1420196 (Refugee)

[2016] AATA 4655

1420196 (Refugee) [2016] AATA 4655 (28 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420196

COUNTRY OF REFERENCE:                  China

MEMBER:Amanda Paxton

DATE:28 October 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 October 2016 at 9:05am

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] November 2014.

3. The claims of the applicant, a child of [age] years, were put forward on her behalf at the hearing by her mother who appeared before the Tribunal on 9 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  

4. The applicant was represented in relation to the review by her registered migration agent.

   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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    ·     The applicant is the child of a single mother. The applicant’s father left her mother when her mother was pregnant.

    ·     As the child of a single mother, the applicant will face discrimination because it is shameful to have a child out of wedlock in her home area, a rural part of Fujing District, Fujian, and Chinese society is deeply prejudiced against illegitimate children. People in the community will look down on the applicant because she is illegitimate, talk about her behind their backs and pick on her.

    ·     The applicant’s birth out of wedlock breached Family Planning law because it is against regulations to have a child out of wedlock. Therefore her mother will have to pay social compensation fee and because her mother’s finances are limited, her mother will not be able to afford the social compensation fee.

    ·     If the applicant’s mother is unable to pay the social compensation fine, she will not be able to obtain household registration, hukou, for the applicant. Without hukou, the applicant will be a “black child” and will be denied access to basic social entitlements such as public education and health care, and in future the applicant will not be able to find a proper job or partner.

    Country of reference

20. The applicant, who was born in Australia, claims to be a Chinese national. Based on her passport, the Tribunal finds that China is her country of nationality for the purposes of the Convention and also their receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims 

21. On the documentation before it, the Tribunal accepts the applicant is a child born out of wedlock to a single mother. The Tribunal accepts the applicant’s mother’s relationship with the applicant’s father ended before the birth of the applicant. The Tribunal accepts the applicant’s mother is from a rural area of Fujing District, Fujian, China.

22. On the basis of independent country information before it, discussed with the applicant, indicating that notwithstanding recent policy changes and the current loosening of family planning restrictions, Article 14 of the Population and Family Planning Regulation of Fujian Province 2002, does not permit having a child out of wedlock, the Tribunal accepts the applicant will be considered to have been born in contravention of family planning regulations.

    Social compensation fee for contravening family planning regulations

23. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm because the applicant’s mother will be required to pay a social compensation fee, a fine, because she has contravened family planning regulations by having a child out of wedlock. The Tribunal notes, as discussed with the applicant that parents are often charged a ‘social maintenance fee’ for violating family planning policies.[1] As discussed with the applicant’s mother, according to the Department of Foreign Affairs and Trade (DFAT) advice obtained in 2010 that despite relaxation of China’s family planning laws, the Family Planning Commission has said that the intention of imposing a fee to unmarried parents who give birth to a child will continue to encourage marriage.[2]

    [1] Hong Fincher, L 2015, ‘China's two-child policy: Single mothers left out’, BBC News, 2 November, paragraphs 4-6    < CXBD6A0DE15233

    [2]Department of Foreign Affairs and Trade 2010, DFAT Report 1104 – RRT Information Request CHN36059, 12 February <

24. As discussed with the applicant’s mother, in 2015 DFAT commented:

    3.47 Compliance with family planning regulations is largely achieved in response to incentives or punishments. Social compensation fees (also referred to as “social maintenance fees”) are the most common disincentive used to ensure compliance with the policy.[3]

    [3] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March, pp14-15 

25. On the information before it, the Tribunal accepts the applicant’s mother will be required to pay a “social compensation” fee because the applicant was born out of wedlock in contravention of family planning policies.

