1912689 (Refugee)
[2020] AATA 3121
•6 April 2020
1912689 (Refugee) [2020] AATA 3121 (6 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1912689
COUNTRY OF REFERENCE: China
MEMBER:Jason Pennell
DATE:6 April 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the second-named applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958, and that the first-named applicant is a member of the same family unit as the second applicant pursuant to s.36(2)(b) and s.36(2)(c) of the Act.
Statement made on 6 April 2020 at 9.33am
CATCHWORDS
REFUGEE – Protection Visa – China – Federal Court remittal – religion – Christian – particular social group – persons in breach of Family Planning Laws – not a genuine and practising Christian – second applicant born out of wedlock – second applicant will face a real chance of serious harm – delay in applying for protection – complementary protection – member of the same family unit – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 116, 418, 438, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Darboy [1998] FCA 931
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Wang v MIMA (2000) 105 FCR 548Any 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 Protection visas under s.65 of the Migration Act 1958 (the Act).
2.The applicants, who claim to be citizens of China, applied for the visa on 19 April 2013 and the delegate refused to grant the visas on 9 January 2014 on the basis that they are not people to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Migration Act 1958 (the Act). In addition, the delegate was not satisfied that that the applicants are members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).
3.The delegate’s decision to refuse the applicants a protection visa was initially affirmed by the Tribunal on 11 November 2014. The applicants then sought judicial review before the Federal Circuit Court of Australia (FCCA). The application was dismissed by the FCCA [in] August 2017. By an order made [in] April 2019, the Federal Court of Australia (FCA) remitted the matter back to the Tribunal to be determined according to law.
4.[The] applicant and [the] second applicant appeared before the Tribunal on 20 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
5.The applicants were not represented in relation to the review by their registered migration agent.
6.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
10.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.
11.There are four key elements to the Convention definition:
(a)First, an applicant must be outside his or her country.
(b)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.
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.
(c)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.
(d)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.
12.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, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
13.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
14.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’).
15.‘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.
16.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
17.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.
Member of the same family unit
18.Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse or de-facto partner of a family head or the dependent child of the family head.
CONSIDERATION OF CLAIMS AND EVIDENCE
19.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). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants’ migration history
20.The applicant arrived in Australia [in] December 2007 on a [Student] visa (‘the student visa’). She was granted a further student visa on 9 January 2008, with permission to work.
21.On 24 August 2010, the applicant’s student visa was cancelled under section 116 of the Act as a result of the applicant failing to comply with the conditions of her visa. The delegate’s decision notes that the applicant ceased attending her educational institution from July 2008. As a result, her enrolment was cancelled. The applicant’s evidence was that she stopped her studies due to the fact that she needed to work to support herself after her family stopped financially supporting her.
22.The applicant remained in Australia unlawfully from 19 August 2010 to 19 April 2013. The second applicant was born in Australia on [date].
23.The applicant lodged an application for a protection visa on 19 April 2013 and was granted a Bridging visa. On 18 June 2013 the applicant was granted a Bridging visa with work rights. The applicant has not travelled outside of Australia since her arrival.
Country of reference
24.The applicant claims to be citizen of the People’s Republic of China (China). A copy of the applicant’s 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] AAT File No 1401739 @ f. 105
25.The applicant claims that she is the mother of the second applicant. The applicant provided the Department with a copy of the second applicant’s Australian birth certificate confirming that she is the mother of the second applicant and that the second applicant was born on [date]. The applicant claims that she was unmarried at the time the second applicant was born and that her relationship between her and the second applicant’s father has broken down. She claims that she does not know where the second applicant’s father is living. Therefore, based on the documentation provided by the applicant and her oral evidence to the Tribunal, it accepts that the applicant is the second applicant’s mother and that the second applicant was born out of wedlock as claimed on[date].
26.Accordingly, 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 applicants are Chinese citizens. There is no evidence to suggest that the applicants have a right to enter and reside, whether temporarily or permanently, in any other country.
27.Accordingly, the applicant’s and the second applicant’s protection claims will be assessed against China as the country of reference and as the 'receiving country'.
The applicant’s protection claims
28.The applicant’s claims for protection are contained in her protection visa application and are summarised in the delegates decision dated 9 January 2014[2] as follows:[3]
[2] Ibid @ f.41
[3] Ibid @ f.37
(a)The applicant claims that she was born into a Christian family and was baptised when she was eight years old. The family attended the Local Church which was referred to as ‘the Shouters.’ Their gatherings were often sabotaged. Her parents are activists of the church. Her father is a church servant who is in charge of organising church gatherings and prayer group activities. Their house was one of the locations of their gatherings.
(b)When the applicant was in junior high school, her family was caught during a gathering. Her parents were questioned and fined. The government sent people to make trouble and sealed the door of their house which was used for gatherings. Her parents were beaten.
(c)The applicant was criticised by her teacher when she was spreading gospels in school and was told to self-criticise in class. She privately introduced several close classmates to choir groups and baptism. They used school holidays to spread the gospel.
(d)Her family runs a [farm] and donate part of their income to the church. A house was built for gatherings. She joined prayer groups and choir groups and often provided service to the people at the gatherings. She donated money she had saved to the church.
(e)Her brother is an activist in the church. After she came to Australia, her brother was arrested because he helped the Local Church in Northeast China. During Christmas 2012 her brother was again arrested in Northeast China. The police confiscated preaching CDs which she had brought to her family. The police searched the home family computer, seized all the missionary material and her parents were implicated. Her parents are now unable to organise gatherings and they have lost their source of income. They were being monitored by the government and their freedom was limited. They were beaten by the local police who later threatened to arrest them. She dares not to contact them because their communication is monitored.
(f)After she came to Australia, she could not find a Local Church. She claims that she asked her friends and asked people in other churches, but she found nothing. With no other options, she joined the family gatherings online. Not long ago, she accidently found the Local Church in Australia. She felt that she had a new life and a new home.
