1411563 (Refugee) [2015] AATA 3971 (12 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
CASE NUMBER:	1411563
COUNTRY OF REFERENCE:	China
MEMBER:	Filip Gelev
DATE:	12 November 2015
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 12 November 2015 at 5:04pm

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

statement of decision and reasons
application for review
1.  	This is an application for review of a decision made by a delegate of the Minister for Immigration 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 visas on [date] August 2013 and the delegate refused to grant the visas on [date] June 2014. 
3.  	The applicants appeared before the Tribunal on 10 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 
Relevant law
4.  	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
5.  	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). 
6.  	Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
7.  	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.
8.  	There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
9.  	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.
10.  	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.
11.  	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.
12.  	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.
13.  	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. 
14.  	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
15.  	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’).
16.  	‘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. 
17.  	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.
Section 499 Ministerial Direction
18.  	In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Specifically, the Tribunal has taken into account the DFAT Country Information Report PRC, 3 March 2015 (“the DFAT report”), and DFAT Thematic Report Unregistered Religious Organisations and Other Groups in the People’s Republic of China (“the DFAT Thematic report”).
Member of the same family unit
19.  	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 spouse and dependent child.
CONSIDERATION OF Claims and evidence
20.  	The issue in this case is whether Australia has protection obligations in respect of the applicants (in this decision the first named applicant is referred to as that or simply as the applicant or as the applicant wife). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
21.  	The first and second named applicants provided copies of their passports to the Department of Immigration. Based on their oral and written evidence, the copies of the passports, their fluency in Mandarin Chinese, and in the absence of any evidence to the contrary, the Tribunal finds that they are Chinese nationals. 
22.  	Article 5 of the Nationality Law of the People’s Republic of China states, in part, that “Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.”Therefore the third named applicant is a Chinese national by descent. 
23.  	The Tribunal has assessed the applicants’ claims for protection against China (ss.36(2)(a) and (aa)). 
24.  	There is no evidence before the Tribunal that any of the applicants has the right to enter and reside in a third country and the Tribunal finds that they are not excluded from protection by s.36(3) of the Act.
Background
25.  	The first and second named applicant are both from Fujian province in China. At interview with the delegate, the applicant said that she is from [Fuqing], Fujian province. At the Tribunal hearing, she said she was from a smaller village or a sub-village. She could not write the name of the village in Chinese characters, but the interpreter guessed that in Pinyin it would be transcribed as [Village 1]. The second named applicant told the Tribunal that he is from a village which is nearby.
26.  	They both came to Australia to study in 2007. They both stopped studying by 2009. They married on [date] October 2009 and lodged a joined application with the first named applicant as a dependent. In November 2009 their combined application for a further student visa was refused. 
27.  	They remained in the community unlawfully until they lodged this application for protection. By this time, [they] had a child, the third named applicant, born on [date]. 
28.  	A second [child] was born on [date]. [That child] is not included in the application before the Tribunal. 
29.  	The applicants lived in [Australian City 1] from 2007 until recently. The first named applicant told the Tribunal that they moved from [City 1] to [City 2] in early September 2015 because there was a job there for the second named applicant. He works in [City 2] five days a week. He gets paid about $[amount] a day. However, she does not work and children cost a lot. That is why they only have about $[amount] in savings. [The] second [child], has [a medical condition] and they have to pay doctor’s fees. The applicant said that it was not a serious medical condition, but it still costs money to treat. 
30.  	The first and second named applicant came from Christian families. Before coming to Australia, they both went to church in China. At the hearing they told the Tribunal that they were both baptised in China, she at around [age]; he at around [age] years old.
31.  	The delegate asked the first named applicant a number of questions designed to test her knowledge of Christianity and she answered them relatively well. The first and second named applicant gave consistent evidence in relation to the churches that they frequented in [City 1], up until their recent move to [City 2] in early September 2015. 
32.  	At the start of the Tribunal hearing, the applicants provided a letter from “Church in [City 1]” – located at [address]. The letter, dated  [April] 2015, confirms that the first and second named applicant come to the church’s “Chinse speaking district meeting regularly”.
33.  	The Tribunal asked the first named applicant how often she used to go to church in [City 1] and what church she used to go to. She replied that she went to a church in [Suburb 1] (the gatherings subsequently moved to [Suburb 2]), to [Suburb 3] and to [Suburb 4]. The first and third week of each month the applicants went to [Suburb 1]/[Suburb 2]; the second week to [Suburb 3] and in the last week of each month they went to [Suburb 4].
