1601769 (Refugee)

[2018] AATA 3049

1601769 (Refugee) [2018] AATA 3049 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601769

COUNTRY OF REFERENCE:                  China

MEMBER:Mr S Norman

DATE:5 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2018 at 2:30pm  

CATCHWORDS
Refugee – Protection visa – China – Member of a particular social group – Subject of social compensation fee – Breach of China’s family planning policy – Child born overseas – Person with a disability – Fear of mental and physical harm – Fear of forced sterilisation – Failed asylum seeker – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2


CASES
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v MIMIA (2000) 201 CLR 293
MIAC v SZQRB [2013] FCAFC 33
MZQAP v MIMIA (2005) 85 ALD 41

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The applicants, who claim to be citizens of China, applied for the visas on 22 April 2014, they attended the Department interview on 7 September 2015, and the delegate refused to grant the visas on 18 January 2016.

2. The Department delegate’s decision was lodged with the Tribunal.

3. The applicant husband [and] the applicant wife [appeared] before the Tribunal on 26 June 2018 to give evidence and present arguments (they also spoke on behalf of their three young children). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants’ three children - [Master A], born [in date]; [Miss B] born [in date]; and [Miss C] born [in date] were all included in their parents’ Protection visa application. All were born in Australia.

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

   RELEVANT LAW

6. 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.

   Section 499 Ministerial Direction

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Member of the same family unit

8. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse or de facto partner of the family head (r.1.12(2)(a) of the Regulations); or a child of the family head (r.1.12(2)(b) of the Regulations).

9. Based on the evidence on the Department and Tribunal files, I am satisfied that [the applicant husband] is the family head, that [the applicant wife] is the spouse of the family head, and that [their children] are all dependent children of the family head. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the applicants fear harm (principally) as they had breached China’s Family Planning Policy. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The [age] year old ethnic Han[1] applicant husband said he (last) lawfully departed China [in] April 2012;[2] and the [age] year old ethnic Han applicant wife said she lawfully departed China and arrived in Australia as a Student on 16 April 2005.[3]

    [1] Department – folio 30.

    [2] Department – folio 21.

    [3] Department – folio 44.

12. As recorded in the delegate’s decision, the applicant husband first entered Australia on a [student] visa. On 11 December 2003 he was granted a further [student] visa, with permission to work. On 30 August 2004 he departed Australia; and he returned on 4 October 2004. He again departed Australia on 13 January 2005 and returned on 23 January 2005. However, the applicant husband did not depart Australia when this last visa ceased and he became an unlawful non-citizen on 16 March 2006. He remained unlawfully in the community and was eventually detained under s.189 of the Act on 18 September 2007. He was then removed from Australia on 1 October 2007. On 15 March 2012, the applicant husband was granted a [temporary] visa as a secondary visa holder. He arrived in Australia on 21 April 2012. On 19 July 2012, the applicant husband was included as a dependent applicant on [another student] visa. On 12 April 2013, the [second student] visa application was withdrawn. On 10 August 2012, the applicant husband had been included as a dependent applicant on [another] visa.[4] On 24 September 2013, the [visa] was refused. On 13 January 2014, the then Migration Review Tribunal affirmed the Department’s decision about the [visa].

    [4] Department – folio 200.

13. The applicant wife first arrived in Australia on 16 April 2005 as the holder of a [student] visa. After multiple departures and re-entry, the applicant wife was included in the applicant husband’s below-mentioned Protection visa application.  

14. On 30 January 2014, the applicant husband lodged an application for a Protection visa (PV). This was found to be invalid on 1 April 2014. On 22 April 2014 he lodged a valid PV application, and same is presently before the Tribunal. All applicants (including the three infant children) made claims to be owed protection (and all claims were lodged prior to the Department delegate’s decision). 

    The Tribunal makes the following preliminary findings:

    ·     The Tribunal has seen a photocopy of the face-page of the applicant parents’ passports on the Department file[5] and I accept they (and their children) are citizens of China as claimed. I therefore accept that China is the applicants’ country of reference for the purposes of assessing refugee protection claims; and their receiving country for the purposes of assessing complementary protection claims.

    ·     Based on the evidence presently before me, I am not satisfied the applicants have statutory effective protection in a safe third country (pursuant to subsections 36(3)-(5A) of the Act).

    [5] Department – from folio 85.

    REFUGEE PROTECTION

15. In order to satisfy the criteria in subsection s.36(2)(a) of the Act, an applicant must be determined inter alia to have a real chance of persecution for at least one of the Refugees Convention grounds. The Tribunal notes this is a forward looking test.

    Country information regarding China’s family planning policies: 

16. The country information stated:

    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 … [6]

    [6] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017.

17. Regarding the social compensation fee:

    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. … 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. …

    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. … 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.[7]

    [7] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017.

18. Regarding Fujian, the country information stated:

    3.29 … Social Compensation 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. …..

    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 [Fujian province] (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)[8] 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.[9]

    and:

    …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 [10]

    however:

    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). … 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 …  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. …[11] 

    [8] The Tribunal understands this may have also been intended to reflect the ‘average annual disposable income for urban residents’. For instance, up to around 2017, the disposable income per capita for urban areas in Fujian had also been shown as RMB21,506 (see China Disposable Income per Capita: Urban: Fujian: Fuzhou – 2002-20017, Yearly, RMB, National Bureau of Statistics, accessed 5 July 2018).

    [9] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [10] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [11] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

19. Regarding payment of the social compensation fee by instalments, country information stated that under national law, offenders have 30 days to pay via lump sum after being served notice by local authorities. Those unable to pay in a lump sum have 30 days to apply for approval to pay in instalments ‘to the family planning administrative department of the people‘s government at the county level’.[12] The county level family planning unit should then decide the outcome within 30 days of receiving the application and notify the person in writing. The national law also states that individuals who fail to pay on time are penalised with a ‘surcharge fine on a monthly basis at the rate of 0.2 per cent of the unpaid social maintenance fee‘, and those who persist in not paying face the possibility that the family planning administrative department could ‘file an application with the people‘s court for compulsory enforcement according to law‘.[13] DFAT advice also indicates that the number of instalments permitted for payment of social compensation fees varies between provinces. In Fujian province the period for the payment of instalments shall not exceed three years.[14] In 2013, DFAT advised that where a fine is paid in instalments in Fujian, a ‘hukou [household registration] would be issued prior to the full repayment; and there would be no effect on access to public schools or other services‘.[15]

    [12] Measures for Administration of Collection of Social Maintenance Fees (China), art 6A, Promulgated 2 August 2002, (Effective 1 September 2002), National People‘s Congress of the People‘s Republic of China < Accessed 20 November 2008 

    [13] Measures for Administration of Collection of Social Maintenance Fees (China), art 6A, Promulgated 2 August 2002, (Effective 1 September 2002), National People‘s Congress of the People‘s Republic of China < Accessed 20 November 2008 

    [14] Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November  

    [15] Department of Foreign Affairs and Trade 2013, DFAT Report 1473 – MRT/RRT Information Request: CHN41439, 7 February 

20. Regarding access to a hukou for children born in breach of the Family Planning policy:

    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 … 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.

