1708705 (Refugee)

[2023] AATA 3490

1708705 (Refugee) [2023] AATA 3490 (27 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  [Applicant 1]

REPRESENTATIVE:  Mr Chang Liu (MARN: 1281423)

CASE NUMBER:  1708705

HOME AFFAIRS REFERENCE(S):          [File Number]

COUNTRY OF REFERENCE:                   China

MEMBER:Deputy President J.L Redfern PSM

DATE:27 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2023 at 12:57pm

CATCHWORDS

REFUGEE – Protection (Class XA) (Subclass 866) visa – China – Fujian province –Applicant child born in Australia out of wedlock in breach of China’s family planning policies – Second of two children born to unmarried parents – Black child – Member of a particular social group – Access to household (hukou) registration – Whether subject to social compensation fee – Decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 12(1)(b)
Migration Act 1958 (Cth), ss 5, 32, 36, 36(2)(a), 36(2)(aa), 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

1800867 (Refugee) [2022] AATA 2525

AX (family planning scheme) China CG [2012] UKUT 00097 (IAC)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a minor. She was born in Australia in July 2016 and her parents are citizens of China from the Fujian province. They arrived in Australia, separately, holding student visas and commenced a relationship in 2013. The applicant’s father arrived in Australia in 2006 and the applicant’s mother arrived in Australia in 2011. They have both resided in Australia since this time and have not returned to China. Their first child, a son, was born in January 2014. The applicant’s paternal grandmother made an application for a protection visa, which was refused in 2008. She applied for a second protection visa in 2014 and, relevantly, the applicant’s parents and brother were included as dependents in this application. The application was refused and subsequent applications for judicial review were dismissed. The applicant’s parents and brother are thereby precluded from making subsequent applications for a protection visa.

3. On 17 November 2016, the applicant’s parents made an application on her behalf for a protection visa. The basis of the claim was that the applicant’s parents were not married at the time of her birth and that if she returned to China with her parents, she would be denied a birth registration and a household registration permit. She would become a ‘black child’ and would be unable to obtain admission to schools, government services or access to affordable health care. Her parents would be unable to pay the social compensation fee that would be levied by the government, she would be prohibited from travelling outside the Fujian province and would be unable to obtain employment or a marriage licence. As such, it was claimed that the applicant would face a real chance of persecution. The delegate refused to grant the visa on the basis that he was not satisfied the applicant’s parents would be charged a social compensation fee or that Chinese authorities would refuse to register the applicant.

4. The applicant’s parents appeared before the Tribunal on 8 August 2023 and 11 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. They provided post-hearing submissions and evidence on 14 August 2023.

5. The facts in this case are not in dispute and the critical issue is whether the applicant would be able to obtain registration in China and whether her parents would be levied with a social compensation fee such that it would have the potential to cause her harm sufficient to enliven Australia’s protection obligations. I requested further country information directed to this issue and provided this information to the applicant’s parents on 28 September 2023.

6. Whilst the applicant had appointed a migration agent, Mr Liu, he did not provide any written submissions or appear before the Tribunal in relation to the review. The applicant’s parents gave evidence on her behalf at the hearing.  

   CRITERIA FOR A PROTECTION VISA

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

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

10. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs to the extent that they are relevant to the decision under consideration. I have also had regard to country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes and country information from other sources relevant to the issues that require determination. The country information considered is referenced later in my reasons. The information was provided to the applicant through her parents, and they were invited to provide submissions, evidence and references to any other country information that they considered would be relevant to the applicant’s claims.

    OUTLINE OF CLAIMS AND EVIDENCE

    Claims

12. The claims made by the applicant, as outlined in the application for protection, the interviews of her parents with the delegate and in the evidence given and submissions made by her parents during the hearing, are summarised as follows.

13. The applicant’s parents both come from Fujian province but did not know each other before they arrived in Australia. They met in Australia through a friend in December 2012 and came together as a couple in 2013. They have never married and have been together since this time. They have two children from their relationship, their eldest child, born in 2014, and their second child, the applicant, born in 2016.

