1701166 (Refugee) - [2020] AATA 5063

1701166 (Refugee) [2020] AATA 5063 (3 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701166
COUNTRY OF REFERENCE:                   China
MEMBER:Simone Burford
DATE:3 February 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 03 February 2020 at 11:53am
CATCHWORDS
REFUGEE – protection visa – China – membership of particular social groups – unmarried parents in breach of family planning policies – first applicant’s two children with previous partner in China, when under marriageable age – harassment of family by authorities – first and second applicant’s two children in Australia – social compensation fees and household registration – borrowed money from money lender for brother’s medical expenses – threats to mother – credibility – first two births registered in China with parents’ full details – first applicant obtained and travelled on own passport – visa, study and work history – delay in applying for protection – incorrect, misleading, vague, inconsistent and uncorroborated evidence – adverse information about work and finances – country information on returnees and children born overseas – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 424A, 438
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Guo v MIBP [2016] AATA 897
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs (1996)
40 ALD 445
Iyer v MIMA [2000] FCA 52, [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SDAQ v MIMA (2003) 129 FCR 137
SZTYV v MIBP [2018] FCCA 64
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 dependants.
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 and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first [applicant] and second [applicant] are de facto partners who claim to be citizens of the People’s Republic of China. The third [applicant] is their son who was born in Australia and who also claims to be a citizen of the People’s Republic of China.
The applicants applied for the visa on 30 June 2014. The first and second applicants attended an interview at the Department of Immigration on 10 November 2015.
On 11 January 2017 the delegate of the Minister for Immigration refused to grant a protection visa under s.65 of the Act because the delegate was not satisfied that the applicants met the requirements for the visas. The applicants lodged a review of the delegate’s decision with the Tribunal on 23 January 2017. They provided a copy of the delegate’s decision record.
The first and second applicants appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. The third applicant, who is a minor child, did not attend the hearing.
A further hearing was held on 16 August 2019. The first applicant attended the hearing. The second and third applicants did not attend that hearing. The applicants’ representative informed the Tribunal in response to the second hearing invitation that the second applicant had given birth to the couple’s second child [and] was in traditional Chinese confinement for the month following the birth. The Tribunal determined it was not necessary for her to attend the second hearing.
A further hearing was held on 23 January 2020 primarily to discuss issues concerning non-disclosure certificates on the file. All applicants attended this hearing. The applicants’ representative attended via telephone. The first applicant gave further evidence and comments on country information. The second applicant was invited to give further evidence however she indicated she did not have anything to add. The third applicant did not give evidence.
The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent. The Tribunal notes that prior to the second hearing the applicants requested and were sent a copy of the audio recording of the first hearing. Prior to the third hearing they requested and were sent an audio recording of the second hearing.
The issues in this review are whether there is a real chance, if the applicants return to China, that they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
PROCEDURAL ISSUES
Non-disclosure certificates
Following the first hearing information was received from the Department. The information was the subject of certificates issued under s.438 of the Act. On 28 February 2019 the Tribunal wrote to the applicants informing them of the certificates and inviting them to make submissions with respect to the release of the information. The Tribunal notes that the relevant contents of the information was put to the applicants for comment or response in the letter of 28 February 2019 and discussed at the hearing with the first applicant on 16 August 2019.
In response, the first applicant submitted a statutory declaration dated 11 March 2019. He acknowledged the information regarding the certificates but did not make submissions with respect to the release of the information. He responded to the adverse information. That information and the applicants’ responses are dealt with further below.
However, the Tribunal later determined that it had not expressly invited the applicants to make submission on whether the certificates were valid. Accordingly, the Tribunal wrote again to the applicants on 19 December 2019 inviting them to make submissions on the validity of the certificates and on the exercise of the Tribunal’s discretion to release the information covered by the certificates. Copies of the certificates were provided to the applicants.
The applicants replied to the Tribunal’s letter on 6 January 2020. The applicants did not make submissions on the validity of the certificates but asked that the Tribunal exercise its discretion to release the material to enable them to comment on it.
In considering the validity of this certificate the Tribunal took into account recent case law on the issue.
In some circumstances public interest immunity might operate to prevent the disclosure of Cabinet deliberations (the relevant public interest being free and fully informed Cabinet debate), police investigative documents (the relevant public interest being to keep police methods confidential and not prejudice investigations),[1] and information provided in confidence where it might reveal the source.[2]
[1] See Guo v MIBP [2016] AATA 897 (President Justice D Kerr and Deputy President Prof R Deutsch, 26 September 2016).
[2]SZTYV v MIBP [2018] FCCA 64 at [58]-[59].
Having considered the applicants’ submissions, the Tribunal formed the view that the certificates were valid. Further, the Tribunal decided not to exercise its discretion to release the information covered by the certificates as it considered that this would be contrary to the public interest because it would disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal took into consideration that the first applicant had indicated to the Tribunal in response to the information being put to him that one part of the information was correct (that he had provided an incorrect residential address at the first hearing). Further, having considered the remainder of the information and the applicants’ comments on it the Tribunal formed the view that it was of limited probative value and the Tribunal would not be relying on it in reaching a decision on the application.
In such circumstances there would, in the Tribunal’s view, be no public interest served by releasing the information and risking the disclosure of the public source and no disadvantage to the applicants in the Tribunal maintaining the confidentiality of the documents.
Adverse information
As noted above, the Tribunal notes that the relevant contents of the information covered by the certificates was put to the applicants for comment or response in the letter of 28 February 2019. The applicants responded to the Tribunal’s letter of 28 February 2019 in a statutory declaration from the first applicant dated 11 March 2019. The response was discussed further at the hearing on 16 August 2019.
The Tribunal provided the applicants with a further opportunity to provide any additional comment or response to this information by letter dated 9 January 2020. The applicants replied on 21 January 2020 referring to the first applicant’s response in March and the evidence provided at the hearing in August.
The particulars of the information put to the applicants were as follows:
·The first applicant provided information to the Tribunal in a statement dated 17 October 2018 and the application for review that the applicants were residing at an address in [Suburb 1]. However, information before the Tribunal indicates that the applicants were living at an address in [Suburb 2] in August 2018 and September 2018.
·The first applicant provided information to the Tribunal that he was working as [an Occupation]. However, information before the Tribunal claims that he was working in [workplaces] and may be involved in money-laundering in some capacity.
The Tribunal indicated that the information was relevant to the review because, if accepted, it may raise doubt as to the credibility and truthfulness of the information the applicants provided to the Tribunal. This could be taken into account in assessing the genuineness of their claims. The Tribunal indicated that the consequence of the Tribunal relying on the information was that it would be the reason or part of the reason for affirming the decision under review.
As noted above, having considered the information and the first applicant’s comments it did not regard the information regarding his work activities as being of significant probative value as it was uncorroborated and general in its terms. The Tribunal is not relying on that information in reaching its decision.
The first applicant admitted in his response to the information that the address provided to the Tribunal and confirmed in oral evidence at the first hearing was not the residential address of the applicants. The Tribunal’s consideration of this information is detailed below.
Country information
Following the second hearing the Department of Foreign Affairs and Trade (DFAT) issued an updated version of the Country Information Report: China, dated 3 October 2019 (2019 Report). The Tribunal wrote to the applicants on 9 October 2019 providing them with a copy of the report, drawing their attention to several sections directly relevant to their claims for protection and inviting them to provide information, comment or make submissions on the information. The applicants provided comments on 20 October 2019. The Tribunal has taken those comments into account and, where relevant, detailed those comments in the consideration of the applicants’ claims below.
The Tribunal notes that the material contained in the 2019 Report was materially the same as the country information report put to the applicants at the hearings. The report contains the information in the 2017 DFAT Country Information Report: China[3] (2017 Report) and the DFAT thematic report on Fujian Province[4] (Fujian Report). The Tribunal has included references to both the 2019 Report and the 2017 Report and Fujian Report where relevant. The Tribunal was satisfied that the issues arising from the 2019 Report had been raised with the first applicant at the hearing.
[3] ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017
[4] DFAT, ‘Thematic report on Fujian Province, People’s Republic of China’, 16 December 2016, p.14
In any event, a further hearing was held on 23 January 2020 and country information including that contained in the 2019 Report was further discussed with the applicants at that hearing.
