tribunal note the country information which states that the government of China is officially atheist.[43] It notes that Protestantism and Catholicism are two of five faiths sanctioned by the government and religious freedom has been enshrined in the constitution since the 1980s and that in the past have tolerated the house churches, which refused to register with government bodies that required church leaders to adapt teachings to follow party doctrine.[44] However, in recent time the authorities in China have cracked down on Christian churches in China in an attempt to regulate the religion.

   [43] The Guardian, ‘In China, they’re closing churches, jailing pastors – and even rewriting scripture’ dated 19 January 2019 by Lily Kuo; ibid

3. An article in the Guardian[45] claims that the authorities in China are closing churches, jailing pastors and rewriting scripture. Its claimed that China’s Communist party is intensifying religious persecution as Christianity’s popularity grows. This includes a new translation of the Bible is said by the authorities to ‘correct understanding’ of the text.

   [45] ibid

4. In the article its reported that members of the Early Rain Church in Chengdu, in South West China were shattered when their pastor and his wife were arrested and placed in detention in October 2019. They were charged with ‘inciting subversion’, a crime that carries a penalty of up to 15 years in prison. Its reported that in December 2019 the police arrested more than 100 members of the Church and that many of the church members are now in hiding or have been sent from Chengdu and barred from returning.[46]

   [46] ibid

5. Its reported that the Early Rain Church is the latest victim of what Chinese Christians and rights activists say is the worst crackdown on religion since the country’s Cultural Revolution, when Mao Zedong’s government vowed to eradicate religion. Its claimed that the current drive against religion is fueled by the Chinese government’s’ unease over the growing number of Christians and their potential links to the west. Its claimed that it’s not so much about destroying Christianity but bringing it to heel. That is to turn it into a domesticated religion that would do the bidding of the party.[47].

   [47]  The Guardian, ‘In China, they’re closing churches, jailing pastors – and even rewriting scripture’ dated 19 January 2019 by Lily Kuo; per Lian Xi, a professor at Duke University in North Carolina,

6. The article claims that over the past year local governments have shut hundreds of unofficial congregations or “house churches” that operate outside the government-approved church network. It reports that a statement signed by 500 house church leaders in November says authorities have removed crosses from buildings, forced churches to hang the Chinese flag and sing patriotic songs, and barred minors from attending.[48] The article reports that churchgoer sate that the situation will get worse as the campaign reaches more of the country. It reports that in or about October 2018 police raided a children’s Sunday school at a church in Guangzhou and that another church in in Chengdu was placed under investigation in January 2019.[49] Officials have also banned the 1,500-member Zion church in Beijing after its pastor refused to install CCTV.[50]

   [48]  ibid

   [49] ibid

   [50] ibid

7. An article in the International Christian concern reported that Two Church houses where raided in China in April 2020. [51] On 19 April 2020 a house church in China’s Xiamen, a city in southeastern Fujian province, was raided by local authorities during their Sunday service.[52] It was reported that government staff from five different departments were part of the raid. It was allegedly claimed by the authorities that the church was raided for violating a notice for all “folk religion” religious gatherings to be stopped in the name of ‘pandemic prevention.’ However, it was claimed the notice was not legal binding.

   [51] Persecution organisation International Christian Concern, ‘Two House Churches in China Raided by Local Authorities’ dated 23 April 2020, ibid

8. In addition, on 21 April 2020 a house church in Guoyang County in the northwest of Anhui Province, was also raided by local police.[53] According to the photos shared by the Chinese Christian Fellowship of Righteousness, the police who entered this Bozhou house church could be seen taking photos of the property and interrogating church members.