14. The basis of the claim made on behalf of the applicant is that because she was born out of wedlock, she will not be able to be registered in China and therefore will not have access to important entitlements. This will cause her serious harm. It is further claimed that the applicant’s parents will be liable to pay significant social compensation fees if they return to China and they will not be able to do this. If they are unable to pay these fees, the family could be impacted and this will indirectly result in the applicant suffering serious harm. They are concerned that they will not be able to obtain a Chinese passport for the applicant as they have had difficulties in renewing travel documents for their eldest son. When asked about why they believe they would have to pay a social compensation fee, the applicant’s father gave evidence that he had heard from a friend that it would apply. He believed that the fee would be about AU$30,000-AU$40,000. This is based on information provided to him by his friend.

15. At the hearing, the applicant’s father raised a concern about whether the applicant would be persecuted because of the previously rejected application for protection by his mother, where he, the applicant’s mother and son were joined as dependents. The applicant’s father did not particularise the nature of this persecution and confirmed that this was not a claim being pursued and that the issue of concern related to the question of whether the applicant could be registered in China and whether he and the applicant’s mother would be liable to pay social compensation fees for having children out of wedlock. The applicant’s mother also raised concerns about the fact that she, her partner and their children had spent many years in Australia, had adapted to the Australian way of life and would find it difficult to adapt to living in China. While I accept that this may be the case, this does not of itself enliven Australia’s protection obligations to the applicant, either as a refugee or under the complementary protection grounds.

16. In summary, the applicant’s claims focus on the difficulties with registration and disadvantages the applicant would face in the event that a social compensation fee was payable by her parents. These claims for protection have been consistent since the time of the application and I accept that the claims made are based on genuine concerns about these matters.

17. While this was not expressly articulated by the applicant’s parents, I infer that this claim is based on the applicant’s membership of a particular social group, being children born out of wedlock who may thereby face serious harm and persecution as a result of this status. This characterisation may be further refined to comprise overseas children of Chinese nationals born out of wedlock who are not registered with authorities and who have not been born in accordance with relevant family planning laws and policies in China. The claims made in respect of liability for the social compensation fees do not directly relate to the applicant, but I infer that it is contended the failure or an inability to pay these fees may impact the applicant and jeopardise any rights or entitlements she may have by reason of her nationality or through registration with local authorities. Another possible issue identified is the impact of such a liability on the family and whether this financial impact enlivens Australia’s obligations to the applicant, either as a refugee or on complementary protection grounds. The question of whether the applicant would face societal discrimination was not raised at any stage but as this may be a claim available on the material, I have also considered this issue.

18. Given the facts in the case are not contentious, the question of whether Australia’s obligations to provide protection are enlivened will ultimately turn on the available country information and whether, given the circumstances of the applicant’s case, she is a refugee or whether protection is owed based on complementary protection grounds.

    Outline of evidence

19. At the hearing the applicant’s parents provided copies of their passports and, after the hearing, they provided copies of their registration documents for the hukou (household registration system), dated 9 April 2007, in respect of the applicant’s mother and dated 27 December 2016 in respect of the applicant’s father. The registration for the applicant’s mother recorded that her place of birth was Fuqing City, Fujian Province and that this was also her hometown. The document referred to her identification card number. An English translation of the identification card was provided recording the issuing authority as the Fuqing Public Security Bureau. The identification card was recorded as valid from 19 May 2011 to 19 May 2021. An English translation of the hukou registration form for the applicant’s father was provided. It also referred to his identification card and an English translation of this card was provided to the Tribunal, recording that it was valid from 21 October 2005 to 21 October 2015. The place of birth and hometown of the applicant’s father is recorded as Fuqing City, Fujian Province. The applicant’s parents both have valid passports that were apparently renewed during 2022. Her mother’s passport covers the period 20 September 2022 to 19 September 2032. The father’s passport is for the period 16 March 2022 to 15 March 2032.

20. The Tribunal was also provided with copies of correspondence with the Consulate General of the People’s Republic of China in Sydney. The documents provided comprise an email apparently from the applicant’s father dated 13 October 2020 to the Consulate headed ‘enquiry’, which stated as follows:

    My son’s travel document is going to expire soon. How to renew it? We are in Sydney. There is no option of Consulate General in Sydney for online booking. Should we directly visit the Consulate general? The flight will be on 4 November 2020. What is the best time to take a nucleir acid test?

21. The reply is dated 13 October 2020 and stated as follows:

    Regarding the matter of your son applying for Travel Document, please leave a phone number. Our staff will contact you. The call will be from a private number. Please pay attention and take the call.

