1517940 (Refugee)

1517940 (Refugee) [2018] AATA 2903 (23 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517940
COUNTRY OF REFERENCE:                  China
MEMBER:Luke Hardy
DATE:23 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2018 at 11:55am
CATCHWORDS
Refugee – Protection visa – China – Particular social group – Children born out of wedlock – Black children – Birth control policy – Social compensation fee – Rural residents – Fear of physical harm from debt collectors – Harassment by government and underworld figures – Household registration – Decision affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
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 on 18 December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is an infant born in Sydney on [date] to two former protection visa applicants (Refugee Review Tribunal case number [number]). He is their second child and he is a Chinese national, but purportedly not entitled to be registered until his unmarried parents pay a social compensation fee (SCF) due to his having been born outside of China’s family planning regulations.
The applicant’s parents, whose own protection visa application including their first child was unsuccessful, lodged this application on 22 December 2014. The Minister’s delegate refused to grant the visa on 18 December 2015.
The applicant’s mother spoke on his behalf at a Tribunal hearing held in Sydney on 8 February 2018. They were accompanied by a registered migration agent. The hearing was facilitated by an interpreter in the Mandarin-English medium.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The issue in this case is whether the applicant is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims to the former Immigration Department
The claims in the applicant’s protection visa application have been made in his voice; I will adopt the same construct in describing them.
The applicant claimed his parents arrived separately as students in Australia in 2007. He claimed his elder brother was born out of wedlock, and thus outside of China’s family planning regulations, in 2012. He said that the protection visa application lodged by his father, with the other two not initially, at least, making claims of their own, was unsuccessful. He claimed that his mother was now pregnant with her third child. No further information has been submitted in relation to the third child but I shall treat this application as though the applicant is the second of three unauthorised children, as far as Chinese family planning regulations are concerned.
The applicant claimed that because his parents are not yet married they will have to pay social compensation fees so that he and his elder brother (and, implicitly, the sibling to come) can attend school and have access to state-sourced benefits.
The applicant referred to independent country information relied upon by the Tribunal in the other application, indicating that the SCF in his case would be very high due to his being the second “black child” born to his parents. He referred to the other Tribunal treating his parents as “rural residents’ according to independent country information, meaning that the SCF though substantial would be lower than for urban residents and payable in instalments over three years. He went on to argue that these formulations, looking good on paper are not followed by local Chinese officials who are more arbitrary in their enforcement of family planning regulations.
The applicant said that while his parents were indeed rural residents when they left China, there was no reason to assume they would be regarded as such in the event of return to China. He suggested that corruption in China might negatively affect the conditions under which his parents might be able to negotiate three-year instalment payments of any SCFs.
The applicant said his father had not worked enough in Australia to save funds to pay any SCFs in China.
The applicant said that his parents’ families who financially supported their travel to Australia might not be able to afford helping them again, say, in paying the SCF for their two sons. He said his paternal grandmother had been ill and needed money for her treatment and care. He said that his maternal grandfather had died years ago and that his maternal grandmother’s second husband cared nothing for her family. He also said that his mother’s brother had suffered in business due to being cheated by his business partner, meaning that with huge debts now he could not help either.
The applicant’s family submitted a number of translated documents in photocopy. These mainly deal with identifying the applicant and his family, evidencing his grandmother’s second marriage and other family milestones. The applicant’s mother also submitted a statutory declaration, dated 14 December 2014, in support of the applicant’s claims.
In her statutory declaration, the applicant’s mother, [named], declared that her elder brother [Mr A] opened a [wholesale] business in Fuzhou City. She claimed [Mr A] was asked by the [Relative B] of a district official to provide products worth one million renminbi (RMB), the latter only paying a small deposit for the goods at the time. [The applicant’s mother] stated that her brother had to borrow money at high interest to purchase the stock which he supplied on time. She declared that the [Relative B], however, did not pay the balance and used underworld figures to threaten [Mr A] against seeking it. She claimed the police and other officials refused to help her brother. She said he then went to the district administration to complain. [The applicant’s mother] claimed that although her brother had some popular support behind him, he was accused by officials of disturbing the peace, arrested and detained.
