2310408 (Refugee)
[2024] AATA 3532
•17 July 2024
2310408 (Refugee) [2024] AATA 3532 (17 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2310408
COUNTRY OF REFERENCE: China
MEMBER:Amanda Goodier
DATE:17 July 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 17 July 2024 at 11:32am
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – land resumption without compensation – protests – detention – physical assault – employment – delay in applying for protection – best interests of the children – period of unlawful residence – passport renewal – deregistering household registration – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 360, 423, 499
Migration Regulations 1994, Schedule 2; r 1.12CASES
Kraun v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 October 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China applied for the visas on 8 December 2017. The delegate refused to grant the visas on the basis that the delegate did not accept that the applicants faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicants would face significant harm for any reason on their return to China.
A differently constituted Tribunal affirmed the delegate’s decision, and the Federal Circuit Court set aside that decision. The matter is now before the Tribunal pursuant to an order of the Court.
After initially indicating he would be attending, the first named applicant advised by email the day before the scheduled hearing that he would not be attending and consented to the Tribunal making a decision on the information and documents already presented as well as additional information contained in his email.
Therefore, the Tribunal has determined this matter on the papers with the applicant’s consent as provided for by section 360(2)(b) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Sections 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 reg 1.12 of the Regulations to include a spouse, dependent child or de facto partner of the family head (reg 1.12(1)(a)).
The first named applicant applied for protection including his spouse and two young children who were both born in Australia. The applicant provided a copy of his marriage certificate and the birth certificates of his two children. The Tribunal is satisfied on the evidence provided that the second named applicant is the legal spouse of the first named applicant and the third and fourth named applicants are the biological children of the first and second named applicants.
The Tribunal is satisfied on the evidence provided that the second, third and fourth named applicants are members of the first named applicant’s family unit.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named applicant applied for protection on 8 December 2017 including his spouse and two young children in his application. The second, third and fourth named applicants relied on the claims of the first named applicant and did not make any claims of their own.
The first named applicant indicated in his protection visa application that he overstayed his visa in Australia to avoid returning to China to escape possible harm to himself by the County Court in his hometown. He indicates he was born in Fuqing City, Fujian Province in [specified year] and his parents and older [sibling] remain living in [Village 1 variant], [Town 1], Fuqing City, Fujian Province. He is in regular contact with his family. He belongs to the Han ethnic group and has no religion. He commenced a de facto relationship in Sydney in 2009. The first named applicant arrived in Sydney in June 2007, departing China from [Airport 1]. He indicates he departed China legally on a valid passport. He renewed his passport though the [representative] of the Peoples Republic of China in [City 1] in 2015. This passport will expire in 2025. He indicates that he resided at the same address in China from the time he was born to his departure in June 2007. In Australia he has lived in New South Wales, Queensland and more recently, Western Australia. The first named applicant indicates he has worked consistently in Australia since 2009. He completed middle school in China before travelling to Australia to study English and attend high school.
The second named applicant indicates she was born in Fuqing City, Fujian province in [year]. She indicates her ethnic group is Han and she has no religion. She commenced a de facto relationship in Sydney in 2009. Her parents and [specified family members] remain living in Fuqing City, Fujian Province and she is regularly in contact with her family. She departed China legally through [Airport 1] on a valid passport. Her passport was reissued in 2017 though the [representative] of the Peoples Republic of China in [City 1] and will expire if 2017. She indicates she lived in [Village 2], [Town 2], Fuqing City Fujian province from the time of her birth to her departure from China. In Australia she has lived in New South Wales and more recently, Western Australia. She initially worked in Australia but since the birth of her children has been engaged in home duties. She completed high school in China before travelling to Australia to study English. She indicates she relies on the claims of her husband, the first named applicant.
The third and fourth named applicants indicate they were born in Australia in [specified years]. They are citizens of China and speak Mandarin. They do not have passports. They rely on the claims of the first named applicant.
