1412900 (Refugee)

[2015] AATA 3802

1412900 (Refugee) [2015] AATA 3802 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412900

COUNTRY OF REFERENCE:                  China

MEMBER:Belinda Mericourt

DATE:25 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2015 at 3:19pm

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 [in] December 2013 and the delegate refused to grant the visas [in] June 2014.

3. The applicants appeared before the Tribunal on 5 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. The applicants were represented in relation to the review by their registered migration agent.

   BACKGROUND

4. The primary applicant, hereafter referred to as the applicant father, was born in [year] in [Fuqing City], Fujian province, China.  On his application form he stated that he speaks, reads and writes Mandarin, is of Han ethnicity and did not identify any religion. He completed high school and attended [a specialist] school in Beijing after completing high school. He had no employment history in China.

5. The applicant was granted a student visa (subclass 572) [in] August 2008 and first entered Australia [in] September 2008. Department records indicate that the education provider issued several non-compliance notices to the applicant because he did not commence the course.  His student visa ceased [in] October 2010 and he remained in Australia as an unlawful non-citizen until he lodged a valid application for protection [in] April 2011.  His application was refused [in] June 2011 and he sought review by the Refugee Review Tribunal (RRT).  On 22 September 2011 the Tribunal (differently constituted) affirmed the Department’s decision.  [In] January 2012 the applicant made a request for Ministerial intervention.  The decision to “not consider” was made [in] April 2012.  The applicant remained in Australia as an unlawful non-citizen from [November] 2011 to [December] 2013 when he lodged his second application for protection under the complementary protection provisions.

6. The second named applicant, hereafter referred to as the applicant child, was born [in] 2013 in Australia.  He is included as a dependent on his father’s protection application.  The applicant father provided the Department with a copy of the applicant child’s birth certificate which recorded that the applicant father is his father, the applicant child’s mother, [Ms A] is a citizen of China and they were married [in] 2011 and the applicant child’s birthdate is [in] 2013.

   RELEVANT LAW

7. The relevant law is attached to this decision.

   S.48A

8. On the evidence before it, the Tribunal finds that the applicant’s first protection visa application was refused [in] June 2011 prior to the commencement of the complementary protection provisions on 24 March 2012. The records also indicate that decision was affirmed by the RRT (differently constituted) on 22 September 2011.   Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

9. However, in this matter the delegate, in the decision dated [June] 2014, made a finding that the applicant did not meet criteria for the grant of a protection visa under subsections 36(2)(a) and (aa) of the Migration Act and subclause 866.221(2) & (4) of Schedule 2 to the Migration Regulations. The Tribunal has therefore considered the applicant father’s claims under both s.36(2)(a) and (aa) of the Migration Act.

10. The Tribunal has considered the applicant child’s claims under s.36(2)(a) (aa), (b) &(c) of the Migration Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Requirement that the decision-maker be ‘satisfied’

12. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

13. The issues in this case are whether, the applicants, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable or, owing to such fear, is unwilling to avail themselves of the protection of China; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant father and child being removed from Australia to China, there is a real risk that they will suffer significant harm.

    Claims in the previous protection visa application

14. The Tribunal has before it the Department’s file relating to the applicant father, which includes a certified copy of the his PRC passport issued [in] 2007, his current application for a protection visa, his written statement of claims, the audio recording of his interview by the delegate [in] May 2014 and a copy of the delegate’s decision record dated [June] 2014.  The Tribunal also has before it the applicant father’s first protection application file which includes his application for a protection visa, his written statement of claims, a copy of the delegate’s decision record dated  [June] 2011, and a copy of the Tribunal’s decision record dated 22 September 2011. The Tribunal has also had regard to relevant country information as cited below.

15. In his first application for protection lodged [in] April 2011, the primary applicant claimed to be a Falun Gong practitioner who feared persecution in China. He claimed that his father wanted him to join his business and disapproved of him studying at [a specialist] school and withdrew his support.  The applicant claimed that he consequently suffered depression and started to practice Falun Gong and his health improved.  In 2006, he attended a [contest] and while living with other contestants he read a Falun Gong book.  He claimed that someone informed on him and he was arrested, detained and forced to write a repentance letter.  He claimed that he was released after his father used his connections and paid a fine.  He claimed that he was isolated and unable to find a job after the incident and left China in August 2008.