[The applicant’s mother] claimed fear of being implicated in this problem, through threats and demands for money, implying that the situation would cause harm to the applicant. She explained that her mother and step-father would not assist. She said that due to this problem hanging over the heads of her partner and herself, they would not be able to pay the SCF for the applicant, leaving him vulnerable through no fault of his own to being unable to subsist in China.
[The applicant’s mother] provided evidence of her brother’s 2008 licence for the [business].
Evidence to the delegate
For the purposes of this review, the Applicant and his adviser have submitted a copy of the delegate’s decision record, in which the evidence of [the applicant’s mother] has been summarised.
[The applicant’s mother] claimed to the delegate that she and her family including the applicant face being harassed by the district official’s [Relative B] and his contacts in the underworld as well as by creditors seeking repayment of money lent to her brother.
The delegate also drew attention to the claims about the applicant’s uncle being unsupported: there was no evidence at the time of the decision to the effect that he owed money, had been detained or had provided one million RBM worth of [products] to the official’s [Relative B]. The delegate did not find any of these claims related to the refugee criteria in s.5J(1)(a) of the Act. With regard to the claims as complementary protection claims, the delegate, relying on independent country information about anti-corruption initiatives in China, found that the applicant and his family could obtain protection from the authorities.
[The applicant’s mother] also referred to the “black child” claims. The delegate accepted that these claims relate to “membership of a particular social group” but found that SCF enforcement would not amount to persecution of the applicant either directly or through his family as it was subject to what are essentially laws of general application. The delegate appeared to conclude that not having access to state benefits would not give rise either to a real chance of the applicant being persecuted or to a real risk of significant harm.
Independent country information
Treatment of persons who escalate protests to higher authorities in China
I have had regard to the following material:
Sources report that the current system of addressing property disputes and other grievances between citizens and local officials is ineffective (AP 27 May 2011; RFA 22 Mar. 2011; Human Rights Watch Nov. 2009, 3). Associated Press (AP) explains that there is a petition bureau in Beijing where those experiencing problems with local officials are supposed to receive assistance from the central government (AP 27 May 2011). As the Beijing Review reports, the Chinese Academy of Social Sciences says that 73 percent of the petitions filed by rural residents are related to land disputes (6 Jan. 2011). RFA reports that petitioners have been subject to "detentions, beatings, and harassment" (RFA 22 Mar. 2011).
Several sources report that some petitioners who seek redress in Beijing are held in unofficial "'black jails'" that provide a type of extrajudicial detention (AP 27 May 2011; RFA 22 Mar. 2011; Human Rights Watch Nov. 2009, 2). In a detailed report on China's black jails, Human Rights Watch explains that county, municipal, and provincial officials are subject to "financial and career advancement penalties" if many people from their locality petition for redress in Beijing (ibid., 3). These officials then hire security personnel and "thugs" to abduct and detain petitioners in black jails to prevent them from filing their grievances (ibid., 3). According to Human Rights Watch, detainees in the black jails are denied access to legal counsel, are subject to abuse, including "beatings, sexual violence, threats and intimidation," and are sometimes deprived of food, sleep or medical care (ibid., 4).
The CHRD states that on 18 April 2011, police dispersed a protest group of 150 people who had been forcibly evicted from their homes in Changsa city, Hunan province, and detained seven demonstrators (20 Apr. 2011). RFA reports that on 21 March 2011, 300 rural residents protested outside the provincial capital of Fuzhou against forced evictions and land requisitions but were "violently dispersed" by Chinese security officials and "hired thugs" (RFA 22 Mar. 2011).