   [53] ibid

9. Its reported that many Christians in China have been interrogated, forced to write confessions and imprisoned in labor camps for their beliefs. Leaders have been arrested for "disturbing public order" and "spreading evil propaganda to disrupt social order." Parents involved in illegal religious activities have been punished by denying their children birth certificates and documentation so they can enter school. [54]

   [54] House Churches and persecution of Christians in China, >

   Its reported that House Churches and underground places of worship have been raided and shut down. The worshipers are often roughed up and handcuffed and detained and interrogated and then let go. The leaders are sometimes kept longer. Even old ladies have been kicked and beaten. Its reported that some Christians arrested for participating in unregistered church services have died while in police custody.[55]

   [55] ibid

10. Th tribunal has accepted that the applicant is an active member of the Local Church and that she will continue to promote the work of the Local Church and express her faith in Christianity if she returns to China. As a result, based on the applicants evidence to the Tribunal and the available country information the Tribunal accepts and finds that there is a real chance that she will suffer serious harm by reason of her religion as a member of the Local Church upon her return to China.

The Second and Third Applicants Hukou Registration.

1. The applicants claim that the second and third applicants will be seriously harmed if they return to China because they will not be able to obtain Hukou registration. It claims that they will not be able to obtain their Hukou registration by reason that the Chinese authorities will not recognise the applicant’s Australian marriage and/or the second and third applicant’s will be denied registration as a result of the applicant’s association with the Local Church.

2. The government in China manages family planning under the Population Law requiring government departments to enforce certain family planning policies.[56] Until 2015 the government, with certain exemptions encouraged late marriage and only one child. However, in 2016 amendments to the Population Law introduced the two children policy.[57]

   [56] DFAT Report @ p.50

   [57] ibid

3. Unregistered children, (or ‘black children’, or in Chinese as ‘heihaizi’,) have in the past, not had the full rights of a registered child. The ‘black’ in black children connotes ‘illegal’ in Chinese. They are not entitled to public education and, as a result, their parents must pay for private education. Fees charged by private education providers are usually higher than for public schools

4. The Population Law requires that those who give birth to a child in contravention with the law to pay a Social Compensation Fee[58] (SCF) irrespective of their Hukou status. The Hukou is a household registration system that ties access to services including health and education to a person’s place of birth or their parents place of birth. Prior to the 2016 payment of a SCF was required for those children born outside the Population Law for them to be able to access social services under the Hukou system. However, since 2016 children born prior to 1 January 2016 now have a right to Hukou to access such social services irrespective of payment of the SCF.[59] Therefore children who may have previously been unregistered are able to apply for Hukou irrespective of whether a SCF has been paid.[60]

   [58] ibid

   [59] ibid

   [60] ibid

5. The available country information advises that it’s possible to register a foreign marriage in China.[61] The applicant’s evidence was that she was married to [Mr D] [in] 2013 in Australia. As Mr [D] and the applicant are Chinese citizens and such their marriage would be recognised and capable of being registered in China. The DFAT Report[62] states that in order to register a child’s hukou, parents would generally be required to provide the following documents to local hukou authorities:

   ·The child’s birth certificate

   ·The parents’ hukou booklets, identity cards and passports

   ·A certificate of marriage.

   [61] Jeffreys & Wang. "Chinese-foreign Marriage in Mainland China". China Policy Institute Blog. University of Nottingham, 10 February 2014 mainland-china/

   [62] DFAT Report @ p.54

6. The DFAT report states that the term ‘returned overseas Chinese Couple’ refers to couples who have permanently settled in a foreign country but have returned to China. Under the Population and Family Planning Regulation of Fujian (2016) (‘the Regulations”) these couple may give birth on their return to China a further child in accordance with the regulations. Chinese residents based temporarily abroad, such as students, are not considered to be returned overseas Chinese couples.

7. As such there appears to be no impediment to the second and third applicant’s being able to obtain hukou registration in China. The applicant possesses an Australia marriage certificate (which can be registered in China) in addition to the necessary identification documents required for registration.  The second and third applicants were born in Australia on [date] and [date] respectively. As a result, they both appear to have been born within the Population Law and as such will be entitled to be registered under the Hukou system. Even if they were not born in accordance with the Population Law or the Regulations, they will still be entitled to Hukou registration in any event.

