1504243 (Refugee)

1504243 (Refugee) [2016] AATA 3932 (30 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1504243
COUNTRY OF REFERENCE:                  China
MEMBER:Amanda Goodier
DATE:30 May 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 30 May 2016 at 9:49am

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

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).
The applicants who claim to be citizens of China applied for the visas [in] March 2014 and the delegate refused to grant the visas [in] March 2015.
The applicants appeared before the Tribunal on 29 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
A summary of the relevant law is set out in Annexure “A”. All independent country information referred to in the decision is set out in Annexure “B”.
The issue in this case is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that they will suffer significant harm.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants claim to be citizens of China and the first named applicant provided a copy of her passport to support her claim as well as the second named applicant’s birth certificate. The Tribunal finds that the applicants are citizens of China and that China is their country of nationality and receiving country.
The Tribunal is satisfied on the evidence before the Tribunal, the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s36(3).
Background
The second named applicant is a minor and relies on the claims made by the first named applicant (the applicant) on his behalf.
The applicant indicates her mother and [siblings] continue to reside in China as do her [children]. She indicates she has never been employed and has lived in Longtian, Fu Qing all her life.
The applicant provided a copy of a “Personal Planning Situation Examination Form” dated [March] 2014 giving her name as the person examined and identifying a spouse with a date of birth of [date] whose occupation was [occupation]. The applicant’s occupation was also listed as [occupation]. The form gives the names and dates of birth of [children], [details deleted]. It also indicates that in November 2003 she underwent a [procedure]. It gives her registered household address as [Village], Fu Quing County, Fujian Province.
The applicant provided a delivery certificate from [a] Centre dated [March] 2014 confirming that the applicant gave birth to a baby girl in the hospital on [date].
The applicant provided copies of notarial certificates for a male child born [date], a female child born residing at [Address 1], Longtian Town, Fuqing City, Fujian Province. A notarial certificate stating that the applicant is the mother of the male child was also provided. The notarial certificate indicated that the applicant resided at [Address 1], Longtian Town, Fuqing City, Fujian Province. Both certificates are dated [December] 2013.
The applicant provided a copy of a birth certificate issued by the Registrar of Births Deaths and Marriages [Australia] for the second named applicant who is a male child. The father of the second named applicant is listed on the birth certificate. She indicates the father of her child is a Chinese national who is married to a woman in China and with whom she no longer has a relationship.
The applicant provided a statement dated 14 March 2014. She states she was born in Fuijian province and is a traditional Chinese woman. Taking care of her husband and children as well as her whole family is the principle she needed to follow her whole life. After she married she gave birth to her first child, a girl, on [date]. Her family is very conservative and a girl means spending money to raise her. Therefore her husband wanted a second child. She gave birth to her second child, a girl. Her husband’s family regarded her as inferior to other woman as she could not give birth to a boy. Her parents-in-law picked on her and her husband humiliated her. Giving birth to a son was the only condition for her to survive in the family. The Government in her local village forced her to undergo a [procedure]. She cried and screamed as she did not want to undergo the surgery. She returned home with an exhausted body but her family did not care. Her husband kept asking her to give birth to a son and she fell pregnant again. On [date] she gave birth to another girl and her mother-in-law told her to abandon the child. She did not want to do that but they took the child from her. She has suffered since. On [date] she gave birth to a boy and her parents-in-law were happy but household registration became a problem. They did not have that much money to pay the fine and her son became an illegal resident. He could not go to school or receive other benefits from the government. Without registration he would have difficulty finding a job. They spent a lot of money for their children to go to school and now they are grown up. In 2007 she sent her children to have further education and she wanted to go with him. She hopes one day her children can live with her in Australia so they will not be illegal. Now she has another family in Australia but cannot go back to China because her children will be illegal. She would like her daughter to grow up in Australia.
The applicant provided copies of a hospitalisation record and admission notes indicating admission [in] June 1996 with her mother providing the information. It gives her permanent address as [another address], Longtian Township, Fuqing City. According to the report she was admitted after overdosing on medication, suspects her husband is having an affair and her in-laws are unkind to her
The applicant provided copies of a hospitalisation record and admission notes indicating admission [in] June 1997 with her husband providing the information. It indicates that 15 days prior to admission had undergone a mid-term induced abortion and was the mother of two daughters. The report indicates she was involuntarily admitted as her condition had worsened over the past month and diagnosed with [a mental health condition] and was admitted as she suspects her husband of having an affair and suspects she is in danger of being hurt by others. It gives her permanent address as [Address 2], Longtian Township, Fuqing City.
