1413149 (Refugee)

[2015] AATA 3746

1413149 (Refugee) [2015] AATA 3746 (18 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413149

COUNTRY OF REFERENCE:                  China

MEMBER:Stuart Webb

DATE:18 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 18 November 2015 at 10:53am

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] October 2013 and the delegate refused to grant the visas [in] July 2014. For reference where relevant, the first named applicant will be described as ‘the applicant’, the second named applicant ‘the applicant’s partner, the third named applicant ‘the applicant’s son’, and the fourth named applicant ‘the applicant’s daughter’. The two children, where relevant, will also be described collectively as ‘the applicant’s children’. 

3. The applicants appeared before the Tribunal on 1 October to give evidence and present arguments. The applicant’s children did not attend, their parents presented their claims for them. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. The applicants provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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.

    Member of the same family unit

20. 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 the wife and dependent children of the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicants are a family, with the applicant father and his defacto partner being born in Fujian province, China.  They have two children, their son [name], born [in] 2010, and daughter [name], born [in] 2012, both born in Australia. All applicants identify as Chinese citizens and Christians.

22. The applicant arrived in Australia [in]June 2006 on a student visa. He is from [his home town], Fuqing City, Fujian Province.  He has not departed Australia since arriving. [In] March 2009 he applied for a student visa, which was refused [in] May 2009. His bridging visa expired [in] June 2009 and the applicant became unlawful. He applied for the protection visa [in] October 2013.

23. The applicant’s partner arrived in Australia [in] June 2007 on a student visa. She is from [the same home town], Fuqing City, Fujian Province.  She has not departed Australia since arriving. [In] March 2010 her student visa expired and she became unlawful. She applied for the protection visa [in] October 2013.

24. All applicants lodged their own Form 866C. The claims made in each of the 866C are very similar, with the two children’s applications being identical, aside from personalisation.

25. The applicant claims that de facto relationships are not recognised in China and the children will be considered born out of wedlock.  Fines will be imposed because of breaches of the family planning regulations, including having children without being married, and having two children. The compensation fee will be heavy. The applicant’s hometown is conservative and will treat the applicant and his partner badly, as will their families. The applicant’s partner will be forcibly sterilized. It is difficult to register children who are born out of wedlock and in breach of the family planning laws. They will face deprivation and discrimination. The only way to get registration is with bribes. The system in China is corrupt, there is no position for adverse voices.

26. The applicant also stated that his family had difficulties in the past because of a desire to have a second child. The authorities wanted to force the applicant’s mother to have an abortion and sterilise her. She went into hiding. The applicant was slapped and fell over, causing a scar to his face. He has been laughed at by friends because of this scar. His parents had to pay RMB[amount], which caused financial issues.

27. In the Form 80 provided by the applicant he identifies he has [siblings], born in the same town as the applicant[1].

    [1] DIBP Folio 139-140

28. The applicant’s partner claims that de facto relationships are not recognised in China and the children will be considered born out of wedlock.  Fines will be imposed because of breaches of the family planning regulations, including having children without being married, and having two children. The compensation fee will be heavy, and there will be arbitrary and corrupt implementation of the fine.  Their hometown is conservative and will treat her and applicant and his partner badly, as will their families. There are difficulties between the families, as her family requested betrothal gifts, which they could not afford. She will have difficulties with her religion, as her step-mother is not a Christian. She wanted the applicant to convert to her religion, but she did not. The applicant’s partner wants freedom of religion. She states that she will be forced to be sterilised. The system in China is corrupt, there is no position for adverse voices.

29. In the Form 80 provided by the applicant’s partner, she identifies that she has an adopted [sibling], born in the same town as her[2].

    [2] DIBP Folio 122

30. The applicant’s children also raised the issue of being born out of wedlock, and the social compensation concerns. They raised the issue of the difficulty of being getting registration, and the deprivation and discrimination they will face if they do not get registered. Even registered there is a prejudice against illegitimate children. They raised the issue of corruption and that here is no position for adverse voices.

31. The applicants provided birth certificates for the children. They provided baptismal forms for the applicant, his partner and son dated [in] April 2011 into the [named] Church.

32. The applicants were interviewed in relation to their claims. The delegate asked about the issue of religion, given only the applicant’s partner had raised this as part of the application. The delegate noted that it was submitted that religion was not a basis on which the applicants fear persecution. The delegate noted that the applicant’s partner had not claimed that she feared harm from the authorities on account of religion. The delegate considered that they would not be harmed for this reason.

33. The delegate considered on the evidence that the applicant parents came from a rural area of Fujian Province, are not married and have a genuine subjective anxiety about returning to China.

34. The delegate considered the claims of ‘unwed parents’ and ‘parents of ‘black children’’ did not constitute grounds under the Convention, citing the case of Chen Shi Hai v MIMA (2000) 170 ALR 553 as authority that the prosecution of these applicants was pursuant to laws of general application rather than pursuant to membership of any particular social group. The delegate considered that the applicant parents did not raise a fear of harm for any other reason, and found that the Convention did not apply to them.

35. With respect to the two child applicants, again referencing Chen Shi Hai, the delegate determined that the ground ‘black children in China’ was a particular social group that they were members of.