The relevant country information is discussed further below.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention-stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of Complementary Protection Guidelines and Refugee Law Guidelines and any country information assessment prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit

Paragraphs 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 child of the applicant.
CLAIMS AND EVIDENCE
Background
The first and second applicants came to Australia separately from Fujian Province, China as the holders of student visas. They claim they started their relationship in Australia.
The first applicant is [age] years old and came to Australia from Fujian Province, China as the holder of a student visa in June 2008. The second applicant is [age] years old and came to Australia in May 2008 also as the holder of a student visa.
At the hearing the first applicant told the Tribunal he didn’t know what visa he was on when he came to Australia. The agent who organised the visa told him he could study and earn some money so that is why he came. He told the Tribunal he studied for one day. He said he didn’t have enough money to study and needed money for rent and other things. He said he didn’t see his student visa application so he didn’t know if he had declared his then partner and children on the application.
The couple met as children in China as they are from the same village. They claim to have met again in Australia. They started living together in a de facto relationship in May 2010. The first applicant is working a casual job as [an Occupation]. He has also worked in [specified] jobs in Australia. He claims he earns about $100 per day in cash for this work. The second applicant said the family income was $400-$500.
The couple is not married. The second applicant told the Tribunal when asked if they had plans to marry:
Initially not but we have been together a while so we thought about that but don’t have the resources to get married.
When the first applicant was asked about his plans to marry he indicated that they didn’t have valid visas. The Tribunal asked whether they would marry if they were able to and he said “probably not because I don’t have money. For the marriage certificate I don’t have the money”.
The first applicant indicated that he grew up in a village in Fuqing City in Fujian Province. He gave evidence that his mother was adopted from the street as a child by his father’s family and brought up by his grandparents. She “became my father’s wife in the end”. He testified that his father was “mentally abnormal”. His father was unable to work normally and was violent with his family members without any reason. This family spent money on medical treatment for his father, however his condition never improved. The first applicant told the Tribunal his mother is religious and is a Christian of Han ethnicity. The first applicant did not raise any claims for protection relating to his or his mother’s religious beliefs or practice.
The second applicant indicated she grew up in the same village as the first applicant and had [a sister and brother]. She said she thought that her [brother] was registered on her family hukou. She said that her [brother] was working and [sister] was married and living in the same village and had [children].
In July 2004 the first applicant had to terminate his study at [Middle School] to assist his mother and grandparents in supporting the family. He was [age] years old. In June 2005 he began working in a [workplace] in Fuzhou City. Working at the [workplace] he met [Ms A] who was two years older than him. They fell in love. In 2007 [Ms A] became pregnant. They were in trouble firstly because they were too young to get married according to the relevant law in China. Secondly, he claimed that they would also be fined by the authorities due to breaching birth control policies particularly in Fuzhou, Fujian. Thirdly their parents opposed their relationship and they could not receive any support from their families. Through a friend the first applicant found work in Huangshi City, Hubei Province and moved there with his partner to commence work in March 2007.
In November 2007 his partner and his newborn daughter returned to Fujian to stay with his parents. He says that his mother claimed that his partner was a friend of hers in order to avoid the attention of the birth control office. The Tribunal notes that the children bear his last name.
In January 2008 the first applicant returned to Fujian as his mother was making plans for him to travel overseas. These plans were made through his mother’s employer, [Ms B], who said she had a friend who could arrange for Chinese people to go abroad. It was through [Ms B] and her friend that the first applicant obtained his passport in [2008] and his Australian student visa in May 2008. He left China travelling on his own passport and had no issues with the authorities when he left. He has not renewed his passport in Australia.
After he arrived in Australia in June 2008 he learnt that his former partner was pregnant again. His second daughter was born in [date]. In order to avoid the attention of the birth control office his mother arranged for his former partner to give birth in [another Town], again with the assistance of [Ms B].
After the baby was born the family was placed under pressure by the birth control office who suspected a connection between [Ms A] and the first applicant’s family. In April 2009 [Ms A] left the first applicant’s parents’ home and never returned. She later contacted the first applicant’s mother on the phone to indicate she was living in [Country] and did not intend to return to China.
The first applicant claimed that in 2013 his [brother] got [medical condition] and his family borrowed [Amount 1] yuan from a relative to help with costs but the relative then got injured and needed the loan repaid. In order to repay the loans they borrowed money from [Mr C], a high-interest money lender.
The first applicant’s daughters have continued to live with his family in Fuqing, Fujian Province, China. At the time of the first hearing they were [age] and [age] years of age. The first applicant indicated that they were registered on his parents’ hukou and have been attending school since 2016 and have also had access to healthcare services since that time.
The first applicant met the second applicant in Australia. They are not married and have two children, a son who is the third applicant and was [age] years old at the time of the first hearing, and a baby boy who was born just prior to the second hearing. The second child is not included in the application, however the Tribunal has had regard to the birth of the child to the extent relevant to the applicants’ claims for protection.
Evidence
The Tribunal had before it a copy of the delegate’s decision record dated 11 January 2017 which was provided by the applicants with the application for review. The Tribunal also had a copy of the Department’s file and information submitted by the applicants in support of the application for the visa, including the applicants’ protection visa application form dated

11 December 2014.
Other relevant material before the Tribunal includes:
a.The application for review dated 23 January 2017.
b.Identity documents.
c.Supporting documents submitted by the applicants to the Tribunal:
i.Statutory declaration from the first applicant dated 17 October 2018.
ii.Statutory declaration from the first applicant dated 11 March 2019.
iii.Documents related to the birth of the first and second applicant’s second child in Australia on 2 August 2019.
iv.Statutory declaration of the first applicant dated 18 October 2019.
d.Country information in relation to the People’s Republic of China. There was some discussion of this material at the Tribunal hearing which is mentioned in the body of this decision. A further report by DFAT was issued following the second hearing. The Tribunal wrote to the applicants providing a copy of that report and inviting them to comment on any information contained in the report which was relevant to their claims for protection.
Protection claims
The applicants applied for the visa on 30 June 2014. The applicants’ claims are contained in the application for review and in a statutory declaration made by the first applicant on 30 June 2014. The second applicant has no claims of her own. The third applicant has his own claims for protection. The third applicant’s claims are also detailed in the first applicant’s statutory declaration.
The Tribunal put to the first applicant a summary of the claims as contained in his application and summarised in the delegate’s decision record. The claims were summarised as follows:
·The first applicant does not want to return to China because he has fathered two daughters in China out of wedlock when he was below the minimum age to marry.
·The first applicant has fathered a son in Australia (the third applicant) with his current de facto partner which means at the time of application the first applicant had a total of three children out of wedlock.
·The first applicant does not have the means to pay the fines, and cannot get assistance from his family to do so.
·The third applicant claims that were he to travel to China, he would not be able to be registered on the family hukou, and would therefore not be able to access public education or public healthcare.
As noted above this summary was put to the applicant at the first hearing. He confirmed it was true and correct at the time, however he now had additional claims:
·He didn’t pay social compensation fees with respect to his daughters and the local government is still seeking compensation from him.
·In 2013 his brother had [medical condition] and since then his home has been in debt and the debt is growing. He will not be able to pay the debt and he will lose his life.
When asked whether he had any additional claims or updates to these claims he said he had further details to add but did not have any additional claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
What is the country of reference?
The first and second applicants were born in China. They provided copies of their Chinese passports, issued [in] 2008 for the first applicant and issued [in] 2007 for the second applicant. The Tribunal accepts that the first and second applicants are citizens of China.
The third applicant was born in Australia and the applicants provided a copy of his Western Australian birth certificate to support this evidence. The birth certificate shows that [the second applicant] is the mother of the third applicant and [the first applicant] is the father of the third applicant. The Tribunal is satisfied that both the third applicant’s parents are Chinese citizens. A certified copy of the third applicant’s Chinese passport issued [in] 2013 was provided to the Department. In the application form for the visa it is acknowledged that the third applicant is a Chinese citizen.
The Tribunal is satisfied that the applicants are all citizens of China and that China is the receiving country for the purposes of s.36(2)(aa).
Credibility assessment
In determining whether the applicants are entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[5]
[5] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, Geneva, 2019 at pages 43-44; see also Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445.