(g)After the applicant arrived in Australia she heard that there was a plague in her father’s [farm] which resulted in a huge financial loss her family stopped supporting her and she was forced to terminate her studies to work to support herself. .
(h)The applicant claims she is a single unwed mother. Her boyfriend left her and his family are against her faith and reject her daughter. Her financial situation is very difficult, and she has no stable income and is in debt. The applicant claims that families like hers are punished by the Family Planning Law in China by having to pay a Social Compensation Fee (SPC) and not being able to be registered to access state health and and education services. If the SCP isnot paid, her child will not be able to be registered for residency, and education and medical care which ill cause her and her family serious and significant harm. She has not completed her degree, and it unlikely that she can be employed if she returns to China and has not guarantee of achieving a basic standard of living. Without family aid, they cannot survive.
(i)Her sister-in-law was prosecuted by the family planning office. She miscarried and had a ‘sterilisation operation’ and suffered. She is afraid that this will happen to her.
COUNTRY INFORMATION
29.The Department of Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 3 October 2019 (the ‘DFAT Report’), states:
Christians[4]
[4] Department of Foreign Affairs and Trade, Country Information Report: People’s Republic of China, 3 October 2019 (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)[5]
[5] 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.
3.106 The 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.
[…]
People affected by Family Planning Policies[6]
[6] Ibid @ p.50
3.195 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.’
3.196 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).
3.197 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.
3.198 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.
3.199 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.
[…]
Application of Family Planning Policy in Fujian[7]
[7] Ibid @ p.53
3.210 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.
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’.
3.212 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).
3.213 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.
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[8]
[8] 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.
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
30.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 of his or her claims. All this is taken into account in these findings.
31.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason 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 sufficient 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[9]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[10]
[9] s.5AAA Migration Act 1958.
[10] 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.
32.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[11] 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.
[11] 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
33.If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[12] 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.
[12] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 @ para. 196
Applicant’s refugee claim
Relevant grounds
34.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 her religion as she claims to have been baptised a Christian and that she is a member of the Local Church. The scope of ‘religion’ within the context of the Convention was considered by the Federal Court in several cases including MIMA v Darboy[13] and Wang v MIMA.[14] In MIMA v Darboy the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.
[13] [1998] FCA 931 (Moore J, 6 August 1998).
[14] (2000) 105 FCR 548. Followed in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22].
35.An overview of the scope of ‘religion’ as a refugee ground can be found in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. In particular it states:
The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.[15]
[15] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]-[73].
36.Therefore, the question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[16] It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[17]
[16] To be an apostate does not require conversion from one faith to a different faith, but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.
[17] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
37.Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[18] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[19]
[18] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 ( per Hill, Whitlam & Carr JJ, 10 February 2000)
[19] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
38.In this case, the applicant claims to have a well-founded fear of returning to China by reason of the fact that she is a Christian and a practicing member of the Local Church. While mere membership of a particular religious community will not of itself be enough to substantiate a refugee claim nevertheless, the Tribunal accepts that the applicant’s claims falls within s.91R(1)(a) of the Act by reason of religion.
39.In addition, the applicants submit that they will be in breach of the Family Planning Laws in China and that they fall within the scope of s.5J(1)(a) of the Act by reason that they are members of a particular social group. To be considered as part of a particular social group pursuant to section 5L of the Act, it is necessary for the applicant to share, or be perceived to share, a particular 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 particular group that a member should not be forced to renounce it.[20]
[20] Section 5L of the Act.
40.In this case, the Tribunal has some reservations that persons who are in breach of the Family Planning Laws constitutes a distinct social group. Nevertheless, for the purposes of this decision, the Tribunal accepts that the applicant is member of a particular social group by reason of her claims that she will be in breach of the Family Planning Laws in China. Accordingly, the Tribunal accepts that the applicant is a member of a particular social group pursuant to s.5J(1) of the Act.
Applicant’s well-founded fear
41.In Chan v MIEA[21] 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.[22]
[21] (1989) 169 CLR 379 at 396.
[22] (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.
42.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed or being persecuted in the event that she returns to China.
43.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:[23]
“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.
[23] Chan v MIEA (1989) 169 CLR 379 per Dawson J @ p.397
44.In MIEA v Guo, the Court stated that:[24]
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.
[24] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
45.The applicant claims that in the event she is returned to China there is a real chance she will suffer serious harm as a result of being a Christian and being an active member of the Local Church. In addition, the applicant claims that as a result of being in breach of the family planning laws there is a real chance that if she and her daughter return to China they will suffer serious harm. For the reasons expressed below, the Tribunal does not accept that the applicant has a subjective fear of being persecuted in the event that she returns to China by reason of her religion; nevertheless, it does accept that she has a subjective fear of being harmed if she returns to China for a reason mentioned in s.91R(1)(a) of the Act as a result of being in breach of the family planning laws.
Section 438 notification
46.In its decision dated [in] April 2019, the FCA refers to a notification purportedly provided to the Tribunal, as previously constituted, under s.438(2)(a) of the Act (‘the s.438 notification’) by which certain impugned information pursuant to s.438(1)(b) was provided to the Tribunal pursuant to s.418 by the Secretary of the Department of Immigration and Border Protection.[25]
[25] Federal Court of Australia, MZAOL & Ors v Minister for Immigration and Border Protection & Ors VID 900 of 2017 @ [41]
47.The Tribunal, as currently constituted, was not provided a copy of the s.438 notification or of the applicant’s student visa file. Accordingly, the Tribunal has not taken account of either of these matters, including any issues specifically referred to in the s.438 notification, for the purposes of making this decision. The Tribunal’s decision is based on the applicant’s evidence and submissions provided at the hearing conducted on 20 November 2019.
Delay
48.Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[26] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[27]
[26] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[27] Subramanium v MIMA (1998) VG310 of 1997.
49.In this case, the applicant arrived in Australia [in] December 2007 on a student visa and was granted a further student visa on 9 January 2008, with permission to work. The applicant’s student visa was cancelled on 24 August 2010 and she remained in Australia unlawfully from 19 August 2010 to 19 April 2013.