    Claims in the current protection visa application

16. In his current application, the applicant father stated that he entered Australia [in] August 2008 with a student visa.  He came to Australia to pursue his dream of overseas study. Now he fears that his life would be in danger and risk if he returned to China and he would be mistreated by Chinese local government as he had been a Falun Gong practitioner.

17. The applicant met [Ms A] in about October 2011 and as his application for protection had just been refused he was depressed.  Without knowing each other they moved in and lived together for some time.  In [2012] [Ms A] told him she was pregnant and they had a [child] [in] 2013.  Before and after the child’s birth they often had arguments over money and the future of the child.  The applicant had no work and no income and became depressed and after 3 to 4 months [Ms A] left him and his [child], taking her luggage and never returning.

18. People who give birth to a child without marriage would not be treated equally if they returned to China.  His [child] was born outside the China National Family Planning Policy and he would have to pay a heavy penalty for having had a child overseas and he would also have to pay the full amount for his child’s education which is far beyond his financial capacity.  Without a household registration his [child] would be discriminated (against) by other students and the school.

19. The applicant was interviewed by a delegate of the Department [in] June 2014.  The Tribunal has listened to the audio recording of the interview and is satisfied that the summary of interview in the Department’s decision record is accurate.  At that interview the applicant made a further claim for protection as follows:

    ·his [child] will be harmed and discriminated against because of his own past record in China.  He claimed that the police came to his house in 2011 (three years after he departed China) looking for him and required him to come to a police station and answer some questions. The police issued an arrest warrant and searched his house.  This is evidence that the Chinese authorities have an adverse interest in him.

20. The applicant provided the Department with a copy of the bio data page of his valid PRC passport issued [in] 2007.

21. The applicant provided the Department with a copy of the applicant child’s birth certificate.  The birth certificate stated that the parents were the applicant father and [Ms A] and that they were married [in] October 2011.

22. The applicant provided the Department with what he claimed to be an original arrest warrant (in the Mandarin language) with his photograph.[1]

    [1] [File number], folio 47

23. At the Tribunal hearing the applicant father confirmed that he speaks, reads and writes in Mandarin.  His lawyer assisted him to write his protection application and read back to him what was in the application.  He did not wish to correct anything in his protection application or add anything to his claims.

24. The Tribunal discussed the applicant father’s background, current circumstances and claims for protection with the applicant at the hearing.  The applicant father attended the hearing with his [child] and [Ms A] (dob [deleted]).  The applicant father told the Tribunal that [Ms A] is his [child]’s mother and she came to the hearing to look after his [child] while he gave evidence.  The Tribunal asked [Ms A] if she would be willing to give evidence but she declined. 

25. The applicant father is currently living in a three-bedroom house which he shares with his [child], a male friend and another girl.  He does not have regular employment but works casually as [an occupation] from time to time.  He has borrowed money from friends and claims to have about $1000 in debts.  He has separated from his [child]’s mother who now lives in a different suburb.  She does not contribute financially to their [child]’s day-to-day costs.  When the applicant is working a friend of his looks after his [child].  Occasionally his [child]’s mother looks after [him/her] but as she has a small business of her own, she only does so occasionally.

26. The applicant father stated that he was born in [Fuqing City], Fujian province.  When he was young he lived in Shanxi province where his father was working but he returned to Fuqing before the end of his primary school and lived with his grandparents.  This was because his hukou registration was in the area in which he was born.  It is a rural hukou.  His [siblings] also lived with his grandparents.

27. The applicant father completed high school in [year].  Initially he told the Tribunal that after he finished high school he helped his father.  The Tribunal put to him that on his application form he indicated that he had studied at [a specialist] school in Beijing.  The applicant father then said he had forgotten.  He did attend a specialist [school] but the fees were high and his father stopped paying them after one year because he did not believe that the applicant had a future in [this field]. The Tribunal put to the applicant father that he stated he had attended the [specialist] school for a period of three years from [year] to [year].  The applicant stated that he attended on and off over the next two years.  His parents argued about him going to that school and his mother paid the fees after his father ceased paying the fees.  However, he spent about one year of that period helping his father in his business doing odd jobs.  His father gave him money from time to time when he needed it but did not pay him a wage.  The applicant father did not complete his course and has no professional qualifications or skills.  He never had paid employment in China before arriving in Australia.