8. Finally, the applicant claims that the second and third applicants would be denied Hukou registration because of her involvement with the Local Church and in particular the fact that she was detained as claimed. However, the country information indicates that a Chinese citizen, including one with a criminal record in China, may return to their original area of household registration and apply to have their original household registration (hukou) reinstated, in compliance with hukou law and hukou implementation regulations.[63]

   [63]  DFAT Report China: CHN41720 – Returnee regaining Hukou; Returnee with criminal record

9. DFAT notes that non-resident Chinese nationals have ‘full citizenship rights’ when they return to China and that Chinese nationals who obtained permanent residence abroad ‘are generally required to register for temporary return or apply for permanent re-settlement in China with local public security bureau’.[64] A person travelling overseas for more than one year must cancel their hukou on leaving, but can have it restored on their permanent return to China.[65]

   [64]  SFAT Report @ p.53; Department of Foreign Affairs and Trade 2010, Rights of non-resident Chinese nationals and the residence application process, 19 March 2010,

   [65]  Wang, F 2005, Organizing through division and exclusion: China’s hukou system, Stanford   University Press, p.66; DFAT Report China: CHN41720 – Returnee regaining Hukou; Returnee with criminal record

   [65]  SFAT Report @ p.53

10. The applicant’s claimed that there would difficulty in obtain hukou registration for the second and third applicant because the applicant and her husband were form different provinces. According to 2002 advice provided to the IRB by a Professor of International Relations at the Georgia Institute of Technology, Atlanta, individuals with different hukou statuses or locations cannot be registered on the same hukou.[66]  Therefore it is possible for a husband and wife living in the same house to possess separate hukous.[67] In fact, this practice is reported to be very common by a Professor of Geography at the University of Washington, whose area of specialisation includes the hukou system in China, in 2002 correspondence with the IRB.[68] Similarly, Young states in 2012 correspondence that this practice is quite common for married couples.[69]

    [66] Professor of International Relations The Georgia Institute of Technology, Atlanta 2002, Correspondence, 26 August, in Immigration and Refugee Board of Canada 2002, CHN39172.E – China: The issuance of household registration/hukous; whether different people with different classifications can be registered on the same household registration and whether or not two separate hukous can be issued for the same address, 3 September,

    [67]  Professor of Sociology at Old Dominion University, Norfolk 2002, Correspondence, 5 October, in Immigration and Refugee Board of Canada 2002, CHN39978.E  – China, 7 November Professor of Geography at University of Washington, Seattle 2002, Correspondence, 4 October, in Immigration and Refugee Board of Canada 2002, CHN39978.E  – China, 7 November Young, J 2012, Email to RRT, Country Advice ‘RE: CHN40076 Request for assistance from Refugee Review Tribunal’, 12 March 

According to Young in 2012, if a married couple wishes to establish a joint hukou the easiest option is to add a spouse to the existing hukou of their partner’s family and their partner to then become the new head of the household.[70] This process requires a marriage certificate to be presented at the local police station.[71] Alternatively, a new household with a separate hukou can be created if the couple is legally married and, in some cases, own their own home.[72] This usually requires presentation of a completed form to start a new hukou, identity cards, current hukous and in some cases a deed of property in the local area.[73] As a result, based on the available country information,  the Tribunal does not accept the applicant’s evidence that the second and third applicant’s will be denied Hukou registration due to the fact that her and her husband are from different provinces and have different Hukou status.

[70] ibid

[71] ibid

[72] ibid

[73] ibid

Therefore, based on the available country information the Tribunal does not accept that the second and third applicants will be denied Hukou registration by reason of the Chinese authorities refusing or failing to recognise the applicant’s Australian marriage and/or as a result her association with the Local Church as claimed. As a result the Tribunal finds that there is no real chance the second and third applicant’s will be seriously harmed upon their return to China by reason of not being able to obtain Hukou registration due to the Chinese authorities failure to recognise the applicant’s Australian marriage and/or as a result her association with the Local Church as claimed.

Refugee Conclusion.