    3.10 In practice, implementation at the local level of these laws and regulations (including provincial regulations) varies. … [16]

    and:

    3.37 … 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) … [17]  

    and:

    2.3.11 In addition in AX, the Upper Tribunal held:

    ‘There are hundreds of thousands of unauthorised children born every year. Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child. Payment for birth permits, for the registration of children, and the imposition of SUC charges for unauthorised births are a significant source of revenue for local family planning authorities. [18]

    [16] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017.

    [17] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [18] "China: Contravention of national population and family-planning laws ", UK Home Office, 01 November 2017, OG6E7028865.

21. Regarding harm that may arise from breach of the Family Planning policy:  

    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.[19]

    and:

    3.111 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. 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.[20]

    and:

    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.[21]

    though:

    2.6.1 Where a claim is refused, it is likely to be certifiable as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002 unless if a female returnee is found to be at real risk of forced sterilisation or termination because she has already had her permitted quota of children and is being returned at a time when there is a crackdown in her ‘hukou’ area, such risk amounts to persecution.[22]

    [19] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [20] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017.

    [21] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [22] "China: Contravention of national population and family-planning laws ", UK Home Office, 01 November 2017, OG6E7028865.

1. Regarding birth permits, and after noting the applicant husband was [age] years old and the applicant wife was [age] years old at the time their first child was born, the country information stated:

   10.   Verbal advice from the Fujian Public Security Department confirms that a foreign birth certificate, translated and duly notarised by a Chinese mission abroad, may be used to support an application for a Fujian hukou.  Articles 40 and 41 of the 2017 regulations deal specifically with children born overseas to Fujian hukou holders. Requirements differ, depending on whether the child is recognised as Overseas Chinese (i.e. a person of Chinese birth or descent who lives outside the People's Republic of China (including Hong Kong and Macau) and Taiwan) or not … [23]

   and: 

   2.3.1 In AX, the Upper Tribunal held that the Chinese family planning scheme expects childbirth to occur within marriage. It encourages ‘late’ marriage and ‘late’ first births. ‘Late’ marriages are defined as age 25 (male) and 23 (female) and ‘late’ first births from age  A birth permit is not usually required for the first birth, but must be obtained before trying to become pregnant with any further children. …[24]

   [23] CXC90406620933: "Country Information Request CI180403115513613 - Hukou for single mothers and unmarried parents", Department of Foreign Affairs and Trade, 03 May 2018

   [24] "China: Contravention of national population and family-planning laws ", UK Home Office, 01 November 2017, OG6E7028865.

2. Regarding the frequency of couples in Fujian province having more than one child:

   2.7 According to the 2010 National Population Census, among women in Fujian who have had children, 68.2 per cent have had one child, 28.7 per cent of women have had two children and 3.1 per cent have had three or more children. By contrast, the 2015 Fujian Statistical Yearbook estimates that, based on a sample survey, among women in Fujian who have had children, 44 per cent have had two children and 3.3 per cent have had three or more children. [25]

   The applicants’ claims relating to the breach of China’s family planning policy:

   [25] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

3. The applicant husband and applicant wife married [in] September 2008 in [Putian] Municipality[26] (Fujian province). The applicant husband and wife now have three children. As stated above, the first ([Master A]) was born [in date]; the second ([Miss B]) was born [in date]; and the third ([Miss C]) was born [in date]. All children were born in Australia and have Australian birth certificates.

   [26] Department – folio 78, 156.

4. At hearing, the applicant husband and applicant wife (the applicants or the applicant parents) said they would have to pay a social compensation fee for all three children (even though all were born after they were married), as they did not have a birth permit. At hearing, the Tribunal put to the applicants (words to the effect) the country information the Tribunal had considered may not satisfy it this was correct. For instance, the above country information included that a ‘birth permit is not usually required for the first birth, but must be obtained before trying to become pregnant with any further children’[27]. The applicants did not obtain a birth permit prior to trying to become pregnant with their first, second and third children; but they had also remained in Australia since before the birth of their first child.  That being said, neither any of the sources cited herein, nor in the Tribunal’s prior experience, has any married Chinese citizen claimed to have been fined merely for having their first child, with their lawful spouse, in Australia.  When discussed at hearing, the applicants referred to a ‘friend’ from Fujian who had a ‘daughter’ in Australia, and that friend was fined when they returned to Fujian. However, when then discussed, and even after the Tribunal indicated it was unable to make any finding about the ‘friend’ given I did not have any further knowledge about all the circumstances of that case, the applicants materially repeated that which is stated above.

   [27] "China: Contravention of national population and family-planning laws ", UK Home Office, 01 November 2017, OG6E7028865.

5. Therefore, and based on the accepted evidence before it, the Tribunal is not satisfied the applicants would be liable to a social compensation fee for the birth of their first child (a son who is autistic – discussed below); and I am therefore satisfied they may only be liable to a social compensation fee for the two younger children (both daughters).

6. Prior to discussing the potential social compensation fee to which the parents may be subject for their two children born in breach of the Family Planning policy, at hearing the Tribunal noted that country information stated:

   3.33 … 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. …[28]

   [28] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

7. At hearing, the Tribunal asked the applicants whether they had received a notification of Social Compensation Fees and they confirmed that had not. Therefore, the Tribunal put to them the country information indicated they may not even be subject to a social compensation fee given they had received no notice. The applicants did not materially comment (though the applicant husband said his own parents were fined ‘many years ago’ when they had a second child). The Tribunal then said it understood there was some variation in the social compensation fee payable, even throughout Fujian, and I would consider this cautiously. However, based on the information before it, the Tribunal believes it probable the applicants would not have to pay a social compensation fee on return to Fujian. That being said, I have decided to resolve this case on an alternate basis.