26. The Tribunal has considered the applicant’s mother’s statement that she will be unable to pay this fee, and, as discussed below, this will mean that the applicant will not be able to obtain hukou, and will have to live without access to basic services as a result.  In consideration of this claim, the Tribunal has taken into account country information discussed with the applicant that social compensation fees are set and assessed at a local level. As put to the applicant’s mother, the DFAT Country Report China issued 3 March 2015 contains the following information:

    3.47…Fees are to be calculated according to "last year's local disposable annual income per capita" in urban places, and "the net annual income per capita" in rural places. If the parents' actual income is higher than the average income, the actual income may be used as the basis for calculation. [4]

    3.48 Revenues from fees are directed to county-level governments. The law does not set out a fee schedule that applies to all localities. Instead, provinces are empowered to formulate their own rules on specific fines based on the basic social compensation fee measure outlined above. Local authorities can decide whether to impose a more lenient fine based on whether or not the family has been compliant with the policy. Compliance or cooperation could mean reporting the birth of an out-of-plan child within a short timeframe. Uncooperative behaviour could mean hiding children or sending them away at the time of inspection by family planning authorities. Those that fail to pay the required fee can be subject to additional surcharges or have pressure placed on them by employers or the family planning bureau.”[5]

    [4] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March, pp14-15 

    [5] Department of Foreign Affairs and Trade 2015, DFAT Country Report China, 3 March, pp14-15 

27. As put to the applicant, the amount of the fine for unwed mothers varies, and in some areas has been reported to be the equivalent of a year’s income.[6]  

    [6] ‘Single Chinese mothers struggle to overcome social hurdles’ 2013, VOA News, 28 June < > Accessed 30 September 2014, (CISNET China CXC28129413413)

28. In response, the applicant’s mother stated that she would not be able to pay the fine because in China everything is expensive, and income and expenses sometimes do not match. The applicant’s mother stated that she will be able to find employment, but that she does not have high qualifications so she will not be able to get a well-paid job. She stated that all her income, if lucky, will pay for school fees and there will not enough to pay the fine.

29. In considering the applicant’s circumstances, the Tribunal has considered her mother’s capacity to pay the fine. The Tribunal accepts the applicant’s mother’s evidence that she has not been working in Australia, but has been caring for the applicant and supported financially by Centrelink and the [an agency]. The Tribunal accepts the applicant’s mother has few savings. The Tribunal accepts that the applicant’s mother will have to work in China to support the applicant and herself. The Tribunal notes and accepts the applicant’s mother’s evidence at the hearing that she would be able to obtain work in China. The Tribunal also accepts that the applicant’s mother may not be able to obtain a well-paid job because she does not have high qualifications. On the evidence, the Tribunal finds the applicant’s mother will have access to an income through employment, and that she will be able to support herself and the applicant with this income.

30. In assessment of the applicant’s mother’s ability to pay the social compensation fee, the Tribunal has considered the support the applicant’s mother’s family could provide to the applicant. In this consideration, the Tribunal notes the applicant’s mother stated at the hearing that initially the applicant was not welcomed by her grandparents who tried to persuade her mother to have an abortion. The Tribunal notes the applicant’s mother’s evidence that she lost contact with her parents for a while when she was pregnant because they were unhappy with her. However, the Tribunal notes that the applicant’s mother told the hearing that she is now in regular contact with her parents. On the evidence of the applicant’s mother at the hearing, where she spoke with emotion about sharing photos of the applicant with her grandparents, the Tribunal accepts the applicant’s mother’s parents and family accept the applicant and her mother.

31. In making its findings in respect of payment of the social compensation fee, the Tribunal has considered whether the applicant’s grandparents will provide assistance and support to the applicant. The Tribunal has taken into account the applicant’s mother’s evidence that her family will not be able to support the applicant financially because they are close to retirement age and their health is not good. The applicant’s mother stated her father has a [health condition] and can no longer work to support the family, and her mother has [a medical condition]. She told the Tribunal that her [sibling], who is [employed], is married and has one [child] and [is expecting another], which places more financial pressure on the family. The Tribunal accepts that the applicant’s mother’s parents are unwell and experiencing financial pressures. However, the Tribunal also noted the applicant’s mother indicated she had frequent discussions with her parents about matters such as the social compensation fine and that her parent had made enquiries on her behalf about the fee. The Tribunal formed the view that although her parents may not be able to provide a high level of financial assistance that they are supportive of the applicant and her mother and will, on the evidence before it, provide emotional and day to day support to the applicant and her mother in basic needs such as accommodation.