50.The applicant claims that she was baptised as a Christian at the age of eight and that her family, as Christians, suffered harassment, arrest and monitoring in China. However, having travelled to Australia on a student visa, the applicant only lodged her application for a protection visa on 18 June 2013, approximately five and a half years after she arrived in Australia.
51.The applicant’s evidence to the Tribunal was that she had not been aware that she could make an application for a protection visa in Australia. Her evidence to the Department was that she made the application for a protection visa because she had become tired, could not look after her child herself and was running out of options.[28] The applicant stated that she had been living with her boyfriend and believed that she would continue living with him.[29] When her student visa expired, she became worried that she might be sent back to China and as a single mother she would not be able to manage financially in China.
[28] Delegate’s decision @ p.8; AAT File No 1401739 @ f.33
[29] Ibid
52.In circumstances where the applicant claims to have a well-founded fear of persecution in the event that she is returned to China by reason of her religion, it is reasonable to expect that she would make a claim for protection soon after her arrival in Australia. The Tribunal does not accept that she was unaware that she could apply for a protection visa. The Tribunal accepts that having held a student visa; the applicant may not have felt it necessary for her to make an immediate application for a protection visa. However, in circumstances where the applicant had abandoned her studies, had her student visa cancelled and she remained unlawful for a period of two and half years, the Tribunal does not accept that she was not aware that she could apply for a protection visa.
Therefore, based on the applicants’ delay in making her application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicants’ fear of persecution[30] as claimed. Given the extensive delay of approximately five and half years from her arrival in Australia until making her application for a protection visa, the Tribunal has placed less weight on the applicant’s evidence in relation to her claim regarding her religion.
[30] Subramanium v MIMA (1998) VG310 of 1997.
The applicant’s religion
The applicant claims that she has a well-founded fear of persecution if she returns to China on the basis of her Christian faith. The applicant’s evidence was that she was born into a Christian family and was baptised at the age of eight. When growing up in China, the applicant attended the Local Church with her family. While attending secondary school the applicant continued to practice her faith by attending prayer group and choir and she ‘regularly spread the work of God to others’.[31]
[31] Applicants’ [submissions] @ p.2; AAT File No 1401739 @ f.102
The applicant’s evidence was that her father is currently a labourer but previously her parents were in the business of operating a [farm].
The applicant’s evidence was that her family were heavily involved in the Local Church over the years. She claims that her father is a servant of the Church, principally arranging church activities and prayer groups. In addition, the applicant claims that her brother is a religious activist. It was submitted that he regularly to attended spiritual training camps and helps build churches. The applicant claims that her family made many financial contributions to the Church and that their family home was used for Church gatherings.[32]
[32] Ibid
The applicant’s evidence was that while she was attending High School, her family were questioned and fined by the government. The applicant’s evidence to the Department was that her family were prevented for continuing their Church activities and forced to attend the Patriotic Church. However, the applicant claims that she and her family were not prepared to attend the Patriotic Church as they were not willing to be controlled by the government.[33] The applicant did not provide any evidence in support of her submission that her family had been forced to attend the Patriotic Church to the Tribunal. In addition, she submitted that to prevent the applicant and her family from holding religious gatherings at home, the government sealed the front door of their house.[34] When her parents protested at the government’s action, they were violently attacked.[35] The applicant did not provide any evidence that her family home has been sealed or her family had been attacked.
[33] Ibid
[34] Ibid
[35] Ibid
The applicant’s evidence was that more than 12 years ago on two occasions the police had come to her family home. She claimed that her mother was detained for a period of 10 days due to having conducted Church gatherings in their home. However, she stated that there had been issues concerning the hygiene of their [farm] and the Police may have attended their home for this reason, unrelated to any issue of their religion.
The applicant claims that while she was attending school in China, she was ridiculed by her teacher for speaking about her faith and spreading the gospel. The applicant introduced her classmates to choir and a few of her friends were baptised. The applicant claimed that during school holidays she would spread the word of the gospel. The applicant did not provide any evidence of the specific teachings she would speak about or to whom.
The applicant claims that since leaving China her family have continued to face issues, including being regularly reprimanded for upholding their Christian values.[36] However, she did not provide any detail of her family having been persecuted as a result of their involvement with the Local Church since her arrival in Australia.
[36] Ibid
At the time of the Beijing Olympics[37], her brother was arrested by the police because he assisted the Local Church in Northeast China. Again in 2012 the applicant claimed that her brother was arrested in Northeast China for undertaking missionary work. At that time the family’s home was raided and CDs of Brother [A]’s preaching which the applicant had sent to her family from Australia were seized. The applicant’s evidence was that these CDs were not available to be purchased in China.[38] The applicant did not provide any independent evidence of her family’s involvement in the Local Church, including her brother’s activities as a missionary. In fact, her evidence to the Tribunal was that she had lost contact with her brother and she was not aware of where he was or what had happened to him.
[37] Ibid
[38] Ibid
Finally, the applicant submitted that her family would like to move areas, but they are monitored by the government restricting their freedom of movement. The applicant claims that she is scared to contact her parents due to the fact that they are being monitored.[39] She claimed that her family had fallen on hard financial times as a result of a plague. Their church community arranged a fundraiser to help them. However, the authorities found out and beat her parents.