8. Regarding the social compensation fee payable, in the Protection visa (PV) form, the applicants said they breached the family planning policy in China and fear “mental or physical harm” if they returned. The applicant husband explained his wife gave birth to their second child in December 2013 (a third child has also been born) and according to Chinese law the “birth of second child is aggravated offences against Chinese family planning policy”.[29] The applicant husband said he was “facing a large … fine and associated torture/harm as a result of non-payment because he did not have financial resource to pay.” The applicant husband also said there is “arbitrary or unlawful punishment exercised by local government agencies”.

   [29] See also Tribunal – folio 81.

9. The Department delegate recorded the applicants as claiming the Fujian family planning authorities would seize whatever the applicants have in order to enforce payment of the social compensation fee. They will not be protected by the authorities. The children will be regarded as black children and denied registration. The applicant husband also said that according to the Fujian family planning regulation, his wife would be sterilised against her will. He said his children would be treated as a “birth breaching the family planning regulations”. He also said his children will be denied a hukou, unless he paid a bribe or unless he pays the social compensation fee. He said they would not have any entitlement to “social benefits or welfare such as public education and [health services]”.

10. In migration agent submissions dated 19 June 2018,[30] it was claimed the applicants would be fined 4-6 times of their per capita disposable income for breaching the Fujian Family Planning Regulations. It was said they could not afford this. It was said the Chinese authorities may “seize whatever they have to enforce this fine”. It was claimed this is ‘arbitrary and corrupt practice’; it was claimed “physical coercion of enforcement would seriously harm the family”.

    [30] Tribunal – from folio 81.

11. The Tribunal has seen information that those who persist in not paying a social compensation fee face the possibility the family planning administrative department could ‘file an application with the people‘s court for compulsory enforcement according to law‘.[31] However, I am not satisfied the applicants property would be unlawfully seized as claimed. This is (in part) because, based on the discussion herein, I am satisfied they can and would pay the social compensation fee if returned to China.

    [31] Measures for Administration of Collection of Social Maintenance Fees (China), art 6A, Promulgated 2 August 2002, (Effective 1 September 2002), National People‘s Congress of the People‘s Republic of China < Accessed 20 November 2008 

12. By undated statement,[32] the applicant husband said he engaged in [work] in China; that the global financial crisis adversely impacted the business; that his brother is a complainant “still [engaged] with the litigation for the debt but because most debtor business have closed the money thus cannot get it back” (though no claim was then made that this had any material impact on the applicants). He also provided detail about returning to China in 2007; working in a [business] owned by his uncle but on ‘low wages’; that he has no work prospects in 2008; that in 2009 he and his father planned to ‘raise [animals]’ but that was not successful; that in 2010 he operated [a business] and this was profitable so he set up a second store; the popularity of [the business] and his father’s [medical] diagnosis forced him to sell one [business]; his household savings were spent for medical and hospital treatment; his father passed away at the beginning of 2011; he had borrowed money for medical expenses; he returned to Australia in April 2012; the birth fees in Australia (for the first child) were $[amount]. All this money had been repaid within one and a half years (the birth expenses of the second two children were said to be covered by insurance). The applicant husband said he was asked to pay a further $[amount] for further care of one his children; he did not have enough money in his account; he was able to pay off some of this amount by instalments. In his PV form, the applicant husband had also said he operated [a shop] in China.[33]

    [32] Tribunal – from folio 66.

    [33] Department – folio 26.

13. The applicant husband also provided a Bill of Sale of Vehicle dated [in] December 2017 in the amount of $[amount];[34] evidence of bank account activities[35]; and other evidence which the Tribunal has had regard to prior to drafting this decision.

    [34] Tribunal – from folio 64.

    [35] Tribunal –folio 62.

14. By undated statement,[36] the applicant husband said that in October 2015 their third child was born. He referred to medical issues surrounding the birth; and that the applicant wife was depressed after the birth. She then went on medication; was irritable; and fearing for the health of his wife the applicant husband resigned his job to care for his child for three months. He also referred to his mother (unlawfully in Australia) providing “great economical support”. He also said one child commenced primary school in 2018; one child attends three days [school]; and one child attends one day in childcare per week.

    [36] Tribunal – from folio 66.

15. Regarding the Fujian economy, the country information stated:

    2.9 … Fujian’s economy is strong compared to many other areas in China. In 2015, Fujian’s economy was ranked 11th out of 31 administrative divisions across China and 8th by GDP per capita, despite it being one of China’s smaller provinces (representing just over one per cent of the country’s landmass and 2.8 per cent of the Chinese population). In 2015, Fujian had a GDP of approximately RMB2,598 billion (AUD550 billion) and a GDP per capita of RMB67,966 (AUD14,397). The disposable urban income per capita was RMB33,275 (AUD7,051) in 2015 and the net rural per capita income was RMB13,793 (AUD2,923).[37]

    [37] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

16. Possibly due to ongoing effects of the global financial crisis, the annual per capita disposable income of rural households in China in 2016, was said to have reduced to RMB12,364.[38]   However, and given the 2015 net rural per capita income was greater, I have decided to base the approximate social compensation fee charges on that earlier amount (when calculating an approximate social compensation fee amount). Also, the Tribunal has decided to base its below calculations on the greater amount for rural residents set out above (see DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016, at [3.30]).

    [38] Annual per capita disposable income of rural and urban households in China from 1990 to 2016 (in yuan), Statista, The Statistics Portal, accessed 26 June 2018.

17. Next, when discussed at hearing, the applicants believed the social compensation fee payable by them is that which would be payable at the time of their return to China, and not at the time of the birth of their second and third child. Though the Tribunal considered this claim, and indicated (words to the effect) it had not seen information supporting this, none of the information seen indicated the social compensation fee imposed would be that which prevailed at the time of their possible return to China. However, and as stated above, I have decided to base the approximate social compensation fee charges on the 2015 amount (as it was greater).

18. Next, at hearing the applicant husband said he had resided some [time] minutes by bus (or less) from the nearest city (in Fujian), but that he held an urban hukou. The applicant wife said she held a rural hukou but that she had only resided some [time] minutes by ‘fast train’ from Fuqing city in Fujian. Based on the discussion at hearing, the Tribunal understands the applicants could either return to reside with or near either in-laws’ home, both in Fujian province. Though the Tribunal remained aware of same at the hearing, there was no evidence provided that it would be ‘unreasonable’ for any applicant to reside with or near either the applicant husband’s family or the applicant wife’s family in Fujian province.