1. Based on the applicant’s evidence and the available country information, the Tribunal finds that the applicant will face a real chance of serious harm not only within their home province of Fujian, but also in another province in China by reason of her expression of her faith and membership of the Local Church.  The Tribunal finds that it would not be reasonable for the applicant applicant to relocate outside the area of her hukou or outside her province of Fujian by reason of the fact that the Chinese authorities crackdown on home churches appears to be a national policy and not just localised to particular provinces of China.

2. In any event, the Tribunal finds, by reference to the information about the situation in China, that if the applicant was to relocate without a change of hukou, she would face significant difficulties and precarious uncertainty in relation to the expression of her religion. The second and third applicants are very young and may face issues as a result of the applicant expressing her faith. In particular, if the authorities do seriously harm the applicant as a result of her religious expression, then the second and third applicants are likely to face serious issues concerning their welfare including access to housing, education, and health services.

3. Therefore, having considered the applicants claims singularly and cumulatively, the Tribunal finds that that there are substantial grounds for believing that, as a consequence of being removed from Australia to China, there is a real chance that the applicant will suffer serious harm by reason of her religion as claimed.

4. The Tribunal is satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) for a protection visa and as such she is a person to whom Australia has protection obligations under the Act.

5. In arriving at this decision, the applicants should know that the Tribunal has made these findings only marginally in favour of the applicant and only in reference to her circumstances and claim.  In the light of this decision, it is strongly recommended that the applicants obtain advice and assistance regarding the migration options open to the second and third applicant.

Applicants’ complementary protection claim

1. The applicants claim that, without conceding in any way their claims under the Refugee Convention, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicants’ circumstances.

2. That is, the Tribunal has considered if the applicant, the second applicant and the third applicant face a real risk of significant harm upon their return to China as a result of the applicant’s religion and not being able to obtain Hukou registration as claimed. Having considered the evidence provided by the applicant and the available country information for the reasons detailed above, the Tribunal does not accept the second and third applicant’s claims and finds that they will be able to obtain Hukou registration for the reasons expressed above. As such, the tribunal finds that there is no real risk the second and third applicants will suffer harm as result of being in breach of the Chinese Family Planning Laws to the extent that it would constitute significant harm pursuant to section 36(2A) of the Act.

3. The Tribunal has also considered if the applicant faces a real risk of significant harm upon their return to China as a person who is a practicing Christian and an active member of the Local Church. Having considered the evidence provided by the applicant and the available country information, for the reasons detailed above, the Tribunal accepts and finds that there is a real risk she will suffer significant harm as a result of religion that would constitute degrading treatment or punishment pursuant to section 36(2A) of the Act.

4. At no stage did the applicants advance any other reason, such as their nationality or political opinion, in written or oral claims that the applicants are owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicants’ accepted circumstances, to be considered.

1. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she will suffer significant harm as required by s36(2)(aa).

CONCLUSIONS

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s.36(2)(a) and s.36(2)(aa) of the Act

2. The Tribunal is not satisfied that the second or third applicants are people in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal has found that the both the second and third applicants are the children of the applicant and members of the same family unit of the applicant pursuant to s.36(2)(b) and s.36(2)(c) of the Act and as such are entitled to protection visas.

DECISION

1. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Act; and

   (ii)that the second applicant and third applicant satisfy s.36(2) of the Act based on 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 second and third applicants do satisfy the criterion in s.36(2).

Jason Pennell
Senior Member

Annexure A

The Department of Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 3 October 2019 (the ‘DFAT Report’) was specifically considered in relation to the applicants’ claims. In particular, the following parts of the DFAT report have been considered.

Government framework regarding religion[74]

[74] DFAT Report @ p.24

3.37 Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).

3.38Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.

3.39 Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office and has been elevated to a level of importance not seen since 1949.

3.40 The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.

3.41 The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.

3.42According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices, and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations or raising funds on their behalf.

3.43The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).

3.44Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.

3.45Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.

3.46Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.

3.47Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’ DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities.

3.48DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.

3.49While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.

Christians[75]

[75] The DFAT Report @ p.30

3.76 China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).

3.77 In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.

3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.