In assessing the credibility of the applicants’ claims, the Tribunal notes that as the third applicant is a child his father has advanced claims on his behalf. The Tribunal has therefore assessed the credibility of the claims made on behalf of the third applicant by his father.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicants but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]
[6] MIMA v Rajalingam (1999) 93 FCR 220.
[7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held.
If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer[8] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[9]
[8] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].
[9] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
The Tribunal also notes that if it makes findings that an applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.
The Tribunal has significant concerns about the credibility of the applicants’ claims, particularly to the extent they rely on the evidence of the first applicant. The Tribunal did not find the first applicant to be a witness of truth. There were marked inconsistencies in aspects of his claims including regarding whether he had paid fines of fees with respect to his daughters for breaching family planning laws and in order to register them for hukou. On critical aspects of his claims he struggled to provide meaningful detail, context or corroborative evidence. Aspects of his claims including in relation to claimed debts and threats in relation to those debts in China were implausible, lacking in detail and not supported by any corroborative evidence. These concerns are detailed further in the assessment below.
In the Tribunal’s view, the first applicant’s conduct in Australia contributes further to doubts regarding his credibility and claims for protection. This includes his delay of more than 5 years in seeking protection in Australia and providing incorrect or misleading information to the Tribunal regarding his personal details and circumstances. Further, the first applicant provided information with respect to his student visa application which he acknowledged was false though he claimed was submitted without his knowledge. These issues are addressed further below.
The Tribunal gave careful consideration to the first applicant’s responses to issues of inconsistent or implausible evidence. The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events. The Tribunal is also mindful that reliance on interpreters may result in inconsistences in evidence. The Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to clarify dates and evidence where it appeared to contradict earlier sworn statements.
In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility published in July 2015.
However, the Tribunal found the number of inconsistencies or vague or contradictory evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or issues in translation. These concerns are addressed further below.
Claims relating to Family Planning laws
Country Information
The Tribunal has considered country information from a number of sources which indicate that all children of Chinese nationality will be entitled to be granted household registration. Household registration provides access to medical and educational services and other government benefits.
At the hearing the Tribunal discussed with the applicant the available country information in relation to family planning issues in China. As noted above, following the hearing DFAT issued an updated 2019 Report. The Tribunal sent a copy of the report to the applicant for comment or response. The Tribunal considered the report’s contents with respect to family planning laws consolidated and updated earlier reports including the 2017 Report and the Fujian Report which were discussed at the hearing.
In January 2016 the Chinese State Council General Office issued an Opinion on Solving the Household Registration Issue for Non-registered Personnel (the ‘Opinion’) prohibiting local authorities from setting preconditions for household registration and setting out a procedure for registration. With respect to the implementation of the Opinion in Fujian Province, DFAT reports:
On 17 June 2016, Fujian issued implementation measures relating to the Opinion. The measures did not specifically set out guidance for people born in contravention of the one-child policy, but for those not registered at birth. The Fujian Provincial Resident Household Registration Methods, which came into effect on 1 January 2017, state that household registration is a basic right and that no preconditions for registration should be set by registration authorities. In Fujian, parents who are both only children of an ethnic minority couple and themselves hold rural hukous can have a third child.[10]
[10] ‘China Country Information Request CI170628123022518 Two Child Policy - Household Registration and Social Compensation Fees’, DFAT, 1 September 2017, CXC90406613543; ‘Millions of unregistered individuals await legal status after China scraps one-child policy’, Global Times, 27 January 2016, CX6A26A6E7586 (noting that Fujian officially delinked fines and hukou registration as early as 2014 and those born outside family planning rules can register for a hukou without having to first pay fines although fines must be paid eventually).
The Tribunal notes that the country information indicates that the payment of a social compensation fee for children born out of plan has now been separated from the issue of household registration. The Chinese government has declared that all children irrespective of the circumstances of their births have the right to obtain household registration.

On the issues of the changes in the family planning laws and the changes to the household registration system, the 2019 Report[11] relevantly provides:
[11] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p. 3.210-3.221, see also DFAT Thematic Report on Fujian Province, PRC, 16 December 2016, p.3.36-3.37 and 5.3-5.4
People affected by Family Planning Policies
China has had nation-wide family planning policies since the late 1970s, aimed at controlling population growth (initially in response to famine), in support of China’s economic ambitions. Article 25 of the Constitution states ‘the State promotes family planning so that population growth may fit the plans for economic and social development.’ Article 49 states ‘marriage, the family and mother and child are protected by the State. Both husband and wife have the duty to practise family planning. Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents.’
The government manages family planning under the Population Law (see Women), which has historically required government departments, state media and schools to advocate family planning policies. Such policies include encouraging late marriage and childbearing, and limits on the number of children permitted per family. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple. Exceptions were permitted if 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 were also permitted to have two children if either spouse was a sole child. However, concerned about its ageing population, the National People’s Congress published a new amendment to the Population Law in 2016. The 2016 amendment included the 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). 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 (see Family Planning in Fujian).
Authorities enforce compliance with family planning regulations through both incentives and punishments. There are financial and administrative penalties for births that exceed limits or violate regulations. The law, as implemented, requires each woman with an unauthorised pregnancy to abort or pay a ‘social compensation fee’ (SCF, ‘shehui fuyang fei,’ also known as ‘social maintenance fees’). The parents of each unapproved child must pay a SCF. The national law does not set out a fee schedule that applies to all localities; exact SCF amounts vary widely across and within provinces, and on individual financial circumstances.
County-level governments collect the revenues from fees. Authorities calculate individual SCFs 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 (see Family Planning in Fujian). In some cases, this can amount to up to ten times a person’s annual disposable income. Information on actual fees charged is difficult to obtain as they are subject to local discretion (leaving open the possibility of individual or institutionalised manipulation). DFAT is aware of, but cannot verify, reports of people falsely presenting themselves as officials to claim SCF illegally.
Both the previous and current 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 SCF, irrespective of hukou status (see Hukou (household registration) system). The hukou 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. Prior to the 2016 amendment, SCF payment ensured children born in violation of the birth restrictions had access to government-provided social services and rights under the hukou system. However, following the 2016 amendment, children born before 1 January 2016 have a right to hukou and access to health and education services irrespective of SCF payment. 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.
Some parents still avoid the SCF by hiding children born in violation of the law with friends or relatives. Such hidden children do not have access to social services and rights under the hukou system (see Children). Awareness of SCFs is widespread and, in many cases, couples wishing to have an additional child will save the required SCF. In these cases, the SCF operates as a pseudo tax, rather than as a punitive arbitrary measure. Local authorities have the discretion to decide whether to impose a more lenient fine if parents report an out-of-policy (child born to a single woman) or unauthorised birth (additional child born to a married couple) 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 also pressure the parents of out-of-policy and/or unauthorised children. In some provinces or counties, authorities have also imposed fines on entire work units in addition to the individuals concerned.
Officials can receive rewards or penalties based on meeting population targets set for their administrative region. However, the change to the two-child policy, as well as a broader reluctance among a large proportion of the population to have no more than two (and in some cases no more than one) child, have made it easier to achieve population targets in recent years and reduced pressure on local officials (also see paragraphs 3.207-208 regarding foreshadowed policy and budgetary changes).
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)). 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.
International NGO reports suggests the incidence of coercive practices has reduced since the introduction of the two-child policy. Nevertheless, the US State Department reports regulations requiring women who violate the family planning policy to terminate their pregnancies still exist and were enforced in some provinces in 2017, including Hubei, Hunan, and Liaoning, and other provinces, such as Guizhou, Jiangxi, Qinghai, and Yunnan, also maintained provisions requiring ‘remedial measures’ (which the US reports is an ‘official euphemism for abortion’). DFAT notes reliable data on the frequency of coerced or forced abortions or sterilisations is not available. While family planning officials face criminal charges and administrative sanctions if they violate citizens’ human or property rights, abuse their power, accept bribes, misappropriate or embezzle family planning funds, or falsely report family planning statistics in the enforcement of birth limitation policy, forced abortion is not specifically listed as a prohibited activity.
Despite the introduction of the two-child policy in 2016, couples with only one child received a certificate entitling them to collect a monthly incentive payment and other benefits. Benefits varied across provinces, from around RMB 6 (AUD1.23) per month up to RMB 3,000 (AUD615) for farmers and herders in poorer areas. Couples in some provinces were also reportedly still required to seek approval and register before conceiving.