The first named applicant (“applicant”) claims for protection in his protection visa application can be summarised as follows:
·He was born into a farming family who was assigned a block of land to cultivate with the yields belonging to the State. His family were given a “Certificate of the Right to Use the Land.” Their block was about 15mu in size located on the outskirt of the town. This block enabled their lives to be easier in terms of financial gains for the family.
·In September 2006, his father received a letter from the County Government office asking him to return the block to allow a private property development company to construct residential buildings on their block and adjoining ones.
·They felt the compensation offered was minimal and his father rejected the proposal as the block was the family’s only means of livelihood. As his father was suffering ill-health and bedridden, he had no choice but to take up the task of fighting against the land acquisition.
·Between October and December 2006, he went to meet with the County Chief, [Mr A], who was overseeing the project. He voiced his family’s concerns and demanded more compensation. In the beginning [Mr A] adopted a co-operative attitude but after a few meetings became increasingly impatient and grumpy when his latest offer was not accepted. Finally, he refused to see the applicant who organised a demonstration outside his office to protest.
·In early January 2007 as he was parading in the street with their slogan with a number of villagers, they were arrested by the police and driven to the police substation for interrogation. He was put in a room with his hands tied behind his back and blindfolded and was beaten with a bamboo pole while being interrogated.
·He was blamed or holding up the project and obstructing the work of government officers. If he did not withdraw his demand , he would be arrested for good in the interest of the community. He was held under arrest for 10 days without charge and locked in solitary confinement. He was not given adequate water or food and the cell was in constant darkness. This was a psychological means of persecution. He recovered quickly from the ordeal apart from [a specified injury].
·He returned him and his family were worried about his safety. His father suggested he move to Guangzhou City to stay with his cousin which he did in mid-January 2006.
·As he did not hold relocation papers, he was unable to find suitable accommodations, schooling or employment so he returned home by choice early February 2007.
·When he returned home, he realised the County Government had sent people to his house to harass his family on a regular basis. His father was so worried that the applicant would be further harmed, he suggested it would be safer to study abroad. In late February he applied to study in Australia.
·[Mr A] summoned him to his office, but he refused to go. By late March 2007 he reluctantly agreed to go and meet with [Mr A]. During the meeting, a heated argument arose, and [Mr A] slapped him across the face. The applicant was so angry he pushed [Mr A] away. The force was so strong, [Mr A] fell back and [was injured]. He was again arrested for hurting the Country Chief. He was not sent to the Court for judgment but put into a cell for a month’s confinement. He was beaten twice by the police and was denied visits.
·He kept a low profile until his student visa was granted in mid-June 2007. To ensure his safe departure, the applicant’s father had been buying expensive gifts to someone who had connections and the border control to buy his way out of [Airport 1]. This ensured his departure from China [in] June 2007 was without incident.
·He will be persecuted or mistreated if he returns to China.
·He was beaten by the police.
·He reported the matter to the police at another station.
·He tried to relocate but did not have the proper relocation papers. Without the proper documents, he cannot relocate elsewhere (Hukou).
·He does not think the authorities can protect him.
The applicant attended an interview with the delegate. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The delegate referred to the first and second named applicants’ migration history.
Date Event details 14 June 2007 Applicant one was granted a [Student] visa. [June] 2007 Applicant one arrived in Australia. 13 July 2007 Applicant one was granted a [Student] visa with limited work rights. 7 November 2007 Applicant two was granted a [Student] visa. 16 January 2008 Applicant two was granted a [Student] visa with limited work rights. 15 March 2010 Both applicant one and applicant two’s [Student] visas ceased, and they became and unlawful non-citizens in Australia. [date] Applicant three born in Australia. [date] Applicant four born in Australia. 8 December 2017 Applicant one submitted application for a subclass XA-866 Permanent Protection visa with applicants two, three and four name as his dependents. 14 December 2017 Application fee for a subclass XA-866 Permanent Protection visa paid. 16 October 2018 Applicants one and two attended an interview at the Department’s offices
in Western Australia in respect of the subclass XA-866 Permanent Protection visa application.