34.  	The second named applicant also gave evidence that they went to three church locations – [religious Brother A]’s place in [Suburb 1], a primary school used as a church in [Suburb 3] and a church in [Suburb 4]. He said after a while they switched from [Brother A]’s place to a location at [address] in [Suburb 2]. He gave evidence that was consistent with his wife’s as to when they went to church – weeks one and three of each month at [Brother A]’s place, [Suburb 3] during the second week of the month and [Suburb 4] during week four of each month.
35.  	At the end of the hearing, the applicants parents sang a religious song. 
36.  	The Tribunal accepts that the applicants are genuine local church Christians, that they were brought up as Christians and that their families are local Christians. 
Claims
37.  	Only the first named applicant submitted a Part C of Form 866 with her own claims for protection. The claims related to religion (Christianity) and family planning laws. 
38.  	On the application form and in a written statement lodged together with the application, the applicant claimed that her mother had been arrested and detained by the Chinse authorities on [a date in] 2012 because she was at a Christian gathering. She was placed in the custody centre for [number] days. She was “detained for [period] and was assaulted, harassed, threatened by the Public Security Bureau officers in the city of Fuqing.”
39.  	The applicant provided a “Certificate of Release from Detention”, dated [in] 2012, in relation to the applicant’s mother. It states that she was detained under [local laws]from [date] to [date] 2012. As the duration of detention had expired, she was released from detention. 
40.  	At interview with the delegate, the applicant made a new claim: her father had lost his job as a [occupation] in 2009 or 2010, because he is a Christian. Someone had dobbed him in to the authorities.
41.  	After seeking an application for review to the Tribunal, the applicant supplemented her claims with a short written statement, dated  [June] 2014. She pointed out that the delegate in her decision accepted that the applicant is a Christian. However, the applicant disagreed with the delegate’s view that the applicant’s religious “group is of such a size, scope or nature as to bring the group to the attention of the Chinese authorities”. The applicant submitted that the persecution of local church members continues. She provided copies of online articles about the persecution of Christians in China. None of the articles were about Fujian province. 
42.  	At the Tribunal hearing, the Tribunal noted that [the] second child, is not an applicant for protection. The Tribunal said it only needs to consider his circumstances in so far as they have an impact on the other three members of the family, who are the applicants before the Tribunal.
43.  	The first named applicant gave evidence first, while the second named applicant waited outside. The second named applicant then entered the hearing room and he gave evidence with everyone in the room, that is, both parents and both children. 
44.  	The applicant confirmed that both she and her husband, the second named applicant, are registered (have their hukou) as rural residents. 
45.  	The second named applicant gave evidence that his brother had to quit school after year 9 and to start work in order to pay his father’s medical bills and to help the family financially. 
46.  	The Tribunal had earlier in the hearing asked the first named applicant whether her parents work and whether her husband’s parents work. The applicant said that her father worked as a [occupation], but – as she had already said at interview with the Department – he was dismissed (because of his Christian religion) and now works casually in [another industry] . The second named applicant’s father has passed away since the application for protection was lodged. Neither applicant’s mother works at present.
47.  	The applicants acknowledged that prior to applying for protection they last held substantive visas in 2009. A joined application, when they were already married, for a further student vsa was refused in November 2009. 
48.  	The Tribunal asked why the applicant waited for almost four more years before applying for protection in 2013. The applicant said that “at that time” her mother had not been arrested and then her migration agent told her she could not apply for protection, because she had not suffered harm herself. The Tribunal asked her to provide the name of that migration agent. She said that she could not recall, because this had happened many years ago. She only found out she could apply for protection from another church goer. She was asked the name of that person. She hesitated, then provided a name and said this woman’s case had been similar to the applicant’s so when the applicant heard the woman’s story she realised that she (the applicant) could apply for protection.
49.  	The applicant was asked why she and her husband did not return to China after they stopped studying in 2009 and prior to [2012]. The Tribunal pointed out that they had no child at that time and no member of her family had suffered any harm in China. She said that they knew they were unlawful, but they needed money. The second named applicant’s father had health problems and was spending a lot of money on his health.