Although China’s Marriage Law (see Sexual Orientation and Gender Identity) states children born outside of marriage have the same rights as those born to married parents, the Population Law (see Women) only refers to the rights of married couples. As such, local implementation remains inconsistent, and children born out of wedlock continue to be considered to be ‘outside of policy’ under the two-child policy. Single mothers with children born out-of-policy must pay SCFs, and pay for contraception and all medical expenses associated with giving birth. They are still denied legal documents and hukou for their children (and the health and education benefits it provides) (see Hukou (household registration) system). State subsidies for maternal and child services are available only with the permission of family-planning authorities, who require proof of marriage. Consequentially, many single mothers give birth outside of medical facilities with associated complications for both mother and child. Single mothers can also find it difficult to obtain birth certificates. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair. However, children born out-of-policy are reconsidered to be within-policy (legitimate) and the mother will avoid any penalty if the mother marries within 60 days of the child’s birth. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair.
While the introduction of the two-child policy in 2016 led to a temporary increase in birth rates, the increase did not continue in 2018. Population and fertility policy experts argue long-term application of the one-child policy has led to social change, resulting in families still preferring to have only one child, despite policy change. Media and many people in China cite the economic cost of raising one child makes having a second child prohibitive. Experts working on fertility policy in China anticipate the government may approve full liberalisation of the fertility policy (removing birth limits) in coming years in an attempt to increase birth rates, in favour of ageing population policies. Recent budget and government department structural changes are early signals in this regard. The former National Health and Family Planning commission was renamed as the National Health Commission in March 2018, and had ageing added to its portfolio and family planning budget lines removed. The family planning budget is now part of the basic public health package.
In September 2018, state-media reported ‘the three departments responsible for implementing family planning policies [had] been removed from the new structure of the National Health Commission.’ In August 2018, media reported China appeared to be considering dropping its family planning policy, and that all media content related to family planning had been dropped in a draft civil code, set to be completed by 2020. In late 2018, state-controlled media performed an about-face and started publishing articles regarding the need to reverse China’s low birth rate and proactively encouraging births.
DFAT is aware of reports that, following departmental structure and budgetary changes, some provinces had more discretion to not charge the SCF in 2018. DFAT notes in country-sources report a general trend of significant relaxation of the enforcement of the SCF across China, especially in rural areas. Anecdotal evidence suggests married informal sector workers in Fuzhou who gave birth to unauthorised children in 2018 were not required to pay a SCF. DFAT is unable to verify these claims.
DFAT assesses that, while the introduction of the two-child policy has reduced the need for the application of penalties to those in violation of the Population Law and family planning policies, application of law and policy remains inconsistent and non-transparent across provinces. DFAT assesses inconsistent and non-transparent application of SCFs leaves open the possibility of individual or institutionalised corruption. If the government were to approve full liberalisation of the fertility policy at any stage, there would no longer be a use for the SCF or other punitive measures against married couples; however, the possible impact on single, unmarried mothers remains unclear.
The 2019 Report includes specific information regarding the application of family planning policies in Fujian Province as follows:
Application of Family Planning Policy in Fujian
The Population and Family Planning Regulation of Fujian (2016) aligns with the national two-child policy (under the Population Law), and has the following exceptions which allow a third child if: the first child has a disability; divorced couples remarry; the parents belong to an ethnic minority group; and if one half of the couple lives overseas with ‘surplus’ children. ‘Surplus’ children born overseas are able to return to China for an accumulated period of less than 18 months in two years; however, if they ‘settle down’ for a period of more than six months, the family may be subject to a SCF.
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. Returned overseas Chinese couples who return to China may then give birth on their return to further children in accordance with the regulations. 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’.
3.212     As with national policy, if a couple has an unauthorised child they will be subject to a SCF. According to the Fujian family planning office, Fujian SCFs are in line with the national policy an d are based on either the prior year’s average annual disposable income at county level, or 200 to 300 per cent of the individual’s prior year’s salary (disposable income), whichever is greater. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county. The actual application of SCFs varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation).
3.213     The SCF applies to both parents. If parent A earns more than the county average, their SCF fee will be 200 to 300 per cent of their income in the prior year. However, if parent B earns less than the county average (or has no job), their SCFs will be 200 to 300 per cent of the average county income in the prior year. SCF for single women who have had an out-of-policy child are calculated at 60 to 100 per cent of the individual’s income in the prior year, or the county average, whichever is higher. While the SCF is applied equally, fines can vary due to the different income level of different families. The provincial government also has discretion to arrange SCF instalment payments for families experiencing financial hardship.
3.214     Sources report that, if an individual works in a government agency and has an official payslip, the individual’s prior year’s salary is very clear and thus the SCF is transparent and easy to calculate. However, if an individual’s salary is above average (county level), it is harder to calculate the SCF, especially if the individual does not have a clear payslip. Individuals who cannot provide clear evidence of their income will be fined in accordance with the average county income.
3.215     In March 2016, the Deputy Chairman of the Fujian Family Planning Association stated that, if parents had received previous notification of SCFs under the 2014 Regulations, these penalties stood under the 2016 Regulations. If individuals in breach of the 2014 Regulations had not received notification of SCF, local authorities would not pursue the issue further. The 2016 Regulations only apply to children born after 1 January 2016, or in cases where SCF notices have not been issued for children born prior to 1 January 2016.
3.216     DFAT is aware of a range of measures used in Fujian to secure payment of SCF, 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 SCFs 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. These restrictions are indicative of punitive measures possible under the SCS (see The Social Credit System).
3.217     In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System,’ directing local authorities to not treat the payment of SCF as a prerequisite for accepting an application for a hukou (see Hukou (household registration) system). Children whose unauthorised births might previously have gone unregistered are subsequently able to apply for a hukou irrespective of whether the relevant SCF has been paid.
3.218     In Fujian, authorities no longer distinguish between urban and rural hukou – all households are now registered as ‘residents’ and are entitled to access available social services. Despite this, local authorities have significant flexibility in setting stricter (or looser) restrictions in order to control population flows to urban areas and therefore limit associated pressure on social services (which are often of a higher quality in urban areas, thereby exacerbating inequality between urban and rural residents). This flexibility has also created a greater potential for corruption.
3.219     Under the system, children may be registered under the hukou of either parent, who must normally supply supporting documentation including the child’s birth certificate, household registration books of the parents, identification cards of the parents and the marriage certificate of the parents. If the child is born out-of-policy, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.
3.220     …
3.221     The 2016 Fujian Regulations are consistent with the Population Law (see assessments under People affected by Family Planning Policies); however, DFAT assesses application remains at the discretion of local Fujian officials and is therefore inconsistent. Due to relaxation of national family planning policies, and a desire to increase the national birth rate, DFAT assesses officials in Fujian have more flexibility to decide not to charge, or arrange a payment plan for, SCFs to reduce financial pressures on those with unauthorised or out-of- policy children. DFAT assesses children born in Fujian whose unauthorised birth might previously have gone unregistered are able to apply for a hukou irrespective of whether the relevant SCF has been paid, and are not blocked from accessing social health and education benefits.
DFAT has also noted that the changes implemented by the Fujian Public Security Department:
means all Fujian babies, including abandoned babies or those born "out of plan" or out of wedlock, should now have access to household registration, whether or not they pay the fee.[12]
[12] China CIR CI160219094800679 Fujian registration of children and out of plan births 24 March 2016, CX0562B6F11.

While country information notes that children of unmarried mothers in China may have difficulties registering their children this would appear to arise from past difficulties in obtaining birth registration in China. Single women without a valid reproduction certificate were once denied birth certificates for their children. A birth certificate is necessary before a hukou can be issued.[13] An article in The Economist[14] noted that until January 2016 it was impossible to get birth certificates and that many unwed mothers left China in order to have their children so that they have foreign proof of birth. It is now easier to get birth certificates for children born in China as long as the parents can prove they are both related to the child.
[13] Chinas two child policy: Single mothers left out, 2 November 2015,
[14] ‘Pariahs’, The Economist, 27 February 2016, >
With respect to children born overseas, country information suggests that foreign birth certificates can be used for registration purposes[15]:
E. Can a child born out of policy in Australia or elsewhere use the birth certificate relating to the birth to obtain a hukou for the child upon return to China?