19. With their migration agent submissions dated 19 June 2018, the applicants lodged a document (in Mandarin), purporting to be the social compensation fee payable in their local area between 2014 and 2018[39] (said to have been obtained by the applicant wife’s parents from officials in Fuqing city). When then asked, the applicant wife (who held a rural hukou) said she understood she would be required to pay social compensation fees of RMB410,000 or RMB620,000. At the hearing, the Tribunal said it may not accept this was an accurate indication of the social compensation fee payable given it was substantially in excess of other evidence the Tribunal had seen, and given it appeared (based on the net rural per capita incomes seen), that few if any persons would be able to pay this amount. The Tribunal also notes the document purportedly set out the social compensation fee for the period 2014-2018; and that it was said to be from Fuqing city, and the applicants did not refer to any distinction in the document between social compensation fees for persons with rural or urban hukous. Though the Tribunal repeated that it may not accept this document accurately set out the social compensation fee to which they may be liable, no further evidence was forthcoming. After considering all the evidence, the Tribunal has preferred that evidence which it has obtained from other independent sources.

    [39] Tribunal – folio 53.

20. That being said, and based on the country information, and given the two children born outside the Chinese Family Planning Policy were born in [date] and [date], the social compensation fee payable for parents who hold a rural hukou would be (approximately):

    ·For the first additional child (a Social Compensation Fee of 2 to 3 times x AUD$3,190) - $6,380 (minimum); and $9,570 (maximum)

    ·For the second additional child (a Social Compensation Fee of 4 to 6 times x AUD$3,190) - $12,760 (minimum); and $19,140 (maximum)

    ·This would mean the infant applicant’s parents would have to pay a social compensation fee of $19,140 (minimum); and $28,710 (maximum – approx. RMB140,898).   

21. The social compensation fee payable for parents who hold an urban hukou would be (approximately):

    ·For the first additional child (a Social Compensation Fee of 2 to 3 times) - $14,102 (minimum); and $21,153 (maximum)

    ·For the second additional child (a Social Compensation Fee of 4 to 6 times) - $28,204 (minimum); and $42,306 (maximum)

    ·This would mean the applicants would have to pay a social compensation fee of $42,306 (minimum); and $63,459 (maximum – approx. RMB308,300).

22. However, and though both parents are liable for this fee, the Tribunal is satisfied the applicant husband and wife could reside in the wife’s former rural hukou area, and the lesser social compensation fee amount (for a rural hukou) would be payable. The Tribunal notes that at hearing, there was no dispute the applicants could return to live at the former location of the applicant wife. Further, and other than those reasons discussed herein, as stated above there was no claim it would be unreasonable for all the applicants to reside with or near the applicant wife’s family.

23. Next, and though the Tribunal is sufficiently satisfied of the immediately above finding, even if the Tribunal is incorrect and the social compensation fee amount accruing to an urban hukou is payable, the Tribunal notes that the ‘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’[40]; 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’[41]; and Fujian province was still one of the least coercive family-planning regimes in China and in rural areas more than half of all families have more than one child[42] (more recent information has not contradicted this). Furthermore, the possible costs arising from the medical condition suffered by the applicants’ first born child (a son with autism – discussed below), could also very presumably constitute another basis for negotiating a lesser social compensation fee.

    [40] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [41] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [42] CX233649: "DFAT REPORT 287", Australia: Department of Foreign Affairs and Trade (DFAT), 22 April 2007.  

24. Next, the applicant wife said (words to the effect) the local government would force them to pay a higher social compensation as the government needs this money. The country information stated:

    ‘There are hundreds of thousands of unauthorised children born every year. Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child. Payment for birth permits, for the registration of children, and the imposition of SUC charges for unauthorised births are a significant source of revenue for local family planning authorities. [43]

    and:

    3.32 …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.[44]

    [43] "China: Contravention of national population and family-planning laws ", UK Home Office, 01 November 2017, OG6E7028865.

    [44] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

1. The Tribunal does not understand that such large social compensation fees are common, or that such large fees could not be ordinarily avoided by co-operating with local authorities. And given the strength of the Fujian economy, the Tribunal is not satisfied there exists a need to commonly pursue large social compensation fees from persons incapable of paying same; and who co-operated with local authorities.  

2. Next, after noting that DFAT has advised that ‘credible information on the actual Social Compensation Fees charged in practice is difficult to obtain’, the Tribunal is satisfied that if the applicant husband and applicant wife co-operated with family planning authorities (and no evidence was provided that they would not); and given they also have an autistic son (the first born child), they may negotiate down from the maximum social compensation fee payable (whether that be based on a rural or urban hukou). The Tribunal also notes the applicant husband works full time [(in Australia)] and has had considerable work experience in China prior to his travel to Australia (even though the Fujian economy is said to be ‘strong’, the Tribunal notes that wages in Fujian are less than Australia). The applicant wife has also completed training and gained work experience as [an occupation] in Australia. The Tribunal also notes the applicants repaid around AUD$[amount] in 18 months in Australia, after the birth of their first child (though some further medical expenses remain outstanding in Australia); and as stated to the applicants at hearing, any sale of their assets in Australia (plus any savings) prior to departing may allow them to afford to re-establish themselves in China. The applicants did not agree.

3. However, and after considering all the evidence, including the applicants work and education experience and extended family who have assisted them financially in the past (the applicant husband’s mother), the Tribunal is not satisfied the social compensation fee to which the applicants may be subject on return to China, constitutes serious (or significant) harm (the applicants could also pay by instalments – discussed below). I accept they may be less ‘well off’ in China, and I also accept they had to sell their car in Australia to cover the medical costs for the birth of their first child (though this suggests they were able to pay for that vehicle by monies they had saved), however I remain satisfied the applicants would pay the social compensation fee they may negotiate with local authorities in China, and this would not constitute serious harm for them.

4. Based on the evidence before the Tribunal, and as I am satisfied the applicant parents would pay the social compensation fee, without more, I am not satisfied the applicants have a real chance of suffering mental or physical ‘torture’ for any related reason should they return to China.

5. Next, the applicant husband said he would only earn around RMB[amount] (or RMB[amount]) per month in China and the applicant wife preferred to stay home and mind their children. However, and even if true (though no corroborating evidence was provided – and this amount was contradicted by other evidence considered by the Tribunal), the Tribunal is satisfied this would be taken into account by local government authorities when calculating the social compensation fee that may be owed (as the authorities take into account the income of ‘low income families’). Regarding the applicant wife preferring to remain at home while looking after her children, the Tribunal accepts this may be correct, but in her case, I am not satisfied that being required to work would give rise to a real chance of serious harm (further discussion about the capacity of the applicant husband and wife to daily commute to and from Fuqing city for work is set out below).

