1908084 (Refugee)

[2020] AATA 1722

1908084 (Refugee) [2020] AATA 1722 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908084

COUNTRY OF REFERENCE:                   China

MEMBER:Catherine Carney-Orsborn

DATE:25 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2020 at 11:06am

CATCHWORDS

REFUGEE – protection visa – China – Federal Court remittal – religion – Roman Catholic – father’s death of injury sustained in anti-abortion protest and brother’s arrest – child born to unmarried parents – medical conditions and treatments – credibility – unlawful residence and delay in applying for protection – unco-operative at hearing – church attendance and activity in Australia – basic knowledge and understanding – purpose of strengthening protection claims – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 424

Migration Regulations 1994 (Cth), Schedule 2

Administrative Appeals Tribunal Act 1975 (Cth), s 19D(4)

CASES

MZXRE v MIAC (2009) 176 FCR 552

SZEPZ v MIMA (2006) 159 FCR 291

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The first named applicant (the applicant) arrived in Australia [in] May 2007 as the holder of [a] student visa, which was extended on [in] June 2007. The applicant’s visa ceased on [in] March 2009, and the applicant remained in Australia unlawfully.

3. The third named applicant, who is the applicant’s partner, arrived in Australia [in] January 2008 as the holder of a [student] visa, which was extended [in] February 2008. The third named applicant’s visa ceased [in] December 2008, and the third named applicant remained unlawfully in Australia.

4. The second named applicant is the daughter of the applicant and third named applicant, and was born in Australia on [Date 1].

5. The applicants, who claim to be citizens of China, applied to the Department of Home Affairs (the Department) for the Protection visas on 3 September 2012. On 16 July 2013, the delegate refused to grant the visas on the basis that the applicant had little knowledge of Catholicism and the delegate found that there was no genuine reason as to why the applicant could not attend the Chinese Catholic Church, that the applicant did not appear to be of adverse interest to the Chinese authorities as she was able to depart China, and because the applicant was not pregnant at the time and seemed unlikely to be in breach of the one-child policy.

6. The applicants applied to the Tribunal for review of the decision on 7 August 2013. On 13 October 2014, the Tribunal affirmed the decision under review. The basis for the affirmation was that a differently constituted Tribunal found the applicant not to be a credible witness due to inconsistencies in her evidence, and that there was not a reasonable explanation for the delay in lodging a protection visa application. 

7. The applicant applied to the Federal Circuit Court for review of the Tribunal’s decision, and the application was dismissed on 10 August 2016. The applicants appealed to the Federal Court. The matter was remitted to the Tribunal by consent on 2 April 2019, on the grounds that the Tribunal had erred in failing to give the applicant clear particulars of information concerning the third named applicant’s earning capacity either under s 424A or s 424AA of the Act.

8. The applicants were notified by the Tribunal on 3 April 2019 through their authorised recipient that the matter had been remitted to the Tribunal and provided information on how the Tribunal would deal with the matter. 

9. On 10 April 2019 the applicant sent a letter providing change of contact details being a postal address, email address and mobile phone number.

10. On 9 October 2019 the applicants were sent an invitation to hearing for 10 December 2019. 

11. Information in relation to the hearing including a request to provide any further information to the Tribunal was included in the invitation. 

12. The invitation was sent to the contact details provided by the applicant on 10 April 2019. A copy was also sent to the postal address provided.

13. On 5 December the applicant sent an email from the same email address previously provided on the 10 April 2019 and the same email address to which the invitation to a hearing and information on the hearing had been sent.  The applicant requested a delay to the hearing as she claimed she had not received any letters or emails from the Tribunal.

14. On 5 December 2019 the applicant provided a further change of contact details form.  The new contact details were the same as those previously provided to the Tribunal on the 10 April 2019.

15. The Tribunal responded that the invitation had been sent to the same email address from which the applicant was currently corresponding with the Tribunal.  The Tribunal asked the applicant to provide reasons why the hearing should be adjourned.

16. The applicant responded and asked for the Tribunal to resend the invitation to a hearing.  The Tribunal resent the invitation to hearing to the same email address it had previously sent the invitation to which was the same email address as given on the 10 April 2019 and 5 December 2019.

17. No further correspondence was received. 

18. The applicants appeared before the Tribunal on 10 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

19. At the hearing the applicant provided a medical certificate from [Dr A] stating she had a medical condition and was unfit for duties from 9 December 2019 to the 11 December 2019.  No further information was provided on the medical certificate.

20. After considering the medical certificate the Tribunal had adjourned the hearing.  On 9 January 2020 a hearing date of 11 February 2020 was sent to the applicant.

21. The applicant and third named applicant attended a hearing on the 11 February 2020.  A mandarin interpreter was present to assist the applicants.

22. The Tribunal allowed a further week after the hearing for any new evidence or documents.  After the week elapsed the third named applicant contacted the Tribunal by telephone and stated he would provide more documents.  He was advised to put his request for further time in writing.  No further request was provided. 