36. The delegate considered the issue of fines and provision of a Hukou, the registration document. The delegate accepted a social compensation fee will be levied, which will amount to several thousand RMB. While not insubstantial, the delegate did not consider this to be so expensive as to constitute serious harm. The delegate considered the applicants have the means to pay the fine. The delegate noted that the applicants stated that they will most likely reside with the applicant’s parents, which would limit household expenses. It was also noted that the applicant has work rights in Australia and the capacity to save to pay the fines on return. The delegate noted that the applicant’s partner stated that the applicant will work hard to save money in Australia so that she does not have to worry about the fee. It was noted that the fine for rural dwellers was less than for urban dwellers in China. The delegate rejected the claim that the applicant’s limited education would prevent him from finding work. The delegate also noted that the fee was payable in instalments, though the applicants and their representative stated that this did not occur. The delegate considered the country information, including from DFAT that stated that applications for instalment payments were routinely refused by the authorities. The delegate did not accept that because he comes from a rural area the local authorities were more corrupt and included to act unreasonably. The delegate cited DFAT information that Fujian has one of the least coercive family planning regimes in China. The delegate did not accept that bribes would have to be paid.

37. The delegate considered that the applicants could pay the social compensation fee on return to China. Further the delegate considered that the fee was a law of general application, and not enforced selectively or in a discriminatory manner. The delegate determined that the applicant children will be able to be registered, and will not be persecuted for reasons relation to the registration practices or family planning practices in China.

38. The delegate considered the claims under complementary protection. The delegate noted that on payment of the fee, the applicants will not be harmed. Further, with respect to the claim that the applicant’s partner will be forcibly sterilised, the delegate noted that DFAT has advised that there is no record of enforced sterilisation of women in Fujian since the early 1990s. The delegate considered that the applicant’s partner would not be forcibly sterilised.

    FINDINGS AND REASONS

    Country of nationality

39. The applicants claim to be citizens of China and have consistently claimed this. The applicants provided identity documents to the Tribunal. The Tribunal confirmed that the applicant and the applicant’s partner have not been permanent residents of Australia or Australian citizens. The applicant’s children were born in Australia but are not entitled to permanent residence or citizenship when their parents were not permanent residents in Australia or Australian citizens. The Tribunal finds that the applicants are citizens of China, that China is the applicants’ country of nationality for the purposes of the Refugees Convention, and that China is their receiving country for the purposes of complementary protection.

    Third country protection

40. There is no evidence before me to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility / Delay

41. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

42. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

1. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

2. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

3. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

4. The applicant raised at the hearing an issue of local council corruption, where his father has had difficulties arising out a [deleted]. The applicant claimed that developers and the local council had combined to force his father to sell at a low price, an appeal to the local council was not taken up and his father was bashed, requiring medical treatment. This led to him having a particular view of how the local authorities would treat him on return.

5. The Tribunal expressed its concern with this claim. The Tribunal noted that the applicant had been concerned that he would be treated differently to others, and was concerned about local corruption. However he had not raised an example of his family supposedly being mistreated in his claims until well into the Tribunal hearing, having not mentioned it on any occasion previously, and as noted by the Tribunal, after having representation for two years to assist in raising this claim. When asked why he would fail to mention such a matter at an earlier stage, if he was concerned by the corrupt activities of local authorities, the applicant stated it was not a small thing, the corruption was well known around the world. He stated that he did not believe it any use to raise this point.

6. As discussed below, the applicant believes that he will be treated differently by local officials due to their corrupt activities. Given this concern, the Tribunal has significant concerns that the applicant would not raise a claim of previous experience of his family with corruption until such a late stage in his application. The Tribunal considers that had this claim been truthful, the applicant would have raised it at a far earlier stage to demonstrate how his family had been mistreated in the past, leading to his conclusion that he would be mistreated in the future. He has not done so, but raised it after the Tribunal had discussed the imposition of family planning policy in Fujian province, and discussed how this policy would affect the applicant. The applicant claimed that his local council would act differently than the specified Fujian Province family planning policy, that it was corrupt. However no mention of this specific issue of corruption affecting his family was raised by the applicant when discussing this element of his claims, it was raised at a later time, and had not been raised at all prior to this hearing. The Tribunal considers that the applicant has fabricated this claim, seeking to strengthen his overall claims. The Tribunal does not accept that the applicant’s family has previously been affected by corruption as claimed by the applicant.

7. The applicant’s partner also made a new claim at the hearing. The applicant’s partner claimed that several years ago her cousin had a further child, was fined then forcibly sterilised. She had not raised it before because she had not contacted her cousin until after the interview. The applicants’ agent stated that the powerful government system controlled the news and did not allow information on things such as forced sterilisation to be discussed.

8. The Tribunal does not accept this submission, or accept that the applicant’s partner’s cousin has been forcibly sterilised. The Tribunal considers that the claim has been made up for the purpose of strengthening the overall claims of the applicants. The Tribunal has noted its concern with the credibility of the evidence of the applicants, and does not accept that such a piece of information would be discovered and raised at the last moment of the Tribunal hearing. The Tribunal is concerned about how such information came to be known and the timing of this knowledge. The Tribunal has significant concerns that the applicant would be in contact with a cousin in China who happened to have had a forced sterilisation when the applicant is fearing such a process. The applicant’s partner’s knowledge of what circumstances of her cousin was very limited, and the forced process is contrary in circumstances where the country information provides contrary information. There are sterilisation processes in China, as detailed in the Fujian Family Planning Regulations, however they are not coercive measures but incentivised by reward and privilege schemes for those who have chosen to have this procedure.