50.  	The Tribunal asked how big the applicant’s village is. She said that it is a village is about 100 people. When asked how many people there are Christian, she said “most people”. She said that there were also lot of Christians in surrounding villages.
51.  	She said the arrest had happened on a Sunday. When asked to confirm she did, but then quickly corrected herself and said it had been a Friday. Her father rang her to tell her that it was a special youth gathering, on a Friday. The Tribunal advised the applicant that [date in] 2012 was a Thursday. She said this was not possible. When shown an online calendar, she said she did not know why her father would have said it was a Friday.
52.  	The second named applicant said that no member of his family had ever suffered harm in China for reasons of their religion. 
53.  	However, he said his wife’s (the first named applicant’s) mother had been detained. He was asked whether he knew on what day of the week the gathering had happened. He said it was a Friday. When asked how he knew that, he said that they have gatherings on Fridays and Sundays. He was asked how he knew that gatherings happen on Fridays and Sundays in his wife’s village. He said that he and she come from the same area. 
54.  	The Tribunal advised him that [the date in] 2012 was a Thursday. He said he could not explain this discrepancy. He said before he left China gatherings were on Fridays. 
55.  	When asked to give an opinion as to why neither she, nor any member of her family had been harmed until 2012, even though they have been practising their faith for many years and according to her the authorities persecute Christians, she said that it was thanks to the grace of God. The applicant said that her mother was arrested on [a date in] 2012 and since that time the church goers in the village were practising their religion in secret. They move the location of the gatherings and they stay away from the main street. The Tribunal said that it seemed to it that it would be easy to find them in a village of approximately 100 people where most people belong to the local church and gather on the same days every week, but the applicant insisted this was not the case. 
56.  	The Tribunal put to the applicant country information according to which Fujian authorities are rather liberal and do not persecute Christians in that province. The Tribunal referred in particular to the annual reports by China Aid, which rarely mention Fujian as a province where Christians are harassed. The 2012 China Aid report makes no mention of any arrests which is contrary to the applicant’s claim that her mother was detained in 2012. 
57.  	The Tribunal raised the issue of the applicants’ overall credibility for three reasons. 
58.  	First, because [the arrest date in] 2012 was a Thursday; their evidence was that it was a Sunday or a Friday. In response, the applicants said that there may have been a gathering that was not a “regular” one, perhaps a get together because something had happened to a church brother or sister and the local Christians had gathered to pray. 
59.  	Secondly, because the authorities have not persecuted any other member of either family at any other time, even though both first and the second named applicant have been going to church for many years as have their relatives (parents and siblings). They said that the local church is still officially proscribed as an evil cult or a heresy. The Tribunal advised that while this may be true, it needs to consider whether the authorities in Fujian turn a blind eye or whether they enforce the prohibitions. The country information suggests the former is the case. The first named applicant insisted that the Chinese authorities do not want this information to come out. The Tribunal agreed with that general proposition, but noted that Christians both inside and outside China seek to report the suppression of Christians in the country.
60.  	The second named applicant said that this may be because things are not reported. The Chinese government is afraid of adverse social media coverage from abroad (outside of China). He argued that for as long as Christianity remains banned, the authorities can use the laws to persecute Christians; the Chinese authorities are unpredictable. The Tribunal suggested that there is ample country information about the attitude of the authorities across different Chinese provinces over many years. Therefore, the Tribunal had some level of confidence that the authorities in Fujian will not change their treatment of Christians in the future. 
61.  	Thirdly, because they took a very long time to apply for protection. In response, the second named applicant told the Tribunal that until 2009 they had valid visas and afterwards they had no idea they could apply for protection until 2013. The Tribunal asked him whether he remembered seeking advice about visa options between 2009 and 2013. He said that they did not. [Brother B], from the church, told them they could apply. He said the conversation took place in [year], when the first named applicant was pregnant. When she gave [birth] they were too busy looking after the baby. 
Well-founded fear of persecution
Christianity
62.  	The Tribunal has already found – under the heading Background – that the applicants are Christians.
63.  	The applicant claimed that her father lost his job in 2009 or 2010, because he is a Christian; and her mother was arrested on [a date in] 2012 and detained for [duration]. Neither of the applicants parents claimed to have suffered harm as a result of their Christian faith in China; the third named applicant was born in Australia and has never travelled to China. 