The applicant provided a certificate of sickness dated [December] 2014 stating she was admitted [in] June 1996 and discharged [in] July 1996 and admitted again [in] June 1997 and discharged [in] July 1997. Her diagnosis was [mental health condition]. It gives her permanent address as [Address 2], Longtian Township, Fuqing City.
The applicant provided a further undated statement but the translation was stamped 26 December 2014 following her interview with the delegate. It is similar to the earlier statement but further states that she fell pregnant again but members of the village committee found out and she was forced to have an abortion. She states when she had her [number] pregnancy and was about [number] months along, the villagers again caught her and forced her to have an abortion. After her [number] abortion, members of the village held her in-laws in custody and threatened them and 29 days later she was caught and her in-laws released and they forced her to have an IUD inserted. A neighbour took her home but her in-laws despised her but she begged them and was allowed in. The device fell out and she fell pregnant again and had a son and gave birth to him in [location]. She divorced her husband in 2001 as she could not bear any further the treatment from her in-laws. In 2007 she sent her daughter to study in Australia and came with her. She has established a family in Australia. Her child will not be able to be registered and will suffer if they return.
Black child – second named applicant
The applicant claims as she was not married to the second named applicant’s father when he was born, the second named applicant is a black child. She will be unable to obtain a household registration for the second named applicant unless she pays a social compensation fee. She claims she is unable to afford to pay that. Without a household registration, the second named applicant will be unable to attend school or receive medical care. This will cause harm to her and to the second named applicant.
The applicant’s evidence was that her son’s father is a Chinese citizen on a bridging visa who has remained with his wife who lives in China with their child.
She told the Tribunal that she wants a visa for her son so he can remain in Australia, and then they can get household registration in Australia. She told the Tribunal that she has friends who got visas. She also told the Tribunal that if she returns with her son, he will not be registered and they will take him away from her. She knows this as others have told her.
She told the Tribunal that she lived in the city in China, as did her family. She told the Tribunal she has nothing in China and no-one will help her. She told the Tribunal her [sibling] supports her mother. She told the Tribunal that her mother and siblings live in China and that her daughter who was in Australia returned to China and works and studies. She stated her [sibling] has a little business and has been providing her with some financial support. The applicant indicated she had worked at various jobs while in [Australia]. Her daughter also worked and supported her while she was in Australia.
The Tribunal discussed with the applicant country information regarding the payment and the amount of social compensation fees. The Tribunal also raised that she was able to pay any social compensation fees in instalments. The applicant told the Tribunal that the country information was wrong. She told the Tribunal that this does not happen in China if there is more than one child. She does not trust the Chinese legal system but trusts the Australian system. When the Tribunal put to her the information was from DFAT, she responded that it was nonsense. She told the Tribunal they only put good information on the computer, all the bad information is hidden.
The applicant provided confusing information as to how many children she had. She referred to a son born on [date] as well as the daughter with whom she travelled to Australia. She also indicated she had another daughter in China who was taken away from her. She told the Tribunal that her son lives with his father in China and that she sometimes talks to him. She gave inconsistent evidence as to whether he was registered; firstly stating her children were not registered, later stating all her children were registered. She told the Tribunal her son was registered, later stating she gave away her property to her husband so her son could be registered. She finally told the Tribunal she has three children plus a child born in Australia. She also told the Tribunal that when she divorced her husband, all her property went to her husband. When asked when she divorced her husband, the applicant stated about 10 years ago. She also told the Tribunal that it was a few years ago and she can’t remember when.
The applicant’s evidence to the Tribunal was not consistent with that provided in her written statements submitted with her application for protection. The applicant claimed that her children in China could not be registered and therefore were illegal and they spent lots of money so they could be educated. She wanted to bring them to Australia so they would not be illegal. However, her evidence to the Tribunal eventually was that all her children were registered and able to access education, health and other government services. She also provided inconsistent evidence as to when she divorced her husband as her written statement indicates she divorced him in 2001 but she also claims to have a son with her husband born in [year]. She told the Tribunal that her husband completed her student guardian visa application in 2007 and she also told the Tribunal that she divorced him about 10 years ago. The Tribunal also queried why her student guardian visa did not list any other children apart from the daughter with whom she travelled to Australia and was told that her husband completed all the documentation and she did not know what was contained in the application and does not know why he did not list their other children.
