1503249 (Refugee)

[2016] AATA 4561

1503249 (Refugee) [2016] AATA 4561 (18 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503249

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Holub

DATE:18 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2016 at 3:38pm

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 is a citizen of China, was born on [date] in Sydney.  His mother applied for the visa on his behalf [in] May 2014 and the delegate refused to grant the visa [in] February 2015.

RELVANT LAW

1. 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

1. 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).

2. 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.

Complementary protection criterion

1. 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’).

Section 499 Ministerial Direction

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted in China for reasons of his race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

2. The applicant’s written claims for protection are contained in the application forms and accompanying supplementary evidence submitted to the Department of Immigration and Border Protection.  In making its decision, the Tribunal had before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relation to the review application. 

3. The following is a summary of the claims and information provided on behalf of  the applicant:

   a.His mother is [mother’s name] and she is a pious follower of Jehovah Witness and preaches the gospel.  His mother’s faith and preaching of the gospel means facing challenges, suppression and persecution.  Therefore she is afraid to return to China.

   b.His mother fears returning to China and lodged an application for protection in 2011 but her application and subsequent review by the Refugee Review Tribunal was rejected. He was included in her application at that time.

   c.He has a strong concern and fear about being negatively affected due to his mother’s religious background. He fears he will be in a vulnerable position if his mother’s well-being is in danger.

   d.His mother was unmarried and he was born out of wedlock and therefore China’s Family Planning Law has been breached. In order to obtain household registration his family will have to pay the social compensation fee but they lack the ability to do so. Without a hukou he will not be entitled to social welfare benefits and will be disadvantaged in many other aspects such as access to medical services and education.  Furthermore traditional attitudes will impact on him psychologically and he will face discrimination and bias in everyday life.

   e.His application for protection is for the purpose of getting assistance out of poverty and being prevented from risk or harm.

4. The Tribunal has given consideration to the delegate’s Decision Record dated [in] February 2015.  It indicates that the applicant attended an interview with the Department [in] February 2015 with his mother.  As an infant, his mother, [named] spoke on his behalf[1].  The delegate refused to grant a Protection visa to the applicant as the delegate was not satisfied that “the applicant has a real chance of being persecuted for a Refugees Convention reason” nor was the delegate satisfied that “the applicant “has a real chance of being subject to significant harm should he and his family be returned to China”[2].

   [1] DIBP file, folio 68.

   [2] DIBP file, folio 61& 62.

5. On 6 March 2015, the applicant then applied for a merits review of that decision by the Tribunal.  The Tribunal wrote to the applicant on 30 May 2016 advising that a hearing had been scheduled for 21 July 2016, subsequently re-scheduled to 22 August 2016  The applicant together with his mother appeared before the Tribunal.  She gave evidence and present arguments on his behalf.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

FINDINGS AND REASONS

Nationality

1. On the basis of the applicant’s passports issued by the Republic of China the Tribunal finds that the applicant is a citizen of China.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to reside in any country other than China.

2. The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

Claims relating to Jehovah’s Witness

1. The applicant’s mother arrived in Australia [in] March 2008 on a [temporary] visa.  At the hearing she stated that she [had conducted various activities in Australia.]

2. The applicant’s mother has [specified relatives] living in Australia.  [One relative] is an Australian citizen and [another] is on a [temporary] visa.

3. The Tribunal put it to the applicant’s mother that her claims of religious persecution submitted in her son’s Protection visa application are essentially the same as the ones she has submitted in the past in her own right.  Her application was refused by the Department and the Department’s decision was affirmed by the Refugee Review Tribunal and then again by the Federal Circuit Court of Australia.  The Tribunal asked the applicant what is different on this occasion.  She responded that the spiritual level of her faith has increased compared to the past.

4. The Tribunal heard from the applicant that in [year] while she was in the city someone gave her a leaflet to attend a church gathering.  She was eight months pregnant at the time.  She attended one of the gatherings and was very touched.  She was impressed that many children were sitting at the back quietly and peacefully.  She said she was moved by that and also by the singing and the clothing that was worn by the participants.  She said the men were in suits and the women wore long dresses.