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. Children of Chinese nationals studying or working abroad remain specifically exempted from recognition as overseas Chinese.
Claims the first applicant has breached family planning laws by having children out of wedlock and will be forced to pay social compensation fees which he cannot afford or jailed
[15] Research Response prepared by DFAT in May 2018
The first and second applicants gave evidence before the Tribunal. They discussed the claims made on behalf of all the applicants.
Essentially, with respect to Chinese family planning laws, the applicants claimed, including on behalf of the third applicant, that the first and second applicants would be forced to pay a social compensation fee which will be very high because they are the unmarried parents of the third applicant and the first applicant has three other children – two daughters from a previous de facto relationship who live with his parents in China and another son with the second applicant born in 2019 in Australia. They claimed they would be unable to pay these fees and as such the third applicant would not be able to obtain household registration until the fee was paid. If the third applicant cannot obtain household registration he will be an unregistered child and will not be entitled to public education, and will be blocked from basic social services such as healthcare.
The first applicant claims that if he and his current partner, the second applicant, and their children returned to China they would be subjected to significant harm. Firstly because the officials from the birth control office and the police from the local police station have never stopped harassing his family in China. The first applicant claims he is a person who has been regarded by the local government as seriously violating birth control policies and regulations, not only because he had an illegal de facto relationship with his former partner under the marriage age but because he had two daughters out of wedlock. The first applicant claims that the police have many times told his mother that he should be subjected to severe punishment. He did not offer any evidence to corroborate these claims.
Secondly the first applicant claimed in his original statutory declaration dated 30 June 2014 that the authorities in China have “always forced my family to pay a fine (a.k.a. ‘social compensation’) for my two daughters born out of wedlock”. The applicant claims that his family has large debts and it is impossible for them to pay fines for his daughters and any further fines which would be payable with respect to his sons. He claims that his father’s mental abnormality renders him unable to work normally and that his health has “become worse and worse since then”:
Therefore it would be definitely impossible my family to have one sent to pay any fine for my two daughters. As a result, my two daughters have become ‘”black children” without their household registers (hukou). They are not allowed to go to the public school or to access public health services. Furthermore, both of my two daughters are subject to serious discriminations. They are unable to grow up healthily because always stressful and depressed.
The first applicant claims that if the applicants are returned to China they will be forced to pay a “huge fine”. Because they are unable to afford any fines his sons would become “black children” like his daughters.
The first applicant further claims that the second applicant’s family know of his family situation and they have disowned her for staying together with him and for having children with him. Further the second applicant’s father died in May 2013 and her family is in a difficult financial position as a result and cannot assist them.
The first applicant did not raise any other concerns regarding the enforcement of family planning policies in China.
The first applicant’s evidence with respect to the circumstances of his daughters’ births and hukou registration was, in the Tribunal’s view, vague and inconsistent. He claimed in his original statutory declaration that when his previous partner became pregnant the couple moved to Hubei Province as they thought no one would know their actual ages or about their relationship in the new area. His eldest daughter was born in Hubei Province in [date]. He said that they were concerned following the birth that they would come to the attention of the officials of the birth control office because they had had a baby and were unmarried. They were also having difficulty caring for the child because they were inexperienced. For these reasons his partner returned to Fujian in November 2007 with the baby to live with his mother. He said that in order to avoid troubles with the “birth control” office his mother kept the truth from the public and claimed that his partner was a friend. In January 2008 the first applicant also returned home to his parents’ house and his mother began to plan a trip for him to come to Australia through [Ms B].
The first applicant submitted a medical certificate of birth for his daughter including an official translation. The birth certificate records the birth of his daughter in Hubei Province in [date]. The certificate lists the first applicant’s former partner including her identification card number and her age. The certificate also lists the first applicant by his name, identification card number and his age. The first applicant’s daughter bears his last name. The certificate was issued [in] October 2007.
Country information indicates that under Chinese law there is a nationwide official birth certificate system which is administered by the Ministry for Public Health which issues birth certificates through the hospital facility where the child is born. Parents must register births in in the police station of the hukou.[16]
[16] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p.5.47-5.50.

100. The Tribunal regards the fact that the first applicant’s daughter was issued a birth certificate bearing both his name, his age and his identification number and those of his partner is inconsistent with his claim that they were living in Hubei Province in the hope that their age and marital status would not be identified by the authorities. The Tribunal finds that the registration of the birth and the issuing of the birth certificate with the details included would have identified the first applicant’s daughter as his child from birth. This would also have enabled Chinese authorities to identify the applicant and his former partner’s ages at birth and their marital status as they would not have been registered as married with Chinese authorities. In such circumstances the Tribunal does not accept the first applicant’s claim that he and his former partner were living in fear of the authorities identifying them. The Tribunal finds that they moved back to live with the first applicant’s mother to assist with the care of the baby, the other reason identified by the first applicant for his former partner returning to Fujian.
101. On return to Fujian arrangements were made for the first applicant to travel to Australia. He obtained his passport in [2008] and his student visa in May 2008. He arrived in Australia in June 2008 on the student visa. As discussed further below, the applicant indicated he left China on his own passport and had no issues with authorities when leaving China.
102. Shortly after he arrived in Australia he heard that his former partner was pregnant again and [his] second daughter was born. The first applicant claimed that his former partner travelled to another town to give birth to avoid the attention of authorities. This was organised again with the assistance of [Ms B]. He said his mother encouraged his former partner to move to other places with the newborn to avoid the attention of the birth control office however she indicated she had nowhere else to go. Her parents opposed the relationship and did not accept the children. He claimed that later his former partner and the newborn child came to the attention of the birth control office and:
many times went to my home, urging (his former partner) or my mother or my grandparents to explain the newborn child. But, if we told the truth, we would be punished severely.

103. In April 2009 his former partner left his mother’s home and did not return. In September 2009 she contacted his mother to say she was in [Country] and did not intend to go back to China. They have not heard anything from her since.
104. A medical birth certificate and official translation was submitted by the first applicant for his second daughter. The birth certificate records the birth of his daughter in Fujian Province in February 2009. The certificate lists the first applicant’s former partner including her name, identification card number and her age. The certificate also lists the first applicant by his name, identification card number and his age. The first applicant’s daughter bears his last name. The certificate was issued [in] February 2009.
105. The Tribunal questioned the first applicant about how it was that his children were able to be hidden from the birth control office as claimed when both their births had been registered in both his and his wife’s name and the children bore his last name. In response he said that his last name was very common and his mum made an excuse at the time.
106. The Tribunal queried whether he had any difficulty obtaining birth certificates given that he and his partner were unmarried. He said he got them from the hospital. When his second daughter was born other people had helped. He confirmed his former partner had not been refused the issuing of birth certificates because she was unmarried.
107. Again, the Tribunal regards the fact that the first applicant’s second daughter was issued a birth certificate bearing both his name, his age and his identification number and those of his partner is inconsistent with his claim that they were living in fear that the child’s birth would be identified to authorities. The Tribunal finds that the registration of the birth and the issuing of the birth certificate with the details included would have identified the applicant’s daughter as his child from birth. This would also have enabled Chinese authorities to identify the applicant and his former partner’s marital status as they would not have been registered as married with Chinese authorities. In such circumstances the Tribunal does not accept the applicant’s claim that he and his former partner were living in fear of the authorities identifying them and their daughters.
108. The Tribunal discussed the current country information relevant to obtaining a hukou for children who are born outside the current family planning regulations. The Tribunal put to the applicant that according to the national law, children now have a right to household registration and access to health and education services, regardless of the payment of social compensation fees.[17] Some provinces, including Fujian, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for household registration.[18] Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for household registration irrespective of whether their parents have paid the relevant fees.[19]
[17] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p.54-55; see also ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, p.30.
[18] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p.54-55; see also ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, p.30.
[19] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p.54-55; see also ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, p.30.
109. The Tribunal acknowledges that in practice, implementation of these laws and regulations varies in different locations.[20] The third applicant’s parents are both from Fujian Province and, as noted above, 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) and that children are now able to apply for a hukou irrespective of whether relevant social compensation fees have been paid.[21]
[20] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p.53; see also ‘DFAT Country Information Report: People’s Republic of China’, DFAT, 21 December 2017, p.30.