The applicant also claims in her written statement that she was forced to undergo abortions, forced to undergo a [procedure] as well as had an IUD inserted. However she also claims that despite these forced sterilisations, she subsequently fell pregnant several times. However there is no credible evidence and the Tribunal does accept she was forced to undergo abortions or forced to undergo a [procedure] or had an IUD inserted and she did not provide satisfactory evidence to support such a claim.
After considering the available evidence, the Tribunal does not accept that the applicant’s children in China were not registered. The Tribunal finds that the applicant’s children, including her son, were registered for hukou and were not discriminated in any way or prevented from accessing an education or health or other government services. Her evidence was that her children live in China, with her son living with her first husband. The Tribunal also found the applicant’s evidence as to when she divorced her husband inconsistent but is prepared to accept on the basis of the evidence presented and because she departed China about 2007 and has not returned, that she is now divorced from her husband. The Tribunal is also prepared to accept that her husband retained the property of the marriage, primarily due to the fact the applicant has been absent from China for nearly 10 years.
The applicant claimed that her husband’s parents were not nice to her and treated her badly. As the applicant has been absent from China for nearly 10 years and divorced her first husband, the Tribunal finds that there is no real chance or real risk she will face any harm from her parents-in-law if she returns to China now or in the reasonably foreseeable future.
Chinese state media reported in December 2015 that President Xi Jinping announced that along with ending its one child policy from 1 January 2016, all children would be allowed hukou, regardless of payment of a social compensation fee if born outside the government’s family planning policy. According to official news agency Xinhua, the President’s statement said "It is a basic legal right for Chinese citizens to lawfully register for hukou. It's also a premise for citizens to participate in social affairs, enjoy rights and fulfil duties." [1] [2]
[1] CXBD6A0DE16888: "China says it will give rights to undocumented children", CNN, 11 December 2015,
The Tribunal also notes country information referred to below that indicates the relaxing of restrictions in the applicant’s home province for obtaining hukou for children born in contravention of family planning laws. The reports indicate that the new regulation enables an infant born in contravention of the family planning laws to be granted a hukou to guarantee his right to access government services such as education and health. The country information indicates the hukou can be obtained without proof of payment of the social compensation fee but also indicates that parents will still receive a punishment for breaching the rules.
The Tribunal is satisfied on the evidence provided that the second named applicant will be able to obtain household registration (hukou) on his return to China. Therefore, the Tribunal is satisfied that the second named applicant does not face a real chance of serious harm because he will be unable to receive a household registration as a child born to parents out of wedlock.
For these reasons, the Tribunal does not accept there to be a real chance that the second named applicant will face persecution for reasons of China’s family planning policy if he returns to China, now or in the reasonably foreseeable future.
For these reasons, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the second named applicant being removed from Australia to China that there is real risk that he will suffer significant harm on this basis.
Unmarried/single mother
The applicant told the Tribunal she fears returning to China as she had a child with another man while in Australia. She told the Tribunal that while her son’s father is named on the child’s birth certificate, he stayed with his wife and therefore she is a single mother.
The Tribunal put to the applicant that as a single mother country information indicated she would experience some discrimination to which the applicant agreed. The Tribunal put to the applicant that country information indicated that she would be able to obtain some employment as well as accommodation such that she will be able to subsist. The applicant told the Tribunal it was more difficult to be a single mother in China to being a single mother in Australia.
The Tribunal is not satisfied on the basis of the applicant’s inconsistent and vague evidence that she will not have the support of her family if she returns to China. Her daughter returned to China where she lives and works. The applicant’s mother[and siblings] continue to reside in China. Her [sibling] according to her evidence has provided some financial support to her while she has been in Australia and despite the applicant claiming [he/she] will not support her if she returns, the applicant provided no credible evidence as to why [he/she] would cease [his/her] financial support of her. The Tribunal is not satisfied on the evidence provided by the applicant that she would not be able to obtain support and accommodation from her mother or other family members or find employment if she returns to China.