28. The applicant father’s parents are both still alive and reside in Shanxi province, although they do not have hukous for that area.  His mother returned from [another country] many years ago.  He spoke to his parents last week by telephone but does not have regular contact with them.  He spoke to his [sibling] by phone last week also, but only rarely has contact with [the sibling].  [Details of sibling deleted]. He does not have contact with [the other sibling] and does not know where [he/she] is living.

29. The applicant father stated that he wanted to study [two subjects] in Australia.  He sat the IELTS exam and was accepted.  His parents paid his costs for the travel visa, and his first term’s tuition fees.  He enrolled in the course but discovered he could not understand the teacher so he studied English language for about six months.  He returned to the [subject] course but still could not understand the teacher so he continued his English language studies at [location].

30. The Tribunal put to him that the delegate indicated the educational body issued several notices about non-compliance, that is, non-attendance.  The applicant father agreed that he had only studied on and off during the two years of his student visa and stopped going to classes after a while and just did casual work.  He had found casual work in a factory as soon as he arrived in Australia to pay for the tuition fees after the first semester and he borrowed money from friends as his parents ceased paying the fees.

31. The Tribunal asked him if he was aware that one of the conditions of his student visa was that he continued his studies.  He stated that he was aware of this but he stayed because he was happy here and did not want to return to China.  He knew he was unlawful at that time.

32. The Tribunal asked the applicant why he had not lodged his application for protection until he had been in Australia for nearly 3 years.  He stated that at that time a friend introduced him to a migration agent who had recently assisted his friend to obtain permanent residency.  He filled in forms and lodged the application.  At that time Falun Gong were being persecuted in China and he thought he could lodge a claim for protection on this basis.

    FINDINGS AND REASONS

    Nationality

33. On the basis of the applicant father’s Chinese passport produced at the hearing, the Tribunal finds that the applicant is a citizen of the People’s Republic of China (PRC). There is nothing in the evidence before the Tribunal to suggest that the applicant father has a right to enter and reside in any country other than China. Therefore the Tribunal finds that the applicant father is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant father is a national of China, the Tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa). Based on the applicant [child]’s birth certificate the Tribunal is satisfied that [he/she] is the applicant father’s [child] and that [he/she] is also a citizen of the People’s Republic of China (PRC).

    Credibility

34. The Tribunal did not find the applicant to be a credible witness.  The applicant’s evidence was frequently vague, lacking in detail and inconsistent in respect of chronology.  The Tribunal explained to the applicant several times that it would have to be satisfied that there are substantial grounds for believing that there is a real risk he would suffer significant harm if he returns to China or that his fear of persecution was well-founded.  In response, the applicant told the Tribunal several times that he did not know whether he would be at risk of significant harm if he returned to China as he had been in Australia for so long.  The applicant father also acknowledged that he provided false information on his [child]’s birth certificate (that is, that he was married on a specific date to the child’s mother) and that he saw no problem with this. The Tribunal concluded that the applicant father is not a witness of truth.

    Delay in lodging an application for protection

35. The applicant father stated that he did not lodge a claim for protection for almost 3 years after his arrival in Australia until his friend, who had successfully obtained permanent residence, referred him to his migration agent. At the hearing, the applicant father told the Tribunal that many of his friends came to Australia to study hairdressing or cookery and when those professions were removed from the skilled visa list they stopped their studies and remained in Australia unlawfully in order to continue working.  Some of these people had been granted protection visas even when they lied about their circumstances. He was not lying and it was only when his friend told him how he could go about making an application for protection that he did so.

36. The Tribunal does not find the applicant father’s claim credible that he feared to return to China, yet made no enquiries about how he could seek protection and lawfully remain in Australia until he had been in Australia for a total of almost 3½ years after his student visa had ceased. It would be reasonable to expect a person who genuinely feared to return to China would make enquiries about how he could make a claim for protection soon after his arrival in Australia, particularly when he had a number of friends from China in much the same position as himself who applied for protection.

37. The applicant father gave evidence to the Tribunal that he was aware he needed to continue studying to meet the conditions of his student visa, but he chose to cease studying and remain in Australia unlawfully and work because he was happy in Australia and did not wish to return to China. 