[39] Ibid
The country information notes that the government in China targeted the Local Church in the early 1980s as counter-revolutionary, and the Church splintered into several groups including Eastern Lightning. DFAT is unable to verify the extent to which the Local Church remains active in China.[40]
[40] DFAT Report @ p.50
The Tribunal notes that as part of its campaign to reassert control over all aspects of Chinese society, the ruling Communist Party has initiated a policy of ‘sinicization’ of religion in China.[41] That is, to reduce Western influence and to make religion more ‘Chinese.’ It is part of the Party’s attempt to control what it sees as the growing influence of Western culture and ideas. While religious activities are seen as a normal part of civil society in the West, they are increasingly viewed in China as a threat to national stability, particularly if there is any foreign involvement. As a result, there has been a push to sinicize religion generally, including Protestant Christianity.[42]
[41] Christianity Today, ‘China Tells Christianity To Be More Chinese’ by Kerry Schottelkorn and Joann Pittman, dated 20 March 2019;
[42] Ibid
However, the sinicization of religion campaign has had little impact on the unregistered house churches, such as the Local Church, since they are not under government supervision. Nevertheless, the country information refers to the fact that house churches are regarded by the government as a threat to the regime. Its reported that in recent times there have been a number of cases where people have been accused of engaging in evangelism in public and, as a result, have been berated, arrested and interrogated by the authorities.[43] In the wake of the harassment and persecution faced by some high-profile house churches and leaders, some have chosen to speak out. A September 2018 letter to the government has now been signed by over 400 pastors from over 20 provinces across China. Other Christians disagree with this pushback and instead find creative ways to continue to worship and practice their faith despite increasing government pressure.
[43] Bitter Winter, A Magazine on Religious Liberty and Human Rights, ‘Attacks on House Churches Intensify Across China in China’ by Tang Zhe dated 28 December 2019; type="1">
Therefore, based on the country information the Tribunal accepts that local churches are subject to harassment and persecution by the authorities as claimed.
The applicant’s evidence was that upon her arrival in Australia she was not able to find a Local Church. She made enquires with her friends but was told that the Local Church was not a legitimate Church. As a result, she claims that she practiced her faith online. However, she claims that more recently she has found a Local Church which she attends. She claims that as a single mother she gains support and confidence in attending the Church.
The applicant claimed that she had been attending the Local Church in [Australia] from in or about 2013. She produced to the Department a letter dated 10 November 2013, which she claims was issued by the [Church]. She claims that the letter is signed by Church elders but was not able to say what position they held within the Church. The applicant also provided to the Department photos of her baptism into the Church which she claimed were taken in or about June 2013. The applicant did not have a certificate to confirm her baptism.
The Tribunal asked the applicant about her Christian belief and practice. The Tribunal asked the applicant what it meant to be a Christian. The applicant was not able to respond to the Tribunal’s question other than to say it meant she was required to attend Church and to pray. The applicant exhibited a limited knowledge of the Christian faith in terms of what it means to be a Christian by living in the ‘footsteps’ of Jesus Christ. The applicant claimed that she prayed regularly. However, when asked if she was familiar with the Lord’s Prayer, the applicant said that she had no knowledge of the prayer. Finally, while the applicant was aware of the Holy Trinity, she was not able to explain in any way the concept of the Holy Spirit.
The applicant explained to the Tribunal that she read the Bible. When asked what book of the Bible she said the New Testament. Other than Matthew, Mark and John the applicant was not able to name any other books of the New Testament. In addition, the applicant did not display any knowledge of the gospels or stories of the New Testament. She said that there were many stories, but she could not recall them. Save for saying that Jesus was nailed to the cross, resurrected after three days, went to heaven and then showed himself to the apostles, the applicant was not able to recall any other story from the New Testament. Finally, the applicant could not name (save for two) or provide any information in relation to the disciples of Jesus.
In circumstances where the applicant claimed that she and her whole family practiced Christianity in China and were active in the Local Church, held congregations and church gatherings in their home, her brother had undertaken missionary work for the Local Church, she had been baptised at the age of eight and she had actively practiced her faith by praying and teaching the gospel to school friends, the applicant’s responses to the Tribunal’s questions concerning her religious beliefs and practice lacked the level of detail one would have expected from a long-term practicing Christian. As such, the Tribunal has serious concerns about the applicant’s credibility in relation to her claims concerning her religious beliefs and practice.
In addition, the applicant claims that she was baptised in Australia in or around June 2013. However, she was not able to provide any independent evidence, including any document, in support of her evidence that she was baptised as claimed. In any event, if the applicant had been baptised at the age of eight as claimed there would be no need to have been baptised again. Accordingly, the Tribunal does not accept that the applicant has been baptised as claimed.
In addition, after the applicant arrived in Australia, she did not make any contact with the Local Church or any other church until March 2013, a period of over five years. The Tribunal would have expected that a person involved in the Church in her home country would continue and even expand her involvement in the Church after arriving in Australia. If the applicant had been a genuine practicing Christian and member of the local Church in China, one would have expected her to have researched the Local Church on her arrival or prior to departing China and to have made contact with the Church immediately upon her arrival, rather than after a period of five years. Finally, the Tribunal notes that her contact with the Church commenced approximately one month prior to her lodging her application for a protection visa.
Therefore, the Tribunal does not accept that the applicant is a genuine and practising Christian. Her lack of knowledge of the Christian faith and the inconsistency in her testimony, together with the delay in contacting the Local Church in Australia, indicate to the Tribunal that she is not a genuine practicing Christian or that her family are active in the Church and had suffered mistreatment as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that she is returned to China by reason of her religion as claimed.
Second applicant born out of wedlock
The Tribunal has accepted that the applicant gave birth to the second applicant out of wedlock. The applicant’s evidence was that she has subsequently given birth to another child, [born] on[date].
The applicant claims that her estranged boyfriend’s family are opposed to her faith and do not accept the daughter. She claims that the applicant has lost contact with her boyfriend and as such she has been forced to raise her child on her own. Based on the applicant’s evidence the Tribunal accepts that the applicant is estranged from the father of the second applicant.
The applicant submits that if she was return to China both she and the second applicant would face discrimination and harm. The Family Planning Policy in China provides serious penalties for registration of children born outside marriage. The applicant’s evidence is that she does not have the money or financial resources to pay any fines that may be imposed on her and as a result both she and the second applicant will be denied basic rights.
In addition, the applicant claims that she will be discriminated generally as society generally ostracises single mothers.
Finally, the applicant claims that the second applicant will be considered a ‘black child’ and will face continual discrimination and be denied basic services as a result of being born out of wedlock and the applicant being unable to pay any fine imposed as a result of being in breach of the Chinese Family Planning Laws.