At his interview with the delegate, the applicant raised additional claims that if he returned to China, he would face difficulties if he built a house as the authorities would knock it down. His second child had been diagnosed with a [medical condition 1] for which he takes medication and if he returns to China, his son’s medication may be disrupted, or he may be prescribed the wrong medication which would cause him injury.
As indicated in the delegate’s decision, during the interview with the delegate, the applicant indicated that apart from the block of land identified in his claims, his family also had a house in [Village 1] where his parents lived as well as an old house in the same village that was inherited from his grandparents. He also advised that his family owned four blocks of agricultural land on the outskirts of [Village 1].
The delegate had regard to the applicant’s delay in applying for a protection visa. The applicant was in Australia for about 10 years before lodging his application and the delegate considered that a person in genuine fear of returning to their home country would apply for protection much earlier.
The delegate noted that the claims that he would face difficulties building a house and his child’s medical issues were raised at hearing and found that these were raised late to increase the applicant’s chances of being granted a protection visa.
The delegate did not find the applicant to be a witness of truth and had fabricated critical elements of his claims. The delegate refused to grant the applicants’ protection visas.
Submissions were provided to the first Tribunal on behalf of the applicant from his representative. A summary of the migration history of all applicants was provided indicating that the applicant arrived in Australia in June 2007 as the holder of a student visa, became unlawful in March 2010 before applying for protection in December 2017. The second named applicant was granted a student visa in 2007 and again in 2008, became unlawful in March 2010 before applying for protection in December 2017. The submission reiterated the applicant’s claims for protection, referring to country information that indicated the detention and physical punishment experienced by the applicant is consistent with 2019 DFAT Report on China. The submission also referred to the inability of the applicant to relocate as he was unable to obtain the proper documentation as consistent with country information.
It was submitted that the applicant is fearful if returned to China of retaliation from County Chief, [Mr A], who he believes was corrupt in his handling of the land acquisition program. It was submitted that in China, government officials are extremely concerned about adverse information in their track record as this may hinder their promotions or attracts investigation that would result in a penalty, or the person being stood down or a conviction. Because of this the applicant believes he could be subject to degrading treatment or punishment and result in significant economic hardship that threatens his capacity to subsist, as well as that of his wife and two children.
As the applicant and his wife have been absent from China for a considerable period, their previous household registration will have been cancelled and deleted from the household registration list. It will be difficult for them to obtain registration, specially for their two children. Without registration, they will be unable to relocate or find employment or accommodation, enrol the children into school or buy a house or property. The applicant fears [Mr A] may make it difficult for them to obtain the registration and their children will be unable to continue the education they deserve.
It was submitted that after a significant absence from their hometown, they will find it hard to reconnect to friends and acquaintances. Without a social circle they will find it hard to find employment and accommodation.
It was also submitted that it is in the best interests of the children to remain in Australia, the country in which they have been brought up as they are already immersed in Australian culture, education and English language. It would simply destroy their future to return to China. The youngest child has been diagnosed with [medical condition 1] for which he takes prescribed medication, and it is in this child’s best interests to remain in Australia for treatment.
It was also submitted that they did not regularise their status as they were fearful of the details of their protection visa application becoming known to the Chinese authorities, jeopardising their safety as according to county information, China has sought the return of Chinese nationals granted refugee status from other countries. The birth of their children also diverted their attention from regularising their status. It was also submitted that it would be difficult to register the children on their return which will affect their ability to go to school and receive other benefits.