While she may experience some financial hardship on her immediate return to China, she does have skills to find employment. She has been employed in Australia and has skills in finding employment and adapting to a new culture and environment. The Tribunal understands that rates of pay and employment conditions for various jobs in China differ from those in Australia; however, the Tribunal finds that the financial hardship the applicant may experience will not be significant such that it will amount to serious harm.
There is no evidence before the Tribunal to suggest that the applicant would be unable to find accommodation, nor that she would suffer a denial of the capacity to earn a livelihood of any kind such as would threaten her capacity to subsist, or significant economic hardship to the point of threatening her capacity to subsist, or the denial of access to basic services such as accommodation to the point where such denial threatens her capacity to subsist. The Tribunal finds that the applicant will have the capacity to subsist should she return to China.

In respect of the requirement to pay a social compensation fee, the Tribunal notes that parents are often charged a ‘social maintenance fee’ for violating family planning policies.[3] The COIS country information report, CHN40856 dated 6 September 2012, contains information on children born out of wedlock in China. The report states that, “According to DFAT advice obtained in 2010, the Family Planning Commission has said that the intention of imposing a fee to unmarried parents who give birth to a child is to encourage marriage.”[4] In 2014, VOA News reported that the amount of the fine varies for unwed mothers varies, and in some areas it can be the equivalent of a year’s income.[5]
[3] Hong Fincher, L 2015, ‘China's two-child policy: Single mothers left out’, BBC News, 2 November, paragraphs 4-6 < CXBD6A0DE15233
[4]Department of Foreign Affairs and Trade 2010, DFAT Report 1104 – RRT Information Request CHN36059, 12 February <
[5] ‘Single Chinese mothers struggle to overcome social hurdles’ 2013, VOA News, 28 June < > Accessed 30 September 2014, (CISNET China CXC28129413413)
The Tribunal accepts, from the available country information, that the applicant would most likely face some level of social compensation fine on her return to Fujian province as it is satisfied that she has in fact given birth to a child out of wedlock.
The Tribunal does not accept that any social compensation fine faced by the applicant on her return is Convention-related. The Tribunal finds that such laws apply generally to the Chinese population. Penalties apply not just to people in the applicant’s situation, but also to those who have breached China’s family planning laws in other ways. The Tribunal also finds that any requirement for the applicant to pay such a fine under these laws is appropriate and is adopted to achieve a legitimate national objective in the context of China’s need to control its population.
On the evidence before it, the Tribunal is satisfied the requirement to pay the social compensation fee under the family planning regulations [6] of the home province of the applicant would not be selectively enforced against the applicant and payment of the fee is not persecution.
[6] Article 39(1) Population and Family Planning Regulation of Fujian Province (2002) the amount of the social compensation fee payable is 60-100% of the average annual rural income or average annual urban disposable income to register a child born out of wedlock.
The applicant claims she is unable to pay any social compensation fee. The Tribunal is satisfied on the country information the applicant will able to apply to pay the social compensation fee in instalments. The evidence before the Tribunal does not satisfy it the applicant would be unable to pay the social compensation fee amount in instalments and the Tribunal is not satisfied paying that amount will cause undue hardship to the applicant. The Tribunal considers the applicant exaggerated her excuses of her inability to pay the social compensation fee. The Tribunal is satisfied that the applicant will have some means to pay any fine imposed upon her as the Tribunal is satisfied the applicant will be able to obtain assistance from her family and will be able to obtain some type of employment in China on her return.
The Tribunal does not accept the applicant will suffer any harm in paying the social compensation fee and finds that the imposition of the social compensation fee is not serious harm.
Country information indicates that parents of children born out of wedlock, particularly young single mothers, may experience social stigmatisation.[7] The Tribunal accepts that both applicants will suffer a degree of societal stigma due to the fact that the second named applicant was born out of wedlock. The Tribunal does not accept that the social stigma, bullying or teasing would not amount to either serious harm or significant harm.