Breach of family planning regulations
Although China’s marriage laws state that children born outside of marriage have the same rights as those born to married parents, the Population Law only refers to rights of married couples. As such, children born out of wedlock are considered to be ‘outside of the policy.’[44]
[44] DFAT Report @ p.52
In Fujian Province, it is forbidden to give birth ‘before the stipulated time’. Article 14(1) of the 2002 Population and Family Planning Regulation of Fujian Province states that ‘a child is regarded as born before the stipulated time’ in the case where ‘those who give birth to a child before they get married (including those who become pregnant before they reach legally marrying age)’. The legal marrying age is 20 years for women and 22 years for men.
As a result, the second applicant claims that because she was born out of wedlock she will be unable to be registered under the hukou system and will be denied access to services including health and education. The hukou system requires all Chinese citizens to register at birth with the local Public Security Bureau (PSB), that is, with their local police, according to their place of residence or household. [45]
[45] Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) (1998-2004), February, Section 2 & 7.1; Wang, FL 2005, Organising Through Division and Exclusion: China’s Hukou System, Stanford University Press, Stanford, p.70
The 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. As a result, the applicant’s mother claims that the applicant would be denied access to health, education and other services. By not having access to residential registration, the applicant claimed that the second applicant will not have access to state funded education and medical services, as the family cannot afford private services. As a result, the second applicant will be denied education, medical services and other social welfare services.
The Population Law requires those who give birth to a child in contravention of family planning policies (including second children born before 1 January 2016) to pay a Social Compensation Fee (SCF), irrespective of hukou status.[46] The applicant did not provide the Tribunal with an estimate of the fees she would be required to pay, but claimed that she had no money and that her family would be unable to provide any financial assistance to support her or to pay the SCF on her behalf.
The country information reports that China has relaxed its family planning laws by replacing the ‘one-child’ policy with a ‘two-child’ policy. A new amendment to the Population Law was introduced in 2016[47] which included the implementation of a ‘two child’ policy, the abolition of forced contraception, and changes to certain leave entitlements for parents. Consistent with the applicant’s mother’s evidence, the country information notes[48] that lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. As a result, the interpretation and implementation of the policy varies enormously across China.
Prior to the 2016 amendment, payment of the SCF ensured children born in violation of the birth restrictions had access to government-provided social services and rights under the hukou system.[49] The 2016 amendment provides that children born before 1 January 2016 have a right to hukou and access to health and education services irrespective of SCF payment. That is, children whose unauthorised birth might have previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.[50] As such, it appears that the applicant will be able to be registered under the hukou system, notwithstanding the fact that the SCF, in relation to this particular breach of the Population Law, remains unpaid.
Prior to the new plan, many cities had already relaxed residency requirements in a bid to attract domestic migrants – especially young graduates – to sustain local property markets and promote economic growth. These incentives, however, tend to favour young and educated workers rather than those without higher education qualifications. Many of these migrants have continued to struggle to gain hukou in the urban areas where they’ve been working. Hukou restrictions have long been blamed for pushing rural migrant workers – China’s vast “floating population”, which makes up 18 per cent of the total population – to the margins of urban society.[51]
[46] Ibid
[47] DFAT Report @ p.51
[48] Ibid
[49] Ibid
[50] Ibid
[51] China Briefing ‘China is relaxing Hukou Restrictions in Small and medium sized Cities’ by Zoey Ye Zhang, dated 17 April 2019
Unregistered children, commonly known as 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. In particular, 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.
89.Information in the China Daily, dated 29 April 2014,[52] gives an indication of the relaxing of restrictions for obtaining hukou for children born in contravention of family planning laws in Fujian province:
Registration of hukou, or permanent residency permit in China, for infants will become much easier in Fujian province, according to authorities on April 28. Starting on May 1, all newborns will be eligible to obtain their hukous regardless of their parents providing a birth certificate. Under China’s birth policy; couples can have only one child. Those who violate the rule can be penalized, and previously, their “extra” children could not get a hukou, which could pose a hurdle in many aspects of life. But now, the new regulation says that no matter whether an infant is born in violation of the birth policy, he or she will be granted a hukou to guarantee his right to enjoy public services, said an official from the provincial public and security bureau at a press conference on Monday. They can sue if the local public bureau turns down the hukou registration for their children, he added. But parents will still receive punishment for breaching birth rules. The announcement marks a historical improvement and shows more humane touches in Fujian’s birth regulations, insiders said. Fujian adopted the so-called second-child policy earlier this month, allowing couples to have a second child if one of them is a single child.
[52] ‘Fujian relaxes hukou registration for infants’, China Daily, 29 April 2014,
to the Immigration and Refugee Board of Canada, a report published on the official government news portal China.org.cn stated:[53]
[i]f a family's second child was born before midnight on Dec. 31, in a family that already has a child and doesn't meet the requirements which allow them to have two children, the baby would be deemed illegal as the one-child policy was still in effect, and its parents would have to pay a heavy fine. However, if the baby was born after midnight on Jan. 1, there would be no problem at all, as the new law allows all Chinese couples to have two children. (5 Jan. 2016)
[53] Canada: Immigration and Refugee Board of Canada, China: Treatment of "illegal" or "black" children born outside the family planning policy; whether unregistered children are denied access to education, health care and other services; information on punitive measures taken against parents who violated family planning policy before and/or after policy changes effective January 2016 (2013-September 2016), 20 October 2016, CHN105636.E, available at: 15 November 2019]
91.The second applicant is the first child of the applicant and her boyfriend and was born on [date]. As such, the applicant was born outside the Population Law and would not be automatically entitled to be registered under the hukou system.
92.Based on this country information above, the Tribunal is also satisfied that being born offshore will not pose a barrier to the second applicant being registered on the applicant’s hukou. This means that basic social services, including health and education services, ordinarily available to Chinese nationals with household registration, will be accessible to her. As such, the applicant may be able to avoid much of the societal stigma that might be attached to a child born out of wedlock arising from the denial of publicly funded services.