9. The Tribunal further does not accept that information about family planning is curtailed by the state authorities, given that procedures such as sterilisation have been a part of the state regulations. The Tribunal does not accept that processes involved in the implementation of the one child policy would be deemed to be ‘bad news’ or would be hidden, either by the authorities or the community in which they occur. The Tribunal accepts that there was a reported instance of a high profile sterilisation case a few years ago where it was not voluntary, but there were very few other instances of such treatment. Given its concerns, the Tribunal does not accept that the applicant’s partner’s cousin was forcibly sterilised in China.

10. The Tribunal also notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

11. The Tribunal discussed with the applicants their migration history. The Tribunal noted that both adult applicants had been in Australia for extended periods of time, had become unlawful in Australia in 2009 and early 2010 respectively, and had not lodged the protection visa application until October 2013. They did nothing to regularise their visa status in Australia until well after the birth of the two children, in [2010] and [2012] respectively.

12. The applicants claimed that they were unaware of the right to seek protection. They also claimed that a refugee was defined as a group who were suffering or homeless, and that it was after they had the baby they were given more information. The Tribunal questioned this response. The Tribunal noted that both the applicants had come to Australia with the intention to study, but both had stopped doing this and both had commenced work. Their visas had been either cancelled or expired, and both had become unlawful in Australia. The applicant continued to work while the applicant’s partner ceased working when she had the first child, and has remained looking after the children. 

13. The Tribunal notes that the applicants’ claims arise out of their failure to adhere to the one child policy imposed in China, as discussed below, they have not pursued any other claims. Thus the primary protection claim arises after the birth of the second child, in June 2012. However the applicants did not lodge the protection claim then, but waited a further 16 months before doing so. The Tribunal considers that the applicants would have known that they were in breach of the one-child policy of China but did not seek protection at that time. The Tribunal considers that it raises genuine questions as to the fear held by the applicants arising out of their having two children, in contravention of this Chinese policy. The Tribunal considers that this delay in lodging is significant in all the circumstances.

    Claims

14. The applicants primary claim arises out of the repercussions of their breach of China’s one child policy, that the adult applicants will be harmed for reasons arising out of the number of children that they have had out of wedlock, and that the children will be harmed by being born out of wedlock, being more than one child and not being provided with a Hukou, leading to significant discrimination. It was claimed that a fine would be imposed on the family that would not be able to be paid.

15. The Tribunal notes that the adult applicants have maintained a relationship for around 6 years. They have not married. In the time of their relationship they have had two children, both born out of wedlock. Asked about why they have not married, the adult applicants stated that they wanted to marry when it was a happy occasion and when their situation was stabilised, and they have been under pressure for some time, so have not chosen to marry. They have no philosophical objection to marriage, they would like to get married in the future.

16. The applicants also stated that they feared providing documents to assist in the wedding preparation to the authorities due to their migration status. The Tribunal questioned this and pointed out that the applicants were prepared to attend a hospital for the birth of the two children, and register the birth of the children at the aptly named Office of Births, Deaths and Marriages. The applicants’ willingness to utilise the services of such an office for the purpose of getting birth certificates is contrary to their concern about the Australian authorities which led to the failure to get married. The Tribunal does not accept that the concern for the applicants’ migration status in Australia was a reason for the applicants’ failing to get married.

17. The Tribunal noted at the hearing that should the applicants marry the fines that may be imposed would be less, to the extent that no fine may be imposed upon them. The applicants were not aware of this. The Tribunal considers that the adult applicants would marry in the near future if faced with the prospect of returning to China, despite their desire to marry in happier circumstances.

    Family Planning Laws

18. The Chinese government has institutionalised and regulated birth planning since the 1970s.[3] China’s family planning policies are under continual revision and the central government has permitted provincial and municipal authorities greater levels of policy planning autonomy in relation to this issue[4]. As a result, interpretation and implementation of the policy varies enormously across China[5]. DFAT has, however, described China’s family planning policy as fundamentally consisting of three elements: advocating late marriage and delayed childbearing, advocating one child per couple, and allowing eligible couples to have a second child[6]. Social compensation fees are the most common disincentive used to ensure compliance with the policy.[7]

    [3] Greenhalgh, S & Winckler, E 2001, Chinese State Birth Planning in the 1990s and Beyond, Perspective Series, Immigration and Naturalization Service (INS), US Department of Justice, September, p.43

    [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 Country Report – China, 3 March  2015 at 3.46

    [6] Department of Foreign Affairs and Trade 2007, DFAT Report 691 – RRT Information Request CHN32173, 31 August

    [7] Department of Foreign Affairs and Trade Country Report – China, 3 March  2015 at 3.47

19. According to the 2014 US Department of State Report on Human Rights Practices in China, having children out of wedlock is illegal in almost all provinces of China and doing so attracts a social compensation fee. The Marriage Law of the People’s Republic of China 2001 sets the minimum marriage age at 20 for women and 22 for men[8]. In some provinces the social compensation fee is waived if a couple marries after the birth of their child.[9] This is the practice in Fujian Province, where provisions permit the fee to be waived if the applicant’s marry within 3 months of being advised of their being charged with contravening the family planning provisions, see Article 46 (1) of the Fujian Population and Family Planning Regulation as detailed below.

    [8] Marriage Law of the People’s Republic of China 1980 (China), c II art 6, adopted 10 September 1980, amended by Decision Regarding the Amendment of Marriage Law of the People’s Republic of China 2001, 28 April 2001, Ministry of Foreign Affairs of the People’s Republic of China

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

20. In Fujian, the following provisions have been in place since August 2011 to assess the fees to pay in relation to family planning. Relevantly for the applicants, leeway is given for children born overseas.