[7] Ma, Q, Ono-Kihara, M, Cong, L, Xu, G, Pan, X, Zamani, S, Ravari, S M & Kihara, M 2008, ‘Unintended pregnancy and its risk factors among university students in eastern China’, Contraception, vol. 77, no. 2, p.111; Chang, A 2008, ‘China hooking up with love hotels, bars; Young Chinese are embracing their own version of the sexual revolution’, The Toronto Star, 5 March; Yardley, J 2007 ‘Today’s Face of Abortion in China Is a Young, Unmarried Woman’, The New York Times, 13 May < Accessed 23 February 2009; Liu, J 2007, ‘Mother load Being a single mother is tough – and on the mainland it’s even tougher as women battle official discrimination’, South China Morning Post, 12 March.
Having assessed all of the applicants’ claims individually and cumulatively, the Tribunal finds that neither applicant has a well-founded fear of persecution for any reason related to China’s family planning policies or because of the applicant’s membership of a particular social group of unwed/single mothers or because of the second named applicant’s membership of a particular social group of child born out of wedlock or any combination thereof or for any other Convention reason, now or in the reasonably foreseeable future.
The Tribunal considers that the discrimination they may encounter would not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Act. The discrimination would not cause 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 the social compensation fees involve extreme humiliation which is unreasonable.
The Tribunal finds that the applicants will not be subjected to significant harm for any reason. There are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that either of them will suffer significant harm for these reasons.
Fear of violence from ex-husband
The Tribunal asked the applicant if she feared harm from her ex-husband if she returned to China. The Tribunal asked how he will react when she returned and how he will react if she returns with her son. The applicant responded that she had no idea as they divorced over 10 years ago and he won’t help her. There is no credible evidence and the Tribunal does accept that the applicant faces any harm from her husband on her return to China and she did not provide satisfactory evidence to support such a claim.
On the basis of the evidence provided, the Tribunal does not accept that there is a real chance the applicant faces any harm from her ex-husband for any reason if she returns to China now or in the reasonably foreseeable future.
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 real risk that she will suffer significant harm on this basis.
Mental heath
The applicant raised no claims at hearing in relation to her fear returning to China on the basis of her mental health. However she provided various copies of documents indicating she had received treatment for mental health issues while in China.
The Tribunal is satisfied on the evidence provided that the applicant has not been denied medical treatment for her mental health issues while in China for any reason.
Country information indicates that the applicant is able to access health care in China in the public system where she has household registration as well as in the private system.[8]
[8] See DFAT Country Report People’s Republic of China dated 3 March 2015 at 5.12 which provides that the Hu Kou system provides access to government services including health. Health services in China are mainly provided by the public system but the private sector has increased its market share in recent years (See Home Office China Country of Origin Information (COI) Report COI Service 20 December 2013 at 11.01).
On the basis of the evidence provided, the Tribunal does not accept that there is a real chance the applicant will be denied medical treatment for any reason if she returns to China now or in the reasonably foreseeable future.
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 real risk that she will suffer significant harm on this basis.
Conclusion
Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicants do not face a real chance of serious harm in China for any reason. Therefore the applicants do not have a well-founded fear of persecution if they return to China now or in the reasonably foreseeable future.
On the evidence before it, the Tribunal does not consider that if the applicants returned to China they would face the death penalty or that there is any risk they will be arbitrarily deprived of their lives. There is no evidence they would be tortured or subject to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
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 applicants will suffer significant harm upon being removed from Australia to China.
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
The Tribunal affirms the decision not to grant the applicants Protection visas.
Amanda Goodier
Member

ANNEXURE A
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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
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 biological child.
