1516689 (Refugee)

[2018] AATA 5644

1516689 (Refugee) [2018] AATA 5644 (12 December 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516689

COUNTRY OF REFERENCE:                  China

MEMBER:Ms Christine Long

DATE:12 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 December 2018 at 11:30am

CATCHWORDS
REFUGEE – protection visa – China – particular social group – couple with children born out of wedlock – breach of the one child policy – societal discrimination – social compensation fee/fine – risk of homelessness – black children – support from parents or grandparents – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), r 2.08, Schedule 2

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 on 11 November 2015 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of China and members of the same family unit. The third named applicant was born in Australia on [date] and is the child of the first and second named applicants; a copy of the child’s birth certificate issued in [City 1, Australia] is before the Tribunal. The first, second and third named applicants applied for the protection visas on 22 April 2014. The fourth named applicant was born in Australia on [date] and is the second child of the first and second named applicants; a copy of this child’s birth certificate issued in [City 1] is before the Tribunal. This child is taken to have applied for the visa at the time he was born pursuant to Regulation 2.08 of the Migration Regulations 1994.

3. The first and second named applicants appeared before the Tribunal by video link on 11 April 2018 to give evidence and present arguments on behalf of themselves, and their two children who are the third and fourth named applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

   CRITERIA FOR PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the applicants’ departmental file which includes their applications for protection visa and documents and materials provided in support of the applications. The Tribunal also has before it the applicants’ application for review and documents and submissions provided to the Tribunal in support of the application for review.

    Claims of first named applicant made in her Application for Protection visa

11. In her application for protection visa the first named applicant states that she was born in Fuqing in Fujian, China [on date]. She indicates that she has been in a de facto relationship since 5 June 2010. She indicates that she entered Australia [in] November 2006 as a student; she entered Australia using her passport issued in Fujian, China in [2006] expiring in [2011]. Her most recent student visa was issued in May 2009 expiring in 2011 according to the details recorded in her application for visa.

12. The applicant indicates that she left China legally in November 2006 using her passport and student visa; she came to Australia to study. She indicates that she has not experienced harm in China. She returned to China between December 2008 and February 2009 to visit family in Fujian.

13. In her personal particulars form (Form 80) the applicant indicates she has an identity card issued in China. She indicates that her mother and father reside in China and were both born in Fujian. She also indicates that she has a brother born in Fujian in [year] who is residing in China. She states that before coming to Australia she lived at an address, which she gives, in [Village 1], Fuqing City in Fujian Province from 1988 until November 2006; she stayed there at that address again from December 2008 until February 2009 when she returned from Australia to China to visit her family. She also indicates that she has worked as a [Occupation 1] in [City 2, Australia] and [City 1]. She also indicates that she studied to [specified] level in Fuging before coming to Australia and in Australia she has studied English language, completed [school] and also has completed a certificate course in [Discipline 1] in 2010.

14. The applicant states in her application that she has a child and is pregnant again. If she returns to China as an unmarried parent she will face pressure; her home town is conservative and people will treat her as an immoral woman and spit on her. Her whole family will be ashamed and it will be treated as a disgrace to the family tradition.

15. In addition she will be forced to have an abortion and be sterilized under the Fujian family planning regulations.

16. The applicant said that both of her children will be treated as born out of wedlock and their birth will be treated as breaching the family planning regulations. Also she will have breached the one child policy by having a second child. A heavy social compensation fee will be imposed on the family which they cannot afford to pay; she and her partner will be unable to support their family and their daily life.   

17. Further it is hard for children born out of wedlock to get their hukou/household registration. Even though the law states that children born out of wedlock have the same rights as children born in wedlock corrupt officials will focus on them and they will have a huge obligation to pay the social compensation fee as a lump sum.

18. The applicant claims that without the hukou her children will be denied access to any sort of social benefit and welfare such as public education and medicare. This denial would affect their capacity to subsist; it involves serious harm and discriminatory conduct. Chinese society is deeply prejudiced against illegitimate children although the law states that no one may harm or discriminate against them.

19. The applicant states that if she returns to China there is a real chance she will be persecuted; there is a great possibility she will be forcibly sterilised and will have to have a forced abortion. People around her will treat her as an immoral woman and Chinese society will discriminate against her because she is not married.

20. The applicant states that if her partner returns to China his life will be miserable; they will have to pay the social compensation fee which they cannot afford and pay/bribe officials to get the children’s household registration. He cannot pay the social compensation fee and also earn the family’s living. Also government officers try to exact benefits from the social compensation fees and they will keep their eye on them.