1. Based on the above evidence, the Tribunal is not satisfied that the applicant father genuinely feared to return to China, but rather wished to remain in Australia and work here. 

   Applicant father’s claims related to being a Falun Gong practitioner

2. The applicant claimed that he had been interested in Falun Gong for a few months and he read some books at home.  He thought that as it was a form of qigong that it is good for people.  He did not practice the exercises as he does not have the persistence or self-discipline for that. He claimed that when he was attending [an event venue] which was holding a competition in either 2006 or 2007, the police came backstage and told him that someone had reported him for being “related to Falun Gong” and asked him some questions.  He was arrested, taken to a detention centre where he was kept for more than a week and beaten up.  The Tribunal asked him why he was arrested if he was not actually a Falun Gong practitioner.  He thought he was arrested because the police use this as a way to make money and he was beaten because “that is what they do”. The Tribunal asked him how he was released. He stated that he thought his father had paid a fine but he did not know how much. 

3. The applicant claimed that after he had been in Australia for 1-2 years the police came to his home and searched it and issued an arrest warrant.  He had provided this to his agent to give to the Minister as part of his request for Ministerial intervention, but he now knows that his agent did not provide this document.  He is fearful to return to China because the arrest warrant proves that he will be arrested, detained and subject to physical harm in detention again if he returns to China.

4. The Tribunal put to him that he did not mention the police visiting his home in China and issuing an arrest warrant in his current application. It was only in the course of the interview with the delegate that he mentioned this event.  The applicant stated that he didn’t receive a copy of it until after the previous Tribunal hearing and only provided it to his agent for the purpose of the request for Ministerial intervention.  He did not include the event or the arrest warrant in his current statement of claims as his agent said that he only had a “slim chance or no hope” of permanent residency.

5. The Tribunal had the interpreter translate the arrest warrant as the applicant had not provided a translation either to the Department or to the Tribunal.  It is dated [in] 2011.  It names the applicant and provides the correct birthdate and home address.  The interpreter translated it as follows;

   Wanted - criminal male (applicant’s name), dob [date], National ID #, height [number]cm, shape of face - quadrangle / fit body type. Address (correct address). This person was arrested in 2006 because he was involved with Falun Gong evil cult activities and released after being educated but he didn’t repent. He continued with Falun Gong evil cult activities in 2011 and is suspected of internal organization and illegal activities. He was summoned on many occasions and didn’t respond. This person attacked the political party and is against the party’s policy. This person seriously disrupted normal social order and communist party national policy and the revolution. What he did was serious and he ran away. If you see this person he should be detained immediately and transferred to our bureau or call the police hotline. Any ordinary citizen can report him or report any kind of clues or arrest him. A reward is offered. PSB. [date] 2011.

6. The Tribunal put to the applicant that it had concerns about the genuineness of the document as it clearly refers to the applicant being involved in organising internal illegal activities (related to Falun Gong) in 2011 by which time he had been out of the country for three years.  In addition he had been able to obtain a passport in 2007, a year after his alleged arrest, and departed the country in 2008 without any difficulty which would seem to indicate he was not of adverse interest to the authorities at that time. The applicant stated he had no comment.

7. The Tribunal also put to the applicant that it found it somewhat implausible that the police would come to his house and issue an arrest warrant five years after his detention in 2006 and yet not attempt to find him or arrest him in the intervening period.  The applicant thought that the police had to wait a while after his parents had paid the first fine before they could seek more money.

8. The Tribunal put to the applicant that it did not find his claims credible that he had not actually been a Falun Gong practitioner and only expressed a peripheral interest in Falun Gong beliefs, yet in 2006 he had been arrested and detained for a week and during this period beaten.  Over the next five years neither the police nor the authorities followed him up, even if to extract more money from his family. Now he has provided a copy of an arrest warrant dated [in] 2011 stating that he seriously disrupted normal social order and the National Communist party in 2011 and he should be detained immediately.  The applicant had no comment.