23. The applicant has had four hearings, adjournments, a 424A letter and been requested on numerous occasions to provide any further evidence and documents.  The Tribunal has allowed further time and will now consider all the evidence before it.   

24. The issues that arise on review are whether the applicants are owed Australia’s protection under the refugee criterion or under the complementary protection criteria.

    What information can be considered on remittal?

25. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[2] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

26. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[3]

    [3] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

27. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.

28. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. 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.

30. 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).

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

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

32. 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’).

33. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

34. The Tribunal has before it the Department file, the former Tribunal file, and the current Tribunal file. The Department file contains the application for protection forms, copies of the applicants’ passports, an application for bridging visas with work rights, a written statement setting out the applicant’s claims for protection, and a copy of the delegate’s decision record.

35. The former Tribunal file contains the applicant’s certificate of baptism, a birth certificate for the second named applicant, two statutory declarations by the applicant, a written statement from the organiser of the catechumen classes of the [Church organisation], an original and translation of a death certificate for the applicant’s father, medical reports for the applicant, a letter from the Tribunal to the applicant putting thirty questions to her, and a statutory declaration from the applicant answering the thirty questions.

36. The applicant claims that she will be persecuted if she returns to China due to religious persecution of Roman Catholics and due to breaching China’s family planning laws.  She further claimed she will not be able to receive treatment for a medical condition. The second and third named applicants do not make any claims themselves.

37. The following information is provided by the applicant in her application for protection and the statements provided by the applicant to the Department and the Tribunal.

38. The applicant was born on [Date 2] in Fuqing, Fujian Province, China. The applicant is a Roman Catholic, and lists her ethnicity as Chinese. The applicant speaks, reads, and writes Mandarin and limited English. The applicant began a de facto relationship [in] July 2008 in [Suburb 1]. The applicant lived in [Town], Fuqing from birth until May 2007. Since coming to Australia, the applicant has lived in [Suburb 2], [Suburb 1], and [Suburb 3]. The applicant completed studies at [a] School, Fuqing in May 2007. The applicant studied at [an] English College, Sydney from May 2007 until October 2007. The applicant then studied at [College 1], Sydney from September 2008 until February 2009.  The applicant worked as [an Occupation 1] for a [workplace] in [Suburb 4] from August 2008 until September 2011. The applicant’s mother and brother remain in China, and her father is deceased.

39. The second named applicant was born on [Date 1].

40. The third named applicant was born on [Date 3] in Fuqing, Fujian Province, China. The third named applicant is a Roman Catholic, and lists his ethnicity as Chinese. The third named applicant speaks, reads, and writes Mandarin and functional English. The third named applicant completed studies at [a] College, Fujian Province in December 2007. The third named applicant undertook studies at [College 2], Sydney from January 2008 until March 2008, when the college closed. The third named applicant has worked as [an Occupation 2] but was unemployed at the time of the application for protection.

41. The applicant claims that she was born into a Roman Catholic family. The applicant claims that there are two groups of Catholics in China, the Patriotic Catholics and the Roman Catholics, who are persecuted by the Chinese government because they will not submit to them, and because the Roman Catholics oppose the Chinese government’s family planning policy.

42. The applicant came to Australia to study English as her parents wanted her to grow up in a free country, and not experience their misfortune.

43. The applicant claims that police would often come to arrest the applicant’s parents when they were worshipping, and would detain them for a few days. The applicant attended family gatherings at the homes of other church members.

44. [In] November 2007, the authorities went to arrest a Roman Catholic woman who was 5-months pregnant, in order to force her to undergo an abortion. The applicant’s father and ten other Catholics protected the woman. During the conflict, the applicant’s father was hit on the head by police batons and was knocked unconscious. The applicant’s father was taken to hospital. However, injured police at the hospital instructed the doctors not to treat the applicant’s father, and he died from the injury [In] November 2007.

45. The applicant was in Australia at this time, and was informed about her father’s death by her mother. The applicant’s mother informed her that she should not return, as there was still chaos. The applicant’s brother had hit a police officer in the fight, and had fled. The applicant’s brother was arrested in July 2012 when he returned to visit his mother, and is currently on bail.

46. Following her father’s death, the applicant lost her source of income and withdrew from her course. The applicant worked to support herself. The applicant met the third named applicant in 2008. The applicants’ parents held an engagement ceremony for them [in] July 2008, and the applicants moved in together.

47. The applicant attended a Catholic Church in [Suburb 1] from August 2007 to March 2012. The applicant began attending [a] Catholic Church, [Suburb 4] from March 2012.

48. The applicant became pregnant in March 2013. At the time for the application for protection, the applicant was undergoing a baptismal class at [the] Catholic Church. Under the applicant’s influence, the third named applicant has also become interested in Catholicism and is also planning to become baptised. The applicant was baptised [in] March 2013, and the second named applicant was baptised in September 2013.

49. The applicant does not want to return to China as her parents sent her to Australia in order to be free from religious persecution. The applicants’ marriage is not legally registered, and so they would be subject to punishment if they returned to China. Furthermore, the applicant plans on having more children, but would be subject to the Chinese government’s family planning laws and faces abortion, sterilisation, and fines.