The first Tribunal considered the claims put forward by the applicant. The first Tribunal consider that on the basis of the applicant’s evidence, there was no longer any dispute between the relevant parties in China given that his father had sold a large portion of the land and his mother, father, [sibling] and family all live peacefully in Fuqing. The first Tribunal considered that as the applicant had renewed his passport in 2015 this suggested there was no outstanding issue between himself and the Chinese authorities and did not accept the submission this was because his dispute was on a local level. The first Tribunal found the applicant’s prolonged period of unlawfulness in Australia before seeking protection was not consistent with what would be reasonable for someone to do who genuinely feared harm in another country. The first Tribunal found that the applicants were content to live unlawfully in Australia after coming to this country looking for a different life and to work together to send money back to China. The first Tribunal found that his delay in seeking protection, his failure to tell his partner of nine years of any alleged persecution in China until late 2017, his failure to fully explain his alleged persecution in China together with the fact that his father did sell the land for an acceptable price in 2009, leads it to conclude that the applicant’s claims lack credibility and are not genuinely subjectively held by him.
In relation to the claims relating to the children, the Tribunal noted the applicant’s evidence that the youngest child’s [medical condition 1] problem had resolved and responded to treatment and there was no reason to expect the parent to continue to pursue this treatment on their return to China. While the Tribunal noted that relocation will be disconcerting to the children, they have functional mandarin, will be returning to a family that has maintain their connections and there was nothing to suggest the children would be unable to access social services and education on return to China.
The applicant sought judicial review of the decision of the first Tribunal and that decision was set aside by the Federal Circuit Court and is now before the Tribunal pursuant to an order of the Court.
Despite initially indicating that he would attend the scheduled hearing, the day before, the applicant advised the Tribunal that he would not be attending and consented to the Tribunal making a decision on the materials provided. He also submitted additional claims in that his youngest son has inherent [medical condition 1] which can be life-threatening if not responsibly managed and treated. It can pose serious health risks. To be effectively managed his son has to take [specific] medication called [name], undergo pathology testing and see specialists on a regular basis. He has access to Medicare so his medical condition does not cause undue financial burden If they were forced to return to China, his difficulties with the local authorities together with the fact his children were born in Australia and they are regarded as rural area residents means they would be unlikely to have access to medical cover which would cause them to be financially overstrained which would affect their capacity to subsist. Various medical reports were provided.
The applicant provided various letters. A file note dated December 2016 indicates the fourth named applicant attended the [specific] Clinic for a review of [medical condition 1] resulting in a decrease of his medication and a review in four months.
A letter dated November 2018 from [Hospital 1] to the family general practitioner confirmed the diagnosis for the fourth named applicant of [medical condition 1], normal [medical condition 1] on ultrasound. No concerns had been raised by the mother. His tests were normal, and the dose of his medication was to remain the same with a review in future.
The applicant also provided a letter dated November 2022 confirming referral of the fourth named applicant to [Unit 1] at [Hospital 1] as well as letters confirming appointments for the fourth named applicant in May 2017, November 2018, March 2021, January 2022, March 2023 with [Unit 1] and April 2024 with Paediatrics at [Hospital 2].
Also provided were undated requests through [a named health service] for particular tests as well as dated requests for November 2019 and June 2021. The results for tests conducted in May and August 2017, February and July 2018 as well as January and April 2024. The tests dated August 2017 and January 2024 indicate a [specific] result
Findings and reasons
On 7 June 2024, the Tribunal wrote to the applicants advising that it had considered all the papers relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing before the Tribunal on 3 July 2024.
On 26 June 2024, the applicant advised the Tribunal that he would be attending the hearing but the second, third and fourth named applicants would not be. On 2 July 2024, the applicant advised the Tribunal that he would not attend the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow the applicants to appear.