9. The Tribunal asked the applicant if he practised Falun Gong in Australia and he stated that he had not.

10. As discussed above, the Tribunal is not satisfied that the arrest warrant is genuine and the Tribunal found the applicant’s evidence about his arrest, detention and mistreatment in 2006 to lack credibility, particularly as the applicant also told the Tribunal that he was never an active Falun Gong practitioner and has not practised Falun Gong in Australia. Consequently, the Tribunal is not satisfied that the applicant has ever come to the adverse attention of the police or local authorities due to his interest in, or imputed belief in and/or practice of Falun Gong. Furthermore, the Tribunal is not satisfied that the applicant has a criminal record.

11. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution or that there is a real chance that he would suffer serious harm as defined in Subsection 91R(2) on the basis of his actual or imputed religion (Falun Gong). The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as defined in subsection 5(1) as a result of any past or current interest in, practice of or imputed practice and belief in Falun Gong, if he were to return to China now or in the foreseeable future.

    Applicant’s claims related to his child being born out of wedlock

12. The Tribunal asked the applicant if he was married to his [child]’s mother.  He stated that he was not and had never been married to her.  The Tribunal asked him why he stated on the birth certificate that he was married.  The applicant variously claimed it was necessary in order to get the birth certificate / it was automatically put on the birth certificate / and, as at that time he and his [child]’s mother intended to marry it didn’t matter.  He claimed that he did not provide false information.  The Tribunal challenged him about this given he told the Tribunal that he completed the form himself and provided a specific date and place of marriage.  The applicant claimed that he did not think there was anything wrong with that.

13. The Tribunal asked the applicant if his [child]’s mother had permanent residency or citizenship as, if that were the case, his [child] may also have permanent residency. The applicant stated that she did not.

14. The applicant did not make any claims of his own in respect of being a single father of a child born out of wedlock. Nevertheless, for the sake of completeness, the Tribunal had regard to country information related to single parents or children born out of wedlock.

15. Parents of children born out of wedlock, particularly young single mothers, may experience social stigmatisation.[2] However, almost all the examples of discrimination, for example, in employment, relate to single mothers. There were no examples found by the Tribunal relating to unwed single fathers.  Based on the Background Paper on China: Family Planning reviewed in September 2013[3], the Tribunal accepts that the applicant may experience some discrimination and/or social stigma as a parent of a child born out of wedlock. However, there is no evidence before the Tribunal to suggest that there is a real chance of the applicant suffering serious harm or a real risk of the applicant suffering significant harm having regard to the definitions of serious and significant harm in s.36(2A) and s.5(1) of the Act.

    [2] Ma, Q, Ono-Kihara, M, Cong, L, Xu, G, Pan, X, Zamani, S, Ravari, S M & Kihara, M 2008, ‘Unintended pregnancy and its risk factors among university students in eastern China’, Contraception, vol. 77, no. 2, p.111; Chang, A 2008, ‘China hooking up with love hotels, bars; Young Chinese are embracing their own version of the sexual revolution’, The Toronto Star, 5 March; Yardley, J 2007 ‘Today’s Face of Abortion in China Is a Young, Unmarried Woman’, The New York Times, 13 May < Accessed 23 February 2009; Liu, J 2007, ‘Mother load Being a single mother is tough – and on the mainland it’s even tougher as women battle official discrimination’, South China Morning Post, 12 March

    [3] MRT-RRT, Background Paper China: Family Planning, issued 8 March 2013 & reviewed 8 September 2013.

16. The applicant acknowledged that his [child] would obtain a household registration (hukou) if he were to pay the relevant fine or social compensation fee.  At the Tribunal hearing, the applicant did not indicate that he would be unable to pay such a fine. However, in his written application he stated that he “would have to pay a heavy penalty for having had a child overseas and he would also have to pay the full amount for his child’s education which is far beyond his financial capacity”. The Tribunal therefore considered the issue of payment of a social compensation fine for having a child out of wedlock.