50. In her statutory declaration on the former Tribunal file, the applicant claims that the second named applicant would become an unregistered child, or a “black child,” as the applicants would be unable to pay the registration fee for a child born out of wedlock.

51. The applicant also claims that she was able to leave China legally in May 2007, as she was not a genuine Roman Catholic and her father’s death did not occur until November 2007. The applicant states that part of the delay in lodging her application for protection was that she feared being deported from Australia if her application was denied. The applicant also states that she was unable to answer some of the delegate’s questions concerning Catholicism as she was nervous and felt pressured.

52. The applicant claims that the police have searched her family home following her father’s death. The police have seized many documents and photos, making it difficult for the applicant’s family to provide evidence for her claims.

    The hearing

53. On 10 December 2019 the applicants appeared before the Tribunal.  The Tribunal explained that the matter had been remitted to the Tribunal for reconsideration.  The Tribunal stated that it had before it the information supplied by the applicant to the Department and previously constituted Tribunal.

54. The Tribunal explained that it had read the transcript from the previous two hearings conducted by a differently constituted Tribunal.  The Tribunal asked the applicant if the information contained in those documents was true and correct.  She indicated that it was true and correct.

55. The Tribunal then explained that the matter had been remitted to the Tribunal to be dealt with.  The Tribunal explained that the issue was the income the third named applicant earnt.  The Tribunal explained that the previously constituted Tribunal had found that if any fine was payable in relation to the claim for the one child policy and being born out of wedlock that the applicants had the resources to pay that fine when they returned to China.  The applicant indicated she did not agree to this.  The third named applicant indicated he also wanted to respond.  The Tribunal explained that the applicant could request an adjournment and further time to respond.

56. The applicant elected to respond at the hearing.

57. The third named applicant responded that the money he earnt was for his survival.  He claimed that he worked extra hours and that he now has a [body part] injury and he does not have a lot of money.

1. The Tribunal asked several times if the applicant had anything to add.  She indicated she did not.  The Tribunal then indicated it would end the hearing.  The third named applicant stated that they wanted to provide further information.

2. The applicants provided to the Tribunal at the hearing two letters from the [Church organisation].  The first, from [Mr B], president of the [Church organisation], stated that the applicant arrived in the community in March 2012.  She was baptised and has been regularly attending the Chinese Mass.  He added she had been diagnosed with [a Medical condition 1] since [July] 2014 and continues to participate in the community’s activities.

3. The second latter was from [Fr. C] which stated that the applicant is an active Catholic member of the [Church organisation].  He states she arrived at the community in March 2012 and was baptised the following year on the same month.  He stated she had been regularly attending Chinese Mass.  He stated the date of her first coming to the Church was provided to him by the first named applicant.

4. A letter from [a] Primary School was provided which stated that the second named applicant was attending primary school in [Suburb 2].  It stated she was involved in the school and church activities.  The letter stated the applicant feared not being able to practise in China.

5. Photos were provided which showed the applicant with other persons.  She appeared animated and relaxed in the photographs.

6. The applicant handed up a response to the hearing invitation.  She stated that she was nervous at hearings and cannot understand what the Tribunal is asking.  She stated she wanted to provide evidence in writing as her mind goes blank at hearings.

7. The applicants requested a priest [D] given evidence via the telephone.

8. The applicant provided medical records in relation to the applicant.  A report indicated she had been treated for [Medical condition 2].  She was on medication and would be reviewed.  The reports did not indicate the severity of her condition however indicated she was on medication and would be reviewed.  The Tribunal enquired several times if the applicants wanted to provide anything further or had anything to say.  They indicated they did not.

9. The applicants provided a medical certificate stating that the applicant was unfit for duties from 9/12/2019 to 11/12/2019.  No further medical information or evidence was provided which would indicate she was unable to participate in a hearing or understand questions.  Nevertheless the Tribunal adjourned the hearing for the applicants to provide any further information or evidence.

10. The Tribunal held a further hearing on the 11 February 2020. 

11. The Tribunal again explained that it had the information provided to the previously constituted Tribunal and would consider that evidence.  The Tribunal summarised that it had spoken at the last hearing about the issue in relation to the wage of the applicant’s husband (the third named applicant) and any fine imposed by breaching the one child policy. 

12. The Tribunal asked the applicant if she was still claiming breach of the family planning policy given that she only has the one child and there has been a softening of the policy in China.  She indicated she was.

13. The Tribunal asked if she had any difficulty understanding the interpreter.  She indicated she did not.  The Tribunal explained that it would prefer to take evidence from the applicant and the third named applicant separately as it would place more weight on evidence given independently. 

14. The applicant indicated that she wanted the third named applicant to stay in the room and speak for her.  The Tribunal pointed out that she was the one who made the claims and this was her opportunity to speak about the claims.  The Tribunal indicated that she had been speaking to the staff at the Tribunal on the telephone and email about her case and did not appear to have difficulty.  The Tribunal indicated that we had the assistance of an interpreter.