5. The Tribunal put it to the applicant under the terms required in section 424 AA of the Migration Act that she had previously provided evidence that she first became involved with the Jehovah Witness [year]. The applicant responded that she did not think it was [that year]; that was wrong. She said when she first went to the church it was closed because it was a Sunday. She said maybe it was [the next year] The Tribunal put it to the applicant that a few minutes earlier in her evidence the applicant she had stated that she was eight months pregnant at the time she first went to a service. Given her son was born in [year] it would indicate that it was in [the previous year]. The Tribunal expressed its concern that she has provided different time frames in previous evidence and at the hearing and then changed it again. The applicant responded that because it happened several years ago and because she did not expect that she would need to recall the details it is a mistake related to her memory rather than her credibility.

6. As the hearing continued the applicant’s mother went on to say she always attended the same Hall in [Suburb 1] although occasionally went to a Hall in [Suburb 2] and [Suburb 3].  She said that she has been attending every week since [year].  She has also had a Bible teacher.  The Tribunal questioned the applicant how she reconciled her strong and committed belief in Jehovah Witness with the fact that she has had a child out of wedlock given the position of Jehovah Witness in relation to premarital sex.  The applicant responded that at the time she told her Bible teacher about giving birth and although the child’s father was still in Australia they were living in separate rooms.  She said that since [year] her moral standards had changed and therefore she is comfortable with the requirements of the Jehovah’s Witness.

7. In relation to the claims about her son fearing he would be in a vulnerable position due to the applicant’s religious background the Tribunal asked the applicant why he would be in danger.  She said as a follower of Jehovah Witness she would have to practice underground which makes it risky and therefore her son could be impacted.

8. The Tribunal discussed with the applicant’s mother information provided by the Department of Foreign Affairs and Trade (DFAT) in its reports on China which indicate that the Jehovah witness is not listed as a banned cult in China drawing on the information provided below.  The Tribunal also indicated to the applicant that there have been no identifiable reports over an extended period about any Jehovah witnesses being arrested.  The applicant responded that the Chinese government would not allow information about persecution to be disclosed and she also stated that if it was not banned in China followers would be able to evangelise publicly but they are unable to do so and must do so secretly.

9. The Tribunal considered the applicant’s mother’s responses.  In relation to her comment that the Chinese government would not allow information about persecution to be disclosed, the Tribunal put weight on the fact that country information is not sourced exclusively from formal channels of the Chinese government but rather is drawn from a range of sources including media reports and non-government organisations.  This was explained at hearing.  The other response made by the applicant’s mother was that if the Jehovah’s Witness were not banned followers would be able to evangelise publicly but they are unable to do so and must do this secretly.  In relation to this point, the real issue the Tribunal must consider is whether the applicant faces a real risk of serious or significant harm if she were to return to China and maintain her faith.

Independent information – Jehovah Witness in China

1. The Department of Foreign Affairs Thematic Report on Unregistered religious organisations and other groups in the People’s Republic of China states that:

“3.40 Interest in some non-sanctioned religions (such as Mormonism, Jehovah’s Witnesses, Eastern Orthodox Christianity and the Bahai faith) appears to be on the rise in China. However, exact numbers are unavailable and DFAT assesses that the population of believers would likely be small given the secretive nature of their practices and their illegal status in China. DFAT assesses that government suspicions about foreign interference and general distrust of organisations that are not state-sanctioned would make it very difficult for a Jehovah’s Witness or Mormons to live and practice their faith in China. As mentioned above, the requirement for proselytisation amongst the broader community would be particularly difficult because such activities are prohibited under China’s Regulations on Religious Affairs”[3].

[3] DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015, p 11.