According to the CHRD, "activists who organize farmers and rural residents to stand up for their land rights are routinely harassed or imprisoned" (6 May 2011). In an example of this, the CHRD provides details of a case in which a village leader, who advocated for his village's land rights, was sentenced to an 11-year prison term on charges of "'obstructing official business'," "'extortion'," and "'undermining elections'" (2 Nov. 2010). When the Jinjiang city government illegally expropriated 200 acres of land in nearby Keren Village for new building development, the village leader called together village representatives to vote on the government's plans (CHRD 2 Nov. 2010). However, when they voted against the development, clashes ensued between the workers and villagers (ibid.). The village leader was subsequently brought in for questioning and detained (ibid.). In addition to the sentence brought against the village leader, eight other Keren residents were charged and sentenced to prison terms ranging from six months to three years (ibid.). [1]
Family Planning
[1] “CHN103768.E China: 2011 regulations regarding urban housing expropriation and compensation; state response to citizens who resist expropriation of rural land and urban property,” Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 6 July 2011,
I have had regard to the following information located in the DFAT Country Information Report: People’s Republic of China, dated 21 December 2017:
People affected by Family Planning Policies
3.105    China has had nation-wide family planning policies since the late 1970s. China's Population and Family Planning Law (Population Law) came into force on 1 September 2002. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple, although couples could have more than one child where: both spouses were sole children; the first child had a disability; both spouses were members of ethnic minorities; or, for rural residents, the first-born child was a girl. From 2013, couples could have two children if either spouse was a sole child. Legislation requires government departments, state media and schools to advocate family planning policies.
3.106    Concerned about its ageing population, the National People’s Congress amended the Population Law with effect from 1 January 2016. Changes included the full implementation of a ‘two child’ policy (subject to other health, age and timing requirements), the abolition of forced contraception, and changes to certain leave entitlements for parents (including maternity and paternity leave). The National Health and Family Planning Commission, the body responsible for overseeing the policy, reported that 2016 saw the largest annual number of births since 2000. Lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. Interpretation and implementation of the policy varies enormously across China (for more detailed information on Fujian province see DFAT’s Thematic Report on Fujian Province, published 15 December 2016).
3.107    Authorities enforce compliance with family planning regulations through both incentives and punishments. Social compensation fees (also called ‘social maintenance fees’) are the most common disincentive. Authorities calculate fees according to ‘last year's local disposable annual income per capita’ in urban places, and ‘the net annual income per capita’ in rural places. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. The parents of each unapproved child must pay the social compensation fee. In some cases, this can amount to up to ten times a person’s annual disposable income. In some provinces or counties, authorities have imposed fines on entire work units in addition to the individuals concerned. However, credible information on the actual fees charged is difficult to obtain as they are subject to local discretion (leaving open the possibility of individual or institutionalised manipulation). Both the previous and amended Population Law require those who give birth to a child in contravention of family planning policies (including second children born before 1 January 2016) to pay a social compensation fee, irrespective of household registration status. DFAT assesses that inconsistent and non-transparent application of fees leaves open the possibility of individual or institutionalised corruption.
3.108    County-level governments collect the revenues from fees. The national law does not set out a fee schedule that applies to all localities. Instead, provinces formulate their own rules on specific fines based on the basic social compensation fee measure outlined above. Local authorities can decide whether to impose a more lenient fine if parents report an out-of-policy birth soon after it occurs. Authorities are likely to apply heavier penalties for uncooperative behaviour such as hiding children, and can apply additional surcharges to those who fail to pay the required fee. The local family planning bureau and employers may pressure the parents of out-of-policy children. Awareness of the fees is widespread and, in many cases, couples wishing to have an additional child will save the required social compensation fee in order to do so. In these cases, social compensation fees operate as an additional tax, rather than as a punitive arbitrary measure.
3.109    The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see Human Rights Defenders (including Lawyers)). According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.
3.110    In practice, implementation at the local level of these laws and regulations (including provincial regulations) varies. Parents denied registration in contravention of provincial regulations or national law can, in theory, seek legal redress, but are then subject to the general conditions governing protection against abuse of power by officials (see Judiciary). Chinese authorities have regarded public opposition to family planning policies as provocative and treated petitioners and their advocates as political opponents (see Political Opinion (actual or imputed)). DFAT is aware of media reports that authorities have employed coercive practices (such as forced abortions, sterilisations or invasive medical inspections) in order to force compliance with family planning policies.
3.111    DFAT considers credible local and international NGO reporting suggesting the incidence of coercive practices has reduced since the introduction of the two-child policy. There are, however, no reliable data on the frequency of coerced or forced abortions or sterilisations.