64.  	For the following reasons, the Tribunal does not accept that (1) the applicant’s mother or father or anybody in the applicants parents’ respective families has suffered harm in the past for reasons of religion; or (2) the applicants face a real chance of persecution for reasons of religion if returned to China. 
65.  	There is no evidence from independent sources that the authorities of Fujian province persecute Christians in that province. As noted above, the applicant submitted to the Tribunal country information about the treatment of Christians in China. As discussed with the applicant at the hearing, none of the articles were in relation to the applicants’ home province Fujian. 
66.  	Overall, the country information indicates that an ordinary Christian, who belongs to a local church in Fujian, can practise his or her religion without any difficulty. The Tribunal put to the applicant country information according to which Fujian authorities tolerate house churches in the province. 
67.  	China Aid, which issues annual reports on the persecution of Christians in China, did not mention Fujian province in its 2011, 2012, 2013 or 2014 reports. The applicant claimed that her mother was detained in 2012, but the Tribunal is not aware of any reports from independent sources of arrests of Christians in Fujian province in [the specified month in] 2012. 
68.  	The delegate, whose decision was provided together with the application for review, cited in his decision country information indicating that in general, the local government in Fujian seems relatively liberal towards unregistered churches. 
69.  	While the Tribunal accepts that the Chinese authorities seek to suppress information that may attract criticism, as discussed with the applicants at the hearing, there are Christians and NGOs both inside and outside China which report on the persecution of Christians in the country. 
70.  	The Tribunal is mindful that that not every single arrest or instance of harassment of Christians in China is reported in the media or in NGO reports. However, there have been virtually no reports in the last 10 or so years that the authorities inflict serious harm or significant on Christians in Fujian. There is a well-established pattern of tolerance by the authorities in that particular province. As discussed with the applicants at hearing, the independent information consistently indicate that the authorities in Fujian province have some of the most liberal policies on Christianity in China, even though in name the local church is still banned..
71.  	The Tribunal accepts that the Chinese government remains ideologically opposed to Christianity and in some provinces of China attempts to suppress the activities of Christians who do not belong to an officially sanctioned church. However, the country information demonstrates that the laws are not enforced in Fujian province.
72.  	The applicants lodged the application for a protection visa in Australia almost six years after their arrival in Australia, almost three years after they last held student visas and [number] months after the alleged detention of the first named applicant’s mother. The lodgement was also three or four years after the alleged dismissal of her father from his job in 2009-10. When asked at the interview and the hearing why this had not been a trigger for her to investigate whether she could apply for protection in Australia, she said – implausibly in the Tribunal’s view – that at that time she did not consider her father’s dismissal important or she did not consider that it affected her in any way.
73.  	The first named applicant claims that she had previously obtained advice from a migration agent and she was told that she could apply for protection because no family members had been persecuted and she herself had not been harmed. The applicant could not name the agent who allegedly gave her that incorrect advice. The Tribunal has concluded that the applicants did not obtain such incorrect advice from a migration agent, but have in fact made up that excuse in order to justify the delay in lodging the application for protection. 
74.  	The first and second named applicant gave rather vague evidence as to who eventually told them that they could apply for protection. They both said that someone at the local church had told them, but they referred to different persons as the source of the information – the first named applicant referred to a woman who had a similar case to the applicants’; the second named applicant talked about a certain [Brother B], whose real name was not [Brother B]. 
75.  	In the context of the issue of delay, the Tribunal notes that despite claiming not to know (1) how “the system works”, (2) being given incorrect advice by a migration agent, and (3) only being told that they might be able to apply for protection by a brother/sister at the church, but not being given any professional assistance, the applicants were able to put together a rather well-written application, in English, which is a language they are not proficient in. The application is some 127 pages in total and includes 
•	a written statement in Chinese and English, which contains a comprehensive – one paragraph long – definition of a refugee and a clearly set out history of alleged past harm 
•	form 866 that had been properly signed before a witness (police officer) some days before the application
•	forms 80 (personal particulars for assessment including character assessment)
•	a translated document in relation to the alleged detention of the applicant’s mother in China
•	Certified copies of passports
•	Certified copy of third named applicant’s birth certificate
•	Certified copy of marriage certificate. 