Social stigmatisation
93.It is claimed by the applicant on behalf of the second applicant that social attitudes towards heihaizi will mean the second applicant will face a real chance of serious harm or a real risk of significant harm based on the combination of reasons.
94.Regarding societal attitudes towards children born out of wedlock, DFAT advises that children born out of wedlock without a household registration may have experienced discrimination in the past due to traditional and cultural disapproval. DFAT assessed, however, that social acceptance of children born out of wedlock is ‘likely to have improved’ and that such children may be entitled to the same educational rights as others if they have gained household registration since birth.
95.In 2010, the Tribunal, differently constituted, contacted Dr Alice de Jonge, a Senior Lecturer of Business Law and Taxation at Monash University, for information about children born out of wedlock in China. According to information provided on the Monash University website Dr de Jonge has ‘lived and studied in China and was a Visiting Scholar at Nanjing University, China’.[54] In her response, Dr de Jonge stated:[55]
[Children born out of wedlock] are still regarded with pity and disdain. They are teased at school. Single mothers are subject to discrimination when it comes to accessing housing, education and medical services…Women pregnant out of wedlock typically face discrimination in obtaining appropriate medical care. Single mothers are often discriminated against when seeking housing, education for their child, job opportunities and more generally in the context of social interactions.
[54] Refugee Review Tribunal Advice on China 18 February 2010 De Jonge, A 2010, Email to RRT, RE: Request for assistance from Refugee Review Tribunal,
96.Since 2010, attitudes and policies have positively changed toward unmarried mothers. Changing social mores and economics are affecting parenthood in China. Chinese women are becoming increasingly financially independent, the marriage rate has dipped in recent years, and couples are divorcing more often than in the past.
97.However, the applicant claims that her parents are not well off and are from a rural area. It is therefore likely that the applicant and the second applicant will return to a rural area based on either of the hukous of the applicant’s parents.
98.While the Tribunal is satisfied that the applicant will face some stigma arising from her heihaizi status, the Tribunal notes that it has made an earlier finding that she will not be denied hukou and a range of education, health and other services. The Tribunal accepts that the second applicant will have a real chance or a real risk of returning to rural areas in Fujian where social conventions towards children born out of wedlock and their parents will evoke disdainful or pitying comments. While social attitudes have become tolerant towards heihaizi and will be more prevalent than in urban areas, the Tribunal is not satisfied that this stigma towards the applicant and the second applicant will amount to serious harm, if they were to return to rural Fujian.
Social compensation fee liabilities
99.The Tribunal has considered if there is a real chance that second applicant will suffer serious harm, taking into account her and her family’s particular circumstances, in the event that she returns to China. In this case, the applicant has limited education and qualifications, no financial resources and has the care of two young children, together with the fact that she will be required to pay a social compensation fee in respect of the second applicant and her brother.
100.According to provincial government regulations, social compensation fees are strictly implemented in relation to families returning to Fujian with additional children born overseas, unless waived by relevant authorities. Under certain circumstances returning student couples are exempt from the social compensation fee when they return to China with a second child if both parents studied in another country for more than a year and have stayed in another country for at least a year with their additional child. The Tribunal notes that the second applicant was born prior to the announcement of the ‘two-child’ policy in late 2015.
101.DFAT reports if a child is conceived out of wedlock, but the parents marry within 60 days of the child’s birth, no social compensation fee is charged. DFAT advice also indicates that to apply for a child’s household registration in Fujian province, the parents are required to provide, among other documentation, a certificate of marriage. The Tribunal has already made a finding that the applicant and her boyfriend are estranged and as such they are not in a solemnised marriage and do not have a marriage certificate. The country information states that if a child is born out of policy the registering parent must supply a declaration of the child’s situation and/or a paternity test.[56] The country information therefore indicates that the applicant’s mother will have an increased risk of liability to pay the social compensation fee in the event that they return to China.
[56] DFAT Report @ p.54
102.According to the country information, parents, including those in wedlock, may still be liable to pay the social compensation fee if additional children to Chinese nationals holding student visas are born outside of China and that those parents did not complete their studies. The Fujian Province’s 2013 Family Planning Commission notices refers to advice that ‘overseas student’ means ‘people studying, getting a degree, receiving training or engaging in scientific research or academic exchange in a foreign formal higher education institutions and scientific research institutions for purpose of studying and further education and living abroad’. As referred to above, the Tribunal accepts that the applicant did not finish her enrolled courses while in Australia.[57]
[57] Immigration and Refugee Board of Canada 2009, China: treatment of pregnant, unmarried women by state authorities, particularly in Guangdong and Fujian; whether unmarried women are obliged to undergo pregnancy tests by family planning officials (2005 – April 2009), CHN103135.E, 23 June cisr.gc.ca:8080/RIR_RDI/RIR_RDI.aspx?l=e&id=452415; US Department of State 2007, China Profile of Asylum Claims and Country Conditions, May, pp. 97 – 98
This source translates Article 39(3) as: ‘For the birth of a child outside wedlock, a fine from four to six times this figure. For the birth of a second or subsequent child outside of wedlock, a higher fine will be levied’.
103.The Tribunal finds that, on arrival in China, the applicant will not be able to demonstrate she has completed even one year of studies while holding Australian student visas and that she will present two children born out of wedlock. Based on the information before it, the Tribunal finds that the applicant will be liable for the SCF for both children and that they will not qualify for any exemption from the Planning Law.
104.The applicant stated that the authorities are corrupt and that she would be subjected to corrupt or zealous officials who would increase the amount of the combined SCF to be paid. The country information states that the enforcement of the social compensation fee is administered at the discretion of the local authorities and as a result the implementation of the policy is inconsistent.[58] The Tribunal is mindful of the incentive to local officials to levy extra fees and that levels of corruption in China are relatively high. The information before the Tribunal suggests a trend towards a general relaxing of family planning policies in Fujian. However the application of laws and regulations in China, including in Fujian province, remain arbitrary. Officials responsible for the application of social compensation fees are known to be motivated by capriciousness, over-zealousness and with one eye on raising revenue, corruptly or otherwise.