3.112    Although China’s Marriage Law states that children born outside of marriage have the same rights as those born to married parents, children born out of wedlock continue to be considered to be ‘outside of policy’ under the two-child policy. Single mothers must pay social compensation fees and all medical expenses associated with giving birth. State subsidies for maternal and child services are available only with the permission of family-planning authorities, who require a proof of marriage. As a consequence, many single mothers give birth outside of medical facilities with associated complications for both mother and child. Single mothers can find it difficult to obtain birth certificates. Children born outside of policy are not eligible for hukou and the health and education services that registration provides.

I have also had regard to the following information located in the DFAT Thematic Report: Fujian Province, People’s Republic of China, dated 16 December 2016, which duplicates some of the information cited directly above, although in somewhat more detail:
People Affected by Family Planning Policies
3.26 On 27 December 2015, the National People’s Congress amended the Population and Family Planning Law with effect from 1 January 2016. Changes to the Population and Family Planning Law included the full implementation and encouragement of a two-child policy (provided couples continue to meet other health, age and timing requirements), the cancellation of forced contraception and changes to certain leave entitlements for parents (including maternity and paternity leave). The Fujian People’s Congress passed implementing provincial-level regulations on 19 February 2016. As with the March 2014 Population and Family Planning Regulation of Fujian (see 3.28), DFAT understands that the amended regulations include provisions for some couples to have a third child, including if:
·The first child has a disability preventing them from working in the future and the couple is deemed medically suitable to give birth to an additional child.
·Between them have two children from previous marriages.
·Either of them is a single child and resides in a national minority township.
·One of them is Han and the other (and their children) is registered as a member of a national minority, and the couple has lived in a national minority township for more than five years.
3.27 The term ‘returned overseas Chinese couple’ refers to couples who had permanently settled in foreign countries but who have given up their long-term, permanent or lawful right of residence and returned to China. Citizens who are based temporarily abroad, such as those who are abroad for study or employment purposes are not considered to be ‘returned overseas Chinese couples’. DFAT understands that the amended February 2016 Population and Family Planning Regulation of Fujian is not applicable to children born overseas to ‘returned overseas Chinese couples’ who either remain overseas and do not return to China with their parents or who were born overseas and return to China for an accumulated period of less than 18 months in two years. Returned overseas Chinese couples who return to China may then give birth on their return to further children in accordance with the regulations.
3.28 Along with many other provinces in China, Fujian was already implementing regulations which allowed couples in certain circumstances to have more than one child. For example, the previous March 2014 Population and Family Planning Regulation of Fujian provided that:
·A couple may give birth to a second child if the husband or wife are only children; the couple were diagnosed as sterile, adopted a child and then become pregnant; the first child has a non-inherited disability; or the husband or wife becomes disabled because of a work accident.
·A rural couple may give birth to a second child if the husband’s brothers have no children and are all sterile; the wife has a brother who supports his wife’s family but not his own family; the husband and wife live in an area with negligible population density; or the couple only has one daughter.
·A returned overseas Chinese couple (see 3.27) may give birth to a second child if they were already pregnant by the time they returned to China; have been returned overseas Chinese for less than six years and only have one other child; or the couple’s children reside overseas.
·A couple who are members of a national minority (with the exception of the Zhuang nationality) may give birth to a second child if they are peasants or have resided or worked in a national minority township for over five years. Further, the couple may give birth to a third child if both the husband and wife are only children or if one of the two children is disabled.
3.29 Authorities in China use incentives and penalties to achieve compliance with family planning regulations. Social Compensation Fees (also referred to as Social Maintenance Fees) are the most common disincentive used in Fujian. According to the March 2014 Population and Family Planning Regulation of Fujian, Social Compensation Fees are calculated on the basis of average annual disposable income for urban residents or the average annual net income for rural residents, or residents’ actual income, whichever is the greater). The fee is levied on a multiplier basis, depending on the couple’s circumstances. The March 2014 Population and Family Planning Regulation of Fujian provided that:
·A Social Compensation Fee of 0.6 to 1 times will be imposed on those who give birth to a child ahead of schedule.
·A Social Compensation Fee of 2 to 3 times will be imposed on those who give birth to an additional child. A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a second additional child. Heavier Social Compensation Fees will be imposed on those who give birth to additional children.