76.  	According to the application, the applicants received no assistance in preparing this application (question 17, Part B of Form 866). The level of skill with which the application has been prepared is inconsistent with the applicant’s alleged total ignorance in relation to protection applications. The Tribunal has considered whether the applicants could have been almost completely clueless from 2007 up until 2013 and then become aware of what they need to do in the weeks or months before they lodged the application for protection. The Tribunal finds that if the applicants were told only a little bit by another church goer, they would not have been able to put together such a good application. The Tribunal finds that the applicants were well informed and not totally clueless about their visa options as claimed; they had access to some legal advice. The Tribunal finds that if they genuinely believed that they could not practise their religion in China, the applicants would have applied for protection earlier. 
77.  	The Tribunal rejects the claim that the applicant’s mother was detained on [a date in] 2012. The Tribunal asked what day of the week [the date in] 2012 was. Neither applicant said that as this had happened almost three years ago they could not recall what day of the week it had been. The first named applicant said that her mother had been detained at a regular gathering on a Sunday; then she quickly corrected herself and insisted that it was not a Sunday gathering but a youth gathering on a Friday. The second named applicant also said that it was a Friday gathering and that the local church gatherings in that area were on Fridays and Sundays. The Tribunal showed the applicants that [the date in] 2012 was a Friday. At first they said they could not explain the inconsistency. The first named applicant even challenged the Tribunal’s information that [the date in] 2012 was a Thursday. Then they said that this may have been a special gathering, a one-off get together for a particular purpose. The Tribunal places weight on the first named applicant’s insistence – until faced with evidence to the contrary – that the [date in] 2012 was a Friday. 
78.  	The applicant’s evidence was that there are many Christians in her home area. The first named applicant stated that most people in her village were now Christians. The Tribunal finds that if the authorities were interested in cracking down on Christians in the applicants’ home area – the first and second named applicants’ villages are near each other – they would have detained members of the applicants’ families and the applicants’ themselves in the past. The Tribunal does not accept the first named applicant’s explanation that up until 2012 it was God who somehow protected them and since [2012] the local Christians hide. She said they meet in houses away from the main street of the village. The Tribunal considers that in a small village of about 100 people, where up to 30 people go to gatherings on a weekly basis, and almost always on Fridays and Sundays, it would be rather easy for the authorities to locate these gatherings and detain the participants. The Tribunal does not accept that gathering in houses that are in the more remote parts of the village would be sufficient to evade the authorities given the very small size of the village.
79.  	Because of its credibility concerns, the Tribunal gives little weight to the “Certificate of Release from Detention” submitted to the Department of Immigration by the applicant wife. 
80.  	The Tribunal rejects the claimed detention of the first named applicant’s mother and the claimed dismissal of the applicant’s father from his job.
81.  	Based on the independent country information and in the absence of cogent, credible evidence that the applicants or any members of their families have suffered persecution in the past, the Tribunal finds that the applicants can practise their religion in China without any hindrance just as the applicants parents did before they came to Australia, and as other members of their families continued to do after the applicants came to Australia in 2007.
82.  	For these reasons, the Tribunal does not accept there to be a real chance of persecution by the Chinese authorities for reasons of their religion if they return to China, now or in the foreseeable future.

Contravention of family planning legislation
83.  	China has a “comprehensive system for birth registration” which requires parents to register new children with the appropriate “household registration [hukou] organ” within a month of their birth. DFAT has indicated that out of plan children can obtain hukou registration once their parents pay the appropriate social compensation fee.
84.  	The country information indicates that having children out of wedlock is illegal in almost all provinces of China and attracts a fine known as a “social compensation fee”. Among other things, a social compensation fee is payable for having a child out of wedlock. 
85.  	Article 10(4) of China’s Marriage Law states that a marriage shall be invalid if one of the married parties has not reached the statutory age for marriage. Article 6 provides that no marriage may be contracted before the man has reached 22 years of age and the woman 20 years of age. At the time of marriage, the first named applicant was 19 and the second named applicant 21. Thus, it would appear that at the time the third named applicant was born, Chinese law did not recognise the parents’ marriage; and as a result the third named applicant may be considered by the authorities to have been born out of wedlock.
86.  	Pursuant to Art 8 of the same law, where a man and a woman seek to get married and the proposed marriage is found to conform with the provisions of this law, the couple shall be allowed to register and issued marriage certificates. The husband-and-wife relationship shall be established as soon as they obtain the marriage certificates. A couple shall go through marriage registration if it has not done so. The delegate considered that Art 8 allows couples to get married and retroactively validate the marriage they entered into in Australia. This would mean that at the time of the birth of the third named applicant the parents were married and therefore the third named applicant is not a child born out of wedlock in breach of family planning laws. 