21. If the children return to China they will have problems because of the hukou registration; they will have no right to go to school and to other welfare. The child will be denied basic social entitlements and rights.

22. The applicant states that as the persecution they fear is from the government there is no protection available for them in their country. All authorities in China, even the judiciary, work for the government and are funded by the government and that is why China has human rights issues.

    Claims of second named applicant made in his Application for Protection visa

23. In his application for protection visa the applicant states that he was born in Fuqing in Fujian, China in [year]. He states that he has been in a de facto relationship since June 2010. He indicates that he left his country legally on [date] February 2007 using his passport issued by authorities in Fujian, China in [2006]; his passport expired in [2011]. He states that he entered Australia as a student. He states that his most recent student visa was issued in [City 1] in August 2008 valid until August 2010.

24. In his personal particulars form completed for his application for visa the applicant indicates that he has an identity card issued in China. He indicates that from February 1988 until February 2007 he lived in [Village 2], Fuqing City in Fujian Province. He indicates that the first named applicant is his partner and the third named applicant is his son. He indicates that his mother and father are residing in China and he has a brother born in [year] who is residing in Australia.

25. The applicant indicates that he has worked in Australia as [an Occupation 1] and also has had various casual jobs during short periods. He indicates that he was educated in China to [level] and in Australia he has studied English language, completed [school] and has a certificate in [Discipline 2] and was also studying for a diploma of [Discipline 2] from February to October 2009.

26. The applicant states that he left China in February 2007 to study further in Australia. He indicates that he has never suffered harm in his country.

27. He essentially makes the same claims about his fear of returning to China as the first named applicant, including his fears about what will happen to the first named applicant and their two children, the third and fourth named applicants.

    Claims of third named and fourth named applicants in Applications for Protection visa

28. The third and fourth named applicants’ claims are essentially the same as those set out in the applications of the first and second named applicants.

    Interview with delegate

29. The first and second named applicants attended an interview with the delegate on 12 August 2015. The discussion with the applicants at the interview is referred to in the delegate’s decision record.

30. Claims in Application for Review

31. In their application for review, which attaches a copy of the delegate’s decision record, the applicants make no new claims.

32. On 4 April 2018 the applicant’s representative sent the Tribunal a submission in support of the applicants’ claims; various country information is referred to. In addition to references to the applicable law and the applicants’ background, the submission summarises the applicants’ claims as - their difficulties registering the children’s hukou without which the children would be deprived of access to social welfare, education and healthcare; societal pressure and discrimination; the risk of coerced sterilisation; the significant amount of social compensation fees which will be payable amounting to $50,000 AUD or $60,000AUD based on annual income amounting to four to six times per capita disposable income because of breach of the Fujian Family Planning Regulations which is beyond their capacity to pay hence jeopardising their essential subsistence.

33. It is submitted that despite the law in China, and changes to that law and country information to the contrary, the reality is that the government in China, at all levels, implement the law/s in their own way. There are still risks  that coercive measures, such as forced sterilisations, refusals to register children for the hukou, even destruction of private property and children being taken away, may occur.  People still complain about local government failing to implement current family planning policies. It is submitted that the first and second named applicants will face difficulties getting work to provide for the family and be unable to pay the social compensation fee and they cannot rely on assistance from the grandparents who have limited financial and physical capability. The registration of the marriage of the applicants will not have any impact on the social compensation fee.  Because of their lack of skills and sound qualifications they are unlikely to secure decent jobs in China and they will be unable to pay the social compensation fee. It is submitted that the third and fourth named applicants will be discriminated against as “black children” in China as there is ingrained discrimination against children born out of wedlock in China. Also they will not be able to be immunised under the free government service and they will be teased and bullied at school. It is submitted that although it is reported that China has implemented a policy that provides that full payment of the social compensation fee is no longer a prerequisite for hukou registration there is country information that some local authorities denied the registration if the families could not pay the social compensation fees; Country Reports 2015 of the Norwegian Country of Origin Information Centre is cited.

    Tribunal Hearing

34. At the Tribunal hearing the Tribunal spoke to the first and second named applicants about their background and their claims and about the background and claims of the third and fourth named applicants.