32. In considering whether there is a real chance the applicant will face serious harm or a real risk she faces significant harm because her mother will be required to pay the social compensation fine, the Tribunal also notes DFAT advice, put to the applicant’s mother, that there is considerable discretion in how the fine is applied and that social compensation fee payments can be made by instalments over three years.[7]  The Tribunal has considered the discretion local authorities have in applying the social compensation fine and on the evidence before it, considers the authorities will afford the applicant’s mother opportunities to make repayments such that the applicant’s mother can continue to support the applicant.

    [7] 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

1. On the basis of all the evidence above, while the Tribunal acknowledges payment of a social compensation fine will place pressure on the applicant’s mother and family, the Tribunal does not accept the applicant’s mother will not be able to pay the social compensation fee, noting she will be employed and will receive day to day assistance from her family. The Tribunal finds the applicant’s mother will be able pay the social compensation fee.

2. Furthermore, the Tribunal does not accept that the imposition of these social compensation fees under the family planning regulations, constitutes persecution of the applicant as defined by s.91R(1) of the Act.  The Tribunal is satisfied that the family planning laws and policies apply generally to the population of China. There is no evidence to indicate that the law and penalties or any enforcement measures are applied in a discriminatory manner.  The Tribunal finds that the imposition of these fines under the family planning laws and any enforcement of fine measures will be the result of a non-selective law of general application which does not involve discriminatory conduct under s.91R(1)(c) of the Act.  Accordingly, the Tribunal finds that the applicant does not, in the reasonably foreseeable future, face a real chance of persecution as defined by s.91R of the Act.

3. The Tribunal also does not consider the imposition of the social compensation fee amounts to significant harm as defined in s.36(2A) of the Act.  The fines do not involve the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act.  It would not constitute severe pain or suffering, whether physical or mental, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature.  Nor would it involve extreme humiliation which is unreasonable.

4. Additionally, there is no evidence before the Tribunal that the family planning laws are not applied to the population generally or that they are applied in a discriminatory manner.  Whilst the applicant may be personally affected due to the breaches of the law, given that the risk is faced by the population of the country generally, the Tribunal finds that there is taken not to be a real risk of significant harm under s.36(2B)(c) of the Act.

5. For these reasons, the Tribunal does not accept there to be a real chance that the applicant will face persecution for reasons of China’s family planning policy if she returns to China, now or in the reasonably foreseeable future.

6. For these reasons, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that she will suffer significant harm on this basis. 

   Hukou

7. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm because she will be denied household registration, hukou, and will therefore be unable to access publically available services such as health and education. The applicant’s mother claims that she will not be able to register the applicant for hukou because local authorities will require payment of the social compensation fee before they will permit registration.

8. The Tribunal notes independent country information discussed with the applicant’s mother that indicates China has a comprehensive system of child registration which requires parents (or other responsible persons) to register children.[8]  DFAT confirmed in March 2015 that hukou is required for access to government services, such as education above a certain level and health.[9]  

   [8]Liu, Huawen 2004, The Child’s Right to Birth Registration – International and Chinese Perspectives, Norwegian Centre for Human Rights, pp.15-16, available at  ; US Department of State 2011, 2010 Country Reports on Human Rights Practices –  China, 8 April, Sec.5, available at

   [9] DFAT Country Report – China, 3 March 2015

9. At the hearing, the Tribunal referenced country information indicating that changes in policy were announced by President Xi Jinping in December 2015 to ensure that the estimated 13 million children who do not have proper household registration permits, or hukou, including children born out of wedlock, obtain hukou.[10] President Xi Jingping stated that “It is a basic legal right for citizens to lawfully register for hukou. It is also a premise for citizens to participate in social affairs, enjoy rights and fulfil duties.”[11]