87.  	While this is one possible way to read the legislation, the provincial, Fujian level legislation seems to contain a provision to the contrary: Article 14(1) of the Fujian Population and Planning Regulation states that any birth before the marriage of the child’s parents “including those who become pregnant before they reach legally marrying age” would be considered born “before the stipulated time” and thus liable to pay a fee. 
88.  	However, even if the delegate was wrong, advice from DFAT indicates that in cases where both parents have reached the legal age for marriage and they obtain a marriage certificate within three months of being issued with a social compensation fee, the fee is waived or exempted. Both at present and at the time of the birth of the third named applicant, the applicants parents were of marriageable age.
89.  	It would appear that separate social compensation fees are imposed on each parent. The US Department of State notes in its 2012 report on human rights practices in China that “each person in a couple that has an unapproved child” is required to pay the social compensation fee. In regards to Fujian Province, DFAT advised in January 2013 that according to the Fujian Provincial Family Planning Bureau, individuals would be fined separately, regardless of marital status. In March 2012 DFAT stated:
[T]he Fujian Population and Family Planning Commission advised that the family planning policy shall apply to both the male and female party when found in breach of regulations, with the social compensation fee imposed on each parent separately.
90.  	For a first child, the amount of the fines is 0.6 to one time “the baseline”, that is, the average annual disposable income of urban residents and net average annual income of rural peasants of the year when the baby was born. The exact figure is based on county-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. 
91.  	It is important to note that according to DFAT advice from January 2013 the “social compensation fee[s] differed across districts”. This is because the average income levels differ between districts (counties). It is also because local authorities issue notices that “guide local officials in their application of relevant regulations”. The 2015 DFAT report on China (at 3.47) notes that there is no country-wide social compensation fees. Provinces formulate their own policies and local authorities decide how lenient they want to be. The report also points out (at 3.48) that revenue from fees are directed at county-level governments. The fees increase annually and they rise as annual incomes rise. They are not based on a formula which 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, and put to the applicants at the hearing, should be used as a guide only.
92.  	Under national law, offenders have 30 days to pay via lump sum after being served notice by local authorities. Those unable to pay in a lump sum have 30 days to apply for approval to pay in instalments “to the family planning administrative department of the people's government at the county level”. DFAT confirmed, in a report dated 12 November 2010, that this deferred payment is permissible in Fujian Province:
According to Article 10 of Management Measures for the Collection of the Fujian Province Social Compensation Fee:   
-	the person concerned shall make a lump sum payment, in person, within 30 days from the time of receiving a payment notice;
-	if the person concerned has difficulty in paying the social compensation fee, they should submit a written request within 30 days of receiving notice. Their request should be addressed to the authority who issued the payment notice (such as the county or town-level family planning administrative office), requesting to pay via instalments;

-	the written request will require supporting documentation (unspecified) from employers, residence or village committees, or other relevant authorities;

-	the authority responsible for collecting payment shall make a decision on approving or refusing the instalments within 30 days from the application date, and advise the person concerned of the authority’s decision in writing; and
-	the period permitted for payment instalments shall not exceed three years.
93.  	At the hearing the Tribunal discussed the advice provided by DFAT that couples who get married within 3 months of receiving the social compensation fee, do not have to pay for a first child. The applicants said that they did not know what might happen. They insisted that they may have a problem registering the third named applicant, that is, obtaining a hukou for him. They referred to the difficulties people face in obtaining a hukou when they move to big cities such as Shanghai or Beijing. The Tribunal asked why obtaining a hukou for the third named applicant, in the applicants’ home area, would be any more difficult than if he were born in China. The applicants parents insisted that this was because they were supposed to have permission to have a child before they had the third named applicant. They said will have to pay a fee to register the birth and also to have a hukou. The Tribunal said it needs to consider whether there is a social compensation fee payable or a small registration fee that would also be payable in Australia e.g. at the Births, Deaths and Marriages registry.