[21] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p.54 at 3.217; see also DFAT, ‘Thematic report on Fujian Province, People’s Republic of China’, 16 December 2016, p.14.
110. In response to the 2019 Report the applicant stated in a statutory declaration dated 18 October 2019:
I still hold my belief that I will undoubtedly be subjected to unfair treatment and be coerced into paying excessive amounts of social compensation fee. I’ve already been targeted by the Chinese authorities before in [named] Town when it came to paying the social compensation fee for my two daughters. The authorities discriminated against my mother because of my family so status as peasants from the countryside and abuse their power to charging an extremely high social compensation fee for my two daughters. They unreasonably justified the mistreatment with the misinformed assumption that I was making a lot of money in Australia and I were sending it back to my mother. I have no reasons to believe I will not be subjected to the same level of targeted harassment from the Chinese authorities if I return to China – especially now that I have two sons born in Australia whom will both experience the same mistreatment as my two daughters had.

111. The first applicant told the Tribunal that his daughters were registered for hukou in 2016 and that they have access to school and public health services as a result. He said he didn’t pay compensation for the two children in China and his children in Australia. He says that if he returned to China with the third applicant he would have to pay 80,000 to 100,000 RMB for the compensation. He said he received this information from his mother but he didn’t know where his mother got the information from. He then said that in his home town this was the official amount. He said that his village was far away from central government and he thought the local police and the local government set the amount for compensation. He said the authorities had visited his home in an attempt to get compensation fees for his daughters and had last visited in December 2017. He said that he was not able to go back to China because of the family planning issue because you could be put in jail for that issue. The Tribunal indicated the country information did not suggest that people were jailed for breaching family planning laws. The applicant indicated that he didn’t understand why the Tribunal would not believe the people wouldn’t be jailed or beaten. He said that China was a dark country but on the surface everything was okay.
112. The first applicant gave inconsistent evidence as to whether any fees or fines have been paid in relation to his daughters particularly in the context of their registration for hukou. Initially he said he hadn’t paid any fines in relation to his children but later told the Tribunal that his daughters were registered “but already forgo a great amount of money for us”. He said that he didn’t understand the amended family planning laws and he was afraid of going back to China because he would lose his life.
113. The Tribunal put to the first applicant that country information suggests the local officials have considerable flexibility in how they apply the fees including having the power to exempt fees and allow fees to be paid in instalments, depending on the circumstances of the parents. The applicant replied that in his village despite all the information you can get from online the police is the boss. He said that when he was trying to register the hukou of his daughters they were asked for money for all kinds of reasons aside from legitimate compensation. He said his mother borrowed money and paid the money that was requested. He said he paid 31,000 yuan. The Tribunal asked whether these were social compensation fees and the applicant replied that the police said that they were the fees but the amount was too high.
114. He said that when he tried to register and present the birth certificates the authorities said that the certificates were not right. He said he didn’t know why. He then said he had to use the original certificates because he was asked to get the original certificates. He said he got these after he paid 500 yuan. He didn’t remember who the money was paid to as he was not home but the money was given to staff at a counter. The Tribunal asked how with the applicant not himself undertaking this process he was able to say that these weren’t merely fees that applied for the obtaining of birth certificates or social compensation fees. He said because it was 31,000 yuan for the registration. He was asked whether it was possible that any of that was a social compensation fee and indicated that it was penalties and he hadn’t paid the penalties yet. He said that he didn’t think it was the hukou registration because after that they came to the house seeking money. He was asked when they came to the house and he said “it really depends, sometimes they came, [date] August 2017”. He said that no penalties had been paid.
115. The Tribunal found the first applicant’s evidence in relation to the registration of his daughters in the payment of social compensation fees to be vague and inconsistent. While he claimed that the 31,000 yuan he claimed he paid in the context of his daughters’ hukou registration to have been too high to have been the payment of the social compensation fees, the figures are broadly consistent with the sorts of amounts imposed for social compensation fees particularly bearing in mind country information that there is a discretion as to how much can be charged. Indeed the 31,000 would be on the lower end of that amount which would be consistent with the applicant’s claims that his family live in a rural and lower socio-economic area of China.

146. The Tribunal also finds that any children of the first and second applicants will be able to obtain hukou registration if they travel to China with their parents, irrespective of the circumstances of their birth and whether their parents are able to pay any social compensation fee for having children in breach of the family planning regulations.
147. The Tribunal finds that the third applicant does not face a real risk of serious or significant harm on return to China on the basis he would not be able to be registered for hukou and would be denied access to services unless social compensation fees were paid, because he would not be able to be registered for hukou as a child born overseas or because he does not speak fluent Chinese.
Will the first and second applicants face discrimination or social stigma due to their unmarried status? Will the third applicant face discrimination or social stigma due to his status as an “out-of-plan” or “black child”?
148. Whilst no claim has been specifically made that the first and second applicants will face discrimination or social stigma as unwed parents or that the third applicant would face discrimination or social stigma as the child of unwed parents or as a “black child”, the Tribunal has considered these as claims which might arise from the material before it.
149. The first applicant claimed in his original statutory declaration of June 2014 that the second applicant had been “completely disowned” by her family for staying with him and having a child with him. Her family had never stepped into his family’s difficulties and her father had died in May 2013 so they are unable to provide any help or support.
150. However, the second applicant told the Tribunal she was in contact with her mother “occasionally”. She was able to provide details of her family’s circumstances to the Tribunal. The Tribunal finds her evidence was not consistent with the first applicant’s claim she had been completely disowned by her family.
151. The Tribunal asked the second applicant if she had any concerns about returning to China as an unwed mother. She said that she thought people might gossip about her situation.
152. The Tribunal accepts that there is still some social stigma attached to being an unmarried mother or a child born out of wedlock in China. However, as China is seeking to boost its birth rate, attitudes are starting to change.
153. A recent article in Bloomberg News[27] noted:
[27] ‘Baby Shortage Prompts China’s Unwed Mothers to Fight for Change’, Bloomberg News, ‎29‎ ‎October‎ ‎2019, <
For generations, a Chinese woman who gave birth out of wedlock was shunned by society and discriminated against by authorities. Now, as the Communist Party seeks to boost a slowing birthrate, that is starting to change.
Even though authorities finally scrapped the one-child policy in 2016, along with rules requiring a marriage certificate for hukous, implementation has been mixed across China’s 31 provinces. In Guangdong, where Yue lives, provincial authorities have removed fines that were levied against unwed mothers for flouting the nation’s “family planning” laws.
“To be honest, the looser policies really gave me a lot more courage to have the baby,” Yue wrote in the WeChat account named Diverse Family Network, which advocates reproductive rights and has more than 2,000 followers. “It would not have been possible a year earlier. The penalties would have cost tens of thousands of yuan!”
Zhan Yingying, who runs the WeChat account, said more than 100 unwed mothers from a dozen of China’s most developed cities told her they hadn’t been harassed by the authorities over fines or encountered problems getting hukous for their children.
The societal shift is underway as the Communist Party gets desperate for newborns. The number of babies born in the country dropped to the lowest level in almost 60 years in 2018, signaling the looser two-child policy has done little to reverse its slowing birthrate, and worsening the outlook for growth in the world’s second-largest economy.

154. A similar report notes:
Attitudes toward single parents are changing in China, as they are in the rest of the world. In a survey released in 2016 of about 2,800 Chinese by three NGOs including the Rainbow Lawyers Network, more than 86 per cent of respondents said it was acceptable for a single woman to have a child, and 75 per cent said it was acceptable for lesbian couples to have children.[28]
[28] ‘Baby shortage’, 29 October 2019 < The first applicant gave evidence that he is from a rural area of Fujian Province which has conventional attitudes to marriage and children. The Tribunal accepts it is possible that the first and second applicants may be embarrassed by their status as unwed parents and may face some mild social stigma, such as being the subject of gossip, if they return. However, the Tribunal does not accept that embarrassment and mild social stigma amount to persecution.
Based on credible country information the Tribunal accepts the first and second applicants may face some embarrassment and mild social stigma associated with being unmarried parents.