35. On 26 April 2018, following the Tribunal hearing, the applicants’ adviser sent the Tribunal a further submission in support of the applicants’ claims. The submission summarised and expanded upon oral submissions made by the adviser to the Tribunal at the close of the Tribunal hearing. The submission essentially states that what happens in practice in China, especially at the local government level, is different from what the national policy and laws enacted state. The adviser submitted that country information and the history of China shows that national policy and law in China is often completely ignored or implemented in a distorted manner in non cosmopolitan areas. It is submitted that there is much information on the internet and in media reports that show that children born outside of the family planning policy and their parents in China have been punished by unfair treatment and hefty penalties; they are at the mercy of local authorities whose most accessible method of revenue is from local citizens’ penalties and property. It is submitted that new policies are not implemented everywhere across China and local authorities can act recklessly and unscrupulously. Local authorities have strong incentives to enforce social compensation fees as quickly as possible so they can acquire ill gotten gains. Media news implies that people can register hukou for their children but this policy will not necessarily be enforced by local governments. The policy that says people can pay the social compensation fee by instalments has been around for a decade but in reality very few people get this treatment; even people who have been to the Courts asking for the payment of the social compensation fee by instalments are normally ordered to pay off the fee within two to three years which is not of much use to a family that is struggling financially.

36. It is also submitted that if the applicants return to China they would not have anywhere to live as there is no spare room in their parents’ home. In China the applicants’ earning capacity would be below the average. The first and second named applicants would have to go to big cities to work to pay the hefty amount of social compensation fees. They would have to leave the children to the grandparents to look after. There are huge social problems associated with this social phenomenon such as abuse and assault because the children’s parents are not with them. Also local authorities bully children and senior parents and there have been reports that local authorities imprison senior parents to get social compensation fees paid off.

37. The submission also refers to aspects of the law relating to protection visas.

38. COUNTRY INFORMATION

39. In addition to country information referred to by the delegate and the applicants’ adviser the Tribunal also consulted the following- DFAT Country Report, People’s Republic of China, 3 March 2015; DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016; CX0562B6F11: “China. Country Information Request-C1160219094800679-Fujian registration of children and out of plan births, Department of Foreign Affairs and Trade, 24 March 2016. The Tribunal discussed relevant parts of the country information generally with the first and second named applicants at the Tribunal hearing.

    FINDINGS AND REASONS

40. Essentially the applicants claim that they cannot return to their country because the first and second named applicants are not married and have had two children in Australia in breach of the one child family planning policy which was/is applicable in their country for children born before the date the policy changed to permit all couples to have two children. The applicants claim that because they have children born out of wedlock, and also because they have one child born in breach of the one child policy, the first and second named applicants will be fined and required to pay a significant social compensation fee amounting to $50,000 AUD or $60,000AUD, based on annual income amounting to four to six times per capita disposable income, and they will not be able to pay that fee/fine. Also the applicants claim that the third and fourth named applicants will not be able to obtain household registration (hukou) because they are born out of plan and this will mean they cannot get access to many basic rights, services and other benefits as citizens in China such as social welfare, healthcare and education.  Further the applicants claim that the children will be discriminated against and teased as “black children” in China as there is ingrained discrimination in China against children born out of wedlock.

1. Further the applicants claim that the first named applicant may be forcibly sterilised/ subjected to forced abortion and treated as an immoral woman and discriminated against because she is unmarried and has had children out of wedlock. The first named applicant also claimed in her application for visa that she will be under pressure from her family and her family will be ashamed of her as she is an unmarried parent.

2. The applicants claim that they will have nowhere to live in their country if they return there. The applicants claim that the first and second named applicants will have difficulty getting work in China if they return there given their lack of skills. If they do find work that work may not be stable employment and their earning capacity will be below the average in China. They will have to go to the big cities to work forcing them to leave the children in the care of the grandparents which may give rise to other social problems for them, such as bullying by local officials, the children being taken away and possible imprisonment of the grandparents to get the social compensation fee paid.

   Identity and Country of Reference

3. The Tribunal accepts and finds that the first and second named applicants are who they claim to be and are citizens of China and they are the parents of the third and fourth named applicants. Copies of the expired passports of the first and second named applicants are on the departmental file; their passports were both issued in Fujian in 2006 and both passports expired in 2011. The first named applicant told the Tribunal that she had not applied for a new passport in Australia because she was scared that her family details including that she had children would be sent back to China. The second named applicant said that he did not apply for a new passport in Australia as he was worried that if he applied for another passport in Australia he would be asked questions about his protection visa application. When the Tribunal pointed out that his protection visa application was made some time after his passport expired in 2011 the second named applicant said that another reason he did not apply for a new passport was that he was without a visa to stay in Australia. 