    6. The person should be free of penalty and collection under one of the following circumstances:

    (5) Overseas student give birth to the second child overseas or come back to Chinese mainland after pregnancy;[10]

    [10] Notice of Population and Family Planning Commission of Fujian Province on Printing and Issuing Applicable Method for Discretion of Administrative Penalty and Social Support Fee Collection of Population and Family Planning in Fujian Province.

21. In April 2014 the Fujian Population and Family Planning Regulation was amended, and are presently in place. The Regulations note that the following relevantly apply to the applicants.

    Article 9 A couple who already have a child can be approved to give birth to another child if one of the following circumstances is met:

    (I)One of the spouses is one-child;

    …

    Article 12 If both husband and wife are returned overseas Chinese, they can be approved to give birth to another child under one of the following circumstances:

    (I)Have been pregnant when come back to settle in China;

    …

    Article 14 Violation of the Regulations to give birth to extra children, have extra-marital fertility and unmarried fertility shall be prohibited.

    Any birth behaviour occurs when both sides do not handle marriage registration shall be defined as unmarried fertility.

    Article 46 Upon any fertility violates the Regulation, the parties involved shall be imposed of social compensation fees by county (city, district) people's government administrative department of population and family planning at certain rate of the country (city, district) urban residents per capita disposable income or rural per capita net income of the previous year, the rate of charge is as follows:

    (I)       Unmarried childbearing, except extra fertility, shall be charged by 60% to 100%. However, if the couple have reached legal age for marriage when giving birth to the child, and have make up the marriage registration within 3 months after being notified to be charged, shall be exempted from the charge;

    (II)       Extra fertility of one child shall be charged at 200%-300%; extra fertility of two children shall be charged at 400%-600%; extra fertility of three children or more shall be imposed with heavier punishment;

    (III)      Extramarital fertility of one child shall be charged at 400%-600%; extramarital fertility of two children or more shall be imposed with heavier punishment.

    If personal annual real income is higher than the local urban resident per capita disposable income or rural per capita net income, the personal annual real income shall be taken as the base, and social compensation fees shall be charged as specified in the preceding provisions. If extra fertility is wins or multiple births, the social compensation fees shall be calculated at the standards of one extra child.

    County (city, district) people's government administrative departments of population and family planning can commission township (town) people's government, subdistrict offices to charge the social compensation fees in accordance with the relevant national and provincial provisions.

    For those refuse to pay the social compensation fees, the administrative department of population and family planning can notify the relevant agencies to record their illegal information into personal credit system.[11]

    [11] Fujian Provincial People's Congress Standing Committee’s Decision on Amending <Fujian Population and Family Planning Regulations> (Passed by the 12th General Assembly of Fujian People's Congress, the 8th meeting of Standing Committee on March 29, 2014)

22. The one child standard effectively applies in urban areas and generally speaking, second children are permitted if both the husband and wife are only children, the family is part of a minority group or if the family is defined as a rural couple in certain circumstances, including if the first baby was a girl[12]. Rural couples in Fujian may be allowed to have a second child if they meet certain criteria including either the husband or wife is the only child in the family and the couple has only one daughter[13].

    [12] Xiaofeng, G 2007 ‘Most people free to have more child’, China Daily, 11 July <

    [13] Population and Family Planning Regulation of Fujian Province, art 10, promulgated 26 July 2002 (effective 1 September 2002), UNHCR Refworld < see also US Department of State, ‘Country reports on Human Rights Practices for  2014’ China; Section 6; Women;. Reproductive Rights; June 2015

23. The applicant’s partner is an only child, though she has an adopted [sibling].

24. Returning student couples are exempt from the social compensation fee when they return to China with a second child if both parents studied in another country for more than a year. In 2010, DFAT advised in relation to Fujian province that to qualify for the exemption, both the mother and father needed to be overseas Chinese students[14]. An earlier 2004 advice stated that in cases where one or both of the parents had travelled overseas for study, a couple was allowed to have two children but fees would be charged on return to China for a third or subsequent child[15].

    [14] Department of Foreign Affairs and Trade 2010, DFAT Report No. 1196 – China: RRT Information Request: CHN37198, 13 September

    [15] Department of Foreign Affairs and Trade 2004, DFAT Report No. 327 – China: RRT Information Request: CHN17017, 7 October 

25. The calculation of the social compensation fee is determined by the average incomes for the district in which the parents’ hukous are registered; the actual income level of the parents; the fee structure imposed at the provincial level; and the manner in which the couple has breached the family planning regulations. A separate social compensation fee is imposed on each parent[16]. Under national law, offenders have 30 days to pay via lump sum after being served with notice by local authorities. Those unable to pay a lump sum have 30 days to apply for approval to pay by instalments. Individuals who fail to pay on time are penalised with a surcharge fine on a monthly basis at the rate of 0.2% of the unpaid social maintenance fee.[17] The number of instalments permitted for payment of the social compensation fee varies between provinces. In Fujian province, the period for the payment of instalments shall not exceed three years[18]. In 2013, DFAT advised that where a fine is paid in instalments in Fujian, a hukou would be issued to the child prior to the full repayment and there would be no effect on access to public schools or other services[19].