157. Further, to the extent the applicants would face any mild social stigma or increased penalty fees associated with being unmarried, the Tribunal finds that the first and second applicants have considered marrying and it would be open to them to do so should they choose to at some time in the future. The Tribunal notes in this regard that they did not express any reason for not marrying other than that they currently lacked the financial means to do so or thought their visa status would not permit it.
158. The Tribunal finds the first and second applicants do not face a real risk of serious harm on return to China or in the reasonably foreseeable future on the basis of being unmarried parents.
159. The Tribunal accepts it is possible that the third applicant may be embarrassed by his status as a child of unwed parents or on account of being an “out-of-plan” or “black child” and may face some mild social stigma, such as being the subject of gossip, if he returns to China. However, the Tribunal does not accept that embarrassment and mild social stigma amount to persecution in his circumstances either. The Tribunal does not accept he will face a real chance of social discrimination amounting to serious harm.
160. The Tribunal notes that the third applicant has family support in China including siblings and extended family. In addition the Tribunal notes that the third applicant will be in the same situation as his sisters who were also born to unwed parents. The Tribunal does not accept based on the evidence including the country information that any social stigma faced by the third applicant would amount to serious or significant harm. Further, in the Tribunal’s view the delinking of hukou registration from the payment of social compensation fees and the Chinese authorities to register children who may previously have been denied access to services on the basis of the circumstances of their birth evidence a commitment to the greater social inclusion of “out-of-plan” or “black children” in China.
161. The Tribunal finds the third applicant does not face a real risk of serious harm or significant harm on return to China or in the reasonably foreseeable future on the basis of being an “out-of-plan” or “black child” or because his parents are unmarried.
Claims relating to debts in China
The first applicant has debts in China which have been growing since 2013 and he is unable to pay the debts
162. The 2019 Report provides with respect to loan shark practices in China:
Loan sharks
3.236 There is no comprehensive data available on short term cash lending (including online lending), as illegitimate lenders (otherwise known as loan sharks) operate illegally. In 2017, the supreme People’s Court ruled that courts could only accept cases involving debt collectors seeking repayment of their loans if the interest rate charge did not exceed 24 per cent. Media reports claim that, as a result of the ruling, creditors have been forced to find other ways to get their money back if the rate is higher, and reportedly often resort to physical violence and threats against borrowers. Media reports also claim the loan sharks predominantly operate online and are increasingly designing debt traps disguised as legitimate lending. In May 2019, media reported that Shanghai authorities charge 316 criminal gangs, detained more than 1770 suspects and retreat more than our RMB 1.2 billion in loan shark victim losses during October 2019 in a crackdown on loan shark activity.
3.237 DFAT considers these claims plausible, but is unable to verify them, and has no further information on the prevalence of loan sharks or alleged maltreatment of borrowers in China.
163. In relation to the 2019 Report the first applicant stated in his statutory declaration dated 18 October 2019:
My experiences align with the information reported in the section. My mother has seriously been threatened by a loan shark called [Mr C] who is the big brother of the black society he has never stop making troubles with my mother, and my mother is continually under serious threats. What is even worse my mother is that [Mr C] has a cousin who is a police and can help cover up [Mr C]’s crimes. Obviously, if I, my partner and our two sons have returned to China, all of us will definitely suffer from significant harm by the “black society” and the PRC authorities will never protect us. Again, although this is not reported in the DFAT report, it is another common trait for these violent loan sharks have connections to authorities than protect their evil doings.
164. The Tribunal has significant concerns about the credibility of the first applicant’s claims that he owes money to debt collectors.
The Tribunal was concerned that the first applicant’s evidence about the debts he claims that his family owes in China was vague and his claims the family had suffered threats was unsupported by corroborative evidence. The first applicant added significant detail overtime to the claimed threats due to the family’s debts. The Tribunal raised a concern that the claims regarding threats to the family because of the debts were not raised in the original application which was after the time it was claimed the money was first borrowed. The first applicant said this was because the problem had gotten worse over time.
No documentary evidence in support of the claimed debt was submitted. The first applicant said this was because the loan operator held any documents.
167. At the first hearing the first applicant told the Tribunal that in 2013 his [brother] got [medical condition] and the family borrowed [Amount 1] RMB from a relative for health costs. No evidence of the brother’s health condition was provided. That relative got injured and they had to repay money to him so his mother borrowed money from [Mr C], a company which loaned money at high interest rates. He said because they have been harassing his family, his mum has been paying interest on the loan. He suspected she is selling her blood to do so. When the Tribunal asked why he suspected this he said because she was getting skinnier. He said loan sharks told his mum if we didn’t pay part of the money they threatened to take his two daughters and sell their organs. He also said they had poured red paint on his family’s door. The claims regarding the threats to kidnap his daughters, the red paint on his mother’s door and his mother selling her blood were not raised in the first applicant’s statutory declaration of 17 October 2018.
168. The second applicant indicated the first applicant’s mother had borrowed money from relatives and then from a money loan person to repay the relatives. She said they had borrowed [Amount 1] RMB from a ‘gang’ for this purpose. When asked if they had had issues with the gang people in China she said ‘not so far’.
169. When asked whether these threats had been reported to authorities, the first applicant indicated his mother reported it to the police but the police told her, as she had borrowed the money she should repay it. A neighbour told his mother the loan shark had a relative working in the police and his uncle working in city council. The Tribunal asked if he was sending money to assist his mother but he said he was living a poor life in Australia. The Tribunal asked why he would remain in Australia for 10 years if his circumstances were so poor and he said if he returns he will lose his life so he has no choice.
170. The Tribunal asked why he thought he would lose his life in China and the first applicant said because while he was away his mother could make excuses for not paying the debt but if he returned they would kill him and take his mum and daughters and sell their organs. The Tribunal asked how killing him would get the loan sharks their money back. He said if they want to kill you they kill you. The Tribunal asked whether his mother and daughters would be safer if he returned given he feared they may be kidnapped or harmed due to the debt. He said if he went back he couldn’t do anything because he couldn’t pay the debt. He said he couldn’t go back to China because of the family planning issue and the fact he could be jailed.
171. At the second hearing the first applicant claimed his mother began taking out loans in 2013 when his brother was diagnosed with [medical condition]. He said by 2017 she rang to tell him she had borrowed [amount range] RMB.
172. The Tribunal regarded that the first applicant added to his claims of family debt in China over time. Though the debt was mentioned in the original application it was in the context of paying social compensation fees and not as a basis for a fear of harm from debt collectors. Further, in his statutory declaration of October 2018 the first applicant did not mention his mother having been threatened or selling her blood. He did not mention his children being threatened with kidnapping and selling their organs. The first applicant did not mention the family home in China being doused in red paint in his evidence to the Tribunal. The second applicant did not mention any threats of harm or harm from debt collectors. The Tribunal regards that this casts doubt on the credibility of the first applicant’s claims that his family have suffered harm. Further, the Tribunal does not accept that authorities refused to take action with respect to threats against the family due to the debt collectors with police or family members in city council, or for any other reason.
173. For all the reasons outlined in this decision, the Tribunal has formed the view that the first applicant is not a credible witness and that he has fabricated his claims that the applicants are at risk of harm from debt collectors/creditors/loan sharks (hereafter debt collectors) in China. The Tribunal does not accept that the first applicant’s mother borrowed [Amount 1] RMB from a loan shark or that the first applicant’s mother has a huge debt as claimed. The Tribunal also does not accept that debt collectors have been hounding the first applicant’s mother or other family members in China for money or that his mother has sold her blood in order to pay debt collectors in China. The Tribunal does not accept that debt collectors have threatened to kidnap his mother or daughters and sell their organs or that debt collectors have poured red paint on his mother’s door.
174. The Tribunal does not accept that debt collectors have threatened to harm the first applicant or members of his family if they return to China without repaying debts owed in China. The Tribunal does not accept that the first applicant’s parents have outstanding debts to debt collectors in China. It follows that the Tribunal does not accept that debt collectors have ever made any threats against the first applicant or his family members or that debt collectors would cause any harm to the first applicant or his family (including by kidnapping them).