[58] DFAT report @ p.55
105.In the applicant’s circumstances, the Tribunal finds that the applicant is more vulnerable than other ordinary returning Chinese students to those more capricious aspects of China’s approach to governance. Their vulnerability is based on the second applicant having been born prior to the ‘two-child’ policy announcement in late 2015, the applicant being a single mother with two children who is of both low educational attainment and social standing, and of the applicant having a limited chance in avoiding any exemption to the SCF through the leniency of local officials. As a result the Tribunal is satisfied that the applicant will be required to pay the SCF for the second applicant in the event that she is returned to China.
The applicant’s capacity to pay for the social compensation fees
106.The Tribunal has considered whether, in the applicant’s circumstances, the applicant’s immediate family will have the capacity to pay for the social compensation fees.
107.The country information reports that both the previous and current Population Law require that those who give birth to a child in contravention of planning policies (including a child born prior to 1 January 2016) to pay a social compensation fee irrespective of hukou status. The Tribunal notes that the second applicant was born prior to 1 January 2016.
108.According to the Fujian Family Planning Office, Fujian’s social compensation fees 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 or 300 per cent of an individual’s prior year’s salary, whichever is the greater.[59] The social compensation fees for single women who have had a child out of policy are calculated at 60 to 100 per cent of the individual’s income in the prior year or the county average, whichever is the higher.[60]
[59] DFAT Report @ p.53
[60] Ibid
109.DFAT reports that “social compensation fee[s] differed across districts”.[61] This is because the average income levels differ between districts (counties).[62] In some cases, this can amount to up to 10 times a person’s annual disposable income. Information on actual fees charged is difficult to obtain as they are subject to local discretion.[63] It is also because local authorities issue notices that “guide local officials in their application of relevant regulations”.[64] The DFAT Report notes that there are no country-wide social compensation fees. Provinces formulate their own policies and local authorities decide how lenient they want to be. Generally, fees increase annually, and they rise as annual incomes rise.
[61] Ibid
[62] Ibid
[63] DFAT Report @ p.51
[64] Ibid
110.The SCF is not based on a formula that a person can use to predict how much they would be liable to pay in the future. Therefore, the Tribunal has taken into account the fact that the fees listed below should be used as a guide only.
111.In this regard, the Tribunal also accepts that the second applicant will be settled to Fujian province in [a rural county], under the aegis of the Fuqing prefecture, where the applicant would be registered to live. As mentioned above, the Tribunal has made a finding that the applicants are more likely to reside in a rural area where employment opportunities are commensurate with their low levels of educational attainment.
112.The Tribunal acknowledges the exact figure of the SCF is based on county or municipal level statistics which means that the baseline varies throughout each province. The individual’s ‘actual income level’, the specific circumstances’ of their family planning violation, and provincial regulations also determine the fee. The DFAT report notes that there is no countrywide social compensation fee; that provinces formulate their own polices and local authorities decide how lenient they want to be; and there are reports that revenues from fees are directed at municipal governments.[65] Fees rises annually as incomes rise and they are not based on a formula which a person can predict to measure his or hers liabilities. The Tribunal has considered this fact.
[65] Ibid
113.The second applicant and her brother were both born out of wedlock and therefore ‘out of policy.’ The average income in China is approximately 82,461 RMB.[66] As a result, the Tribunal estimates that the SCF that will be payable by the applicant in the event that they return to China will be 100 per cent of the county average income for each child. That is, approximately 247,383 RMB or $52,000 AUD (at the available exchange rate at the time of this decision).
[66] Trading Economics Tribunal notes from the country information that payments are permitted by lump sums or by instalments (that must not exceed three years).[67] The Tribunal notes that paying down the liability will be onerous but will not, in and of itself, necessarily amount to serious harm.
[67] DFAT Report @ p.53
115.At the hearing, the applicant stated that she was not working. She said that she was living in a friend’s house and she was currently a full time homemaker. She said the fact that the second applicant was still young and that her son had not yet commenced school meant that she was required to provide full time care to her children. However, she did say that from time to time she would obtain casual work [but] stated that on the whole she is currently living off the generosity of a friend. The applicant has limited education and no formal qualifications. As a result, she could only obtain limited employment in China.
116.The Tribunal also acknowledges that the applicant and the second applicant cannot rely on the second applicant’s maternal father, whom the Tribunal accepts is unsupportive. In addition, the Tribunal accepts that the applicant’s parents are not financially well off. In this regard, the Tribunal accepts the capacity of the applicant is significantly restrained.
117.The Tribunal has also considered the capacity of the second applicant’s father, who is relatively young and available to the labour market. However, the applicant’s evidence was that he has left the family and she does not know where he is. As such, it is unlikely he would have any further contact with the applicants. Nevertheless, the Tribunal acknowledges that the second applicant’s father has very low educational qualifications and low skills. The Tribunal anticipates that there would be some support from family who are unskilled rural workers with no regular salary. In the event that the second applicant’s father did return to China with the applicants, the Tribunal anticipates that he would be only able to access low paid work, even if he commutes or relocates to urban labour markets. The average disposable income of urban residents in Fuqing is about approximately 64,412 RMB and the Tribunal assumes the second applicant’s father will be earning lower than the average salary or wage earner in Fujian province due to his lack of qualifications.
118.Assuming that the second applicant’s father does not return to China with the applicants, then the Tribunal notes that women in China receive approximately 36% less income than males for the same position.[68] In addition, women in the workforce suffer from discrimination, as the majority of positions are openly advertised as preferring male workers. Accordingly, the Tribunal anticipates that the applicant, as an unskilled worker in China, will have difficulty in obtaining employment. In the event that she does, it will be poorly paid.
