1420196 (Refugee)

This matter concerned an application for protection by a child, born in Australia, who claimed to be a Chinese national. The applicant's case was that she would face discrimination and harm in China due to being born out of wedlock to a single mother. The dispute before the Tribunal was whether these circumstances constituted grounds for protection under Australian law.

The primary legal issue before the Tribunal was to determine whether the applicant would face a real chance of serious harm or a real risk of significant harm in China, as contemplated by the Act, by reason of being born out of wedlock. This involved assessing the implications of her mother's inability to pay a social compensation fee for contravening family planning regulations, and the subsequent denial of household registration (hukou) for the applicant. The Tribunal was required to consider relevant country information and policy guidelines in its assessment.

The Tribunal accepted that the applicant was born out of wedlock to a single mother in a rural area of Fujian Province, China, and that this contravened local family planning regulations. It also accepted that the applicant's mother had limited finances and might be unable to pay the required social compensation fee. However, the Tribunal found that the mere inability to pay such a fee, or the consequent lack of hukou, did not, in itself, amount to a real chance of serious harm or a real risk of significant harm for the purposes of the Act. The Tribunal noted that while the lack of hukou would deny access to certain social entitlements, it did not establish the threshold for protection.