1621971 (Refugee)

This matter concerned an application for a protection visa by a child, represented by his parents. The applicant's parents, who were international students in Australia, had breached China's family planning regulations by having a second child out of wedlock. They claimed that upon return to China, they would face a substantial social compensation fee for this breach, which they could not afford, and that the child would face difficulties obtaining a household registration (hukou) without payment, leading to denial of access to essential services like education and healthcare.

The court was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under Australian migration law, or, alternatively, whether there were substantial grounds to believe that the applicant faced a real risk of suffering significant harm as a necessary and foreseeable consequence of removal from Australia to China. This involved assessing the likelihood of serious harm arising from the inability to pay the social compensation fee or obtain a hukou, and whether such harm would be discriminatory or otherwise meet the threshold for protection.

The court found that while the applicant's parents had breached family planning regulations, the evidence did not establish a real chance of serious harm. Country information indicated that social compensation fees, while potentially substantial, were subject to local discretion and could be viewed as an additional tax rather than an arbitrary punitive measure. Furthermore, national law provided a right to household registration and access to services regardless of fee payment, although local implementation varied. The court concluded that the applicant had not demonstrated a well-founded fear of persecution or a real risk of significant harm.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.