6. Next, the applicants’ migration agent said the applicant wife, with two children would not be able to find a job and leave her children unattended. The agent then said even if the applicant wife could have her parents take care of her children, the applicant wife (who had trained and worked as [an occupation] in Australia) would only be able to find “underpaid labour work”. It was also said the “grandparents would have to sacrifice their time and money to help them given their limited financial and physical capability”. The agent said that wages in China are significantly lower than in Australia. Again, the agent referred to social compensation fees but did not appear to specifically or principally reference such fees that arose in Fujian province. The agent none-the-less believed the ‘living conditions for the applicants in China would be miserable’. The agent then said “every fairy tale [is] possible. At least theoretically, the couple might eventually have a brilliant career and/or run a successful business and then achieve an upper-class life after they return to China. But it may happen to everyone. This possibility cannot eliminate or reduce the existence of a real risk”.[45] The country information stated:

   5.12 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement…[46]

   and:

   5.15 … Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities. The government is committed to reforming the hukou system, including extending urban residency permits to migrant workers. The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) are more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.[47]

   [45] Tribunal – folio 78 (reverse side). 

   [46] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

   [47] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

7. The Tribunal does not accept that ‘that safe and reasonable relocation’ is material to this case. However, the Tribunal does accept the applicants may choose to reside with or near either of the grandparents in China, and that better work opportunities do arise in the cities and that grandparents can (on occasion) be engaged to care for their grandchildren – and after considering all evidence, the Tribunal is satisfied the grandparents of the applicants would provide daily care for their children in China. The Tribunal also notes that international protection is not commonly invoked if a person may not achieve an ‘upper-class life’ in their country of reference (as submitted by their migration agent). When discussed at hearing, the Tribunal noted the applicants could reside in the vicinity of the applicant wife’s former home, and where she held a rural hukou, and which was only [time] minutes by ‘fast train’ from Fuqing city (where work opportunities would be greater). This would mean the applicants could commute daily between Fuqing city and the wife’s home area.

8. The applicants then said the wife’s mother ([age] years of age) had recently had [surgery] and needed to rest ‘for a year’. The applicant wife’s mother was being cared for by her husband (the applicant wife’s father – [age] years old). When then asked, it was conceded that the applicant wife’s parents resided with their younger son (the applicant wife’s younger brother), and he was married with two children and all lived with the wife’s parents. The Tribunal accepts that returning to reside with the applicant wife’s family (at least until they were able to afford to live elsewhere), would put a further strain on the applicant wife’s family. However, I am not satisfied this would give rise to a real chance the applicants would suffer serious harm in China. Further, and as stated at hearing, the Tribunal put to the applicants that a daily commute to and from Fuqing city would mean they would be more advantaged than many of the approximately 282 million persons who move away from rural areas for better employment opportunities. Furthermore, in that way they could have daily contact with their children; and based on all the evidence, I do not accept their life would be ‘miserable’ as claimed by the migration agent.

9. Next, at hearing the applicant wife said she rarely ‘went out’ when she had returned to China (prior to her last entry to Australia). She said she ‘mainly’ resided with her parents or her husband’s family. The Tribunal accepts this is correct. However, without more the Tribunal was not satisfied the applicant wife (or any other applicant) would have a real chance of suffering any harm for this reason on return to China.

10. Regarding payment by instalments, DFAT has advised the fine should be paid within 30 days. If the parent is unable to pay the lump sum within this time period, they may apply to pay their fine in instalments.[48] And DFAT advice indicates the number of instalments permitted for payment of social compensation fees varies between provinces. In Fujian province the period for the payment of instalments shall not exceed three years.[49] The Tribunal is therefore satisfied the applicant husband and wife may seek to repay the negotiated social compensation fee by instalments. This is further reason that satisfied the Tribunal the applicants would not have a real chance of suffering serious harm in China.

    [48] Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November

    [49] Department of Foreign Affairs and Trade 2010, DFAT Report 1210 – RRT Information Request CHN37505, 12 November  

11. Next, the Tribunal understands the parents may also be subject to other penalties in Fujian, (ie) Article 52 - they could not be enrolled as government staff. Though when asked, the applicant husband and wife did not fear harm for any reason in China, not discussed herein. Further, and based on the evidence before it, neither is the Tribunal satisfied the applicants have a real chance of suffering serious harm in China for any reason not discussed herein.

12. Next, the applicant husband said that should his children return to China, as they did not obtain birth permits or hukous they would have problems in China; though it was agreed that all infant applicants had birth certificates in Australia. The country information stated:

    10.   Verbal advice from the Fujian Public Security Department confirms that a foreign birth certificate, translated and duly notarised by a Chinese mission abroad, may be used to support an application for a Fujian hukou.  … [50]  

    [50] CXC90406620933: "Country Information Request CI180403115513613 - Hukou for single mothers and unmarried parents", Department of Foreign Affairs and Trade, 03 May 2018

13. The applicants’ migration agent also said the children may be denied a hukou, if the parents do not pay a “bribe or the social compensation fee”. It was claimed as black children they would face discrimination and have no legal status. The agent then provided country information indicating inter alia the difficulties confronted by children who were not able to obtain a hukou – these difficulties included but were not limited to health, education and employment.[51] Be that as it may, these articles did not appear to specifically or principally reference Fujian.

    [51] Tribunal – from folio 78.

14. The applicants did not agree their children would obtain hukous in China. They believed the local Public Security Bureau officers may withhold the hukou for their children. However, the material country information included that “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.”[52]; “…to get identity papers. Now it is easier, as long as both parents can prove they are related to the child”[53]; “The most recent (December 2017) Fujian regulations above remain consistent with national guidelines, and make no reference to requiring evidence of payment of a social compensation fee (if applicable) prior to registration. However, POST cannot advise with certainty whether birth certificates and hukou are ‘routinely’ issued in any given situation, as laws are interpreted in line with applicants' individual circumstances, and implementation can vary between officials, government offices and over time.”[54]  

    [52] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

    [53] UK Home Office, Country policy and information note: contravention of national population and family-planning laws, China, November 2017 (footnotes omitted). 