1. The UK Home Office Border Agency, Country of Origin Information Report on China issued in 2010 provides the following advice:

“JEHOVAH’S WITNESSES

21.13          In a report dated 8 March 2006, Forum 18 stated, “... Jehovah’s Witnesses exist in China in small numbers but are not allowed any legal existence.”  On 24 February 2006 the Canadian Immigration and Refugee Board (IRB) reported:

In 22 February 2006 correspondence to the Research Directorate, the general counsel for Watchtower Bible and Tract Society of Pennsylvania stated, without elaborating, that it would be imprudent to disclose information about the number of Jehovah's Witnesses and congregations in China, or about their geographical representation across the country. The annual report on the number of active Jehovah's Witnesses worldwide published by the official Website of the Jehovah's Witnesses does not include information on China… The general counsel further stated that his organization was not aware of any current reports of arrests or detention of Jehovah's Witnesses in China… According to the World Christian Encyclopaedia, however, ‘marginal churches’ such as the Jehovah's Witnesses ‘have had virtually no impact on China’ (2001, 195). Jehovah's Witnesses first appeared in China in 1883, held their first baptism of Chinese members in 1931, and had 13 members by 1939... In 1958, however, the Jehovah's Witnesses were ‘completely suppressed’… The executive secretary of the Hong Kong Christian Council, who travels regularly throughout the Chinese mainland to gauge the state of religious freedom and has published numerous articles on the subject… commented in 20 January 2006 correspondence to the Research Directorate that he was not aware of any documentation on Jehovah's Witnesses in China. While he believed that there were between 4,000 and 5,000 members of the church in Hong Kong, the executive secretary pointed out that Jehovah's Witnesses were not on the list of banned ‘cults’ in China… There was, likewise, no record of registration of places of worship used by Jehovah's Witnesses with Chinese authorities, a point which the general counsel for Watchtower acknowledged... However, the executive secretary stated that he knew of large quantities of Jehovah's Witnesses literature being circulated in China, which he speculated might indicate some ‘clandestine’ activity among Jehovah's Witnesses on the mainland”[4].

[4] UK Home Office Border Agency, Country of Origin Information Report: China 8 January 2010, p. 98.

1. The Tribunal sought up-to-date information on the treatment of Jehovah’s Witness in China.  The report concluded that:

“Although unregistered and unsanctioned, the Jehovah’s Witness religion does not appear to be on China’s list of officially banned cults that are subject to heavy and systematic crackdowns. Furthermore, searches revealed no relevant contemporary reports of incidents involving Jehovah’s Witnesses in China generally or in Fujian Province”[5].

[5] Country Information Report CI160927143224780, Jehovah Witness Community in China, Express Q&A, 5 October 2016.

1. The Tribunal has had regard to the reference in the applicant’s claims that “His mother’s faith and preaching of the gospel means facing challenges, suppression and persecution”, which may imply an intention to preach.  However, the evidence presented by the applicant’s mother did not substantiate this claim in the context of the requirements of the Jehovah Witnesses.  When asked about her practice, she said she undertakes Bible study herself on Mondays and Thursdays and watches related TV programs.  On Saturday mornings she attends Bible Study and on Sundays she attends gatherings.  She added that if she is shopping and she runs into somebody she might tell them about the Bible.  The Tribunal invited the applicant’s mother to clarify what she meant.  She said if she sees a young mother with a child she thinks she might be able to relate to them she talks to them about the Bible.  In the context of the requirements of the Jehovah Witness, the Tribunal was not satisfied that this constitutes preaching.  Furthermore, material from the Jehovah Witness Watchtower Online Library indicates that pre-material sex is not acceptable and the applicant’s mother’s unmarried status appears to make it more difficult for her to qualify for ministry.

“11. What changes might some have to make before they qualify for the field ministry?

On the other hand, you may need to make some changes in your life-style and habits in order to qualify for the field ministry. This may include stopping some practices that have been kept secret from others. Hence, before you ask about becoming an unbaptized publisher, you need to be free of serious sins, such as sexual immorality, drunkenness, and drug abuse.—Read 1 Corinthians 6:9, 10;Galatians 5:19-21[6].

Nothing in the evidence provided by the applicant’s mother indicated that she had prepared for ministry and according the same reference there is a process within the Jehovah Witness to achieve this.

[6] Watchtower Online Library, Chapter Eighteen, Baptism and Your Relationship With God, accessed 18 October 2016.