4. Copies of the [birth] certificates for the third and fourth named applicants are also before the Tribunal and show the first and second named applicants are the parents of the third and fourth named applicants. It is not in dispute, and the Tribunal accepts, that the third and fourth named applicants have acquired Chinese nationality because their parents are nationals of China.

5. The first and second named applicants told the Tribunal that they hold Chinese ID cards, with the second applicant noting that he was not sure whether his card needed renewal, and both applicants told the Tribunal that they had hukou registration in China.

6. The first and second named applicants told the Tribunal that they have not married in Australia but they would marry if they returned to Fujian/China. The Tribunal finds that the applicants will marry if they return to their country.

   Departure from China and background in Australia

7. The Tribunal finds that both the first and second named applicants left China to come to Australia to study; they do not claim that they left their country because they feared harm there.

8. The first named applicant told the Tribunal that she came to Australia initially (in 2006) to study and she did study in Australia at TAFE. She had to give up her study however because she had financial problems and then she could not get a visa to stay in Australia; she said that there was a time when she was without a visa to stay in Australia until she applied for a protection visa.  She has worked in Australia  [as an Occupation 1] for a time but has done no other work. She told the Tribunal that when she left China she did not intend to return there after her studies; she wanted to stay in Australia and find a job here. She met her partner, the second named applicant in Australia in June 2010 and commenced a relationship with him; she did not know him in China.

9. The second named applicant told the Tribunal that he left his country and he came to Australia in 2007 to study. Firstly he studied language and then did high school studies and [studied Discipline 2] at TAFE. He said that after he studied he worked as a [Occupation 2] in Australia, he has done so for five to six years and that work is continuing. He did not work in China as he was a student before he left there. He said that he was without a visa to stay in Australia from about September 2010 until he applied for the protection visa. The second named applicant told the Tribunal that he has a brother who is a permanent resident in Australia; his brother came to Australia in 2008 and has a family/children here.

   Applicants’ family in China

10. The first named applicant told the Tribunal that before she came to Australia she was living with her family/parents in the family home in the village, which she named, in Fuqing, Fujian, where she had always lived and that she also went back to visit her family there in 2008/2009. She said that her parents and other relatives are still living in China; her parents are still living in the family home in the village where she was living before she left China in 2006 to come to Australia. The applicant told the Tribunal that she also has a brother living in Fujian and he lives with their parents although he also has his own family. The first named applicant said that her father supports the family financially in China by looking after a friend’s shop and her brother is [a professional]and supports his own family. She said that her parents gave her money to go abroad but she spent the family money and after that she supported herself financially. She said that her parents and her brother are supportive of, and pleased about, her children born in Australia. She said that she frequently video chats with her own parents and she also says hello and greets her partner’s (the second applicant’s) parents when they contact. Her own parents also video chat with the children now they are growing up. She also has contact with her brother and his family in China when she chats with her mother. The first named applicant said that she and the second named applicant have more frequent contact with her parents than with her partner’s (the second named applicant’s) parents.  

11. The second named applicant told the Tribunal that just before he left his country to come to Australia in February 2007 he was living in the family home where he grew up and lived with his parents in [Village 2] in Fujian. He said that his parents are still living there in the family home in Fujian. He said that he is in contact with his parents there every month or every half month. He said that they miss the grandchildren. When the Tribunal asked the second named applicant whether his parents talk to the children for example by video chat he said that they do video chat or have phone calls each one to two weeks or each month and his parents also call if they miss the grandchildren.

12. Having regard to the applicants’ evidence before the Tribunal the Tribunal finds that the first and second named applicants both have parents in Fujian, who remain living in their respective family homes in Fujian, and with whom the applicants are in regular contact from Australia. The Tribunal finds that those parents, who are the grandparents of the third and fourth named applicants, are supportive of the first and second named applicants and the children, the third and fourth named applicants, whom they miss because they are living in Australia.

    Hukou

13. The applicants claim that the third and fourth named applicants will not be able to get household registration (hukou) in their country and hence will be denied access to basic services as citizens because the children have been born out of wedlock and in breach of the family planning regulations and the fourth named applicant was born in breach of the one child policy which was in place at the time of his birth. The applicants claim the first and second named applicants will face a significant social compensation fee/fine which they cannot pay and this will impact on the children and their ability to get equal treatment in their country, including their ability to get household registration.