    [54] "Country Information Request CI180403115513613 - Hukou for single mothers and unmarried parents", Department of Foreign Affairs and Trade, 03 May 2018, CXC90406620933

15. The Tribunal acknowledges that DFAT could not advise with certainty whether birth certificates and hukou are ‘routinely’ issued in any given situation; however, after considering all the country information, the Tribunal is not satisfied there is a real chance the infant applicants would be denied a hukou in Fujian; and that any feared risk could be substantially mitigated by the applicant husband and wife (and their family), co-operating and negotiating with local government officials. Accordingly, once the infant applicants are granted a hukou, then any fear about discrimination, education, health etc is unfounded. Accordingly, I am not satisfied there is a real chance the applicants would suffer serious (or significant) harm for this reason in China. Therefore, and for instance, the Tribunal does not accept the parents would have to ‘bribe’ local government officials, or that the children would be discriminated against as black children, or that they would have no legal status – and I am satisfied they would have access to health, education and employment that is made available to other citizens of China. I also do not accept the applicants would suffer any mental torture for this reason, as previously claimed.

16. Next, in migration agent submissions dated 19 June 2018,[55] it was claimed that it was the parents right to have children and that it was “ridiculous that they have to pay for it” (the agent believed that ‘reproductive rights were the basic right of all couples’[56]). Though not referred to, Article 23(2) of the INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, provides for the ‘right of men and women of marriageable age to marry and to found a family’. The Tribunal understands that China's one child policy may be reflected in laws of general application, however, that does not mean that the laws or practices applied to children born in contravention of that policy, as distinct from children generally, are laws or practices of general application.[57] Subject to all circumstances, whether a law or its enforcement is ‘appropriate and adapted’ to achieving a legitimate object involves consideration of proportionality of the means used to achieve that object.[58] A legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens.

    [55] Tribunal – from folio 81.

    [56] Tribunal – folio 78 (reverse side).

    [57] Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [18]-[19].

    [58] See Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]. In MZQAP v MIMIA (2005) 85 ALD 41, the Full Federal Court held the test of ‘appropriate and adapted’ involves the nature and reach of the law itself and the actual manner of its application: at [20].

17. At hearing, the Tribunal said (words to the effect) it may not accept the Family Planning policy in Fujian gave rise to a real chance of the applicants suffering serious harm. Further, that (ie) the prevention of problems arising from over-population, may be considered a legitimate object of the State (and the Tribunal has found the applicants do not otherwise have a real chance of serious harm in Fujian). When discussed the applicants did not materially comment. After considering all the evidence, the Tribunal is not satisfied they have a real chance of suffering serious (or significant) harm for this reason in China.

18. Next, in migration agent submissions dated 19 June 2018,[59] it was claimed the applicant wife may be “forced to undergo sterilisation against her wish which is not human”. The agent then said that though the delegate noted there was no coerced sterilisation in Fujian province since the early 1990s, the “objective reality in China is that government at all levels understand and implement laws of their own ways”. The agent then referred to country information purportedly in support of this which respectfully, did not appear to specifically or principally refer to Fujian province. Country information considered by the Tribunal included that:

    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.[60]

    and:

    2.3.12 In AX, the Upper Tribunal that:

    In general, for female returnees, there is no real risk of forcible sterilisation or forcible termination in China. However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area, accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation, or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy. Outside these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme [61]

    [59] Tribunal – from folio 81.

    [60] DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA, 16 December 2016.

    [61] "China: Contravention of national population and family-planning laws ", UK Home Office, 01 November 2017, OG6E7028865.

19. The Tribunal has not seen any evidence of a ‘crackdown’ or likely ‘crackdown’ in Fujian province. When discussed at hearing, the applicants still feared the wife would be sterilised or that they would suffer other forms of harm. The applicant husband believed there was ‘no guarantee’ the applicant wife would not be sterilised. However, and based on the country information considered and the accepted claims, the Tribunal is not satisfied the applicants have a real chance of suffering any serious (or significant) harm on return to China.  

20. After providing information about what constitutes a well-founded fear or a real risk, the agent had then said “please kindly allow us to readdress and highlight the above concept as it is highly important”.[62] When discussed near the end of the hearing, the migration agent did not materially provide information that had not already been discussed at hearing; or more than in the comprehensive written evidence and submissions he had lodged with the Tribunal prior to the hearing.

    [62] Tribunal – folio 81 (reverse side).

1. After considering all the evidence, the Tribunal is not satisfied the applicants have a real chance of suffering serious harm for any reason discussed under the above sub-heading.

   Claims relating to the health (principally) of the applicant wife/infant applicant son:

2. By migration agent submissions dated 19 June 2018, reference was made to “ongoing management of depression” relating to the applicant wife. By medical report dated [in] June 2018,[63] it was claimed the applicant wife had been receiving medical treatment for depression since 2018. That report had also said that ‘in the month leading up to date, her symptoms were worsening and associated with anxiety, hard for her to manage home duties’. As no further explanation was provided, the Tribunal put to the applicant wife at hearing that given this report was dated [a number of] days prior to the Tribunal hearing, I may assume that it was the anxiety of appearing at the hearing that had recently ‘worsened’ her condition. No material comment was then made.

   [63] Tribunal – folio 68.

3. The applicant wife did confirm that she still took medication in Australia, in an effort to quell her ongoing depression; that she sometimes argued with her husband (and same was said to have been discussed with their parents in China); and that she feared (words to the effect) her depression would worsen should she return to China (though given she may reside with or near her own family, the Tribunal presumes the family could provide her with assistance). However, she also conceded she particularly feared being subject to the social compensation fee (discussed above).

4. Next, by the same migration agent submissions dated 19 June 2018, medical evidence was lodged regarding the eldest child ([Master A], born [in date] – referred to as ‘[name]’ in the medical report[64]). Amongst other things, that evidence referred to the child’s “language development, separation anxiety and limited interest at other children at [a]… health check”. It was further claimed the child’s “overall cognitive functioning, including receptive and expressive language, competence and, play and visual pattern completion appears below the age expected level”. It was then said the child had been diagnosed with ‘Autism Spectrum Disorder’ and ‘Separation Anxiety Disorder’.

   [64] Tribunal – from folio 76.