15. The Tribunal indicated that the third named applicant would be just outside and the Tribunal would call him in shortly to give evidence.

16. She indicated she understood this.  The Tribunal asked if the applicant was satisfied that all the evidence and information she had previously provided was true and correct.  She indicated it was.

17. The Tribunal asked if there was anything further she wanted to add about why she could not return to China.  She responded that if she returns to China she will face religious persecution.  The Tribunal pointed out that she was from Fujian province and that independent country information indicates that Fujian province has a liberal attitude to Christians and Catholicism.  The Tribunal said there are many millions of Roman Catholics in China who practise their religion.  She responded that she belonged to the underground church.  The Tribunal pointed out that the Pope had advised Chinese Roman Catholics to attend at the official Churches and had entered into an agreement with the authorities.

18. She indicated she did not agree with the independent country information that was put to her.

19. The Tribunal then stated that it had the evidence and information she had provided including letters from a Priest stating that she attended services.

20. The Tribunal asked if she was asking that the Priest be contacted by the telephone.  After some consideration she indicated she would want that.  Two numbers were provided the Tribunal telephoned both numbers and neither one was answered.  The voice message identified the phone as belonging to “[E]”.

21. The Tribunal asked if the Priest would give any further evidence other than what was in the letter.  She indicated he would speak about her medical condition.  The Tribunal indicated it would prefer medical evidence to be provided by medical practitioners not a priest.

22. The applicant indicated that she had provided all her medical evidence to the Tribunal.  The Tribunal indicated it would consider any further evidence.

23. The Tribunal asked if she wanted to expand or speak about her commitment to Catholicism.  She responded that Jesus Christ created this world and she believes in him.  She did not expand any further.

24. The Tribunal then took evidence from the third named applicant.  The Tribunal asked the third named applicant if there was anything he wanted to put to the Tribunal for its consideration.  He responded with words to the effect that he did not know what to put to the Tribunal.

25. The Tribunal prompted the third named applicant and reminded him that the hearing was about his wife’s claims that she cannot return to China.  He responded with words to the effect that she cannot return to China.  The Tribunal asked him to expand.  He stated that it was because of her religious beliefs.  The Tribunal again explained that it was their opportunity to speak about the claims.  The Tribunal asked if he wanted to expand on his wife’s commitment to Catholicism or his commitment.   He was unable to do so.  He then spoke of attending a ceremony where the priest washed his feet and being touched.  The Tribunal asked what this ceremony was part of.  He could not answer and the applicant answered on his behalf that it was at Easter.  No further information on the significance of the ceremony was provided.

26. The applicant then said she would add something further.  She said that she had a medical condition that was being treated.  She said she had a [Medical condition 1].  The Tribunal indicated that it had the previous medical documents she had provided. 

27. The third named applicant stated that he had not been able to tell the Tribunal what the foot washing ceremony was about because he was nervous.  He stated he went on the train for three hours to attend.

28. The applicant stated she wanted to add that what was happening in Hong Kong was affecting China.  The Tribunal asked if she wanted to add anything further on that point she indicated that changes had been made to the Bible.  She did not elaborate further.

29. The Tribunal allowed a week from 11 February 2020 to provide anything further including any medical evidence.

30. On 13 February 2020 the third named applicant telephoned the Tribunal and stated he would be providing further documents.  On 20 February 2020 the third named applicant again telephoned the Tribunal and stated that he would be providing further documents.  The Tribunal officer informed the third named applicant to put any request for further time in writing and it will be considered.

31. No further correspondence or communications have been received. 

    COUNTRY INFORMATION

32. The Department Foreign Affairs and Trade (DFAT) Country Information Report –  People’s Republic of China, dated 3 October 2019 provides the following information on exiting and entering China:

    Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.

    Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.

    There are thirteen land border crossings, mostly on the Gobi desert, Himalayas, and southeast Asian jungle, which are harder to police but similarly harder to physically cross. Land borders between Yunnan, Vietnam and Myanmar remain porous. There are border communities, which are permitted to live in border bordering countries to cross (and not other foreign nationals), and are governed by specific agreements between China and Mongolia, China and Myanmar, China and Vietnam, and China and Russia. For example, a Chinese resident can get a visa on demand at the Russian border on a ‘one time’ passport, but cannot travel beyond Russia.

    In September 2018, a new joint Hong Kong and China immigration border point located in Hong Kong, created to facilitate the Guangzhou-Shenzhen-Hong Kong high speed rail, was officially handed over to Chinese jurisdiction, and thus is subject to Chinese national law (see State Protection and Security Situation).[4]

    [4] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp. 71 – 72, paras [5.40] – [5.43].

33. The Tribunal notes that the US Department of State reported that the government permitted legal emigration and foreign travel for most citizens. Government employees and retirees, especially from the military, continued to face foreign travel restrictions. The government expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in government posts. Border officials and police cited threats to “national security” as the reason for refusing permission to leave the country. Authorities stopped most such persons at the airport at the time of their attempted travel.[5]

    [5] US Department of State, Country Reports on Human Rights Practices 2018 – China, 2018, 13 March 2019, (accessed 30 May 2019).