14. The Tribunal discussed generally with the first and second named applicants country information that it had consulted which indicated that the law and policy in China with effect from January 2016 now allows couples to have a second child; see paragraphs 3.26 to 3.28 of  DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016. In response the first and second applicants stated that they would still be subject to the one child policy as their second child was born before the changes to the law/policy came into effect. As discussed generally with the first and second named applicants there is country information  which indicates that the 2016 Population and Family Planning Regulations of Fujian only apply to children born after 1 January 2016 as the applicants claim,  but the country information also states that those regulations will apply in cases where the social compensation fee notices have not been issued for children born prior to 1 January 2016; see paragraph 3.33 of DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016. The first and second named applicants repeated that their children were born before January 2016 and they have breached the family planning laws by having two children and having children born out of wedlock; they will definitely be fined as it is illegal to have children out of wedlock in China. 

15. The Tribunal also discussed generally with the first and second named applicants country information that it had consulted which indicated that the recovery of a social compensation fee/fine is no longer a prerequisite to, or linked to the issue of the hukou for children in China. For example paragraph 3.37 of the DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016 states that “In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid”. Paragraphs 5.3 and 5.4 of the aforementioned Thematic Report refers to hukou reform in China, including in Fujian, and refers to the system of registration and what is required for children including those children born out of wedlock.

16. In response to the Tribunal’s general reference to the above country information the first and second named applicants essentially stated that although they can apply for registration for the third and fourth named applicants, a large fine will still be imposed on them (the first and second named applicants) at any time as they have breached the family planning policy; they will have to pay that fine and they cannot do so. The applicants did not raise with the Tribunal any other impediment to their ability to apply for hukou for their children, the third and fourth named applicants, apart from the payment of the social compensation fee or fine which is now not linked to the application for the hukou according to the country information consulted by the Tribunal. Further the Tribunal notes that paragraph 5.4 of DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016 indicates that under the new system of hukou  children may be registered under the hukou of either parent who must supply documentation including the child’s birth certificate, household registration books (hukou) of the parents, identification cards of the parents and the marriage certificate of the parents or, if the parents are unwed, a declaration as to the child’s situation. The first and second named applicants told the Tribunal that they both had hukou registration themselves in China, that they both had Chinese ID cards (although the second named applicant was unsure whether his ID card needed renewal) and they have the birth certificates for their children showing that they are the parents of the third and fourth named applicants; these birth certificates or copies thereof are before the Tribunal. The Tribunal has also found above that the first and second named applicants will marry on return to their country.

17. While the Tribunal accepts that there is some country information which supports the applicants’ adviser’s submissions that sometimes local authorities still deny hukou registration if social compensation fees are not paid, and also that national law and policy is sometimes not implemented or followed by some local authorities, having regard to all of the country information consulted by the Tribunal, and the evidence of the first and second named applicants, including their evidence about the documentation they hold as citizens of their country, the Tribunal finds that there is not a real chance , or real risk, that the first and/or second named applicant/s will be unable to apply for, and obtain, household registration for the third and fourth named applicants on return to their country irrespective of whether they are able to pay any social compensation fee imposed upon them. Further the Tribunal finds that upon registration the children, the third and fourth named applicants, will not be precluded from access to the basic rights, services and other benefits as citizens in China such as social welfare, healthcare and education as the applicants claim if they were not able to be registered for hukou in China.

    Social Compensation Fee

18. Further having regard to all of the country information before it, and also the applicants’ evidence and the submissions made on their behalf, the Tribunal accepts and finds that the first and second applicants will be required to pay a social compensation fee at some time if they return to China because they have had children out of wedlock and because their second child, the fourth named applicant, was born before the changes to the one child policy came into effect in China. There is independent country information available that supports the applicants’ claims that the first and second named applicants will have to pay a social compensation fee if they return to China because they have children born out of wedlock and have a second child born (in 2014) in breach of the one child policy before changes to that policy came into effect. The independent country information also supports the applicants’ claims that because the children were born out of wedlock the social compensation fee that may be imposed on them will be levied on the multiplier basis of 4 to 6 times their average annual disposable income; see paragraph 3.29 DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016.