[68] Catalyst ‘Women in the workforce -China Quick Take’ 9 Jan 2019 Tribunal has considered whether any of the second applicant’s grandparents would be able to pay the SCF with their combined assistance. However, the Tribunal accepts the evidence that the incomes of the second applicant’s father from labouring would be modest.
120.The Tribunal finds that given the lack of family support available, the cost of the SCF, out of pocket expenses for ad-hoc and specialist consultations, rehabilitation and schooling costs or through health insurance would fall on the applicant and significantly affect the disposable income required for a single parent family of three. The country information outlined above indicates that a large proportion of families cannot meet the costs and fall into debt.
121.Based on the evidence before it, the Tribunal is satisfied that the applicant’s family does not have the capacity to pool the resources together, given all its members have the real chance of relying on just a single income earner to pay the SCF as required by China’s family planning and household registration policies, as well the ongoing private costs for basic health and education services for the applicant and general living expenses. Even if the applicant’s family had to borrow the money through a licensed or an unlicensed money lender, the family’s capacity to pay down this sizeable debt is severely restrained, which will negatively impact on their capacity to meet living expenses and may even open the second applicant and sibling to the illegal practice of bonded servitude, which remains persistent throughout China. In this regard, the Tribunal notes a 2016 US State Department report of traffickers targeting children whose parents have migrated to the cities and left them with relatives and persons with developmental disabilities for forced labour and begging.[69]
[69] 2016 Trafficking in Persons Report by the US State Department: Country Narratives A-D pp, 128-132, this regard, the Tribunal has considered that paying liabilities to the Fujian provincial government, as well as the ongoing out-of-pocket experiences pertaining to the applicant’s sibling’s disability, would be overly onerous. These conditions may compel this low-income low skilled family to fall into further debt to meet these costs. In these circumstances, the applicant faces a real chance of her family forgoing basic health and education services to deny the second applicant basic health and education services. Alternatively, the applicant’s family would otherwise face a real chance of significant economic hardship that threatens the capacity of her family to subsist. This is based on the Tribunal’s assessment there is a chance that is more than remote or far‑fetched in which the applicant’s family will fall into debt and destitution to cover the combined costs of the SCF fee and basic living costs based on the family’s combined capacity to generate income, if they return to Fujian Province, into the foreseeable future. The Tribunal finds that these dilemmas facing the applicant and her family do amount to serious harm, as the harm closely corresponds to the serious harm instances as outlined in s.91R(2)(d) and (e).
123.Having considered the accepted circumstances of the applicant and the second applicant, both individually and cumulatively, the Tribunal finds that second applicant faces a real chance of serious harm for a Convention reason, if she, with her family, were to return to Fujian Province, now and into the foreseeable future.
Whether there is a real risk of harm occurring or if it is unreasonable for the applicants to relocate outside Fujian province
124.Based on country information and the applicants’ personal circumstances, the Tribunal finds that the second applicant will face a real chance of serious harm not only within her home province of Fujian, but also in another province in the People’s Republic of China if her hukou permits.
125.The Tribunal finds that it would not be reasonable for the applicant and her family to relocate outside the area of her hukou or outside the province, because of their financial situation, low skills, their liabilities and the second applicant’s sibling’s disability, as they could not easily afford to move or access basic services for the applicant.
126.The Tribunal further finds, by reference to the information about the situation in China, that if the second applicant was to relocate without a change of hukou, she would face serious difficulties and precarious uncertainty in her new place of abode, in access to housing, employment, education, and (possibly) health services. In the second applicant’s circumstances, given her age, the fact that the family has no financial resources and one of the applicant’s family members suffers a behavioural disability requiring professional attention, the unreasonableness, in the sense of being not practicable, is particularly heightened.
127.Therefore, having considered the second applicant’s 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 second applicant will suffer serious harm.
128.The Tribunal is therefore satisfied that the second 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.
129.In arriving at this decision, the applicants should know that the Tribunal has made these findings only marginally in favour of the second applicant. In the light of this decision, it is strongly recommended that the applicant’s family seek out professional migration advice and assistance regarding the migration options open to them.
Applicants’ complementary protection claim
130.The applicants claim that, without conceding in any way their claim 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.
131.That is, the Tribunal has considered if the applicant faces a real risk of significant harm upon her return to China as a result of being a Christian and for being in breach of the Chinese Family Planning Laws. Having considered the evidence provided by the applicant and the available country information for the reasons detailed above, the Tribunal does not accept her claims and finds that there is no real risk she will suffer significant harm as result of being a Christian and for being in breach of the Chinese Family Planning Laws that would constitute degrading treatment or punishment pursuant to section 36(2A) of the Act.
132.The Tribunal has also considered if the second applicant faces a real risk of significant harm upon her return to China as a person having been born out of wedlock in breach of the Chinese Family Planning Laws (namely heihaizi or black children). 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 being born out of wedlock in breach of the Chinese Family Planning Laws that would constitute degrading treatment or punishment pursuant to section 36(2A) of the Act.
133.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.
134.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 second applicant being removed from Australia to China, there is a real risk she will suffer significant harm as required by s36(2)(aa).
CONCLUSIONS
135.For the reasons given above, the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations. Therefore the second applicant satisfies the criterion set out in s.36(2)(a) and s.36(2)(aa) of the Act
136.The Tribunal is not satisfied that the first applicant is a person 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 first applicant is the mother of the second applicant. The Tribunal therefore finds that the first applicant, as the mother of the second applicant, is a member of the same family unit as the second applicant pursuant to s.36(2)(b) and s.36(2)(c) of the Act and as such is entitled to a protection visa.
DECISION
137.The Tribunal remits the matter for reconsideration with the direction that the second-named applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958, and that the first-named applicant is a member of the same family unit as the second applicant pursuant to s.36(2)(b) and s.36(2)(c) of the Act.
Jason Pennell
Senior MemberSydney (RRT ref: CHN36060), 15 January; De Jonge, A 2010, Email to RRT, RE: Request for
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Citations1912689 (Refugee) [2020] AATA 3121
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