    Regarding the nucleic acid test, please call the consular protection phone number…

22. The applicant’s father responded to this by email, saying ‘thank you’. He gave evidence at the hearing that he went to the Sydney office of the embassy to try to renew his son’s passport, but he was told that he could not do this. He said that he asked why and that the officials at the office gave no reason.

23. The applicant’s father said that neither he nor the applicant’s mother, nor their children, had relatives living in Australia. All their relatives were in China. Their parents lived in the Fujian Province, where they owned a house and worked in construction. His parents were in their 50s. His grandmother and his uncle on his mother’s side also lived in China. The applicant’s father said that he had completed a certificate IV qualification in Australia but was now working in construction. He had approximately $10,000 savings in the bank but had no other assets in Australia. He said that if the family returned to China they would live with his parents. He was not sure whether he could get a job. The applicant’s father said that he had hukou registration and while he had not undertaken a paternity test in relation to his children, he was prepared to obtain one if necessary. When asked whether he would attempt to have the applicant registered, he said that he would do so but that he was very concerned about whether this was possible. Both the applicant’s parents gave evidence about their concerns as to whether registration could be obtained. The applicant’s father gave evidence that he was entitled to obtain a Medicare card in Australia but had been unable to do so. He was seeking to draw an analogy between this and the registration requirements in China. He said that if he was unable to obtain a Medicare card in Australia, it is possible that they would be unable to register their daughter in China. He was also concerned because of the difficulties in attempting to renew his son’s passport. They had not attempted to obtain a passport for their daughter because of these difficulties.

24. The applicant’s father was asked about what he understood the situation to be in relation to social compensation fees that may be payable in China. He said that he believed they would have to pay compensation fees and that he understood those fees would be somewhere in the vicinity of 100,000 Chinese yuan for each child, which he said was approximately AU$20,000. He had obtained this information from family and friends. The applicant’s father did not know whether any fee levied could be negotiated or whether he could pay by instalments. He said that he was concerned about the social compensation fees insofar as it may present difficulties in registering his children. He was very concerned about registration because without registration, he considered that his children would be severely disadvantaged. While the applicant’s father accepted that the country information discussed with him suggested that the applicant could be registered and that they may not have to pay any social compensation fee or could negotiate it, he was extremely sceptical about the country information. As already noted, I accept that both he and the applicant’s mother have genuine fears about this.

25. The applicant’s mother also gave evidence. She is currently working in a souvenir shop. She said she had savings of about $25,000. She also said that she would take steps to register the applicant but was very sceptical about whether this could be done. In her view, you could not do anything in China without having ‘connections’. The applicant’s mother accepted that neither she nor the applicant’s father had lived in China for over 10 years and that things may have changed. However, she was extremely concerned about returning and the issues relating to registration, and she was very concerned for her children.

    FINDINGS OF FACT

26. The relevant and contextual facts in this case are not contentious. The applicant was born in Australia in 2016, she has an older brother who was born in 2014 and her parents are nationals of China, having been born in the Fujian Province where they resided until they arrived in Australia in 2006 (the applicant’s father) and 2011 (the applicant’s mother). They entered Australia holding student visas and, after meeting in 2012, became a couple in 2013. I accept that they have never married.

27. The applicant’s parents and brother were included in her paternal grandmother’s application for a protection visa made in 2014, which was subsequently refused by a delegate of the Minister. Applications for merits and judicial review of this refusal were unsuccessful and the applicant’s parents are thereby precluded from making any further application for a protection visa. There is no evidence before the Tribunal that the applicant’s parents or her older brother have applied for another visa, and they remain in Australia on a bridging visa.

28. Neither the applicant nor her older brother are presently entitled to citizenship in Australia, however, they will become entitled to citizenship by conferral by reason of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) if they are in Australia and continue to reside here for the first 10 years of their lives.

29. The applicant’s other relatives, including her grandparents, reside in Fujian Province. The applicant’s father’s parents own their home and if the applicant and her family return to China, they will probably live with her grandparents. Her parents, who have significant savings between them, are educated. The applicant’s father has experience in construction work.

1. The applicant was born in New South Wales and has a birth certificate. Her parents have hukou registration and identification cards or the ability to obtain those identification documents. They have valid Chinese passports which do not expire until 2032.

2. If the applicant and her family returned to China, her parents will attempt to register her to obtain her hukou registration, although I accept that they have fears that this may be difficult to obtain or that social compensation fees may be levied against them, which will make it difficult for them to register their daughter until these fees are paid. I accept that these fears are genuine based on their understanding of the relevant policies in China from over 10 years ago.