The applicants’ decision not to accept the Tribunal’s invitation to attend a hearing has left the Tribunal unable to address concerns it has regarding the applicant's claims. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. The Tribunal is not required to accept uncritically any, and all allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal has regard to the fact that the applicant was unlawful for a considerable period, lodging his application for protection about ten years after his arrival in Australia. The Courts have held that delay in seeking a protection visa can support an adverse credibility finding[2] as well as finding that an applicant does not have a well-founded fear of harm.[3] The Tribunal does not accept the birth of their children as reasonable excuse for not regularising their status. Both the applicant and the second named applicant were unlawful for about three years before the birth of their first child and failed to take steps to regularise their visa status or apply for protection in that time. It was submitted that they were fearful of the Chinese authorities becoming aware of their applications and seeking their removal from Australia. The process of applying for protection is confidential and the Tribunal does not accept this submission as a convincing reason for the delay in applying for protection.
[2] In Subramaniam v MIMA (1998) VG310 of 1997, the Court found that a three-month delay in lodging a protection visa application was a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution. In the same way, in Selvadurai v Minister for Immigration and Ethnic Affairs, the Court also observed that delay in lodgement of a protection application is a ‘legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution.’
[3] Zhang v RRT & Anor [1997] FCA 423; Kraun v MIMA [2000] FCA 370.
The Tribunal has considered the applicant’s reasons for his failure to resolve his unlawful status and his reasons for not applying for protection shortly after his arrival in Australia as set out. The Tribunal considers that a person so fearful of returning to their home country, particularly after claiming they were detained twice, being held for a month on the second occasion as the applicant claims then maintaining a low profile until his departure for Australia, would seek to apply for protection shortly after their arrival in Australia. The Tribunal finds that the applicants’ delay in applying for protection suggests that the basis for the claim for protection is not genuine.
The applicant fears harm because he was involved in protesting against the acquisition of the family land by the County Government to allow a private property development company to construct residential buildings on their block and adjoining ones. The applicant claims that he was a leader of the protest and was detained while protesting with others outside the Country Government offices. He was again detained after being involved in a physical altercation with the County Chief, [Mr A].
The Tribunal notes that the applicant was [under age] years at the time he claimed to have led the protests and attended meetings with the County Chief, [Mr A]. The Tribunal does not accept as plausible that the villagers would regard [an age]-year-old as a leader or that the County Chief would regard the applicant as a leader of a group of protesters such that he would seek to meet with him.
Subsequent evidence as referred to in both the delegate’s decision and the first Tribunal’s decision is that the applicant’s father sold the land in 2009 for a reasonable price and the applicant’s father remains living in the family home with the applicant’s mother, [sibling] and his [sibling’s] family with no further issues with the County Government over the purchase of his father’s land.
The Tribunal also has regard to the applicant’s claim that his father had been buying gifts for friends and friends of friends who worked at the airport so the applicant would be able to depart China without issue. DFAT reports that entry and exit from China is strictly controlled and the government is aware of who enters and departs the country. DFAT reports that it would be difficult to bribe border protection agents because of sensitivities to corruption and the professional and well-paid status of public security officials.[4] After considering the country information, the Tribunal does not accept the applicant was of any interest to the authorities on his departure from China for his involvement as a leader of protesters or because of his claimed assault upon [Mr A]. The Tribunal also notes that the applicant was able to easily renew his passport in 2015. On the basis of the country information, the Tribunal also does not accept that the applicant’s father paid bribes to ensure his son’s safe exit from China.
[4] DFAT Country Information Report China 2021 at [5.31-5.35].
The Tribunal finds that his delay in seeking protection, together with the fact that his father sold the land for an acceptable price in 2009 with no further issue with the County Government, as well as his ability to exit China easily, leads it to conclude that the applicant’s claims to fear harm because of his involvement in protests lack credibility. Therefore, the Tribunal does not accept that the applicant was a leader of protests or there is a real chance he faces any harm from the Chinese authorities, [Mr A] or any other person because he protested against the acquisition of family land and the amount of compensation payable on his return to China.