3.79 Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or Imputed) and Protesters/petitioners).

[…]

3.83 DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

The Shouters (Local Church)[76]

[76] Ibid @ p.34

3.105The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.

3.106The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouters splintered into several groups including Eastern Lightning. DFAT is unable to verify the extent to which Shouters remain active in China.

[…]

Application of Family Planning Policy in Fujian[77]

[77] Ibid @ p.53

3.210The Population and Family Planning Regulation of Fujian (2016) aligns with the national two-child policy (under the Population Law), and has the following exceptions which allow a third child if: the first child has a disability; divorced couples remarry; the parents belong to an ethnic minority group; and if one half of the couple lives overseas with ‘surplus’ children. ‘Surplus’ children born overseas are able to return to China for an accumulated period of less than 18 months in two years; however, if they ‘settle down’ for a period of more than six months, the family may be subject to a SCF.

3.211The term ‘returned overseas Chinese couple’ refers to couples who had permanently settled in foreign countries but who have given up their long-term, permanent or lawful right of residence and returned to China. Returned overseas Chinese couples who return to China may then give birth on their return to further children in accordance with the regulations. Citizens who are based temporarily abroad, such as those who are abroad for study or employment purposes are not considered to be ‘returned overseas Chinese couples’.

3.212As with national policy, if a couple has an unauthorised child, they will be subject to a SCF. According to the Fujian family planning office, Fujian SCFs are in line with the national policy and are based on either the prior year’s average annual disposable income at county level, or 200 to 300 per cent of the individual’s prior year’s salary (disposable income), whichever is greater. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county. The actual application of SCFs varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation).

3.213The SCF applies to both parents. If parent A earns more than the county average, their SCF fee will be 200 to 300 per cent of their income in the prior year. However, if parent B earns less than the county average (or has no job), their SCFs will be 200 to 300 per cent of the average county income in the prior year. SCF for single women who have had an out-of-policy child are calculated at 60 to 100 per cent of the individual’s income in the prior year, or the county average, whichever is higher. While the SCF is applied equally, fines can vary due to the different income level of different families. The provincial government also has discretion to arrange SCF instalment payments for families experiencing financial hardship.

3.214 Sources report that, if an individual works in a government agency and has an official payslip, the individual’s prior year’s salary is very clear and thus the SCF is transparent and easy to calculate. However, if an individual’s salary is above average (county level), it is harder to calculate the SCF, especially if the individual does not have a clear payslip. Individuals who cannot provide clear evidence of their income will be fined in accordance with the average county income.

3.215 In March 2016, the Deputy Chairman of the Fujian Family Planning Association stated that, if parents had received previous notification of SCFs under the 2014 Regulations, these penalties stood under the 2016 Regulations. If individuals in breach of the 2014 Regulations had not received notification of SCF, local authorities would not pursue the issue further. The 2016 Regulations only apply to children born after 1 January 2016, or in cases where SCF notices have not been issued for children born prior to 1 January 2016.

3.216 DFAT is aware of a range of measures used in Fujian to secure payment of SCF, including applying personal pressure through personal calls and visits. In July 2015, the Fujian Health and Family Planning Commission signed a Memorandum of Understanding with the Fujian High Court, the Fujian Development and Reform Commission and the Fuzhou Branch of the People’s Bank of China to list people who failed to pay SCFs on a ‘black list’, limiting their ability to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their businesses, board planes or book soft berth tickets on trains. These restrictions are indicative of punitive measures possible under the SCS (see The Social Credit System).

3.217 In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System,’ directing local authorities to not treat the payment of SCF as a prerequisite for accepting an application for a hukou (see Hukou (household registration) system). Children whose unauthorised births might previously have gone unregistered are subsequently able to apply for a hukou irrespective of whether the relevant SCF has been paid.