1. On the basis of the applicant’s current practice and based on the most recently independent material available the Tribunal was not satisfied the applicant and his mother face a real chance or a real risk of serious or significant harm if his mother maintains her religious beliefs in China.

Claims relating to household registration

1. The Tribunal discussed the claims made in relation to the applicant’s family having to pay the social compensation fee to obtain household registration in China.  The Tribunal discussed with the applicant’s mother reports about changes that had occurred in China and particularly in Fujian province regarding the family planning policies making it easier for her to obtain registration for her son. The applicant’s mother responded by saying that she was not aware of these changes had not paid attention to the reports regarding them.  The Tribunal provided her with an overview of them drawing on the information below.

Independent information – household registration

1. The DFAT Country Report of March 2015, states that:

“People affected by Family Planning Policies

3.45 …. In November 2013, the Chinese government announced an adjustment to the family planning policy to allow couples to have a second child if either parent is an only child. At the time of writing, Hainan, Shandong, Heilongjiang, Fujian, Jilin, Jiangsu, Guangdong, Hubei, Gansu, Sichuan, Shanghai, Beijing, Tianjin, Anhui and Zhejiang had amended their regulations to reflect the change.

3.46 … Government departments, state media and schools are also all required by law to advocate family planning policies. As a result, interpretation and implementation of the policy varies enormously across China.

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. 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. Each parent of an unapproved child is required to pay a social compensation fee. In some cases, this can amount to up to ten times a person’s annual disposable income in social compensation fees. In some provinces or counties, authorities have imposed fines on entire work units in addition to the individuals concerned.

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….

3.50 DFAT assesses that the inconsistent and non-transparent application of fees leaves open the possibility of individual or institutionalised corruption. Women are disproportionally affected by family planning policies because of regular medical inspections and pressure to use contraceptives. Pressure for government employees to both practise and promote family planning policies is high. Public opposition to family planning policies can be viewed as provocative by Chinese authorities”[7].

[7] DFAT Country Report, China, March 2015, pp 14-15.

1. The Tribunal in coming to its final decision also took into consideration other independent sources. In relation to children born to single mothers the Tribunal has noted reference in a Report by Plan International and the University of Highland and Islands (UHI), Perth College, Mother to Child, How Discrimination Prevents Women Registering the Birth of their Child, published in March 2012 which stated that: “In China the regulations on birth registration are part of the family planning regulations and are the responsibility of the provinces. While it is the case that there is not a direct legal barrier to a single mother registering her child, it is also illegal in most provinces for a woman to give birth out of wedlock and there are heavy fines for doing so. The report also noted that children born from a pregnancy contravening the family planning regulations were known as ”black” children or ‘hei haizi’, i.e., unregistered children” [8].

   [8] Country of Origin Information (COI) Report China, COI Service, Home Office Uk Border Agency, 12 October 2012

1. The same report noted: “The situation in China stands out as distinct from the other Asian countries. The evidence suggests that it is rare for a single woman to give birth in China due to the family planning restrictions and also due to the fact that having a child would reduce her likelihood of finding a husband. Instead “the vast majority” of pregnancies out of wedlock are terminated”[9].

   [9] Ibid

2. In January 2015, DFAT provided advice concerning the protection afforded by family law to children born out of wedlock, noting that ‘a number of contacts told us [DFAT] local public security bureaux are required to sight a marriage certificate before issuing a registration permit (hukou) to a newborn child’[10].

   [10] Department of Foreign Affairs and Trade (DFAT) 2015, China - Country Information Request No. CHN16428 - Child Custody - Court Orders , 28 January, R1, third paragraph <CXBD6A0DE835>

3. Other sources of information, such as in the China Daily dated 29 April 2014 gives an indication of the relaxing of restrictions for obtaining hukou for children born out of wedlock 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 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[11].