94.  	A 2010 DFAT response discussed the practicalities of registering a child born outside of China: 
A. What are the official procedures that need to be undertaken for children born overseas when their parents return to China? To the extent that a fee is to be paid for having a child overseas, how much is that fee and/or how is it calculated?
In order to apply for the child’s household registration, the parents would be required to provide the following documentation: a Chinese translation of the child’s birth certificate; the parents’ household registration; ID cards; passports; certificate of marriage; and a receipt issued by the local Family Planning Committee to demonstrate that a family planning fee (also known as a social compensation fee) has been paid. This list of requirements is not comprehensive; the local authority may request more information or identification on a case-by-case basis.
95.  	The Tribunal finds that the payment of the social compensation fee is for this exact purpose – to allow a couple to obtain hukou registration for a child. The Tribunal is not satisfied that the applicants parents will suffer any additional impediments in trying to register the third named applicant by reason of the location of his birth outside of China. 
96.  	At the hearing the applicants did not express any opposition to getting married in China in order to satisfy the authorities that they are legally married. The Tribunal finds that the authorities will either recognise the parents’ marriage from Australia or, based on the country information at paragraph 88 above, that they will require that the applicants get married again, because they married in Australia when they were below the marriageable age. The Tribunal finds that if the latter were to occur the applicants parents may be inconvenienced and may have to spend some money in order to get married again in China, but they are not philosophically opposed to marriage and this “forced marriage” would not constitute serious or significant harm. 
97.  	At the hearing, the parents claimed that they might not be able to pay for pre-kinder for the third named applicant and that might affect him negatively, because other children go to kinder or pre-kinder. Further, they said that the third named applicant had [a respiratory condition] and he sometimes wheezes when he breathes. The applicant said that she was concerned that he may still be unwell and that air in China is really dirty. The Tribunal said it had no medical evidence before it that he may suffer from serious health problems if he goes back. The applicants parents said that this was just a concern.
98.  	The Tribunal finds that no social compensation fee will be payable in relation to the third named applicant. He will be registered with the authorities, on the household hukou, and he will be able to access education and health services available to all other Chinese children who are registered. Contrary to the submissions of the applicants, he will be able to go to pre-kindergarten, kindergarten and school; he will also be able to receive medical care of the same quality as other Chinese children, if he needs it. 
99.  	A social compensation fee is payable for having a first additional child in respect of the birth of their second child, It is about 2-3 times the average net income of rural residents in Fuqing, payable by each parent. [The] second child in the family, will be subject to a social compensation fee.
100.  	Based on the Fuqing Social Compensation Fee Standard provided to the Tribunal by DFAT, the Tribunal calculates that the applicants parents would be required to pay the following social compensation fees  in respect of the second child born in contravention of family planning legislation if they return to China now and are fined in accordance with the figures given for 2014: Between 60,244 and 90,366 RMB for having a first additional child in respect of the birth of their second child (being 2-3 times the average net income of rural residents in Fuqing, payable by each parent).
101.  	The fees are likely to be higher, because the DFAT information is from March 2014. Between 2010 and 2014 the fees increased by up to 17.5% a year. The baby was born on 15 March 2015 and the fees are likely to have increased from 2014 to 2015. The fees increased by about 10% from 2013 to 2014. Therefore, the approximate figures would be 67,000 to 100,000 RMB (60,244 to 90,366 RMB + 10%).
102.  	At the hearing, the applicant said they could not pay. They are not educated and they cannot get good jobs. The first named applicant’s father works casually; the second named applicant’s father is deceased; their mothers do not work. 
103.  	The Tribunal also discussed with the applicants that a social compensation fee may be paid by instalments. They said they could still not pay.
104.  	 The Tribunal considers that the applicants have exaggerated the extent to which payment of the fees would cause them hardship. The first named applicant’s father is [age] years old (according to the applicant’s Form 80 he was born on[date]). He has many years of work ahead of him and the Tribunal has already rejected the claim that he was dismissed from his position for being a Christian. 
105.  	The applicants parents told the Tribunal that their parents were supportive of the marriage. The Tribunal accepts that the second named applicant’s father is deceased. However, the Tribunal considers that the families will be able to pull their resources together – income from the applicants parents, the first named applicant’s father and the second named applicant’s brother – and pay the social compensation fees. 
106.  	Further, as discussed with the applicants parents at the hearing, family planning laws are laws of general application. The second named applicant said to the Tribunal he felt that everyone should have the right to have more than one child. The Tribunal said it agreed this was so, but China has legislation which forces people who have more than one child to pay a fee. 