   COUNTRY INFORMATION

3. The most recent report published by DFAT is its country information report for the People’s Republic of China dated 22 December 2021. The 2021 DFAT report provides country information in relation to the government family planning policies in China as at the time of its publication.

4. The previous report, published in 2019, contains country information about the family planning policies in operation at the time the report was published. Relevant to this case, the 2019 DFAT report specifically considers the application of family planning laws in the Fujian Province. This report, together with DFAT’s 2016 Thematic Report on Fujian Province[1], provide detailed country information about the operation of family planning laws and the registration of children under the hukou system in the Fujian Province at the time of the publication of the reports. The 2021 DFAT country information report is largely silent on these matters insofar as they relate to Fujian Province. As such, I found these earlier reports relevant, even though they are somewhat dated, providing useful background and context for consideration of the applicant’s claims.

   [1] Department of Foreign Affairs and Trade Thematic Report on Fujian Province China dated 16 December 2016.

5. The 2019 DFAT report notes that China has had nationwide family planning policies since the late 1970s, aimed at controlling population growth in support of China’s economic ambitions. It is noted that the government manages family planning under the Population Law, reflecting family planning policies which encourage late marriage and childbearing and limit the number of children permitted per family. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple. However, following concerns about its ageing population, the National People’s Congress published an amendment to the Population Law in 2016, which allowed for the implementation of a two-child policy. It is noted in the 2019 DFAT report that authorities enforce compliance with family planning regulations through both incentives and punishments and the implementation of the policy varies enormously across China. This is the genesis of the social compensation fee, which is levied on parents of each child born outside the policy. According to the report, the National Law does not set out a fee schedule that applies to all localities and the fees may vary widely across and within provinces. County level governments collect the revenues from the fees, and they are calculated by reference 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 income for urban residents and net average incomes for rural areas differed according to the county, city or district. Relevantly, there are specific fees that apply in relation to Fujian Province. DFAT notes that information on actual fees charged is difficult to obtain because they are subject to local discretion.[2]

   [2] DFAT Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade, 3 October 2019, 20191003160550.

6. The 2019 DFAT report notes the importance of hukou registration and explains the position in relation to family planning policy as follows:

   3.199    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.

   3.200    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.

   3.201    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).

   3.202    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)).

7. On the issue of children born outside marriage, the 2019 DFAT report notes at [3.205]:

   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.

8. On the issue of application of the planning laws at that time, DFAT concluded at [3.209] as follows:

   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.

9. In relation to the application of the family planning policy in Fujian Province, DFAT reported as follows:

   3.210    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.

   3.211    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 and 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.

10. DFAT concluded at [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.

11. While pre-dating the 2019 DFAT country information report, DFAT’s 2016 Thematic Report on Fujian Province is useful because it provides detailed information about how China’s planning policies were implemented in the Fujian Province at that time and includes specific information relevant to the facts of this case.[3]

    [3] Department of Foreign Affairs and Trade Thematic Report on Fujian Province China dated 16 December 2016.

12. The 2016 Thematic Report provides information as to how a social compensation fee may be calculated and enforcement of the fee as follows[4]:

    [4] Ibid.

    3.29    Authorities in China use incentives and penalties to achieve compliance with family planning regulations. Social Compensation Fees (also referred to as Social Maintenance Fees) are the most common disincentive used in Fujian. According to the March 2014 Population and Family Planning Regulation of Fujian, Social Compensation Fees are calculated on the basis of average annual disposable income for urban residents or the average annual net income for rural residents, or residents’ actual income, whichever is the greater). The fee is levied on a multiplier basis, depending on the couple’s circumstances. The March 2014 Population and Family Planning Regulation of Fujian provided that:

    ·A Social Compensation Fee of 0.6 to 1 times will be imposed on those who give birth to a child ahead of schedule.

    ·A Social Compensation Fee of 2 to 3 times will be imposed on those who give birth to an additional child. A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a second additional child. Heavier Social Compensation Fees will be imposed on those who give birth to additional children.

    ·A Social Compensation Fee of 4 to 6 times will be imposed on those who give birth to a child born out of an extra-marital affair (including those who give birth to a child out of wedlock). Heavier Social Compensation Fees will be imposed on those who give birth to additional children born out of an extra-marital affair.