    [16] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request:  CHN41439, 7 February; Population and Family Planning Regulation of Fujian Province, art 39, promulgated 26 July 2002 (effective 1 September 2002), UNHCR Refworld <

    [17] Measures for Administration of Collection of Social Maintenance Fees (China), art 6A, Promulgated 2 August 2002, (Effective 1 September 2002), National People’s Congress of the People’s Republic of China < Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November

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

1. Information in the China Daily, dated 29 April 2014, gives an indication of the relaxing of restrictions for obtaining hukou for children born in contravention of family planning laws in Fujian province:

   ‘Registration of hukou, or permanent residency permit in China, for infants will become much easier in Fujian province, according to authorities on April 28. Starting on May 1, all newborns will be eligible to obtain their hukous regardless of their parents providing a birth certificate. Under China’s birth policy, couples can have only one child. Those who violate the rule can be penalized, and previously, their “extra” children could not get a hukou, which could pose a hurdle in many aspects of life. But now, the new regulation says that no matter whether an infant is born in violation of the birth policy, he or she will be granted a hukou to guarantee his right to enjoy public services, said an official from the provincial public and security bureau at a press conference on Monday. They can sue if the local public bureau turns down the hukou registration for their children, he added. But parents will still receive punishment for breaching birth rules. The announcement marks a historical improvement and shows more humane touches in Fujian’s birth regulations, insiders said. Fujian adopted the so-called second-child policy earlier this month, allowing couples to have a second child if one of them is a single child.’[20]

   [20] ‘Fujian relaxes hukou registration for infants’ 2014,  China Daily, 29 April, <>

   Article 19 of The Marriage Law of the People’s Republic of China states “children born out of wedlock shall enjoy the same rights as children born in wedlock”. The legislation states that “no-one may harm or discriminate against them”. However, reports on children born out of wedlock indicate that they may be subject to social discrimination even if have gained household registration. In October 2004, DFAT advised that “being a child out of wedlock still attracts some degree of social stigma”[21]. The report states that “children might be subject to bullying or teasing at school, but are unlikely to suffer serious social disadvantage”. Advice received from Dr Alice De Jonge in 2010 suggested that children born out of wedlock were regarded with pity and disdain and were teased at school[22].

   [21] Department of Foreign Affairs and Trade 2004, DFAT Report 330 – RRT Information Request: CHN16967, 15 October

   [22] Dr Alice De Jonge, Email to RRT Country Advice “RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN 36060), 15 January 2010

2. The Population and Family Planning Regulation of Fujian province does not explicitly state that mandatory abortion or sterilisation is required for out of plan births. Article 18 of the Regulations states that individuals who have unauthorised pregnancies should take remedial measure in time and local committees should urge them to take remedial measures in time. No further information is provided as to what constitutes “remedial measures”. One reported case of forced abortion occurred in Fujian in 2012[23].

   [23] New ‘late-term abortion’ row in China’s Fujian province’ 2012, BBC, 10 July < ‘Another Forced Abortion Tragedy—’My poor wife, my poor child’ 2012, China Aid, 9 July < 2013; Wong, E 2012, ‘Reports of Forced Abortions Fuel Push to End Chinese Law’, New York Times, 22 July <

3. The DFAT Country Report for the People’s Republic of China issued on 3 March 2015, indicates that local authorities occasionally launch campaigns to crack down on or prevent non-compliance with family planning policies. The Report indicates that DFAT is aware of media reports indicating that coercive practices such as forced abortions, sterilisations or invasive medical inspections can be employed by authorities in order to force compliance. There is no reliable data on the frequency of coerced or forced abortions or sterilisations. There have been some high profile media reports of late-term abortions but observers believe such instances are becoming less frequent.[24]

   [24] DFAT Country Report – China, 3 March 2015 at 3.49

4. The Tribunal discussed with the applicants the imposition of the one child policy and the imposition of fines in Fujian Province. The Tribunal noted that the policy in Fujian demonstrated that there is capacity for the applicants to have two children without being fined. This would require the applicants to get married, which the Tribunal considers the applicants would do, there being no objection by the applicants to them getting married, indeed they want to get married at the right time.

5. The applicant claimed that his local council would not follow the provisions as set out in the Fujian Population and Family Planning Regulation, including the provisions as per the fines being exempted after marriage. The Tribunal asked the applicant why they would not follow the Regulations as imposed by the Provincial Government, which is responsible for the region the applicants have come from in China and would return to. The applicant stated that they are corrupt and arbitrary in the implementation of the rules. The applicant stated that they would be told they had already broken the rules, even if they got married and this would not alter their situation. The applicant’s agent also noted that Western standards of laws was not always applicable in China, that laws filter down slowly, that regulations were not always implemented.

6. The Tribunal disagrees with this submission by the applicant. The Tribunal notes that the provisions of the Fujian Population and Family Planning Regulation have been in place for some time. The provisions of the Fujian Population and Family Planning Regulation  have penalties entrenched for corrupt implementation of the Regulations, Article  55 states:

   Article 55 For government staffs, upon any of the following acts in family planning work, relevant departments shall punish the person in charge and executives of such person in charge; any illegal gains shall be confiscated; if it constitutes a crime, they shall be investigated for criminal responsibility:

   (I) Infringe citizens' personal rights, property rights and other legal rights;

   (II) Abuse of power, dereliction of duty, play favouritism and commit irregularities;

   (III) Interception, corruption, embezzlement, withholding of family planning funds or social compensation fees;

   (IV) Make a false report, conceal, forge, tamper or refuse to report statistical data of population and family planning;

   (V) Solicit or accept bribes;

   (VI) Refuse to issue birth control certificates with unjustified reasons;

   (VII) Other unlawful acts[25].