107.  	The Tribunal finds that the legislation – in so far as it applies to the applicants parents who have to pay the fees, as distinct from the consequences of the non-payment of fees for the “black child” himself or herself – applies to the Chinese population generally. Penalties are imposed to parents who have a child out of wedlock, a child below the marriageable age, more than one child within a marriage and so on. There is no evidence to indicate that the law and penalties or any enforcement measures are applied in a discriminatory manner. 
108.  	There is nothing before the Tribunal to suggest that the laws will be applied to the applicants parents in a discriminatory manner for any reason. Therefore, the imposition of these social compensation fees does not constitutes persecution of the first and second named applicant as defined by s.91R(1) of the Act. Accordingly, the applicants do not face a real chance of persecution as defined by s.91R of the Act. 
109.  	Further and in any event, as already noted above, the fees would be payable in relation to [their second child], who is not an applicant in the present case. When the Tribunal asked the applicants parents what type of harm the applicants feared, the second named applicant said he was worried that the third named applicant may have to quit school after only 9 years of education (it is compulsory to finish year 9) to support the family financially. The Tribunal notes that the third named applicant is [under school age] at present and therefore the feared harm will occur in about [number] years’ time (9 years after he starts school and he will start school in [number] years’ time). In the Tribunal’s view the second named applicant was speculating about the distant future. The Tribunal finds that any financial difficulties the family might have in [number] years’ time would not be directly caused by [their second child's] status as a “black” or unregistered child and they would not be in the reasonably foreseeable future. In addition, the Tribunal does not consider that being forced to quit school after year 9 constitutes serious or significant harm.
110.  	The Tribunal raised with the applicants recent country information according to which China will relax its family planning policies and allow couples to have two children. The Tribunal accepts that at present there is no evidence before it that the authorities in Fujian have started applying the new policy. It is not clear at this stage whether it would apply prospectively or whether it would also cover couples such as the applicants parents who had a second child before the new policy was introduced. Therefore, the Tribunal has not taken into consideration the country information about the impending relaxation of family planning laws.
111.  	The Tribunal finds that the imposition of social compensation fees on the applicants parents will cause them stress and would impose a financial burden on them. However, on the evidence before it, the Tribunal is not satisfied that the financial and emotional stress would be of such magnitude that any one of the applicants will suffer serious harm amounting to persecution. 
112.  	For the above reasons, the Tribunal finds that the imposition of social compensation fees in relation to [their second child] will not create a real chance of persecution of any one of the applicants for any Convention reason. 
113.  	Having assessed all of the applicants’ claims individually and cumulatively, the Tribunal finds that none of the applicants has a well-founded fear of persecution for reasons of religion, for reasons of a membership of a particular social group or any other Convention reason.
Complementary protection
114.  	The Tribunal has already found that the applicants do not have a well-founded fear of persecution for reasons of their religion. For the same reasons, the Tribunal finds that the applicants will be free to practise their religion and, therefore, there are no 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 anyone of them will suffer significant harm because of their religion.
115.  	In relation to family planning policies, the Tribunal has already found that no fees will be payable in relation to the third named applicant. 
116.  	The Tribunal has further found that the payment of the fees in relation to [the second child] would not constitute serious harm to any other member of the family. 
117.  	The Tribunal finds that the imposition of the fees in relation to [the second child] does not amount to significant harm as defined in s.36(2A) of the Act. The fees do not involve the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act. They would not cause severe pain or suffering, whether physical or mental, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature. Nor would the fees involve extreme humiliation which is unreasonable.
118.  	Finally, there is no evidence before the Tribunal that the family planning laws are not applied to the population generally or that they are applied in a discriminatory manner. While the applicants parents and the third named applicant may be personally affected due to the breaches of the law, given that the risk is faced by the population of the country generally, the Tribunal finds that there is taken not to be a real risk that they will suffer significant harm under s.36(2B)(c) of the Act.
119.  	Having assessed all of the applicants’ claims individually and cumulatively, the Tribunal finds there are no 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 anyone of them will suffer significant harm for any reason: s.36(2)(aa)
120.  	For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
decision
121.  	The Tribunal affirms the decision not to grant the applicants Protection visas.

Filip Gelev
Member