    3.30    Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district. In Fuqing (a county-level city near Fuzhou with a population of approximately 1.34 million people) the average annual disposable income for rural residents was RMB32,279 (AUD6,840) and the average net annual income for rural residents was RMB15,061 (AUD3,190) in 2013. Social Compensation Fees calculated in 2014 were based on these figures.

    3.31    DFAT understands that the Social Compensation Fee multiplier rates for people in breach of the amended February 2016 Population and Family Planning Regulation of Fujian (ie. couples who have a third child) are likely to be similar to the multiplier rates described in the March 2014 Population and Family Planning Regulation of Fujian outlined above.

    3.32    Credible information on the actual Social Compensation Fees charged in practice is difficult to obtain. The actual application of Social Compensation Fees varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalised manipulation). The March 2014 Population and Family Planning Regulation of Fujian states that the decision to impose a Social Compensation Fee may be made at the county, township or neighbourhood level. DFAT is aware of verdicts by the Fujian High Court in late-2015 imposing Social Compensation Fees of approximately RMB50,000 (AUD10,595) for couples who gave birth to a second son, in violation of the Population and Family Planning Regulation of Fujian. In 2014, Fujian courts recorded 1,628 cases involving payments arrears of Social Compensation Fees over RMB100,000 (AUD21,190). However, DFAT also understands that local authorities in Fujian are able to show considerable discretion in charging Social Compensation Fees. Factors that would influence local authorities when charging Social Compensation Fees may include whether a couple is cooperative, is underage and/or from a low income family.

    3.33    While there has been some speculation that any outstanding Social Compensation Fees for children born in breach of the March 2014 Population and Family Planning Regulation of Fujian would be waived, DFAT understands that the waiving of outstanding Social Compensation Fees remains at the discretion of local authorities. In March 2016, the Deputy Chairman of the Fujian Family Planning Association stated that if parents had received previous notification of Social Compensations Fees, these penalties stood. If individuals who had children in breach of the March 2014 Population and Family Planning Regulation of Fujian had not received notification of Social Compensation Fees, local authorities would not pursue the issue further. DFAT therefore understands that outstanding Social Compensation Fee notices issued under the March 2014 Population and Family Planning Regulation of Fujian are still enforceable. The February 2016 Population and Family Planning Regulations of Fujian only applies to children born after 1 January 2016 or in cases where Social Compensation Fee notices have not been issued for children born prior to 1 January 2016.

    3.34    DFAT is aware of a range of measures that have been used in Fujian to secure payment of Social Compensation Fees, including applying personal pressure through personal calls and visits. In July 2015, the Fujian Health and Family Planning Commission signed a Memorandum of Understanding with the Fujian High Court, the Fujian Development and Reform Commission and the Fuzhou Branch of the People’s Bank of China to list people who failed to pay Social Compensation Fees on a ‘black list’, limiting their ability to bid for government-linked contracts, apply for loans or credit cards, obtain market access certificates for their businesses, board planes or book soft berth tickets on trains.

    3.35    Notwithstanding that these measures demonstrate that many couples in Fujian seek to evade payment of Social Compensation Fees, in-country contacts suggest that widespread awareness of the fees means couples wishing to have an additional child in violation of the relevant regulations often save the required Social Compensation Fee in order to do so. DFAT assesses that for the vast majority of residents in Fujian, Social Compensation Fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure.

1. The method of calculation of the social compensation fee is not entirely clear and is somewhat complicated but it is apparent that the fee is based on a multiplier which is applied to the average annual disposable incomes of urban residents and the net average income for rural areas according to the region. According to the 2016 China Statistical Yearbook, the per capita disposable income of households for 2013 in Fujian Province was 21,217.9 yuan and in 2015 it was 25,404.4 yuan. As at today’s conversion rates, this would be approximately AU$4,446 for 2013 and AU$5,334 for 2015.The applicant’s father gave evidence that he believed any social compensation fee payable may be in the vicinity of AU$30,000 to AU$40,000. Based on a multiplication of four to six times the disposable income, it appears that any social compensation fee would be in the in the vicinity of AU$30,000 for the applicant. This does not include the applicant’s older brother. If he is included, the range may be in the vicinity of AU$50,000 to AU$60,000 for both. The question is whether such a fee would be impose given the change in policy in China in recent years.