Credibility
The United Nations Human Rights Commission has recognised the difficulties of proof faced by applicants for refugee status.[9] In particular, there may be claims that are not susceptible of proof. Moreover, the courts have accepted that in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for.[10] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear asserted or that it is ‘well-founded’, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[11] It is the applicant’s responsibility to specify all particulars of his claims and to provide the Tribunal with sufficient evidence to establish his claims.[12]
[9] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relation to the Status of Refugees 1992 at paras [196 - 197]
[10] Randhawa v MILGEA (1994) 52 FCR 437, Beaumont J at [21]
[11] MIEA v Guo & Anor (1997) 191 CLR 559 at 596
[12] s.5AAA(1) of the Act
In this regard, the Tribunal is not required to accept uncritically any or all the claims made by an applicant.[13] Nor is the Tribunal required to make the applicant's case for him.[14] In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[15] It is legitimate for the Tribunal to take into account any delay in the lodging of a Protection visa application by an applicant in assessing the genuineness, or at least the depth, of an applicant’s claim to fear persecution.[16]
[13] Randhawa v MILGEA (1994) 52 FCR 437 at 451
[14] s.5AAA(4) of the Act. See also Prasad v MIEA (1985) 6 FCR 155 at 169 –170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45
[15] Kopalapillai v MIMA (1998) 86 FCR 547
[16] Selvadurai v MIEA & Anor (1994) 34 ALD 347, Herrey J at [11]

The Tribunal has also considered the Guidelines on the Assessment of Credibility[17] published by the Administrative Appeals Tribunal, including:
9. Findings made by the Tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The Tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
11. In relation to protection visa matters, if the Tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the Tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the Tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

ANNEXURE B
[17] AAT Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
Country Information
Contravention of family planning legislation
China has a “comprehensive system for birth registration” which requires parents to register new children with the appropriate “household registration [hukou] organ” within a month of their birth.[18] DFAT has indicated that out of plan children can obtain hukou registration once their parents pay the appropriate social compensation fee.[19] In Chinese it is known as shehui fuyang fei.
[18] Huawen, Liu 2004, The Child’s Right to Birth Registration – International and Chinese Perspectives, Norwegian Centre for Human Rights, pp.15-16 ; US State Department 2010, 2009 Human Rights Report: China, Section 6, 11 March.
[19] Department of Foreign Affairs and Trade 2007, DFAT Report 691 – RRT Information Request CHN32173, 31 August; Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November; Department of Foreign Affairs and Trade 2005, DFAT Report 404 – RRT Information Request CHN17471, September.
The country information indicates that having children out of wedlock is illegal in almost all provinces of China and attracts a fine known as a “social compensation fee”.[20] Among other things, a social compensation fee is payable for having a child out of wedlock and for accessing hukou.
[20] US Department of State 2011, Country Reports on Human Rights Practices 2010 - China, 8 April, Section 6 -.
On 29 October 2015, the Chinese government announced the end of the one-child policy. China’s family planning policy, known as the ‘one-child policy, meant that about one third of Chinese couples could not have second child without being subject to fines or tother penalties. The changes allow married couples to apply for permission to have a second child. A May 2014 article in the Economist reported that the province of Shandong, and Nanchang, the provincial city of Jiangxi, had announced that ‘illegal’ children could gain household registration with only a birth certificate. [21]
[21] DIBP Country Information Situation Brieg: China Family Planning – One Child Policy changes issued 6 November 2014 pp.3-5
Notwithstanding the current loosening of family planning restrictions, unmarried women who give birth to babies without a marriage certificate and valid ‘reproduction permit’ from the government have historically been denied certificates, which means the child will not be able to obtain hukou and will have trouble accessing school and affordable healthcare. A 2010 census put the number of people in this situation at thirteen million, although experts believe the true number may be two or three times that.
Article 10(4) of China’s Marriage Law[22] states that a marriage shall be invalid if one of the married parties has not reached the statutory age for marriage. Article 6 provides that no marriage may be contracted before the man has reached 22 years of age and the woman 20 years of age. Pursuant to Article 8 of the same law, where a man and a woman seek to get married and the proposed marriage is found to conform to those provisions of this law, the couple shall be allowed to register and issued marriage certificates. The husband-and-wife relationship shall be established as soon as they obtain the marriage certificates. A couple shall go through marriage registration if it has not done so.
[22] Adopted at the Third Session of the Fifth National People's Congress on September 10, 1980 and promulgated by Order No.9 of the Chairman of the Standing Committee of the National People’s Congress on September 10, 1980; and amended in accordance with the Decision on Amending the Marriage Law of the People's Republic of China, adopted at the 21st Meeting of the Standing Committee of the Ninth National People's Congress on April 28, 2001, accessed at on 9 November 2015.