   [25] Fujian Provincial People's Congress Standing Committee’s Decision on Amending <Fujian Population and Family Planning Regulations> (Passed by the 12th General Assembly of Fujian People's Congress, the 8th meeting of Standing Committee on March 29, 2014)

7. The Tribunal does not accept that the applicants will be unfairly treated by their local authority in the imposition of the regulations in Fujian province. The Tribunal does not accept that the applicants will be treated differently to the provisions of the Fujian Population and Family Planning Regulations as they currently stand in his local area, or that these laws are not being implemented. The Tribunal considers that the discussion of the one child policy and its amelioration over time to permit more children to be born in certain circumstances, such as those specified in the Fujian Population and Family Planning Regulations, are closely watched by the population in China and provides little opportunity for official breach. The Tribunal considers that the relaxation of this one child policy, as specified in the 2014 Regulations, is part of a greater shift in this area towards accepting fertility, and that local councils and corrupt members thereof, which the applicants fear, will not be able to impose different rules as compared to those specified.

8. The Tribunal has considered the applicants’ claims that they have breached China’s family planning laws. The Tribunal is satisfied that the applicant has given birth to 2 children outside of wedlock. The Tribunal is satisfied that this constitutes a breach of China’s family planning laws and that the applicant is likely to be required to pay a social compensation fee as a consequence.

9. The Tribunal is satisfied that the applicant partners’ pregnancies and the subsequent birth of the children occurred otherwise than for the sole purpose of strengthening their protection claims. Accordingly the Tribunal is not required to disregard this conduct for the purposes of s.91R(3) of the Act.

10. Given that the applicants indicated that they would seek to reside and have their children registered in Fujian province, the Tribunal considers that this is the location in which the applicants would be subjected to penalties arising from her breaches of the law.

11. The Tribunal is not persuaded that the applicants would fail to marry either before their return to China or upon return to China. The applicants’ evidence with regard to the reasons why they had not married was unconvincing and the applicants expressed a desire to marry. The Tribunal considers that the applicants will be married at the time the social compensation fee is to be estimated.

12. The Tribunal does accept that the applicants would be required to pay a social compensation fee due to having given birth to two children out of wedlock. The applicants were unclear as to what fee would be paid, the applicant claimed his mother went to the local authorities who stated that they would have to pay two to three times the average wage. Information before the Tribunal suggests that the fee for children born before the stipulated time to rural parents in Fujian would be closer to RMB 30,000 (approximately AUD$6600). The country information before the Tribunal also suggests that the applicant would not be required to pay an additional fee for having a second child in circumstances where both adults hold rural hukous. Nonetheless, given that there is a level of uncertainty surrounding the precise amount of the social compensation fee likely to be imposed, the Tribunal has considered the applicant’s position should the fee imposed be in the vicinity of RMB 100 000, as suggested by the applicant.

13. The Tribunal considers that the applicants will be able to pay this fee. The applicant has been employed in [occupation] in Australia, and has been able to earn a reasonable amount in this work, though he did state he was taken advantage of as a Chinese worker. The Tribunal noted that the applicant had been working for an extended period of time in Australia, including while unlawful and more recently for the past two years with official work rights on his Bridging Visa. The Tribunal also noted the information as provided by the applicant to the delegate that he was saving money for the purpose of paying any fine, should they return to China. The applicant accepted he said this, but had found it difficult to support his family in Australia and had not saved as much as he would have liked.

14. The applicant’s evidence that he was underpaid for his work was unconvincing and given its other credibility concerns, the Tribunal is not persuaded that the applicant has given a truthful account of their financial situation. The applicants have resided in Australia for over 7 years and the applicant himself has worked for most of that time. The Tribunal considers that they have some savings which they could use to pay the imposed fee.  Even if they returned to China with little savings from their work in Australia, the Tribunal is not satisfied that the applicants could not find work in China. Given the evidence of the applicants, it is likely that they will return to the applicant’s parent’s home in China, his mother is the one who enquired of the family planning fees that may be imposed. The Tribunal is satisfied that suitable care arrangements could be made for the applicants two children with the grandparents they would reside with should the applicant’s partner wish to work in China.

15. The applicant stated that as a [occupation] he would not have significant opportunities, as manpower is cheap and wages are low. The Tribunal also notes that the applicant has had long-term employment in this industry in Australia, which would give him a degree of ability that may place him at an advantage in the workforce. The Tribunal considers that the applicant will be able to earn a reasonable wage that will provide support to his family while also paying off any fee that may be imposed.

16. As noted to the applicant at the Tribunal hearing, the country information before the Tribunal is that the social compensation fee may be paid in instalments in Fujian over a period of three years and that children are not denied a hukou before payment is complete. The applicants and their agent stated that they were unaware of this being permitted. The applicant stated further that his local council would not permit this, as they were corrupt.

17. The Tribunal does not accept that the ability to pay in instalments would be denied to the applicants, as specified by the provisions above. The Tribunal considers that the fee would be able to be paid in instalments. In these circumstances, the Tribunal is satisfied that the applicants would pay the social compensation fee. Nor is the Tribunal satisfied that payment of the social compensation fee would threaten the applicants’ capacity to subsist or otherwise amount to serious harm or significant harm, as defined in the Act.