17. DFAT advice of February 2010 on Fujian province states that if a couple marries after the birth of a child they will most likely still be charged a social compensation fee. However, ‘if a child is conceived out of wedlock, but the parents marry prior to the birth of the child, no social compensation fee is charged’.[4] DFAT advice also indicates that to apply for a child’s household registration in Fujian province, the parents are required to provide, among other documentation, a certificate of marriage.[5]

    The official penalty for having a baby out of wedlock is a family planning fee, which in Fujian Province is 60 to 100 per cent of the average local income, although if the parents of the child have a higher income, a higher rate will apply:

    Most provincial and municipal governments have stated that a family planning fee would be imposed for children born out of wedlock. The State Family Planning Commission authorises local governments to establish their own criteria when imposing family planning fees in each jurisdiction. According to a regulation published by the Fujian Government in September 2002, 60 to 100 per cent of the average local income should be imposed for those who give birth to their first child out of wedlock. If the parental annual income is higher than the average level, their actual annual income will be adopted, meaning wealthier parents are charged a higher penalty. Rates have been known to be negotiable in some remote regions.[6]

    [4] Department of Foreign Affairs and Trade 2010, DFAT Report No. 1104 – China: RRT Information Request: CHN36059, 12 February -

    [5] Department of Foreign Affairs and Trade 2010, DFAT Report No. 1104 – China: RRT Information Request: CHN36059, 12 February -; Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November -

    [6]Department of Foreign Affairs and Trade 2010, RRT Country Information Request - CHN36059 - Population and family planning issues, Fujian Province, 11 February <CISNET China CX283322>

18. Although the applicant [child]’s birth certificate indicates [the] parents are married, as the applicant does not have a certificate of marriage it is possible that he would be charged a social compensation fee in order to register his child who is born out of wedlock.

19. Unregistered children, commonly known as black children, do not have the full rights of a registered child.[7] In particular, they are not entitled to public education and, as a result, their parents must pay for private education.[8] Fees charged by private education providers are usually higher than for public schools.[9]

    [7] Zhou, Y 2005, Uncovering Children in Marginalization: Explaining Unregistered Children in China, 14 June, International Union for the Scientific Study of Population, p.2 & 5 < Accessed 2 August 2007

    [8] Zhou, Y 2005, Uncovering Children in Marginalization: Explaining Unregistered Children in China, 14 June, International Union for the Scientific Study of Population, pp.4-5 < Accessed 2 August 2007; Department of Foreign Affairs and Trade 2007, DFAT Report 691 – RRT Information Request CHN32173, 31 August; Department of Foreign Affairs and Trade 2004, DFAT Report No. 327 – China: RRT Information Request: CHN17017, 7 October

    [9] Department of Foreign Affairs and Trade 2007, DFAT Report 691 – RRT Information Request CHN32173, 31 August; Department of Foreign Affairs and Trade 2004, DFAT Report No. 327 – China: RRT Information Request: CHN17017, 7 October

20. The applicant father indicated to the Tribunal that he was concerned about the welfare of his [child] as he is his primary carer. The Tribunal is satisfied that the applicant father will pay the social compensation fee if he is financially able to do so in order to obtain his [child]’s hukou, enabling his [child] to have access to government provided health and education services.  If the applicant father is able to have his [child] included in his household registration he will not be required to pay for private education for his [child].

21. The official sanction for family planning violations, that is, for having unapproved children, is a social compensation fee.[10] These fees apply for violations such as having a child out of wedlock and for having more than the approved number of children. Fees vary according to a range of factors such as province, type of violation, personal income, average income of the area, and so on.

    Fujian family planning regulations set out guidelines for social compensation fees for out of plan children.[11] The social compensation fees are based on:

    ·the average per capita urban annual disposable income (in the year prior to the birth) or

    ·the average per capita rural net income (in the year prior to the birth).[12]

    [10] Population and Family Planning Law of the People’s Republic of China (China), art 41, promulgated 29 December 2001 (effective 1 September 2002) Chinese Government Official Web Portal < Accessed 2 April 2007 US Department of State 2012, Country Reports on Human Rights Practices for 2011 – China, 23 May, Section 6 < Accessed 6 February 2013

    [11] Population and Family Planning Regulation of Fujian Province (China), art 39, promulgated 26 July 2002 (effective 1 September 2002), UNHCR Refworld < Accessed 28 June 2011

    [12] Population and Family Planning Regulation of Fujian Province (China), art 39, promulgated 26 July 2002 (effective 1 September 2002), UNHCR Refworld < Accessed 28 June 2011

22. DFAT advised in January 2013 that for Chinese nationals who breach the family planning regulations while outside the country, and who are not eligible for an exemption, their social compensation fee will be calculated using the average income of the district in which their hukou is registered.[13]