The applicant claims in his submissions to the first Tribunal that he fears returning to China as he believes [Mr A] acted in a corrupt way over his handling of the land acquisition program. It was submitted that in China, government officials are extremely concerned about adverse information in their track record as this may hinder their promotions or attracts investigation that would result in a penalty, or the person being stood down or a conviction. Because of this the applicant believes he could be subject to degrading treatment or punishment and result in significant economic hardship that threatens his capacity to subsist, as well as that of his wife and two children.
The evidence presented by the applicant is not sufficiently detailed to enable the Tribunal to be satisfied that he faces a real chance of persecution in China. The applicant has not lodged a complaint regarding [Mr A] being corrupt or indicated that he intends to lodge a complaint on his return. Given this lack of information, without more detail, it is difficult to know what significance can be attached to the applicant’s assertions. The Tribunal is not satisfied on the evidence before it that there is a real chance the applicant will face serious harm on his return to China from [Mr A] retaliating against him for any reason.
The applicant claims that as he has been absent from China for a significant period and he and his wife (the second named applicant) will have lost their household (hukou) registration. He claims that [Mr A] may make it difficult for them to register on their return to China.
When a child’s birth is registered that child is placed in the family’s household registration booklet and has formal hukou status.[5] Country information located indicates that since 2004 following hukou reforms, a Chinese national residing overseas for study for instance, is not required to relinquish hukou status when leaving China. A 2010 journal article by Elaine Ho[6] discusses the implications of a Chinese person’s hukou status when travelling abroad and states that the hukou is ‘closely tied to the entry and exit administration in China’. In her article, Ho acknowledges that the Chinese government abolished a regulation that required Chinese to relinquish their hukou status when leaving China for more than one year. Since 2004, Chinese travelling abroad for longer periods are not required to relinquish their hukou status:
Prior to 2004, Chinese citizens who left China for more than year also had to relinquish their hukou status and they can reinstate this only upon their physical return. This regulation was later abolished thus allowing Chinese citizens living overseas to remain abroad for a longer period of time without losing their hukou status.[7]
[5] ‘China 20190709132048 - Birth registration - Household registration - hukou’, Country of Origin Information Services Section (COISS), 19 July 2019, Question 1, 20190719123624.
[6] Author: Elaine Lynn-Ee Ho is Associate Professor in the Department of Geography and Senior Research Fellow at the Asia Research Institute at the National University of Singapore. Ho holds a PhD from University College, London and is considered an expert in her field with more than a decade of field research. Ho is the author of the book ‘Citizens in Motion: Emigration, Immigration, and Re-migration Across China’s Borders’ published in December 2018.
[7] ‘Caught between Two Worlds: Mainland Chinese Return Migration, Hukou Considerations, and the Citizenship Dilemma,’ Elaine Lynn-Ee Ho, Centre of Excellence for Research on Immigration and Diversity, Metropolis British Columbia, May 2010, p.13, CIS27955.
The source of Ho’s assertion mentioned above is a 2009 journal article by Guofu Liu about reforms of Chinese migration law. In that article, Liu discusses states that for ‘Chinese who had gone abroad and lived overseas for more than a year, the stipulation that their household registration [hukou] be cancelled was rescinded.’[8]
[8] ‘Changing Chinese Migration Law: From Restriction to Relaxation,’ Guofu Liu, Journal of International Migration and Integration, Volume 10, Issue 3, July 2009, p.9, 20190814102655.
Liu’s 2005 PhD dissertation submitted to the University of Technology, Sydney states that China’s Detailed Rules for the Implementation of the Law on the Control of Exit and Entry of Citizens (Amendment)[9] 1994 meant that only those leaving China permanently are required to deregister their hukou. The rules stipulate that citizens temporarily leaving China resume their ‘regular household registration of their original residence by presenting their passports’:
For anyone leaving to reside permanently in a foreign country, he or she shall go to the local police station or the residence registration office to deregister their household residence. For anyone leaving the country for a short period of time, he or she shall undergo the procedures of residence registration for a short-term absence from the country and, upon return to China, resume their regular household registration at the places of their original residence by presenting their passports.[10]
[9] ‘Detailed Rules for the Implementation of the Law on the Control of Exit and Entry of Citizens,’ State Council of the People’s Republic of China, promulgated 3 December 1986, effective 15 July 1994, 20190814115529.