3.218 In Fujian, authorities no longer distinguish between urban and rural hukou – all households are now registered as ‘residents’ and are entitled to access available social services. Despite this, local authorities have significant flexibility in setting stricter (or looser) restrictions in order to control population flows to urban areas and therefore limit associated pressure on social services (which are often of a higher quality in urban areas, thereby exacerbating inequality between urban and rural residents). This flexibility has also created a greater potential for corruption.

3.219 Under the system, children may be registered under the hukou of either parent, who must normally supply supporting documentation including the child’s birth certificate, household registration books of the parents, identification cards of the parents and the marriage certificate of the parents. If the child is born out of-policy, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.

3.220 Trafficking of young girls, smuggling activity and illegal adoption catering to the child-bride market are common in Fujian, particularly from, between, and to Changle District, Putian City and Zhenping Village (also reported as ‘Child Bride Village’) in Donghai Town (see Children). DFAT is aware of cultural practice local to Changle District, Fuzhou (although likely to occur elsewhere), whereby female children are less desirable than males, and a man’s family will not allow the registration of their son’s marriage until their female partner gives birth to a male child. This causes an abundance of illegitimate, out-of-policy, female children born to unmarried parents in Changle District. This issue is reportedly due to economic pressure, family planning policies and the uneven male/female birth ratio in China, which make it difficult for women to secure husbands. To compensate, parents of daughters incentivise marriage through the purchase of cars and houses to secure a husband for their daughter. In 2018, media reported anecdotal evidence of a rural family in Changle District which gave birth to eight girls before giving birth to a boy. The family reportedly could not afford to raise nine children and voluntarily sent five children to a baby trafficker.

3.221The 2016 Fujian Regulations are consistent with the Population Law (see assessments under People affected by Family Planning Policies); however, DFAT assesses application remains at the discretion of local Fujian officials and is therefore inconsistent. Due to relaxation of national family planning policies, and a desire to increase the national birth rate, DFAT assesses officials in Fujian have more flexibility to decide not to charge, or arrange a payment plan for, SCFs to reduce financial pressures on those with unauthorised or outof- policy children. DFAT assesses children born in Fujian whose unauthorised birth might previously have gone unregistered are able to apply for a hukou irrespective of whether the relevant SCF has been paid and are not blocked from accessing social health and education benefits.

Children[78]

[78] Ibid @ p.32

3.222 Article 49 of the Constitution provides for the state protection of children and prohibits maltreatment of children. The primary law protecting child rights, the Law on the Protection of Minors (2007; amendment) (Minors Protection Law), establishes that minors are defined as citizens less than 18 years old, and outlines the responsibilities of the families, the schools, and the government with regard to the protection of children’s rights, and judicial protection.

[…]

3.224 Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce.

3.225 ‘Left behind children’ are an unintended consequence of internal economic migration and the hukou registration system (see Children and Hukou (household registration) system). Over nine million rural children aged under 16 were estimated to be ‘left behind’ by both parents who migrated to urban areas for work in 2016. Up to 60 million children under18 were living without one or both of their parents in 2010. An estimated 89.3 per cent of left-behind children live with their grandparents and 4 per cent have no guardian. While 39.4 per cent see their parents once a year, many report no emotional connection to their parents. Many of these children are also unregistered, and considered ‘heihaizi’ (black children), as they are born in violation of the two-child (or former one-child) policy.

[…]

3.235 DFAT assesses out-of-policy and unauthorised children, children who are disabled, or children of migrant workers who are not registered under the hukou system can lack access to basic social services. DFAT assesses these children are vulnerable, cannot always access adequate state protection and can be at a higher risk of societal violence and/or trafficking. DFAT assesses ‘left behind’ children are also at higher risk of abuse, mental health issues, suicide and delinquency.

   Aldane, J 2012, ‘Baby on board (with bureaucracy)’, Metro Beijing, 12 December, Factiva

Accessed 21 December 2012 <Attachment>; The Embassy of the People’s Republic of China, Note to Department of Foreign Affairs and Trade 2004 Note No.088/2004, Community Legal Information Centre n.d., Chinese Nationality Immigration Department of the Government of the Hong Kong Special Administrative Region 2008, 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