19. The Tribunal does not accept however that the applicants will be unable to pay the social compensation fee imposed upon them as they claim. As discussed generally with the first and second named applicants at the hearing there is country information available which indicates that there is flexibility and discretion with local authorities in relation to the amount of, and recovery of, any social compensation fee imposed, for example it can be recovered by instalments: see DFAT Report 1210 –RRT Information Request CHN37505, 12 November 2010 and also see paragraphs 3.32 and 3.33 of DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016. Further at para 3.33 of the Thematic Report it is stated that “ In March 2016, the Deputy Chairman of the Fujian Family Planning Association stated that if parents had received previous notification of Social Compensation Fees, these penalties stood. If individuals who had children in breach of the March 2014 Population and Family Planning Regulation of Fujian had not received notification of Social Compensation Fees, local authorities would not pursue the issue further”. Further at paragraph 3.32 it is stated that “…DFAT also understands that local authorities in Fujian are able to show considerable discretion in charging Social Compensation Fees. Factors that would influence local authorities when charging Social Compensation Fees may include whether the couple is co operative, is underage and/or from a low income family”.  

20. The applicants’ adviser submitted essentially that the policy and law in place in Fujian/China is not necessarily implemented in practice by local authorities.  It is submitted that national policy and law in China is often completely ignored or implemented in a distorted manner in non cosmopolitan areas and children born outside of the family planning policy and their parents in China are at the mercy of local authorities whose most accessible method of revenue is from local citizens’ penalties and property and hence they have strong incentives to enforce social compensation fees as quickly as possible rather than by instalments. The Tribunal accepts that there is some country information available which indicates that the flexibility and discretion with local authorities in relation to the amount of, and recovery of, social compensation fees imposed, leaves open the possibility of manipulation by local authorities as to the imposition and payment of the fees, and that a range of measures have at times been used in Fujian to secure payment of social compensation fees, including applying personal pressure through calls and visits: see paragraphs 3.32 and 3.33 of DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016. That report also states at paragraph 3.35 that social compensation fees operate like a form of unwelcome taxation, rather than as a punitive arbitrary measure. Further at paragraph 3.34 of the report it states,  “In July 2015, the Fujian Health and Planning Commission signed a Memorandum of Understanding with the Fujian High Court, the Fujian Development and Reform Commission and the Fuzhou Branch of the People’s Bank of China to list people who failed to pay Social Compensation Fees on a ‘black list’, limiting their ability to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their businesses, board planes or book soft berth tickets on trains”.

21. The Tribunal accepts that there is some country information which indicates that there are measures in place in Fulian to ensure social compensation fees are paid by those on whom those fees are imposed, and that local authorities in Fujian sometimes implement the policy and law in relation to the imposition and recovery of social compensation fees in a manner that may best benefit those authorities, and at times pressurise those owing fees to pay, including by visiting and calling them. However having regard to all of the country information, submissions and evidence before it the Tribunal finds that there is flexibility and discretion in relation to the amount of, and recovery of, any social compensation fee that will be imposed upon the applicants if they return to Fujian, China. Given that flexibility and discretion, the Tribunal finds that there is not a real chance or real risk that the applicants before the Tribunal will suffer serious or significant harm because they will have to pay a social compensation fee on return to their country.

    Essential subsistence in jeopardy

22. The Tribunal does not accept that there is a real chance or real risk that the applicants will suffer serious or significant harm in their country if they return there because their essential subsistence will be in jeopardy due to the fact that they will be unable to find work in their country, or only able to find work that is paid at a below average amount, and they will have to pay a large social compensation fee. The Tribunal does not accept as reasonable or plausible the applicants’ claims that the first and second named applicants will not be able to find any work in their country, or they will only be able to get below average income from work they find which may not be stable, and hence be unable to pay/pay off any social compensation fee imposed on them and also support themselves financially. The first and second named applicants have managed to leave their home and family support in China and come to Australia and find employment here and the means to house and support themselves financially, and then their two children. The first named applicant told the Tribunal that after she came to Australia she obtained a [certificate] at TAFE and has worked in [Occupation 1] before she had her children. The second named applicant told the Tribunal that he studied [Discipline 2] in Australia although he has not worked [in that field] but that he has worked for five to six years in Australia as a [Occupation 2] in [a particular] industry and is continuing to do that work.  The submissions of the applicants’ adviser made 26 April 2018 refer to “ Australian trade/labour workers “ as having “one of the highest income in the world” noting that this is how the second named applicant has supported his family in Australia.  While the Tribunal accepts that wages and conditions of employment are different and less beneficial for the applicants in China from those in Australia the Tribunal does not accept the submissions made that the first and second named applicants’ skills would not be applicable to their finding work in their country to enable them to pay/pay off  the social compensation fee and support themselves financially.