[10] ‘The Right to Leave and Return and Chinese Migration Law,’ Guofu Liu, University of Technology, Sydney, July 2005, p.281, CIS26904.
Both the applicant and second named applicant renewed their passports while in Australia. Both currently hold valid passports with expiry dates in the future. According to the country information referred to above, on their return to China they may resume their regular household registration by presenting their passports at the relevant residence registration office, which is usually the local police station or public security bureau. Once their registration has been resumed, they may access social services such as health and education.
The Tribunal finds on the basis of the country information that the applicant and second named applicant will be able to resume their household registration on return to China. The Tribunal does not accept the mere assertion that [Mr A] will make it difficult for them to resume their household registration on their return. The Tribunal therefore does not accept that they will be unable to find accommodation or employment or access healthcare or education or any other social services on their return to China. Therefore, the Tribunal finds there is no real chance they will face serious harm on return to China because they are unable to renew their household registration.
In relation to Fujian Province, a 2019 DFAT Report notes:
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.[11]
[11]'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 3 October 2019, p. 55, 20191003160550.
The current DFAT Report indicates that registration of a child on a hukou must be done inside China.[12]
[12] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, p. 42, 20211222100210.
The country information indicates that the third and fourth named applicants can be registered once returned to China on the family hukou and once registered, will be able to access social services such as health and education. The Tribunal finds on the basis of the available country information the third and fourth named applicants will be able to be registered on their return to China which will enable them to access social services such as education and health. The Tribunal does not accept that the third and fourth named applicants will be denied registration on the family household register (hukou) for any reason. The Tribunal does not accept that the third and fourth named applicants will face a real chance of serious harm on return to China because they are unable to be registered on the household registration.
The Tribunal notes that both the third and fourth named applicants do not have passports. However, country information indicates they are able to obtain travel documents to return to China where they can be registered and obtain the necessary documentation to apply for passports.[13]
[13] ‘护照/旅行证简介,’ China Consular Affairs, Ministry of Foreign Affairs of the People’s Republic of China, 24 September 2019, 20191024082743; ‘Introduction to Passport/Travel Certificate’, China Consular Affairs, Ministry of Foreign Affairs of the People’s Republic of China, 24 September 2019, [Google Translate].
Country information indicates that China has a near universal healthcare within its broader social welfare system. Basic healthcare services and care is provided free of charge by the government. China also has a basic health insurance system that caters to both urban and rural residents. For economically vulnerable persons, local governments fund a medical assistance program in urban and rural China that covers basic medical insurance premiums and out-of-pocket expenses or gaps.[14]
[14] ‘How does China’s healthcare system actually work?’ China-Britain Business Council, 27 August 2020, 20211125101306; See also ‘International Health Care System Profiles: China’, The Commonwealth Fund, 5 June 2020, 20211125103536.
Areas of coverage these insurances offer vary across China and are determined by local governments. Typically, basic medical insurance includes:
· inpatient hospital care
· primary and specialist care
· prescription drugs
· mental health care
· physical therapy
· emergency care
· Traditional Chinese Medicine.
A few dental services (such as tooth extraction, but not cleaning) and optometry services are also covered, but most are paid out-of-pocket. Home care and hospice care are often not included either. Durable medical equipment, such as wheelchairs and hearing aids, is also often not covered. Preventive services, such as immunisation and disease screening, are included in a separate public health benefit package funded by the central and local governments; every resident is entitled to these without co-payments or deductibles. Maternity care is covered by a separate insurance programme but is currently being merged into the basic medical insurance plan.[15]
[15] ‘How does China’s healthcare system actually work?’ China-Britain Business Council, 27 August 2020, 20211125101306; See also ‘International Health Care System Profiles: China’, The Commonwealth Fund, 5 June 2020, 20211125103536.