5. By undated statement,[65] the applicant wife said they did not have a wedding because they were “bothered with economic constraint” (around September 2008); she worked as [an occupation] (including in Australia); she said that she was unable to work when pregnant as the “chemical[s] was bad for the foetus”; she said she studied a “[degree]” (though at hearing she said she did not complete same); that she was unwell when she gave birth; that one of her children ([Master A] who suffered autism), may have to repeat a school year; that she needs to care for her children  and she can only work for one half day every week (though she denied working when asked at hearing); that a psychologist from [the] Hospital helps to mediate her marital relationship after arguments; that her mother-in-law gave them “great economical support last year” but she was now unwell and had to return to China for treatment. At hearing she said the mother in law (the applicant husband’s mother) resided unlawfully in Australia for over 10 years and had returned to China in late 2017, to access treatment for her [medical] problem.  

   [65] Tribunal – from folio 55.

6. Regarding health in China, the country information stated:

   2.13 China ranks 90 out of 188 countries listed on the UNDP’s 2015 Human Development Index. Average life expectancy at birth in China is 74.83 years with geographical variations, particularly between urban and rural areas. Health care varies significantly between urban and rural areas. High quality public health care is available in the main urban centres, but only those with the relevant urban hukou (household registration) have access  … Health care in rural areas is of a lower standard, and public provision is patchy. China’s unusually high household savings rate partly reflects the need for families without urban hukou (including migrant workers in cities) to save for future health costs.[66]

   [66] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

7. Regarding persons with disabilities, the country information stated:

   The law protects the rights of persons with disabilities and prohibits discrimination, but in many instances conditions for such persons lagged behind legal requirements and the government failed to provide persons with disabilities access to programs intended to assist them. The Ministry of Civil Affairs and the China Disabled Persons Federation (CDPF), a government-organized civil association, are the main entities responsible for persons with disabilities.

   According to the law, persons with disabilities “are entitled to enjoyment of equal rights as other citizens in political, economic, cultural, and social fields, in family life, and in other aspects.” Discrimination against, insult of, and infringement upon persons with disabilities is prohibited. The law prohibits discrimination against minors with disabilities and codifies a variety of judicial protections for juveniles.

   The Ministry of Education reported there were more than 2,000 separate education schools for children with disabilities, but NGOs reported that only 2 percent of the 20 million children with disabilities had access to education that met their needs.

   Individuals with disabilities faced difficulties accessing higher education. The law permits universities to exclude candidates with disabilities who would otherwise be qualified. A regulation mandates accommodations for students with disabilities when taking the national university entrance exam.

   In May the government revised the 20-year-old law covering access to education for persons with disabilities. The revisions reaffirmed a commitment to ensure education for children with disabilities, broadened vocational education for persons with disabilities, and aimed to prevent discrimination in school admissions. The updated law encourages schools to accept more students, and places the responsibility to expand school access at the county level, calling on local governments to prioritize establishing special education resources in mainstream schools.

   Some observers said the law was aspirational and vague, but still an improvement over prior regulations. Others noted that parents too often were forced to resort to bribing school officials to have their child with a disability accepted into mainstream schools.

   Nearly 100,000 organizations existed, mostly in urban areas, to serve those with disabilities and protect their legal rights. The government, at times in conjunction with NGOs, sponsored programs to integrate persons with disabilities into society.

   Misdiagnosis, inadequate medical care, stigmatization, and abandonment remained common problems. Parents who chose to keep children with disabilities at home generally faced difficulty finding adequate medical care, day care, and education for their children. According to the government, many persons with disabilities lacked adequate rehabilitation services.

   Unemployment among adults with disabilities, in part due to discrimination, remained a serious problem. The law requires local governments to offer incentives to enterprises that hire persons with disabilities. Regulations in some parts of the country also require employers to pay into a national fund for persons with disabilities when employees with disabilities do not make up a statutory minimum percentage of the total workforce.

   Standards adopted for making roads and buildings accessible to persons with disabilities are subject to the Law on the Handicapped, which calls for their “gradual” implementation; compliance was limited.

   The law forbids the marriage of persons with certain mental disabilities, such as schizophrenia. If doctors find a couple is at risk of transmitting congenital disabilities to their children, the couple may marry only if they agree to use birth control or undergo sterilization. In some instances officials continued to require couples to abort pregnancies when doctors discovered possible disabilities during prenatal examinations. The law stipulates that local governments must employ such practices to raise the percentage of births of children without disabilities.[67]

   [67] US Department of State, Country Reports on Human Rights Practices for 2017, China (includes Tibet, Hong Kong, and Macau).

8. Further country information stated:

   As is often the case in other countries, people with disabilities in China are the country’s “largest minority.” In China, over 40 percent of people with disabilities are illiterate and 15 million live under one dollar a day in the countryside, according to official figures. The largest group is people with physical disabilities, with a population of 25 million, followed by those with hearing, multiple, visual, mental, intellectual, and speech disabilities. There is currently no data on those with autism. The government reports that 75 percent of people with disabilities live in rural areas.[68] 

   though:  

   The Chinese government has begun a three-year project to collect data on those with autism, which is believed to affect millions in China. See Nick Compton, “China moves to tackle autism with first study of prevalence,” South China Morning - Post, April 2, 2013.[69]

   [68] Human Rights Watch, ""As Long as They Let Us Stay in Class": Barriers to Education for Persons with Disabilities in China", Human Rights Watch, 01 July 2013, CIS25940

   [69] Human Rights Watch, ""As Long as They Let Us Stay in Class": Barriers to Education for Persons with Disabilities in China", Human Rights Watch, 01 July 2013, CIS25940 – footnote 0.

9. Information about ‘Autism Spectrum Disorder’ and ‘Separation Anxiety Disorder’ included:

   What are autism spectrum disorders?

   Autism spectrum disorders (ASDs) are lifelong developmental disabilities characterised by marked difficulties in social interaction and social communication, and restricted and repetitive interests and behaviours.

   The word ‘spectrum’ is used because the range and severity of the difficulties people with an ASD experience can vary widely. Currently all children on the ASD spectrum are diagnosed with ASD. Previously, a number of different terms were used including autistic disorder, Asperger’s disorder and pervasive developmental disorder.

   How common is it?

   Research shows that about 1 in 100 children, almost 230 000 Australians, have an ASD and that it is more prevalent in boys than girls.[70]

   and:

   Separation anxiety refers to excessive fear or anxiety about separation from home or an attachment figure. In previous versions of the DSM, separation anxiety was only applied to people under the age of 18. The diagnosis is now categorized as an anxiety disorder that can be present at all stages of life.