While this is one possible way to read the legislation, the provincial, Fujian level legislation seems to contain a provision to the contrary: Article 14(1) of the Fujian Population and Planning Regulation states that any birth before the marriage of the child’s parents “including those who become pregnant before they reach legally marrying age” would be considered born “before the stipulated time” and thus liable to pay a fee.[23]
[23] Population and Family Planning Regulation of Fujian Province (Promulgated 26 July 2002, Effective 1 September 2002, UNHCR website, available at >
It would appear that separate social compensation fees are imposed on each parent. The US Department of State notes in its 2012 report on human rights practices in China that “each person in a couple that has an unapproved child” is required to pay the social compensation fee.[24] In regards to Fujian Province, DFAT advised in January 2013 that according to the Fujian Provincial Family Planning Bureau, individuals would be fined separately, regardless of marital status.[25] In March 2012 DFAT stated:
[T]he Fujian Population and Family Planning Commission advised that the family planning policy shall apply to both the male and female party when found in breach of regulations, with the social compensation fee imposed on each parent separately.[26]
[24] US Department of State 2012, Country Reports on Human Rights Practices for 2011 – China, 23 May, Section 6 <
[25] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February
[26] Department of Foreign Affairs and Trade 2012, DFAT Report 1368 – RRT Information Request CHN39875, 9 March
For a first child, the amount of the fines is 0.6 to one time “the baseline”, that is, the average annual disposable income of urban residents and net average annual income of rural peasants of the year when the baby was born. The exact figure is based on county-level statistics, which means that the baseline varies throughout each province. The individual’s “actual income level”, the “specific circumstances” of their family planning violation, and provincial regulations also determine the fee.[27]
[27] Measures for Administration of Collection of Social Maintenance Fees.
It is important to note that according to DFAT advice from January 2013 the “social compensation fee[s] differed across districts”.[28] This is because the average income levels differ between districts (counties).[29] It is also because local authorities issue notices that “guide local officials in their application of relevant regulations”.[30] The 2015 DFAT report on China (at 3.47) notes that there is no country-wide social compensation fees. Provinces formulate their own policies and local authorities decide how lenient they want to be. The report also points out (at 3.48) that revenue from fees is directed at county-level governments. The fees increase annually and they rise as annual incomes rise. They are not based on a formula which a person can use to predict how much they would be liable to pay in the future.[31]
[28] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February
[29] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February
[30] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February
[31] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February
Under national law, offenders have 30 days to pay via lump sum after being served notice by local authorities. Those unable to pay in a lump sum have 30 days to apply for approval to pay in instalments “to the family planning administrative department of the people's government at the county level”.[32] DFAT confirmed, in a report dated 12 November 2010, that this deferred payment is permissible in Fujian Province:[33]
According to Article 10 of Management Measures for the Collection of the Fujian Province Social Compensation Fee:
-the person concerned shall make a lump sum payment, in person, within 30 days from the time of receiving a payment notice;
-if the person concerned has difficulty in paying the social compensation fee, they should submit a written request within 30 days of receiving notice. Their request should be addressed to the authority who issued the payment notice (such as the county or town-level family planning administrative office), requesting to pay via instalments;
-the written request will require supporting documentation (unspecified) from employers, residence or village committees, or other relevant authorities;
-the authority responsible for collecting payment shall make a decision on approving or refusing the instalments within 30 days from the application date, and advise the person concerned of the authority’s decision in writing; and
-the period permitted for payment instalments shall not exceed three years.
[32] Article 6A, Measures for Administration of Collection of Social Maintenance Fees.
[33] Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November.