    [13] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request:  CHN41439, 7 February 2013

23. The penalty for having a child ‘before the stipulated time’ is outlined in Article 39(1) of the 2002 Population and Family Planning Regulation of Fujian Province, which calls for a social compensation fee of 60 to 100 per cent of the average local annual income[14] (or a greater fine for those with a higher than average actual income).[15]

    [14] Defined by the Regulations as ‘the average annual disposable income of the urban residents or the net average annual income of the rural peasants of the county in the previous year when the child is born’. See: Population and Family Planning Regulation of Fujian Province, art 39, promulgated 26 July 2002 (effective 1 September 2002), UNHCR Refworld < Accessed 28 June 2011

    [15] Population and Family Planning Regulation of Fujian Province, art 39, promulgated 26 July 2002 (effective 1 September 2002), UNHCR Refworld < Accessed 28 June 2011

24. The applicant father has a rural hukou and so would be likely to be charged 60-100% of the average earnings in his household area which, very roughly, would be equivalent to AUD4000-4500.

25. DFAT advised in November 2010 that if the parent is unable to pay the lump sum within 30 days, they may apply to have their fine paid in instalments.[16]

    [16] Department of Foreign Affairs and Trade 2010, DFAT Report 1210 –RRT Information Request:  CHN37505, 12 November

26. The applicant father told the Tribunal that he is currently working casually as [an occupation].  He is paid cash and does not pay tax on his earnings.  He has no assets in Australia and claims to have about $1000 in debts to friends.  The applicant father also told the Tribunal that his own father has successfully managed a business in Shanxi province for many years, paid his fine when he claimed to be detained and was able to afford to pay for the costs of his visa, travel to Australia and first semester’s tuition.

27. Based on the above evidence, the Tribunal is satisfied that the applicant’s father’s earnings in Australia, even as a casual worker, would be higher than the average income in a rural area of China. The Tribunal is also satisfied that the applicant father would be able to pay in instalments, possibly with financial assistance from his father. Based on the evidence available to it the Tribunal is satisfied that the applicant father would be able to pay a social compensation fine if required by the Family Planning authorities in Fujian province without undue economic hardship and register his child.

28. The Tribunal also put to the applicant father that if he were to take his [child]’s birth certificate back to China which indicated that he was married at the time of birth then perhaps he would have little difficulty obtaining his [child]’s hukou without paying the fine.  The applicant father stated that he did not know what the situation would be.  His own father had been unable to advise him.

29. Accordingly, based on the above findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution or that there is a real chance that he would suffer serious harm as defined in Subsection 91R(2) on the basis of his status as the single parent of a child born out of wedlock or that he would suffer significant economic hardship that threatens his capacity to subsist as a result of having to pay a social compensation fine.

30. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as defined in subsection 5(1) as a result of his status as the single parent of a child born out of wedlock or the requirement to pay a social compensation fine for having a child out of wedlock, if he were to return to China now or in the foreseeable future.

    Applicant child’s claims

1. The applicant child completed a Part D form with no claims of [his/her] own.  The Tribunal asked the applicant if his [child] had claims of [his/her] own.  The applicant said that the main basis for his [child]’s claims are that [he/she] would suffer discrimination as a result of the applicant’s criminal record.

2. The applicant father thought that other people would think less of his [child] and other children may bully or beat [him/her] because of his own record.  The Tribunal asked him to clarify what he meant about his own record.  The applicant father stated that he meant his record of being arrested because of illegal Falun Gong activities.  The Tribunal asked him how other children would know about the applicant’s record.  The applicant father said his village was small and everyone would know and they would tell other children.  His [child] would be discriminated against.  The Tribunal put to the applicant father that it seemed somewhat implausible to believe that other [age]-year-olds would bully his [child] because of something that he claims happened to him over 10 years ago.

3. The Tribunal asked the applicant if he could relocate with his [child] to his own father’s residence in Shanxi.  The applicant stated that he could not because he did not have a hukou for that area.  The Tribunal put to the applicant that he had given evidence that his father did not have a hukou for Shanxi either but had successfully worked and run a business there for over 20 years.  The applicant repeated that he did not think he would be able to relocate to his father’s home.