   [10] >

   As put to the applicant’s mother at the hearing, the Tribunal also notes that Article 25 of the Marriage Law of the People’s Republic of China states that children born out of wedlock shall enjoy the same rights as children born in wedlock. The Article stating that no-one may harm or discriminate against out of wedlock children (Marriage Law of the People’s Republic of China), was adopted at the Third Session of the Fifth National People’s Congress on 10 September 1980 and amended in accordance with ‘Decision Regarding the Amendment (of Marriage Law of the People’s Republic of China)’.[12]

   [12] ‘Marriage Law of the People’s Republic of China’ China.org.cn < > Accessed 23 June  <CXCB3E63420747>

10. The Tribunal also put to the applicant’s mother information indicating that out of wedlock children are eligible for hukou whether or not the mother has paid the social compensation fine. The Tribunal advised the applicant’s mother that the latest information from DFAT on household registration and social compensation fees reported that in 2013 and 2014 children born in breach of family planning regulations in Fujian province, the applicant’s home area, have been able to obtain household registration before social compensation fees have been paid and advised that:

    Eligibility: According to Chapter 3, Section 1, Article 21 of the Regulations "all Chinese nationals [born in mainland China] have a legal right to apply for hukou for newborns. All children, no matter whether born legally, to unmarried or divorced parents, abandoned, or born as additional children born in violation of family planning policy, shall promptly be granted a hukou" (Guangzhou Post translation). According to Chapter 3, Section 2, children born overseas have a right to apply for hukou if they meet relevant criteria for overseas birth.

    Social compensation fee: The Regulations do not refer to social compensation fees (or other fines) and do not appear to require evidence of payment of a fee when providing documents to support a hukou application (Articles 22 to 42). A 24 November 2014 media report points to the Longyan City PSB noting the Regulations do not permit Fujian's public security organs to seek payment of the social compensation fee before processing hukou applications (the report is available at ). 

11. As put to the applicant at the hearing, independent country information shows that in Fujian, the applicant will not be prevented from obtaining hukou and be restricted from being able to access public services such as health and education.  As put to the applicant, information in the China Daily, dated 29 April 2014, refers to the relaxing of restrictions for obtaining hukou for children born in contravention of family planning laws in Fujian province, and that people can sue if local officials turn down hukou registration of children:

    ‘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 …, 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.’[13]

    [13] ‘Fujian relaxes hukou registration for infants’ 2014,  China Daily, 29 April, < Accessed 23 June 2015  <CX1B9ECAB10837>

12. In response, the applicant’s mother agreed there are new regulations for hukou in place but claimed that local government will not in fact implement this regulation. She stated that regulations emanate from the central government to local government and there is a lot of variation in implementation between these points. The applicant’s mother said her parents enquired about hukou with the relevant department in her home town, and found that to obtain hukou, and payment of the social compensation fine had to be made, even though the regulations say you can get the hukou before the fine.  She stated that because the regulations are in place, the authorities cannot refuse to take the application, but they will not look at it for many years or until they have received the fine.

13. In support of the applicant’s mother’s claim in this respect, the applicant’s advisor submitted that being denied hukou has serious implications, and that actually the law has never permitted local government to refuse hukou, but practice has not been in line with the law as written as local government officials seek to gain revenue in their own way. The applicant’s representative submitted that while the situation appears to be improving, local government try to link the payment of the social compensation with the hukou to encourage payment. In response to the examples provided indicating that hukou had been received before payment of the fee, the applicant’s representative submitted that the new Family Planning law has only recently been released so there are few examples of its operation exists. The examples available at this stage do not prove anything.

14. In assessing the claim the applicant’s mother will not be able to register the applicant for hukou, the Tribunal has taken account of the applicant’s mother’s circumstances and notes its finding above that the applicant will be able to pay the social compensation fee. The Tribunal has also considered the responses of the applicant’s mother and representative and the independent country advice before it. In assessing the evidence whether applicant will be denied hukou, the Tribunal gives weight to the DFAT advice because it is independent and draws from a wide range of credible sources. Given the country information before it, the Tribunal does not accept the applicant’s mother will not be able to obtain hukou for the applicant in Fujian whether or not she pays the social compensation fine. The Tribunal finds the applicant will obtain hukou and will be able to access publically funded services such as health and education.