18. In any event, China’s family planning laws apply to the population of China generally and not to the applicants personally (s.36(2B)(c)). The Tribunal finds that the imposition of a social compensation fee would be a penalty imposed by a law of general application, which is a law that is not discriminatory on its terms or have a differential impact. If the law is a law of general application, the only remaining question is whether the law is selectively enforced, and if it is not, the enforcement of the laws will be as a result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c). The Tribunal does not accept that this fee is imposed in a discriminatory fashion. As such, the Tribunal is not satisfied that the imposition of a social compensation fee constitutes discriminatory conduct amounting to persecution (s.36(2)(a) and s.91R(1)(c)).

19. The Tribunal has considered the issue of the applicant’s children being born out of wedlock and contrary to the family planning regulations. The Tribunal discussed the claim of the applicant parents to being ‘unwed parents in China/parents of black children/unwed parents of black children. The Tribunal referenced the discussion of this claim in the delegate’s decision, including identifying issues with these attributes been cognisable in the community for the purpose of establishing a particular social group. The Tribunal also noted the leading case of Chen Shi Hai v MIMA (2000) 170 ALR 553 which discussed the issue of black children in China, including how it may affect the parents. The Tribunal noted the reference in the delegate’s decision that the parents of black children were prosecuted for breaches of laws of general application rather than due to any membership of a particular social group. The Tribunal invited the applicants and their representative to make submissions on this point. The applicant stated it was unfair as rich families could more readily pay the fines. The Tribunal notes that the fines vary given location (urban/rural) and percentage that may be imposed, between 60% to 100% of annual net income. The applicants did not press this point further. The Tribunal find that the applicant parents do not have a real chance of serious harm or a real risk of significant harm arising out of this reason.

20. The Tribunal did accept that the case of Chen Shi Hai did establish that the applicant’s children were members of a particular social group, for being a black child. The applicant parents spoke on behalf of their children to explain how they would be affected.

21. The applicants stated that there were a number of black children in their area. The Tribunal noted that it would appear that the rural area they came from had a number of second and third children, the applicants themselves have siblings, though the applicant’s partner’s [sibling] is adopted. The Tribunal noted that this would appear to contradict the claim that they come from a conservative area that had restrictive views on multiple children.  The Tribunal noted that the applicants would not be denied the right to register the children, noting country information regarding this issue. The applicant agreed that they could register the children, but that they would face a fine that would be difficult in their circumstances to pay. The children would be denied the right to education and health care if the fine was not paid, this would affect their mental development.

22. The Tribunal accepts that the applicant’s children were born in contravention of China’s family planning laws. For the reasons set out above, however, the Tribunal is not satisfied that this circumstance would lead to the applicant’s children being denied a hukou. The Tribunal considers that effective measures would be taken by the applicant parents to pay the fee and ensure that their children are registered, including getting married, which will exempt them from the unwed status, and the money that is saved or earned to pay the fee that will be implemented. The Tribunal is, therefore, not satisfied that there is a real chance or risk of the applicant’s children being denied access to health care, public education or any other public service. For the reasons identified above, the Tribunal is not satisfied that there is a real chance or risk that the applicant’s children would suffer economic hardship amounting to serious or significant harm arising from the imposition of the social compensation fee. The Tribunal finds that the fee levied will be paid. The Tribunal considers that the possibility is remote that there would be some level of societal condemnation being directed towards the applicant’s children due to the circumstances of their birth, The Tribunal considers that given that province’s adoption of a policy permitting second children in a range of circumstances, the attitude towards second children being more reasonable and less judgemental. The information before the Tribunal suggests a trend towards a general relaxing of family planning policies in Fujian. Were the applicants’ children to experience some level of teasing or disapproval from within the community as a result of the applicants breach of China’s family planning laws, the Tribunal is not satisfied that there is a real risk or real chance of the applicants suffering discrimination or ill-treatment amounting to serious or significant harm, now or in the reasonably foreseeable future.

23. The Tribunal finds that the applicants, including the two applicant children, do not have a real chance of serious harm or a real risk of significant harm for this reason.

24. The Tribunal has considered the applicant’s partners fear that she will be forcibly sterilised on return to China. The applicant himself claimed that his mother had difficulties in the 1990s for having three children, she had to go into hiding for a period of time, though she is no longer in hiding. The applicant stated this was a long time ago.  His family had to pay a fine and his grandparents had to go to the authorities, the applicant was with them at the time though he was only 2 years old and did not get into trouble.

1. The Tribunal noted that the country information suggests that forced abortions and sterilisations are increasingly rare and that family planning policies in Fujian are becoming more relaxed. The Tribunal does not accept that the applicant’s partner is a person whom this procedure is aimed at, given the liberalisation of the family planning regulations to permit the birth of second children. The applicant’s partner has had two children, which is increasingly being permitted in China through official regulations, and the Tribunal does not accept that any coercive sterilisation policy would be implemented in this situation. 

2. In these circumstances, the Tribunal is not satisfied that there is a real risk or real chance of the applicant’s partner being forced to undergo an abortion or sterilisation procedure now or in the reasonably foreseeable future. The Tribunal finds that the applicant’s partner does not have a real chance of serious harm or a real risk of significant harm for this reason.

3. Having discussed the issue of the family planning regulations, the Tribunal asked the applicants if they had any other concerns regarding returning to China. The applicants stated that they did not. The Tribunal noted that the applicant’s partner had discussed previously her concern about being a Christian, and the Tribunal confirmed that all applicants were Christians. The Tribunal asked if the applicants feared harm in China arising out of their religious beliefs. The applicants stated that they did not fear harm because of their religion.