34. The Canadian Immigration and Refugee Board also wrote a research report dated 6 March 2014 on exit procedures in China. The report stated that airport officials have access to the Public Security Bureau of China’s online database of citizens who have been convicted of crimes or are wanted by authorities, and that officials would often confiscate passports held by individuals deemed unsuitable for foreign travel.[6] The Board produced another report on 22 September 2015, which noted that a person may be requested to produce their passport up to four times at the airport, and will be scanned at the airline check-in and the departure counter.[7]

    [6] Immigration and Refugee Board of Canada, China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports¸6 March 2014, CHN104761.E (accessed 10 May 2019).

    [7] Immigration and Refugee Board of Canada, China: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology, 22 September 2015, CHN105049.E, (accessed 10 May 2019).

35. The DFAT Country Information Report –  People’s Republic of China, 3 October 2019 states, in regards to religion:

    China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

    In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).

    It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam,

    Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).

    The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the

    Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.

    In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.[8]

    [8] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, p. 23, paras [3.28] – [3.32].

    Religion in Fujian

    While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.

    Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.

    Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.

    DFAT assesses that individuals in Fujian have historically practised religion more freely within state-sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).[9]

    [9] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, p. 24, paras [3.33] – [3.36].

    Government Framework regarding religion

    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).

    Article 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.

    Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided 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.

    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.

    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.

    According 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.

    The 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).

    Broadly 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 nonrecognised 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.

    Religious 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.

    Members 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.

    Regulations 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.

    DFAT 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.

    While 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.[10]

    [10] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp. 24 – 26, paras [3.37] – [3.49].

    Christians

    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).

    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.

    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.

    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).

    Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.

    In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.

    Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

    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.[11]

    …

    [11] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp. 30 – 31, paras [3.76] – [3.83].

    Catholics

    The Chinese Catholic Patriotic Association (CCPA) has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to pledge support publicly for the CCPA. Approximately 40 Vatican-ordained bishops remain independent of the CCPA.

    In 2016, the Vatican and CCPA agreed on the ordination of two bishops, but there is still no agreement on the treatment of bishops ordained by each respectively but not recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly supporting the CCPA. In 2018, China reached a provisional agreement with the Vatican under which Pope Francis recognised several Chinese state-appointed bishops who had been ex-communicated.

    In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. Sources report this is no longer required in areas where the Catholic Church has built trust with local officials over time.

    DFAT assesses Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.[12]

    [12] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, p. 32, paras [3.89] – [3.92].

1. The DFAT Report also provides the following in regards to family planning laws:

   China has had nation-wide family planning policies since the late 1970s, aimed at controlling population growth (initially in response to famine), in support of China’s economic ambitions. Article 25 of the Constitution states ‘the State promotes family planning so that population growth may fit the plans for economic and social development.’ Article 49 states ‘marriage, the family and mother and child are protected by the State. Both husband and wife have the duty to practise family planning. Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents.’

   The government manages family planning under the Population Law (see Women), which has historically required government departments, state media and schools to advocate family planning policies. Such policies include encouraging late marriage and childbearing, and limits on the number of children permitted per family. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple. Exceptions were permitted if both spouses were sole children; the first child had a disability; both spouses were members of ethnic minorities; or, for rural residents, the first-born child was a girl. From 2013, couples were also permitted to have two children if either spouse was a sole child. However, concerned about its ageing population, the National People’s Congress published a new amendment to the Population Law in 2016. The 2016 amendment included the implementation of a ‘two child’ policy (subject to other health, age and timing requirements), the abolition of forced contraception, and changes to certain leave entitlements for parents (including maternity and paternity leave). Lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. Interpretation and implementation of the policy varies enormously across China (see Family Planning in Fujian).

   Authorities enforce compliance with family planning regulations through both incentives and punishments. There are financial and administrative penalties for births that exceed limits or violate regulations. The law, as implemented, requires each woman with an unauthorised pregnancy to abort or pay a ‘social compensation fee’ (SCF, ‘shehui fuyang fei,’ also known as ‘social maintenance fees’).’ The parents of each unapproved child must pay a SCF. The national law does not set out a fee schedule that applies to all localities; exact SCF amounts vary widely across and within provinces, and on individual financial circumstances.

   County-level governments collect the revenues from fees. Authorities calculate individual SCFs according to ‘last year's local disposable annual income per capita’ in urban places, and ‘the net annual income per capita’ in rural places. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district (see Family Planning in Fujian). In some cases, this can amount to up to ten times a person’s annual disposable income. Information on actual fees charged is difficult to obtain as they are subject to local discretion (leaving open the possibility of individual or institutionalised manipulation). DFAT is aware of, but cannot verify, reports of people falsely presenting themselves as officials to claim SCF illegally.