·A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a child born out of an extra-marital affair (including those who give birth to a child out of wedlock). Heavier Social Compensation Fees will be imposed on those who give birth to additional children born out of an extra-marital affair.
3.30 Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. In Fuqing (a county-level city near Fuzhou with a population of approximately 1.34 million people) the average annual disposable income for rural residents was RMB32,279 (AUD6,840) and the average net annual income for rural residents was RMB15,061 (AUD3,190) in 2013. Social Compensation Fees calculated in 2014 were based on these figures.
3.31 DFAT understands that the Social Compensation Fee multiplier rates for people in breach of the amended February 2016 Population and Family Planning Regulation of Fujian (ie. couples who have a third child) are likely to be similar to the multiplier rates described in the March 2014 Population and Family Planning Regulation of Fujian outlined above.
3.32 Credible information on the actual Social Compensation Fees charged in practice is difficult to obtain. The actual application of Social Compensation Fees varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation). The March 2014 Population and Family Planning Regulation of Fujian states that the decision to impose a Social Compensation Fee may be made at the county, township or neighbourhood level. DFAT is aware of verdicts by the Fujian High Court in late-2015 imposing Social Compensation Fees of approximately RMB50,000 (AUD10,595) for couples who gave birth to a second son, in violation of the Population and Family Planning Regulation of Fujian. In 2014, Fujian courts recorded 1,628 cases involving payments arrears of Social Compensation Fees over RMB100,000 (AUD21,190). However, 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 a couple is cooperative, is underage and/or from a low income family.
3.33 While there has been some speculation that any outstanding Social Compensation Fees for children born in breach of the March 2014 Population and Family Planning Regulation of Fujian would be waived, DFAT understands that the waiving of outstanding Social Compensation Fees remains at the discretion of local authorities. In March 2016, the Deputy Chairman of the Fujian Family Planning Association stated that if parents had received previous notification of Social Compensations 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. DFAT therefore understands that outstanding Social Compensation Fee notices issued under the March 2014 Population and Family Planning Regulation of Fujian are still enforceable. The February 2016 Population and Family Planning Regulations of Fujian only applies to children born after 1 January 2016 or in cases where Social Compensation Fee notices have not been issued for children born prior to 1 January 2016.
3.34 DFAT is aware of a range of measures that have been used in Fujian to secure payment of Social Compensation Fees, including applying personal pressure through personal calls and visits. In July 2015, the Fujian Health and Family 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.
3.35 Notwithstanding that these measures demonstrate that many couples in Fujian seek to evade payment of Social Compensation Fees, in-country contacts suggest that widespread awareness of the fees means couples wishing to have an additional child in violation of the relevant regulations often save the required Social Compensation Fee in order to do so. DFAT assesses that for the vast majority of residents in Fujian, Social Compensation Fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure.
3.36 While the March 2014 Population and Family Planning Regulations of Fujian permitted unspecified ‘remedial measures’ to be taken against an individual violating its provisions, in-country contacts suggested that the use of extreme remedial measures, such as forced sterilisation or late term abortions (which have occurred previously in China), was unlikely in Fujian.
3.37 The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see 5.4). 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.
Evidence to the Tribunal
[The applicant’s mother] submitted a translation of a photocopy of a purported verdict of a Fuzhou court in the matter of her brother [Mr A]. The judgment refers to “business disputes” between [Mr A] and the [Relative B]. It also refers to [Mr A] allegedly having assaulted officers during his incarceration. The verdict ends with [Mr A] sentenced to eighteen months for the initial “offence” of disturbing the public order, to [a longer term] for trying to break out of prison and thus to a total of [number] years jail.
[The applicant’s mother] also submitted a further statutory declaration, dated 1 February 2018, in which she referred to the judgment, purportedly dated [in] April 2016. She declared that her brother had been set up by prison staff to appear to have incited an attempted mass break-out. She added that he and her husband and children “must deeply be implicated in [her] brother [Mr A’s] case if we go back to China.” She said her family’s livelihood and freedom would be seriously threatened. She said that the [Relative B] and his underworld contacts would endanger her family and that creditors would also cause harm.