4. Given the statements of the applicants at the hearing, the Tribunal finds that the applicants do not have a real chance of serious harm arising out their religious beliefs. The Tribunal finds that the applicants do not have a well-founded fear of persecution for this reason.

5. Further, the Tribunal has considered whether the applicants face a real risk of significant harm arising from their religious beliefs. They have not claimed that they have had any difficulty being Christians aside from the applicant’s partner stating that her stepmother is not supportive of her being a Christian. The applicant’s partner was never threatened or harmed or forced to leave her religion by her stepmother, or anyone one else. The Tribunal does not accept that the applicant’s partner’s stepmother will force to her to leave Christianity or convert to any other religion, she had limited influence on the applicant in the past and even less influence on the applicant’s partner at present, given the limited contact. The Tribunal does not accept that on return to China that the applicant’s partner’s stepmother will harm the applicants because of their religious beliefs, or seek to have them convert. The Tribunal considers that this claim is speculative and remote, and not something that has a real risk of occurring. The Tribunal finds that the applicants do not have a real risk of significant harm for this reason.

6. The Tribunal also noted that the applicants had expressed in their statements their fear that they could not express themselves freely in China, that it is ‘corrupt, there is no position for adverse voices’. The Tribunal asked the applicants about their experience of corruption or repression of their freedoms. The applicant mentioned the difficulties his family had had when he was a child arising out of the multiple children and the fine that was levied against them. The applicant also stated his local authorities were corrupt, that there was insufficient supervising of local government decisions. The applicant raised the issue of his father’s [property], which as described above, has not been accepted as credible by the Tribunal.

7. The applicants themselves have had limited experience of repression in China, beyond that experience by the applicant when he was a very young child. The Tribunal notes that the applicants and their families were able to make the financial and procedural arrangements to send the two adult applicants to Australia to further their studies, without financial or official constraint. They did not seek protection in Australia on arrival in Australia, although their concern with corruption in the local authorities would have been evident at that stage from their own claimed experience. None of the applicants have claimed to have ever sought to express a particular view that was limited or constrained by the Chinese authorities, the claim that adverse voices are not permitted appears to be a general comment on the state of the Chinese nation rather than any specific fear or experience they have been through. The actions of the authorities when the applicant was very young in fining the applicant’s family for breach of the one child policy at that time has not stopped the applicant having two children of his own.

100.   With respect to the corrupt activities of Chinese officials, the Tribunal accepts that there has been a concern that officials have used their position for personal benefit at the expense of others. There have been reports of corrupt activities in China. There have also been reports of actions taken by authorities to crack down on corruption, with officials across China being arrested for breaking laws or benefiting certain interests. The Tribunal does not accept that the applicants or their families have been affected by such corrupt activity in the past. Further, given the circumstances that they would face on return, the Tribunal is not satisfied that they would face a real chance of serious harm or a real risk of significant harm, now or in the reasonably foreseeable future. The Tribunal does not accept that any activity by the applicants, including the breach of the Family Planning Regulations of Fujian Province as administered in their local area, would lead to the applicant’s being harmed by corrupt officials.

101.   The Tribunal finds that the applicants do not have a real chance of serious harm or a real risk of significant harm arising from Chinese authorities not permitting adverse interests in China, or because of corrupt activity.

102.   The applicant stated he was concerned about getting a passport from the Chinese authorities in Australia, as his passport and visa had expired and he had not achieved the educational outcome that he had set out to do on arrival in Australia. The Tribunal noted that the applicant had been in Australia for some time yet had not made any attempt to regularise his visa status. While the Tribunal accepted that the applicant may be asked questions as to what he had been doing, the Tribunal does not accept that these questions would lead to his being denied a new passport to travel or would lead to any form of harm on return to China. The Tribunal does not accept that overstaying in Australia or not achieving academic outcomes would lead to the applicants being harmed on return to China.

103.   The applicant also stated that he is concerned for his partner from her family, having assisted her to breach the family planning policies and the likely imposition of a penalty for doing this. The applicant claimed that there were difficulties between the families as her family requested betrothal gifts which they could not afford. The applicant and the applicant’s partner have not had significant contact with her father and stepmother in China for some time, the family contact has been with the applicant’s family. The Tribunal notes that the applicant’s partner did not raise issues with her family as being of concern to her. The Tribunal does not accept that difficulties between the respective families because of the relationship, including the breaching of the family planning regulations and limited betrothal gifts, would lead to harm that could be described as serious or significant harm. While there may be certain opinions held, there has been very limited contact for an extended period, and in these circumstances the Tribunal considers that this claim is purely speculative on behalf of the applicants, and not one that has a real chance or real risk of occurring.

104.   The Tribunal does accept that the applicant and applicant’s partner have breached China’s family planning laws. The Tribunal does not accept that this circumstance gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant and applicant’s partner will suffer significant harm.

105.   Having considered all the claims and evidence individually and cumulatively, the Tribunal is not satisfied that the applicant or applicant’s partner have a well-founded fear of being persecuted in China, now or in the foreseeable future. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant or applicant’s partner will suffer significant harm.

106.   Having considered all the claims and evidence individually and cumulatively, the Tribunal is not satisfied that the applicant’s children have a well-founded fear of being persecuted in China, now or in the foreseeable future. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant’s children will suffer significant harm.

107.   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

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

Stuart Webb
Member

MIN REN KOU FA (2011) 92, Aug 25, 2011. Applicable Method for Discretion of Administrative Penalty and Social Support Fee Collection of Population and Family Planning in Fujian Province,