   Both the previous and current Population Law require those who give birth to a child in contravention of family planning policies (including second children born before 1 January 2016) to pay a SCF, irrespective of hukou status (see Hukou (household registration) system). The hukou system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth. Prior to the 2016 amendment, SCF payment ensured children born in violation of the birth restrictions had access to government-provided social services and rights under the hukou system. However, following the 2016 amendment, children born before 1 January 2016 have a right to hukou and access to health and education services irrespective of SCF payment. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.

   Some parents still avoid the SCF by hiding children born in violation of the law with friends or relatives. Such hidden children do not have access to social services and rights under the hukou system (see Children). Awareness of SCFs is widespread and, in many cases, couples wishing to have an additional child will save the required SCF. In these cases, the SCF operates as a pseudo tax, rather than as a punitive arbitrary measure. Local authorities have the discretion to decide whether to impose a more lenient fine if parents report an out-of-policy (child born to a single woman) or unauthorised birth (additional child born to a married couple) soon after it occurs. Authorities are likely to apply heavier penalties for uncooperative behaviour, such as hiding children, and can apply additional surcharges to those who fail to pay the required fee. The local family planning bureau and employers may also pressure the parents of out-of-policy and/or unauthorised children. In some provinces or counties, authorities have also imposed fines on entire work units in addition to the individuals concerned.

   Officials can receive rewards or penalties based on meeting population targets set for their administrative region. However, the change to the two-child policy, as well as a broader reluctance among a large proportion of the population to have no more than two (and in some cases no more than one) child, have made it easier to achieve population targets in recent years and reduced pressure on local officials (also see paragraphs 3.207-208 regarding foreshadowed policy and budgetary changes).

   Parents denied registration in contravention of provincial regulations or national law can, in theory, seek legal redress, but are then subject to the general conditions governing protection against abuse of power by officials (see Judiciary). Chinese authorities have regarded public opposition to family planning policies as provocative and treated petitioners and their advocates as political opponents (see Political Opinion (actual or imputed)).

   Media reports that authorities have employed coercive practices (such as forced abortions, sterilisations or invasive medical inspections) in order to force compliance with family planning policies. The two-child policy. Nevertheless, the US State Department reports regulations requiring women who violate the family planning policy to terminate their pregnancies still exist and were enforced in some provinces in 2017, including Hubei, Hunan, and Liaoning, and other provinces, such as Guizhou, Jiangxi, Qinghai, and Yunnan, also maintained provisions requiring ‘remedial measures’ (which the US reports is an ‘official euphemism for abortion’). DFAT notes reliable data on the frequency of coerced or forced abortions or sterilisations is not available. While family planning officials face criminal charges and administrative sanctions if they violate citizens’ human or property rights, abuse their power, accept bribes, misappropriate or embezzle family planning funds, or falsely report family planning statistics in the enforcement of birth limitation policy, forced abortion is not specifically listed as a prohibited activity.

   Despite the introduction of the two-child policy in 2016, couples with only one child received a certificate entitling them to collect a monthly incentive payment and other benefits. Benefits varied across provinces, from around RMB 6 (AUD1.23) per month up to RMB 3,000 (AUD615) for farmers and herders in poorer areas. Couples in some provinces were also reportedly still required to seek approval and register before conceiving.

   Although China’s Marriage Law (see Sexual Orientation and Gender Identity) states children born outside of marriage have the same rights as those born to married parents, the Population Law (see Women) only refers to the rights of married couples. As such, local implementation remains inconsistent, and children born out of wedlock continue to be considered to be ‘outside of policy’ under the two-child policy. Single mothers with children born out-of-policy must pay SCFs, and pay for contraception and all medical expenses associated with giving birth. They are still denied legal documents and hukou for their children (and the health and education benefits it provides) (see Hukou (household registration) system). State subsidies for maternal and child services are available only with the permission of family-planning authorities, who require proof of marriage. Consequentially, many single mothers give birth outside of medical facilities with associated complications for both mother and child. Single mothers can also find it difficult to obtain birth certificates. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair. However, children born out-of-policy are reconsidered to be within-policy (legitimate) and the mother will avoid any penalty if the mother marries within 60 days of the child’s birth. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair.

   While the introduction of the two-child policy in 2016 led to a temporary increase in birth rates, the increase did not continue in 2018. Population and fertility policy experts argue long-term application of the one-child policy has led to social change, resulting in families still preferring to have only one child, despite policy change. Media and many people in China cite the economic cost of raising one child makes having a second child prohibitive. Experts working on fertility policy in China anticipate the government may approve full liberalisation of the fertility policy (removing birth limits) in coming years in an attempt to increase birth rates, in favour of ageing population policies. Recent budget and government department structural changes are early signals in this regard. The former National Health and Family Planning commission was renamed as the National Health Commission in March 2018, and had ageing added to its portfolio and family planning budget lines removed. The family planning budget is now part of the basic public health package.

   In September 2018, state-media reported ‘the three departments responsible for implementing family planning policies [had] been removed from the new structure of the National Health Commission.’ In August 2018, media reported China appeared to be considering dropping its family planning policy, and that all media content related to family planning had been dropped in a draft civil code, set to be completed by 2020. In late 2018, state-controlled media performed an about-face and started publishing articles regarding the need to reverse China’s low birth rate and proactively encouraging births.