At the Tribunal hearing, [the applicant’s mother] gave oral evidence indicating that her mother has not been threatened by the official’s [Relative B] or members of the criminal underworld in the three years since the [business] dispute. I put to her that this might be relevant to my assessment of the risk of harm to the applicant and the rest of his family, including her, as she had never previously suggested that her mother had faced threats, harassment or any other intimations of serious harm. In response, [the applicant’s mother] then said that her mother receives visits during Chinese New Year from debt collectors, appearing to act on behalf of her son’s creditors, “soliciting money” which she does not have and cannot therefore pay. [The applicant’s mother] did not suggest that her mother has ever faced threats or harm for failing to pay these people anything on these seemingly annual occasions: just repeated soliciting visits from them, it seems. [The applicant’s mother] nevertheless said that if she were approached for money in the same context in the event of returning to China, and if she failed to pay, she would be beaten to death and her son will be abducted. When I put to [the applicant’s mother] that her mother did not appear to have been harmed for being unable to pay, she said she had heard a rumour from people in her village about her mother hiding “everywhere”, i.e., from place to place, to avoid being harmed. When I asked her for evidence of communications between her and these people in her village, she appeared to change her evidence, saying that she had heard these “rumours” about her mother directly from her mother: essentially she appeared now to be saying that her mother had told her rumours about herself. I put to her that these claims about her mother being in hiding “everywhere” seemed inconsistent from evidence she had provided about the latter during an earlier stage in the Tribunal hearing: I had asked her about her mother’s situation and she had not suggested she was hiding anywhere; she had also just indicated that her mother’s residential profile was stable enough and well enough known for her to be receiving visits from debt collectors acting on behalf of brother [Mr A’s] creditors. [The applicant’s mother] did not resolve these inconsistencies in her evidence.
[The applicant’s mother] also asserted at the Tribunal hearing that the official’s [Relative B] and the money lenders’ debt collectors were “in the same group”, even though her evidence otherwise suggested that their interests were entirely divergent: one party wants money owed to it; the other wants and has already succeeded in having [Mr A] put out of circulation after trying to complain about the [Relative B’s] dishonesty. On the evidence before me, I do not accept that the [Relative B], with his official and underworld contacts, and the debt collectors, acting on behalf of people to whom [Mr A] is indebted, are in any way linked.
[The applicant’s mother] went on to say that the official’s [Relative B] and both his official and underworld contacts will prevent her from obtaining hukou inclusion for the applicant through payment of the applicable SCF. Her evidence here seemed, though, to be confused: she was saying that unless she could repay [Mr A’s] creditors through their debt collectors, the official’s [Relative B] would see to it that no hukou would be issued, without any evidence as to why the [Relative B] and the creditors had any common interest; in any event, her clams here struck me as very vaguely speculative, particularly when she said that in order to obtain hukou status for the applicant via family planning authorities, she would have to repay her brother’s debts first.
[The applicant’s mother] also said that she would not be able to obtain hukou status for the applicant until she paid some undefined sum of money to the official’s [Relative B] himself; however, she did not provide a satisfactory explanation for this. She then seemed to confuse her claims saying that if she succeeded in registering the applicant in the family hukou, this would result in the official’s [Relative B] and the debt collectors coming after her for money. She said that people think she can pay out large sums of money because she has been abroad for over ten years, whereas this is not actually so.
I put to [the applicant’s mother] that according to independent evidence, SCF payment was subject to rules set out by provincial and local officials, it appearing likely that she would be able to pay SCF instalments over three years in Fujian. [The applicant’s mother] then said that the cost of securing the applicant’s hukou status was not even the main issue in this case as the [Relative B] and the debt collectors would interfere to prevent her paying any SCF instalments in the first place.
[The applicant’s mother] stressed that that if the applicant returns to China, he will face discrimination over his jailed uncle because [Mr A’s] case is known in her village. Overall, however, I find that [the applicant’s mother’s] position about her brother’s troubles ever implicating her, or her family, particularly the applicant, was not only very vaguely speculative but also dependent on inconsistent claims.