15. In further response to country information that people have been able to obtain hukou in advance of payment of the fee, the applicant’s mother told the Tribunal she believes these reports are superficial and there is a high possibility that such people had been able to obtain hukou because they had networks or money to bribe officials. She told the Tribunal that bribery and corruption continues, and that she will have to bribe officials to obtain hukou for the applicant. Given country information discussed with the applicant that the inconsistency and non-transparent application of fees leaves open the possibility of individual or institutionalised corruption, the Tribunal accepts that bribery and corruption continues to exist in China and used to facilitate registration for hukou.[14]  However, in assessing whether in the applicant’s circumstances she will be registered for hukou, the Tribunal gives weight to the independent advice from DFAT that local government in Fujian must register all children for hukou, and that effective legal protections are in place by the state to protect the applicant if hukou was denied. The Tribunal finds the applicant will obtain household registration, hukou, in Fuqing District, and will have access to services such as education and health care in China.

    [14] China:CI151126093857626, Updates on DFAT information Social Compensation Fees, 10 December  2015

16. On the evidence before it, the Tribunal does not accept that the applicant has a real chance of serious harm because she is an out of wedlock child now or in the reasonably foreseeable future. On the evidence before it, the Tribunal does not accept the applicant faces a real risk of significant harm from local government who will deny her hukou and access basic services such as education and healthcare on return to China.

    Societal discrimination

17. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm arising from societal discrimination because she is a child born out of wedlock. The Tribunal has considered the applicant’s mother’s claim that even though the law says that people should not discriminate against children born out of wedlock, in her home town in China they still do. She claims neighbours and the community will talk about the applicant, and that, even if she has hukou and can go to school, she will be teased at school because she was born out of wedlock.

18. The Tribunal accepts that the applicant is from a rural area in Fuqing District where traditional views about marriage and children may continue, and that the applicant may be subject to social discrimination on this basis. The Tribunal accepts the applicant may experience teasing at school and accepts that this would be an uncomfortable experience. The Tribunal accepts that the applicant will be subject to minor level discrimination from the community.

19. Having regard to the non-exhaustive examples of serious harm set out in s.91R of the Act, and the definition of ‘significant harm’ as exhaustively defined in s.36(2A): s.5(1) of the Act, the Tribunal does not accept that any of the above treatment would amount to serious harm or significant harm. While the Tribunal accepts that the applicant may be subject to some minor level of discrimination from the community such as teasing, the Tribunal does not accept that this will amount to serious harm or significant harm as defined. In making this finding, the Tribunal notes that in the DFAT report of 2010 it is stated that the social acceptance of children born out of wedlock is likely to have improved.[15] The Tribunal also notes the information cited above that Article 25 of the Marriage Law of the People’s Republic of China indicates that children born out of wedlock should not be discriminated against and shall enjoy the same rights as children in wedlock.

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

20. Having regard to the non-exhaustive examples of serious harm set out in s.91R of the Act, and the definition of ‘significant harm’ as exhaustively defined in s.36(2A): s.5(1) of the Act, the Tribunal has also considered the claim set out in the applicant’s protection visa and discussed in the delegate’s decision record provided to the Tribunal by the applicant, that that the applicant may be denied siblings if her mother is sterilised because she has contravened family planning policy. The Tribunal finds that the absence of siblings would not amount to serious harm or significant harm for the applicant. The Tribunal finds the applicant’s fear of persecution on this basis Is not well founded. 

21. For all the reasons above, the Tribunal does not accept there to be a real chance that the applicant faces serious harm for reasons of being a child born out of wedlock now or in the reasonably foreseeable future.

22. For these reasons, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that she will suffer significant harm on this basis. 

23. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm now or in the reasonably foreseeable future for any reason. The applicant’s fear of persecution is not well founded.

24. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds there are not substantial grounds for believing that there is a real risk the applicant will suffer significant harm upon being removed from Australia to China.

    CONCLUSION

25. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

26. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Amanda Paxton
    Member