In 2010, the Tribunals, differently constituted, contacted Dr Alice de Jonge, a Senior Lecturer of Business Law and Taxation at Monash University, for information about children born out of wedlock in China. According to information provided on the Monash University website Dr de Jonge has ‘lived and studied in China and was a Visiting Scholar at Nanjing University, China’.[34] In her response, Dr de Jonge stated:
[Children born out of wedlock] are still regarded with pity and disdain. They are teased at school. Single mothers are subject to discrimination when it comes to accessing housing, education and medical services…Women pregnant out of wedlock typically face discrimination in obtaining appropriate medical care. Single mothers are often discriminated against when seeking housing, education for their child, job opportunities and more generally in the context of social interactions.[35]
[34] ‘Dr Alice de Jonge’ 2009, Monash University, 14 October <
[35] De Jonge, A 2010, Email to RRT, RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060), 15 January; De Jonge, A 2010, Email to RRT, RE: Request for assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060), 20 January
Since 2010, attitudes and policies have positively evolved towards unmarried mothers and their children. In 2013, it was widely reported that when the government of Wuhan city in central Hubei published a draft updated family planning policy aimed at kept the birth rate low with heavy fines. The BBC reported the proposal sparked an outcry that the city government backed down. In December 2013, Hubei province said that it would stop withholding birth certificates from children of single mothers.[36] The new guidelines also regulate the organs responsible for issuing medical certificates at birth cannot set preconditions such as the existence of marriage certificates and birth service certificates, and they are banned from receiving any fees for the certificates.[37]
[36] China’s two child policy: Single mothers left out; BBC online: ‘Hubei single parents to be able to get birth certificates’ Global Times: 21 November 2013
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.’[38]
[38] ‘Fujian relaxes hukou registration for infants’ 2014, China Daily, 29 April, Accessed 23 June 2015 CX1B9ECAB10837
Fujian family planning regulations set out guidelines for social compensation fees for out of plan children.[39] The social compensation fees are based on:
- the average per capita urban annual disposable income (in the year prior to the birth) or
- the average per capita rural net income (in the year prior to the birth).[40]
For an approximation of the fines applicable in Fujian for parents who breach family planning regulations, see the Fujian Family Planning Fines 1991-2012 – Tables. It is important to note, however, that DFAT advice of January 2013 states the ‘social compensation fee[s] differed across districts’. This is because the average income levels differ between districts. It is also because local authorities issue ‘notices’ that ‘guide local officials in their application of relevant regulations’. As such, the fees listed in the Fujian Family Planning Fines tables should be used as a guide only, as the actual fee depends on the district in which the parents’ hukou is registered. The Tribunals currently only have access to data at that level, in Chinese language, for Nanping Prefecture and Fuqing City.[41]
[41] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February <Attachment>. For the fine structure for Fuqing City for 2008-2012 in Chinese see: Fuqing Population and Family Planning Committee 2012, Fuqing City social compensation fee < Accessed 7 March 2013
DFAT also advised in January 2013 that for Chinese nationals who breach the family planning regulations while outside the country, and who are not eligible for an exemption, their social compensation fee will be calculated using the average income of the district in which their hukou is registered.[42] In September 2010, DFAT advised that social compensation fees are strictly implemented in relation to families returning to Fujian with additional children born overseas, unless waived by relevant authorities.[43]
[42] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February
[43] Department of Foreign Affairs and Trade 2010, DFAT Report No. 1196 – China: RRT Information Request: CHN37198, 13 September
Fines for Having Children out of Wedlock
Under Article 14 of the Population and Family Planning Regulation of Fujian Province 2002, it is forbidden to have a child out of wedlock. A fine is imposed under Article 39 of this law for each child born out of wedlock, equal to 60 to 100 per cent of the average annual disposable income of urban residents or the net average annual income of rural peasants in the previous year. If the parent’s income exceeds the average annual income of urban or rural residents, the actual income is used as the base to calculate the social compensation fee.[44] According to government statistics of the average incomes for Fujian Province[45], the fines imposed for a child born out of wedlock in 2011 were as follows:
[44] Population and Family Planning Regulation of Fujian Province 2002 (China), Promulgated 26 July 2002, (Effective 1 September 2002), UNHCR < Accessed 20 August 2012
[45] ‘Per Capita Annual Income of Urban and Rural Households,1978-2010’ 2011, Fujian Statistical Yearbook 2011, Sec.7.1, Fujian Provisional Bureau of Statistics < Accessed 21 August 2012

Rural Urban

First out-of-wedlock child born in: Minimum fine (Yuan) Maximum fine (Yuan) First out-of-wedlock child born in: Minimum fine (Yuan) Maximum fine (Yuan)

2011 4,456 7,427 2011 13,069 21,781[46]
[46] The information in the table is summarised based on information from RRT Country Advice 2012, Fujian Family Planning Fines 1991-2012, January; and ‘Per Capita Annual Income of Urban and Rural Households,1978-2010’ 2011, Fujian Statistical Yearbook 2011, Sec.7.1, Fujian Provisional Bureau of Statistics < Accessed 21 August 2012

[2016] AATA 3932

30 May 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Rural			Urban
First out-of-wedlock child born in:	Minimum fine (Yuan)	Maximum fine (Yuan)	First out-of-wedlock child born in:	Minimum fine (Yuan)	Maximum fine (Yuan)
2011	4,456	7,427	2011	13,069	21,781[46]