    Place to live

1. The Tribunal finds that there is not a real chance or real risk that the applicants, or any one of them, will suffer serious harm or significant harm because they will have nowhere to live if they return to China. The Tribunal does not accept as reasonable or plausible the applicants claims that they will have nowhere to live in China and may not be able to, or will not, return to live in Fujian, including because the parents/grandparents in Fujian do not have a spare room in their house/s. The Tribunal finds that the applicants will return to live with, or around their family members in Fujian, with whom they are in regular contact and who are supportive of them and their children born in Australia. The first named and second named applicants told the Tribunal that their parents remained living in the family homes in Fujian and said that they are in regular contact with their parents in Fujian who miss the grandchildren and are supportive of them (the first and second named applicants) having the children (the third and fourth named applicants).  Submissions from the applicants’ representative refer to the grandparents, who remain living in Fujian, looking after the third and fourth named applicants if the applicants return to China and the first and second named applicants go out to work. While it is also submitted that the first and second applicants cannot rely on assistance from the grandparents because they have limited financial and physical capability the Tribunal considers that the applicants will have some support and help from their parents/grandparents; as noted above the first named applicant told the Tribunal that her father is employed in China and the second named applicant told the delegate at interview, as recorded in the decision record which was provided to the Tribunal with the application for review,  that his father  worked in a local [factory].

2. Further, on the evidence before it, the Tribunal does not accept that there is a real chance or real risk that the applicants, or any one of them, will suffer serious or significant harm, including ill treatment, abuse, bullying or assault by local authorities, even if the first and second named applicants do have to leave their children in the care of others, including their grandparents, to go to work to earn income to support themselves financially and pay off the social compensation fee. The Tribunal also does not accept that there is a real chance or real risk that the third and fourth named applicants will be taken away by local authorities, or the grandparents will be imprisoned by local authorities until the social compensation fee is paid, as claimed by the applicants’ adviser in submissions. The evidence before the Tribunal does not support these claims.

   Forced Sterilisation/ Abortion

3. The Tribunal also does not accept that there is real chance or real risk that the first named applicant will be forcibly sterilised and/or will have to have a forced abortion if she returns to her country. Country information consulted by the Tribunal and discussed generally with the first and second named applicants at the hearing indicates that extreme remedial measures against those violating the provisions of the Population and Planning Regulations of Fujian, such as forced sterilisations and/or abortions was unlikely in Fujian; see paragraph 3.36 of DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016.

   Discrimination

4. The applicants also claim that if they return to China people around them will treat the first named applicant as an immoral woman and Chinese society which is conservative will discriminate against them because the first and second named applicants are not married and have had children, the third and fourth named applicants out of wedlock; the children will be discriminated against as ‘black children’ and the first named applicant will be regarded as immoral.

5. The applicants have told the Tribunal they will marry if they return to their country and the Tribunal finds this is the case, but the Tribunal accepts that it may become known to some people in the society that the applicants were not married in Australia and that they had their children, the third and fourth named applicants, out of wedlock.  While the Tribunal accepts that the applicants may face some societal discrimination in China if it becomes known that the first and second named applicants were not married when they had their children and because the third and fourth named applicants were born out of wedlock the Tribunal finds that this discrimination will not amount to serious harm or significant harm for the purposes of the refugee criteria and/or the complementary protection criteria.

6. In addition the first named applicant claimed in her application for the visa that if she returns to China as an unmarried parent she will face pressure; her whole family will be ashamed and it will be treated as a disgrace to the family tradition. The first and second named applicants however told the Tribunal at the hearing that their families are happy they have had the third and fourth named applicants and supportive of them and the applicants are in regular contact with their parents in China. The second named applicant mentioned to the Tribunal that his parents contact them regularly and also call because they miss the grandchildren (the third and fourth named applicants). Given the applicants’ evidence before the Tribunal the Tribunal finds that there is not a real chance or real risk that the applicants, or any one of them, will face serious harm of significant harm in their country because they will be treated as a disgrace, and pressured by their family members in China for the reasons that they claim.

   CONCLUSION

7. For the reasons given above the Tribunal is not satisfied that any one 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/s.

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   Ms Christine Long
   Member