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

1. Other sources have commented that “[a]ccording to our household registration law and the marriage law, children born out of wedlock have the same rights as those born to a married couple,” Beijing-based lawyer Cheng Hai Cheng said. “Any child can be registered by any of its relatives. The policies of the past few decades in which children born out of wedlock have been refused household registration are in fact contravening this rule; these are policies put into practice at a local level. Any child born in China should be able to get a household registration here”[12].

   [12] ibid

1. Other reports have also commented that “[n]otwithstanding the current loosening of family planning restrictions, unmarried women who give birth to babies without a marriage certificate and a valid ‘reproduction permit’ from the government are ‘routinely’ denied birth certificates for their children, which means the child will not be able to obtain household registration (hukou), and will have trouble accessing school and affordable healthcare.[13] 

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

1. The Tribunal notes that there is conflicting information regarding the ability of unwed mothers to register their children.  In this context the variability across different parts of China is relevant.  Some accounts suggest that Fujian Province, from where the applicant comes from is less restrictive.  The Tribunal was satisfied that based on consistent reports of changes to China’s family planning policies that the applicant will be able to obtain household registration.

2. Assuming the applicant is able to apply for a hukou for her son, there is then the question of the applicant being able to pay the social compensation fee.  The Tribunal has taken into account  information from the Department of Foreign Affairs and Trade (DFAT) from July 2015 on social compensation fees, in response to questions raised after news articles in the China Daily, Global Times and the Guardian which had  reported that in 2013 and 2014 children born in breach of family planning regulations in Fujian and Hubei provinces have been able to obtain birth certificates, and in Fujian province have been able to obtain household registration, before social compensation fees have been paid.

3. The post in Guangzhou wrote to seek advice from the Fujian Public Security Bureau (PSB) on the Fujian Provincial Public Security Regulations on Household Registration which came into effect on 25 August 2014. While awaiting advice from the PSB, the post gave its own assessment based on its reading of the regulations:

   * 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 ).

   * Birth approval certificate: The China Daily reported on 26 May 2015 that the Fujian Health and Family Commission had advised that couples in Fujian no longer needed to apply for a birth approval certificate when they planned to have a first child. Couples could also obtain an approval certificate for a second child by confirming their eligibility for a second child with documentation. Couples needed a marriage certificate and ID cards to register the birth of their first child[14].

   [14] Department of Foreign Affairs and Trade (DFAT) 2015, China: Country Information Request CI150528103300795 - Issuing of Hukou to children of unwed mothers in China, 29 July, R1 <CXBD6A0DE10895>. The China Daily article referred to in the third paragraph of this quotation is in CISNET at Sun, L and Hu, M 2015, ‘Fujian cuts red tape for birth certificates’, China Daily, 26 May < > <CXBD6A0DE16765>. The article is available at >

   DFAT also provided some information on calculating the fine for family planning breaches by Chinese nationals from Fujian who were overseas.  In relation to how the fee would be calculated where a parent's demonstrated overseas salary might be higher than the local average income, the Fujian Provincial Family Planning Bureau said that the social compensation fee would be imposed using the average income from where the parent's hukou was registered in China as the base calculation.

4. The Population and Family Planning Regulations for Fujian Province (2002) do not specifically address the source of income (i.e. overseas). Under Chapter Six (Article 39) of the Fujian law, there appears to be scope for discretion by local authorities:

   "If the actual annual income of the parties concerned exceeds the average annual disposable income of the urban residents or the net average annual income of the rural peasants of the county in the previous year, the actual income shall be used as the base to calculate the number of the social compensation fee. The decision in writing to impose social compensation fee shall be made by the family planning administrative department of the county. Such department may appoint the people's government of the township or town or the urban neighbourhood office to make such decisions”[15]^..

   [15] Department of Foreign Affairs and Trade (DFAT) 2013, RRT Country Information Request - CHN41439 - Family planning; Falun Gong; Christians, Returnees, and Corruption , 6 February, R3 < CX310619>.

5. An article published on 3 December 2015 in the China Daily reported that in November 2015 the Ministry of Public Security was considering ‘new regulations to grant hukou (household registration) and identification cards to those without them’, a group which would include ‘children born in violation of the family planning policy, those born of single mothers, abandoned children and those who have lost relevant documents’[16].The Ministry of Public Security ‘vowed to address the problem and grant the group hukou and identification cards’[17]. 