Additional issues – delay in seeking protection and student visa application
175. The first applicant came to Australia in 2008, after claimed problems in China, yet he did not seek protection until 2014, which causes doubt as to the extent of his claimed fears in China. At the hearing the first applicant told the Tribunal he didn’t understand the provisions regarding the protection visa and thought he wouldn’t be granted one. He said people told him the government would refuse him so he didn’t apply. The second applicant said she had stayed when her student visa expired because she wanted to “stay and make some money”.
176. The Tribunal is not persuaded by this explanation. The applicants had ample opportunity to seek advice and assistance and the Tribunal regards that the first applicant would have done so in a more timely fashion if he had left China in fear. The Tribunal finds the first applicant’s failure to apply for protection earlier is an indication that he was not fearful of serious harm when he arrived in Australia.
177. The Tribunal invited the applicant to comment on the findings in the delegate’s decision regarding the information he provided with his student visa application. The delegate found that the first applicant provided false information regarding his parents’ income and that when he travelled to Australia he had no intention of studying and solely came to Australia to earn more money than he could in China. When asked whether he had any explanation as to why he provided false information and documents in his student visa application the applicant said he didn’t see the documents, he just paid the agent who was preparing the application.
178. The Tribunal pointed out that providing false documents in the context of a visa application may reflect poorly on his credibility. Further, a disregard or lack of concern for the information submitted on his behalf might suggest a willingness to provide false information to manipulate the visa system to his advantage and that also may reflect poorly on his credibility. The first applicant said there were many cheats in China and he was just a victim. He said he didn’t see the documents he just signed the application and he was only [age range] years old. The applicant said it was a package deal. He was promised he could legitimately come to Australia and study and work: “As long as you pay the money you can come to Australia.” When asked why he only studied one day on a student visa he said it was because he didn’t bring money with him. He said he didn’t try to deceive the Australian government, he was a victim. He said he never saw the documents and was living a “miserable” life in Australia.
179. The delegate’s decision also mentions that while the first and second applicants claimed to lack resources they have travelled in Australia including interstate and on [activity] trips, have a car, and pay rent. The delegate considered this was not consistent with the applicants’ claims to be poor and have no financial means to pay social compensation fees. The Tribunal also noted for the first applicant that he had told the Tribunal they pay for private schooling for the third applicant. The first applicant said his son had always been in private school because he doesn’t have a visa. He said he had never travelled and then said he had travelled “probably once to Melbourne”. The Tribunal asked where he went to see his migration agent and he said Sydney. The delegate’s decision noted the applicants had travelled to [Towns]. The first applicant was asked if he had ever travelled in Western Australia and he said “no, never”.

180. The first applicant’s responses to the matters raised in the delegate’s decision added to the Tribunal’s concern that the applicant was not a witness of truth. The Tribunal did not accept the applicant’s excuse for having provided false information regarding his family’s income on his student visa application. In the Tribunal’s view it reflects poorly on the first applicant’s credibility that he knowingly submitted a document, the contents of which he knew or ought to have known, was materially incorrect, to both the Department and the Tribunal, in connection with an application for a visa in this country.
181. This is not only contrary to law, but contrary to reasonable expectations for those making visa applications in Australia.
182. The Tribunal also notes that, in addition to submitting incorrect or false information with respect to a previous visa, the applicant provided incorrect information to the Tribunal regarding his personal circumstances. When asked at the first hearing where he gave sworn testimony he said that he lived at [Suburb 1]. Following the hearing information was received suggesting this was not correct. This was put to the applicant in a letter pursuant to s.424A of the Act.
183. In a statutory declaration dated 11 March 2019 the first applicant responded to that information. He acknowledged the information regarding the certificates but did not make submissions with respect to the release of the information. With respect to the adverse information he indicated that the applicants had previously written they resided at the address provided to the Tribunal in [Suburb 1] but had moved then to an address in [Suburb 2]. The statutory declaration indicated that the applicants had then moved 3-4 weeks prior to another address in [Suburb 3]. The statutory declaration denied information regarding employment history suggested in the adverse information.
184. The statutory declaration did not provide any explanation for why the applicant had provided incorrect or misleading information to the Tribunal about his address at the hearing.
185. When asked at the second hearing where he had been living prior to [Suburb 3] he said he couldn’t remember the name of the suburb and he couldn’t remember when he moved from [Suburb 1]. When asked by the Tribunal whether this was in the beginning, middle or end of the year the first applicant said he thought it was January or February but couldn’t remember because it was kind of temporary. He said he didn’t know whether they had a lease. When the Tribunal put it to him that he lived there for almost a year he agreed that they did. He said he forgot to change the address because they planned to move. When the Tribunal asked why he told the Tribunal at the hearing that he was living at [Suburb 1], he said because he thought it would just be temporary. The Tribunal notes that the hearing was held in November 2018.
186. When the Tribunal pointed out to him that the fact that he had provided incorrect information in sworn testimony might reflect poorly on his credibility as a witness he said he wasn’t thinking and that he had just used the registered address.
187. The Tribunal found the first applicant’s explanation for having provided incorrect information in sworn testimony to be unconvincing and unsatisfactory. In the Tribunal’s view the fact that the applicant had lied about something as straightforward as his residential address reflected poorly on his credibility as a witness.
PROTECTION ASSESSMENT
Do the applicants meet the refugee criterion?
The first and second applicants
188. Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that there is a real chance that the first and second applicants face harm for reasons of their membership of a particular social group of “unwed parents” or “parents of out-of-plan” or “black children” or due to an inability to pay social compensation fees with respect to any of their children deemed by Chinese authorities to have been born outside of Chinese family planning laws if they return to China now or in the reasonably foreseeable future.
189. Further, the Tribunal does not accept that there is a real chance that the first applicant and/or his family, if they are returned to China, would be persecuted due to debts owed to loan sharks.
190. The Tribunal is not satisfied that the first and second applicants have a well-founded fear of persecution for any Convention-related reason.
The third applicant
191. Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that there is a real chance that the third applicant will face harm for reasons of his membership of a particular social group of “out-of-plan” or “black children” if he returns to China now or in the reasonably foreseeable future.
192. The Tribunal does not accept that the third applicant faces a real chance of serious harm for reasons of being an “out of plan” or “black child”, or for any other Convention-related reason now or in the reasonably foreseeable future on return to China.
193. The Tribunal is not satisfied that the third applicant has a well-founded fear of persecution for any Convention-related reason.
Do the applicants meet the complementary protection criterion?
194. The Tribunal has considered whether on the evidence before it, there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
195. The Tribunal accepts that the first and second applicants are unmarried and have two children together. The Tribunal also accepts that the first applicant has a previous unmarried relationship which commenced when he was under the marriageable age and that he has two children from this relationship living in China. The Tribunal also accepts that the third applicant and his two older half-sisters have been born outside the family planning regulations applicable in China.
196. For the reasons outlined above, the Tribunal does not accept that the first applicant or any of his family members owe debts to loan sharks in China. The Tribunal also does not accept the first applicant or any of his family have received any threats with respect to the payment of any such loans.
197. While the Tribunal accepts that the first and second applicants may have to pay a social compensation fee for reasons of having a child or children ‘out of plan’ it does not accept that the applicants would be subject to cruel or inhuman treatment or punishment or degrading treatment or punishment as a result of the imposition of such a fee. The Tribunal does not accept that they will be unable to register their children for hukou. The Tribunal has found that they will be able to apply for the children’s household registration on return to China and that they would have access to educational, health and other benefits available to Chinese nationals. The Tribunal does not accept that the imposition of social compensation fees would cause particular hardship to the applicants such that it may amount to mental suffering. Accordingly, the Tribunal finds that the applicants would not face a real risk of significant harm arising from having to pay a social compensation fee for reasons of having children ‘out of plan’ and/or due to the inability to register their children with Chinese authorities.
198. The Tribunal does not accept that the third applicant would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment as a result of being a child born ‘out of plan’ or because he does not speak fluent Chinese.
199. There is no evidence, and the Tribunal does not accept that the applicants would face a real risk of the death penalty, arbitrary deprivation of life or torture if they return to China.
200. Having considered the applicants’ circumstances singularly and on a cumulative basis and for all the reasons set out above the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of either of the applicants being removed from Australia to China there is a real risk that they will face significant harm.
Conclusion
201. For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
202. The Tribunal affirms the decision not to grant the applicants protection visas.
Simone Burford
Member