4. The Tribunal asked the applicant if he thought his  [child] would have any difficulties given [he/she] was born out of wedlock.  The applicant said he did not know.  As stated above, he agreed that his [child] would obtain a household registration if he were to pay the relevant fine.  He did not indicate that he would be unable to pay such a fine and, as discussed above, the Tribunal is satisfied that the applicant would be able to pay such a fine and have his child appropriately registered. He would therefore not be a “black child”.

5. As discussed above, the Tribunal is not satisfied that the applicant has a criminal record as a result of imputed or actual involvement in Falun Gong activities.  Even if the Tribunal did accept the applicant’s claims that he had a criminal record, given the applicant’s very vague claims relating to possible bullying and discrimination that his son may experience as a result of having a father with a criminal record, the Tribunal is not satisfied that there is a real risk or a real chance that the applicant’s [child] would suffer serious or significant harm as a consequence of [his/her] father’s record or that [he/she] would suffer discrimination as a result of the applicant’s imputed criminal record.

6. Although the applicant did not make a claim that his child would suffer serious or significant harm as a result of being an illegitimate child, the Tribunal considered the issues that children may face as a result of being born out of wedlock.

7. The Tribunal had regard to independent information about the treatment of children born out of wedlock. Reports suggest that children born out of wedlock face social stigma, such as ostracism or teasing at school. In 2004, Dr de Jonge provided advice to the Tribunals regarding the social discrimination faced by illegitimate children and children of unmarried mothers:

   In practical social terms, there is no doubt that unmarried mothers and their children are subjected to many types of social discrimination, harassment and ostracism. Chinese society is still deeply prejudiced against illegitimate children. Such children are also discriminated against in terms of their civil and social rights. Children of unmarried mothers are commonly referred to as “black children”. The phrase has derogatory connotations but also highlights the fact that such children are virtually “invisible” so far as their civil and economic rights are concerned.[17]

   In 2010, Dr de Jonge reiterated this advice, stating that children born out of wedlock ‘are still regarded with pity and disdain… [t]hey are teased at school’.[18]

   [17] Jonge, A. 2004, Advice of China’s Family Planning Law(s) and Regulations with special reference to the position of unmarried mothers, October

   [18] de Jonge, A. 2010, Email to RRT Country Advice ‘RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060)’, 15 January

8. RRT advice provided in August 2012[19] about children born out of wedlock in Fujian province stated that:

   Information could not be found about specific policies that are discriminatory against children born out of wedlock; and one law was found prohibiting discrimination against children on the basis of being born out of wedlock. Some policies regarding access to education and healthcare, however, require that children hold a household registration. As mentioned in Question One, children born out of wedlock can reportedly obtain household registration documents in Fujian, provided the fine for breaching the family planning regulations is paid, though in practice the parents or the authorities may refuse to register the child.

   The Marriage Law of the People’s Republic of China 2001 prohibits discrimination against children born out of wedlock. Article 25 states:

   Article 25

   Children born out of wedlock shall enjoy the same rights as children born in wedlock.  No one may harm or discriminate against them.

   The natural father or mother who does not directly bring up a child born out of wedlock shall bear the child's living and educational expenses until the child can live on his or her own.[20]

   [19] RRT Information Request CHN40772, 23 August 2012

   [20] Marriage Law of the People’s Republic of China 2001 (China), Promulgated 28 April 2001 (Effective 28 April 2001), Westlaw China website < Accessed 22 August 2012

9. In the light of the above information, the Tribunal is not satisfied on the evidence before it, that the applicant’s [child] will be an unregistered child or that [he/she] will face discrimination, stigma or ostracism due to his illegitimacy that is sufficiently serious to constitute ‘serious harm’ (having regard to the examples provided in s.91R(2) of the Act) or ‘significant harm’ (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act.)

   CONCLUSION

10. For the reasons given above the Tribunal is not satisfied that either 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 the applicant child is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As the applicants do not satisfy the criteria for a protection visa, they cannot be granted the visas.

    DECISION

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

    Belinda Mericourt  25 November 2015
    Member

    
    

    ATTACHMENT - RELEVANT LAW

11. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

    Refugee criterion

12. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

13. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

14. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (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.

    Complementary protection criterion

15. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

16. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.