Findings in relation to s.36(2)(a) of the Act
I accept that the applicant is the second of three children born out of wedlock to [the applicant’s mother] and her partner. I accept that the applicant’s parents would be liable to pay an SCF for each of the three children and that in the case of the applicant and the next child, the cost of each SCF progressively escalates as a disincentive to bearing “illegitimate” or other “excess” children.
I have considered all of the arguments in this case about the applicant’s parents not presently being in a position to pay SCFs for their children including the applicant himself.
On the evidence before me, I am not satisfied on the evidence before me that the applicant’s parents would be prevented by Fujian authorities from paying SCFs for their children by instalment in the event of being liable to pay them as a condition of hukou-registration.
I am not satisfied on the evidence before me that the applicant’s family will be treated as an urban family; that is to say, I find they will be treated as a rural family, consistent with the origins of the applicant’s parents. The suggestion that they might be treated as an urban family is baldly speculative and I do not accept that it has any basis in reality.
Although the costs in each instance increase with each “excess” child, I am not satisfied on the evidence before me that imposition of SCFs in the case of the applicant and/or his siblings would amount to persecution of the applicant either indirectly, say, through his parents having to bear the costs, or directly. I find on the evidence before me that enforcement of family planning regulations is subject to laws of general application directed at achieving a legitimate national objective.
Whereas I can accept that the applicant may face some social and administrative discrimination as long as he lacks hukou status, and would lack access in the meantime to state education and other state benefits, I am not satisfied on the evidence before me that such discrimination or difficulty would amount to persecution.
I am prepared to accept that [the applicant’s mother’s] brother [Mr A] has been jailed in a heavy-handed response to his complaint about having been defrauded by the district official’s [Relative B]. I am prepared to accept that he borrowed money to buy stock to provide to the [Relative B] and that the whole deal went awry when the [Relative B] did not complete payment for the stock leaving brother [Mr A] with debts to a number of creditors. Although it is hard to treat the photocopy of the purported court judgement as an authentic document, I am prepared to accept that [Mr A’s] jail term has been extended from eighteen months to [number] years over an alleged attempt to escape from detention, whether he made such an attempt or not.

However, I am not satisfied on the confused and inconsistent evidence before me that [the applicant’s mother], her partner or their children including the applicant are or will be implicated in the problems faced by her brother [Mr A]. I am not satisfied on the evidence before me that the official’s [Relative B] and or his contacts in government or the underworld are pursuing or otherwise harassing [the applicant’s mother’s] family or anyone else related to the applicant or that they will do so in the event of the applicant’s family’s return to China. I am not satisfied on the evidence before me that the official’s [Relative B] and his contacts have any potentially significant links with brother [Mr A’s] creditors or their debt collectors. I am not satisfied on the evidence before me that [the applicant’s mother’s] family has been implicated in [Mr A’s] debts or other misfortunes. I am not satisfied that [the applicant’s mother’s] mother has been changing her address, let alone in order to avoid unwanted attention. I am not satisfied on the evidence before me that the [Relative B] or his contacts or the creditors or the debt collectors or anyone else will either act to prevent the applicant’s parents from being able to have him hukou-registered, or, as [the applicant’s mother’s] confused evidence suggested at one stage, trace the applicant’s family through its attempts to have the children registered and then proceed to harass them. I am not satisfied on the evidence before me that any of brother [Mr A’s] alleged antagonists in the accounts provided by [the applicant’s mother] have any capability of, or even interest in, preventing him from becoming hukou-registered.
Overall, I give no weight to the history and circumstances of [the applicant’s mother’s] brother [Mr A] in my assessment of the applicant’s prospects of being hukou-registered.
I am not satisfied that any of the facts raised in this application give rise to a real chance of the applicant being persecuted in China in the reasonably foreseeable future for any reasons identified in s.5J(1)(a) of the Act. His claimed fear of such persecution is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
The applicant’s complementary protection claims rely on the same facts as his claims to protection as a refugee. As shown above, these claims have failed on credibility grounds and for not meeting the “real chance” test”.
In view of my findings of fact above, the applicant’s protection visa claims can no more succeed as complementary protection claims than they have done as refugee status claims.
On the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 2903

23 May 2018

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Immigration

Administrative Law

Statutory Interpretation

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