   Separation anxiety is a normal stage in an infant's development. It helped keep our ancestors alive and helps children learn how to master their environment. It usually ends at around age 2, when toddlers begin to understand that a parent may be out of sight right now but will return later. The key feature of separation anxiety disorder, however, is when the anxiety exceeds what might be expected give a person's developmental level.[71]

   [70] What are autism spectrum disorders?, Autism Spectrum Australia,

   [71] Separation Anxiety, Psychology Today,

10. When discussed at hearing, the Tribunal noted there was concern that [Master A] (almost [age] years old), may have to repeat a school year. He was said to be in the year above his [age] year old sister who was in [school] (she attends three days per week); and the third child attends one day in childcare each week. The oldest child ([Master A]), attends [a school] in [the city] – which the applicants explained is a normal government school and that the child is in a ‘normal’ class. Further, that though recently it was feared [Master A] may have to repeat a year, that is no longer the case.

11. Regarding education in China, the country information stated:

    Despite a nine-year compulsory education policy, children in China attend school for 7.6 years on average, although the figure varies according to location. China’s adult literacy rate is 96.4 per cent. Education standards vary considerably across the country.[72]

    [72] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

12. When discussed at hearing, the applicant wife said that [Master A] is ‘settled’ at the moment but he may get angry on occasion and he does not like change and or he may become restless. She also said the family needed to attend the hospital every week for consulting. As also stated at hearing, the Tribunal accepts the medical assistance that may be available in Australia (to the applicants and [Master A]) may be more sophisticated or ‘better’ than that which may be available in China (including in Fuqing city near where the applicant wife formerly resided; and they may be required to ‘to save for future health costs’[73]). However, based on the evidence cited herein, the Tribunal is not satisfied that either the applicants or [Master A] would suffer serious (or significant) harm for reason of their medical conditions, should they return to China.

    [73] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

13. The applicant wife also said that [Master A] was kept at home for the first two years of his life (which the Tribunal presumes is as common in China as it is in Australia), but that after this, he did not (ie) then engage with other children when he was sent to day care and or school. However, he remains at school in Australia and appears to be progressing, as the applicant wife conceded, ‘at the moment’.

14. The applicant wife also said the environment, language and education is different in China. However, Mandarin was the applicant parents’ first language and I assumed they spoke Mandarin at home with their children, which they conceded after also stating that when they ask a question in Mandarin, the children may respond in English. However, given the young ages of the children, the Tribunal is not satisfied that having to learn a different language or attend Chinese education institutions, would constitute serious harm. Also, the Tribunal accepts that China may be a different environment for (particularly) [Master A]. However, change is something that he would be required to confront irrespective of where he was raised, and he may presumably be provided some assistance by both immediate and extended family members in China. Based on the accepted claims and country information, the Tribunal is not satisfied return to the different environment in China, would give rise to a real chance of serious harm.

15. Next, the Tribunal accepts that some stigma may attach to [Master A] due to his disability. However, the Tribunal notes that stigma or harm might be mitigated by the fact that the applicants may live with or near their own parents in Fujian, that the applicant parents have remained together, and that he would be afforded some protection by his extended family in China (including his younger cousins who reside with the applicant wife’s parents). Further, none of the country information considered (including in any of the sources cited herein), has satisfied the Tribunal that the harm the infant applicant (son) may suffer would constitute serious (or significant) harm.

16. After considering all the evidence, the Tribunal is not satisfied the applicants have a real chance of suffering serious harm for any reason discussed under the above sub-heading.

    Failed asylum seeker:

17. At hearing, the Tribunal put to the applicants it would consider whether they had a real chance of suffering serious harm for reason of having resided in Australia for many years, and for reason of having applied for a PV. The country information stated:

    DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China (see Security situation). Party members or public officials who return to China to face corruption offences are subject to Party disciplinary and potentially criminal prosecution … [74]

    [74] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

18. The Tribunal has not seen other country information which materially contradicts that which is set out above. When discussed at hearing, the applicants did not wish to materially comment. After considering all the evidence, the Tribunal is not satisfied the applicants have a real chance of suffering serious harm for any reason discussed under the above sub-heading.

    Conclusion:

19. Finally, even considering those of the applicants’ claims that I have accepted cumulatively, I do not accept they have a well-founded fear of persecution for a Refugees Convention reason, in China. Neither am I satisfied there is any other issue, squarely raised by the evidence if not articulated, that would give rise to a real chance the applicants would suffer serious harm in China.

20. For the reasons given above, the Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. The applicants do not satisfy s.36(2)(a) of the Act. It follows that the applicants are unable to satisfy the criterion set out in s.36(2)(b) of the Act.

    COMPLEMENTARY PROTECTION

21. If an applicant is not found to be a person in respect of whom Australia has protection obligations under the 1951 Refugees Convention, they may nonetheless meet the criterion for a Protection visa in subsection 36(2)(aa) of the Act. That subsection provides that the ‘decision maker’ must be satisfied that Australia has protection obligations to a non-citizen in Australia because the ‘decision maker’ has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen (the applicant) will suffer significant harm. Subsection 36(2A) of the Migration Act defines significant harm as:

    (a)  the non-citizen will be arbitrarily deprived of his or her life; or

    (a)the death penalty will be carried out on the non-citizen; or

    (b)the non-citizen will be subjected to torture; or

    (c)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

    (d)the non-citizen will be subjected to degrading treatment or punishment.

22. Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’ In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part):

    In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that SZQRB will suffer significant harm… were he to return to [the receiving country]. [246]

    Further findings:

23. Based on those of the applicants’ claims that I have accepted, and the country information in the sources cited herein, I do not accept they have a real risk of suffering the death penalty in China. Based on the accepted claims and the country information in the sources cited herein, the Tribunal is also not satisfied the applicants have a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, in China. Next, based on the country information and accepted claims, I am not satisfied the applicants have a real risk of suffering harm that is intentionally inflicted on them amounting to cruel or inhuman treatment or punishment; and for the same reasons, I am not satisfied the applicants have a real risk of suffering relevant harm that is intentionally inflicted on them amounting to torture in China. Further, and again for the same reasons, the Tribunal is not satisfied the applicants have a real risk of suffering arbitrary deprivation of life in China. 

    Conclusion:

1. Finally, even considering those of the applicants’ claims that I have accepted cumulatively, I do not accept they have a real risk of suffering significant harm in China. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicants have a real risk of suffering significant harm in China. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants removal, there is a real risk they will suffer significant harm if returned to China.

2. Having previously concluded the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal considered the alternative criterion in s.36(2)(aa). For the reasons stated above, the Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. It follows that the applicants are unable to satisfy the criterion set out in s.36(2)(c) of the Act.

   DECISION

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

   Mr S Norman
   Member