   DFAT is aware of reports that, following departmental structure and budgetary changes, some provinces had more discretion to not charge the SCF in 2018. DFAT notes in country-sources report a general trend of significant relaxation of the enforcement of the SCF across China, especially in rural areas. Anecdotal evidence suggests married informal sector workers in Fuzhou who gave birth to unauthorised children in 2018 were not required to pay a SCF. DFAT is unable to verify these claims.

   DFAT assesses that, while the introduction of the two-child policy has reduced the need for the application of penalties to those in violation of the Population Law and family planning policies, application of law and policy remains inconsistent and non-transparent across provinces. DFAT assesses inconsistent and non-transparent application of SCFs leaves open the possibility of individual or institutionalised corruption. If the government were to approve full liberalisation of the fertility policy at any stage, there would no longer be a use for the SCF or other punitive measures against married couples; however, the possible impact on single, unmarried mothers remains unclear.

   Application of Family Planning Policy in Fujian

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

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

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

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

   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.

   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.

   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).

   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.

   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.

   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.

   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.

   The 2016 Fujian Regulations are consistent with the Population Law (see assessments under People affected by Family Planning Policies); however, DFAT assesses application remains at the discretion of local Fujian officials and is therefore inconsistent. Due to relaxation of national family planning policies, and a desire to increase the national birth rate, DFAT assesses officials in Fujian have more flexibility to decide not to charge, or arrange a payment plan for, SCFs to reduce financial pressures on those with unauthorised or outof- policy children. DFAT assesses children born in Fujian whose unauthorised birth might previously have gone unregistered are able to apply for a hukou irrespective of whether the relevant SCF has been paid, and are not blocked from accessing social health and education benefits.[13]

   [13] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp. 50 – 55, paras [3.195] – [3.221].

130.   The applicant arrived in Australia as the holder of a student visa in May 2007. Her student visa ceased in December 2008 and she was unlawful until she applied for a protection visa in 2012 and obtained an associated bridging visa. She gave evidence that she did not know about protection visas prior to lodging her application for protection. Despite not holding a valid visa for at least four years and claiming that she feared serious harm if she returned to China, the applicant delayed making an application for protection until 2012.

131.   The Tribunal does not accept that the reason she failed to make an application for protection until 2012 was either because she did not know about protection visas or did not have any money.  She has also demonstrated her resourcefulness in applying for and renewing student visas while in Australia, finding accommodation, finding work and obtaining pre-natal medical treatment and medical treatment for herself and daughter. She has also worked in a number of different occupations.

132.   The Tribunal, differently constituted, put to the applicant that if she returned to live in Fujian Province she would not face serious harm for reasons of being a Roman Catholic and continuing to attend church.  She provided a written response which stated among other things that the official registered church is not the genuine Roman Catholic Church.  She did not accept the Pope’s directive and indicated she would never attend the official registered church.

133.   When it was put to the applicant at hearing that she could attend an official Roman Catholic Church the applicant responded that they are different she did not expand on the difference and when it was put to her that the Pope has stated that Roman Catholics in China should attend official churches she did not respond except to say they are different.   The applicant did not expand on why they are different.  The Tribunal does not accept that she has identified any plausible reason for not attending an authorised church.

134.   The Tribunal considers that if the applicant returned to China and wished to continue her Roman Catholic practice she could join an authorised church in Fujian and continue her Roman Catholic practice within state sanctioned boundaries.

135.   The applicant in her application stated that the third named applicant was interested in becoming a Roman Catholic and the second named applicant has been baptised.  They have not made any claims of their own.

136.   However, even if the Tribunal were to accept that the applicants would continue to practise Catholicism and had reasons for preferring an unregistered church, the country information indicates that, despite restrictions on practice, for an ordinary church goer, attendance at a small unregistered Roman Catholic Church in Fujian would not put either applicants at risk of serious harm. There is no evidence that the applicants are prominent religious leaders or members of the clergy and the Tribunal does not accept that they would proselytise or engage in activities which would challenge the state authorities.

Medical Condition and Treatment

137.   The applicant made claims that she has a serious medical condition and would be deprived of Medical treatment if she returned to China. 

138.   She has provided medical reports dated July 2014 to the previous differently constituted Tribunal that she suffered from post-natal depression, and that she is [Medical status].  She stated that she had [Medical conditions 1 and 2]. 

139.   At hearing before the previous Tribunal she stated that she had medical concerns.  The Tribunal asked what these concerns were.  She stated she had [Medical condition 1].  She provided a report from 2014 which stated that she had not been on “[medication] for ages”.  This report indicated she was being monitored and would be reviewed.  The report dated September 2019 states that “[Medical details deleted]” A further report dated October 2019 states that she has a diagnosis of “[Medical condition 3]”.  The report dates she has [Medical condition 2] and will be reviewed in 2 months.