Healthcare services through insurance typically incurs some fees:
· Inpatient and outpatient care, including prescription drugs, are subject to different deductibles, Co-payments, and reimbursement ceilings depending on the insurance plan, region, type of hospital (community, secondary, or tertiary), and other factors:
· Co-payments for outpatient physician visits are often small (RMB 5–10), although physicians with professor titles have much higher co-payments. ·
· Prescription drug co-payments vary in 2018 in Beijing, this was between 50% and 80% of the cost of the drug, depending on the hospital type.
· Co-payments for inpatient admissions are much higher than for outpatient services.[16]
[16] ‘How does China’s healthcare system actually work?’ China-Britain Business Council, 27 August 2020, 20211125101306; See also ‘International Health Care System Profiles: China’, The Commonwealth Fund, 5 June 2020, 20211125103536.
The Tribunal does not accept on the basis of the country information that the fourth named applicant will be denied medical treatment for his inherent [medical condition 1] if returned to China. The Tribunal finds on the basis of the country information that medical treatment is available for him though there may be a small cost and he may need to travel for specialist appointments. The Tribunal does not accept on the basis of the country information the fourth named applicant faces a real chance of serious harm because he will be unable to access appropriate healthcare or for any reason if returned to China.
The Tribunal does not accept on the basis of the country information in relation to the subsidy of medical costs by the central government as well as local government, that the cost of any medical treatment for the fourth named applicant will cause the family to be overstrained financially which would affect their capacity to subsist. The Tribunal does not accept that the applicants face a real chance of any harm because they may need to pay a small amount toward the fourth named applicant’s medical needs.
The Tribunal acknowledges the third and fourth named applicants have grown up in Australia and will have difficulties relocating to China, however the applicant’s evidence was that Mandarin is spoken in the home and the third and fourth applicants will be familiar with the Mandarin language sufficient to converse as well as have the benefit of a second language if returned to China. The Tribunal also finds that as both parents are Chinese nationals, the children would have some familiarity with Chinese culture if returned to China. The Tribunal does not accept that finding it difficult to adjust on return to China reaches the level of serious or significant harm as defined.
The Tribunal finds on the basis of the country information that the first and second named applicants will be able to resume their household (hukou) registration upon return to China. This will enable them to obtain access to social services, including education and health services for themselves and their children, as well as buy property including a house and access employment. The Tribunal does not accept the applicant’s contention that it will be hard to find employment and accommodation if returned to China because they have been absent for a significant period from China. While the Tribunal understands that it will be difficult for the applicant and second named applicant to re-establish themselves on their return to China, it notes that they relocated to Australia as young people where they developed a social circle, started a family and found employment, despite limited English language skills, lack of family support and living in a culturally different environment. The Tribunal finds they have the skills and experience from their relocation from China to Australia to assist them in returning to China in finding accommodation and employment. The Tribunal also notes that the applicant and second named applicants are in regular contact with their families.
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicants as contained in their application and submitted documentation, the Tribunal finds that there is no real chance that the applicants will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if they return to China now or in the reasonably foreseeable future.
Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if they return to China.
Complementary protection assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.
For the reasons set out above, the Tribunal has found there is no real chance of the applicants suffering serious harm if returned to China. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.
It follows that the Tribunal does not accept that the applicants face a real risk of significant harm if returned to China for any reason.
Therefore, the Tribunal finds that there is not a real risk they will be arbitrarily deprived of their lives; or the death penalty will be carried out on them; or that they will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if they are returned to China.
The Tribunal does not accept there to be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that the applicants will face significant harm for any reason.
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Amanda Goodier
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Remedies
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Natural Justice
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