   [16] ‘Residents without hukou pin hopes on new policy’ 2015, China Daily, 3 December < CXBD6A0DE16759.

   [17] Residents without hukou pin hopes on new policy’ 2015, China Daily, 3 December < CXBD6A0DE16759.

6. The Tribunal acknowledges that the applicant’s mother may be able required to pay asocial compensation fee to obtain a hukou and has considered the issue of her capacity to do so.  The Tribunal gave weight to the evidence provided at hearing that the applicant’s mother earns a little over $300 per week in Australia. She shares the rent and expenses with [one relative] who moved in to her unit in May 2016. [Another relative] assists financially when required.

7. The available information provided by DFAT as outlined in previous paragraphs indicates there conflicting information regarding the level of the fee. While there is a possibility that a fee will be based on her income in Australia there is also a possibility that it will be based on the average income of where the mother’s hukou is registered in China.  The Tribunal is satisfied that the applicant’s family will be able to pay the fee based on either of the two methods it may be calculated. The Tribunal gave considerable weight to the fact that the applicant’s mother is working in Australia as are her [other relatives]. [One relative] is able and willing to assist [the applicant’s mother] as evidenced by the fact he already does so. The Tribunal has also considered the fact that the applicant’s mother has raised funds to submit review and Federal Court applications which are not insignificant and of itself indicates she has a degree of financial capacity.

Claims related to traditional attitudes

1. The Tribunal gave consideration to the applicant’s claims that traditional attitudes will impact on him psychologically and that he will face discrimination and bias in everyday life. The Tribunal acknowledges the traditional attitudes exist in China in regard to unwed mothers particularly in rural areas.  The Tribunal took account of the fact that the applicant’s mother is not from a rural area but rather from Fuzhou city with a population of over 7 million residents (according to 2010 Census) with over 62% of inhabitants being urban[18]. The Tribunal is satisfied that in the city of that size, traditional values are unlikely to be as strongly held as in rural districts. The applicant may from time to time experience some stigma and discrimination, but the Tribunal is satisfied that this does not amount to serious or significant harm as defined in relevant sections of the Migration Act.

   [18] accessed 11 October 2016.

Findings and reasons

1. The applicant being a minor born in Australia does not make any claims regarding past harm.  The Tribunal is satisfied the applicant has not suffered any harm in China.

2. The applicant’s claims of future harm relate to his mother’s involvement in the Jehovah’s Witness, the need to pay a social compensation fee for household registration and the possibility of facing stigma as a result of traditional attitudes in China.

3. Although the applicant’s mother has provided some conflicting information regarding the commencement of her involvement in the Jehovah’s Witness, the Tribunal is prepared to accept that she developed a connection with the Jehovah’s Witness since she came to Australia and has continued as an adherent.

4. The Tribunal has carefully considered the country information regarding the Jehovah’s Witness in China referred to above.  The available information indicates that the Jehovah’s Witnesses is not on the list of officially banned cults in China.  The Tribunal was unable to locate any credible reports of Jehovah’s Witnesses being arrested, persecuted or tortured.  The Tribunal put significant weight on this.  While China does not allow proselytising in public or in unregistered places of worship the Tribunal has concluded that the applicant’s mother is not qualified to proselytise but will be able to maintain her Jehovah Witness beliefs without exposing her son to a real chance or a real risk of serious or significant harm.

5. The Tribunal is satisfied that the applicant will be able to obtain a hukou in Fujian and that his mother will be able to raise the funds required to pay the social compensation fee that may be imposed.

6. The Tribunal is satisfied that while the applicant may face some stigma at some point in relation to his mother’s current unmarried status this does not amount to serious or significant harm as defined in the Migration Act.

7. The Tribunal is therefore satisfied that the applicant does not face a real chance or a real risk of serious or significant harm if he and his mother return to China.

CONCLUSIONS

1. 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).

2. 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).

DECISION

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

Linda Holub

Member