140.   A patient health summary dated December 2019 states she has an active past history of “[Medical condition 3] and [Medical condition 1]”. No information was provided on treatment other than she will be monitored and reviewed.

141.   The Tribunal gave the applicant a further week to provide further medical evidence on her condition.  The Tribunal after receiving telephone calls from the third named applicant allowed further time.  No further evidence or documents were provided.

142.   The Tribunal accepts that the applicant suffers from some medical condition.  She referred to a [Medical condition 1], however no medical reports were provided except the reports outlined above.  Those reports indicate she is being monitored and reviewed.  There was no evidence that she was in an acute or dangerous stage of any illness.  The Tribunal has considered the independent country information set out above and is satisfied that if the applicant returns to China she will receive appropriate medical treatment.  The applicant is a citizen of China and there is nothing before the Tribunal other than her own assertions that she would not receive medical treatment in China.  The Tribunal does not accept that she would be deprived of heath care or discriminated against due to any health concerns.

143.   As set out above, the Tribunal does not accept that the applicant has faced mistreatment for reasons of her religion in the past. The Tribunal is not satisfied that if returned to, or removed from Australia to China, either applicant will face a real chance of persecution for reasons of religion, breach of family planning laws or not receive health care or for any other Convention related reason.

Does either of the applicants meet the complementary protection criterion?

144.   Having found that the applicants do not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk either applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

145.   For reasons set out above, and in greater detail, the Tribunal does not accept that the applicants were Roman Catholics in China, or that they or the family of the applicant were involved in any underground Roman Catholic group in China or that they were of any adverse interest to Chinese authorities for this reason.

146.   The Tribunal accepts that the applicant has regularly attended the Catholic Church in Australia. It accepts that they have attended Catholic services, activities and church social occasions since late 2012. Whilst the applicants’ original motivation may have been to support and strengthen their refugee claims, the Tribunal accepts that the applicants have become regular members of the congregation and there may be other reasons for their continued attendance.

147.   If the applicants return to China the Tribunal considers they will return to Fujian Province, either to the applicant’s home district or the third named applicant’s.

148.   The Tribunal has considered the situation for Roman Catholic returnees to China. As discussed with the applicant at hearing, the country information indicates that China has “a rich and complex society of faiths, belief systems and organised religious groups.” The number of religious believers is estimated to be between 70 to 100 million. 

149.   The Tribunal has considered whether the applicants will face harm as a result of their involvement with the Catholic Church in Australia. The evidence indicates that the church is a relatively conventional Catholic Church in Sydney which has a large Chinese speaking congregation. There is no evidence it is designated as an illegal cult or prohibited organisation.

150.   DFAT reports it is not aware of any evidence that failed asylum seekers returning to Fujian would be distinguishable from the broader community or susceptible to any form of discrimination or violence unless they were perceived to have openly expressed dissenting political views or criticised the Chinese Communist Party. 

151.   There is no evidence or country information which indicates the applicants would face significant harm on return to China for reasons of their attendance at a Catholic church in Australia.  The Tribunal finds that the applicants would not face significant harm for this reason.

152.   The Tribunal accepts that the applicants may seek to join a Catholic Church group in Fujian Province and if they do so then the Tribunal has considered whether they will face significant harm for this reason. If the applicants attend an authorised church the Tribunal considers that they will not face a real risk of significant harm.

153.   As set out earlier in this decision the country information indicates that DFAT notes that should an unregistered church or individual engage in active and public proselytising or be perceived to criticise the Chinese Communist Party or the religious regulations, they may be exposed to negative attention by authorities. However there is no evidence that the applicants would engage in such activities.

154.   While the Tribunal accepts that the practice of the Roman Catholic religion is regulated and subject to state control it considers that the applicants will be able to attend church and practise their religion if they should choose to do so on returning to China. In Fujian the country information indicates that both the registered and to a lesser extent, the unregistered churches are generally tolerated by local government officials and the applicant could attend those churches on their return.

155.   In relation to the claim that they will suffer due to a breach of the family planning regulations.  The Tribunal notes that the applicant and third named applicant have one child, the second named applicant, given the relaxation of the family planning regulations as outlined above the Tribunal is not satisfied that if they return to China they will face any significant harm due to a breach of family planning laws or being unmarried.  The Tribunal after considering the independent information above is satisfied that the second named applicant would be registered and receive the same services as every other child in China. 

156.   As considered above the Tribunal is not satisfied that the applicant will be deprived of medical treatment or discriminated against due to any medical condition she may have.

157.   At the fourth hearing the applicant stated that things have changed in China due to Hong Kong.  No further evidence or explanation was provided.  There is nothing before the Tribunal to indicate that the unrest in Hong Kong will impact on the applicants if they return to China.

158.   Having considered the applicants’ circumstances singularly, and on a cumulative basis, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable of consequence of the applicants being removed from Australia to China, there is a real risk they will be arbitrarily deprived of life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

CONCLUSION

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

DECISION

160.   The Tribunal affirms the decision not to grant the applicants Protection visas.

Catherine Carney-Orsborn
Member