2. It is apparent that family planning policy in China changed from 2019, a trend which is foreshadowed in the 2019 DFAT report. The 2021 DFAT report summarises the position in relation the China’s family planning policies as follows:

   3.117 Since the late 1970s China has enforced laws that limit the number of children people can have. Over time, these laws have liberalised from initially allowing one child per family to control population growth, to recent changes in the law that allow three children as China’s population ages and its economy develops. The policy was originally introduced to deal with extreme poverty and famine. Today, many young Chinese themselves are deciding against having children due to cost-of-living pressures and changes to traditional lifestyles.

   3.118 Ethnic minorities and rural families that had a daughter as their first child were exempt from the policy for most of its history, and in 2016 all families were allowed to have two children. In 2016 the national government ordered all local governments to register children with a hukou, even if they were born ‘out of plan’. In-country sources told DFAT that increased discretion was being afforded to local governments to decide whether or not to charge out-of-plan fees to parents even before the 2016 reforms. This was especially true in rural areas.

   3.119 In 2021 the law was changed to allow couples to have three children. Social compensation fees levied against people with ‘out of plan children’ were abolished. This reflects an overall de-prioritisation of the policy by a government that is now concerned with declining birth rates and an aging population.

   3.120 The likelihood of enforcement or penalties for non-compliance, both before and after the new rules were implemented, varies from place to place. DFAT understands that Fujian, for example, does not enforce its family planning policy strictly and penalties have not been imposed in some years. People who give birth overseas would have their children counted as if they were born in China and the policies of the place they return to in China would apply. Children born to single mothers might also be considered ‘out of plan’.

   3.121 Enforcing child limits has become a low priority for government. DFAT is not aware of any recent reports of people being imprisoned for failure to pay fees and is not aware of recent examples of forced abortions, but understands that they are theoretically possible (see Uyghurs, who are not covered in this assessment). While punishment for out-of-plan children is still possible, it is much less likely than it was in the past. Implementation differs from place to place (it is regulated by provinces) but DFAT is not aware of evidence that breaches of family planning laws are severely punished anywhere in China. Outstanding compensation fees, including for previous children, still need to be paid. DFAT assesses that official discrimination against people who have out of plan children is low. DFAT is not aware of patterns of societal discrimination against people with out of plan children.

3. The 2021 DFAT report explains the hukou system, consistent with the explanation in the 2019 DFAT report, as follows:

   Hukou (household registration) system

   5.25    Hukou is a household registration system rooted in an ancient system that has parallels in other parts of East Asia such as Japan and Vietnam. In modern China, hukou registration with the local government entitles a resident to use government services such as education or health services in that local government area. In practice it might be a better reflection of their place of birth or even their parents’ place of birth rather than their place of residence.

   5.26    It is very difficult to get a hukou in one of China’s major cities like Beijing or Shanghai, which have quotas for new residence permits. A points system to apply for a hukou exists in some cities (over 5 million people) where good employment records, education and housing might be an advantage. Reforms in 2019 have made it easier to get a hukou in medium-sized cities (1 to 3 million residents) and removed limits on key population groups, including graduates of universities and vocational colleges. This means that urbanisation and its associated development benefits may continue without putting additional pressure on megacities like Beijing and Shanghai.

4. It is also noted at [5.43] that:

   Births and deaths are recorded on a hukou and a birth certificate is required to apply for a hukou. Without a hukou, the issuance of a passport is unlikely. Registration of a child on a hukou must be done inside China.

5. The most recent country information report from the United Kingdom Home Office on family planning laws in China states:

   2.4.5 There have been several changes to the Population and Family Planning law since the promulgation of AX. Childbirth is still expected to occur within marriage. However, the birth registration system was relaxed in January 2016 to allow couples to have 2 children and the requirement for couples to go through an approval process for their first 2 children was removed. The policy was relaxed further still and the law amended in August 2021 to allow married couples to have 3 children (see Introduction of the 2-child policy and Introduction of the three child policy).

   2.4.6 In AX the UT held that the financial consequences of having an unauthorised child and therefore having the social upbringing charge (SUC) imposed ‘will not, in general, reach the severity threshold for persecution or serious harm or treatment in breach of Article 3’ (para 191(9)).[5]

   [5] United Kingdom Home Office: Country policy and information notes: contravention of the population of family planning law, China, dated May 2022.

6. In relation to the operation of the policy to children born out of wedlock, the UK Home Office notes:

   2.4.15 Single (i.e. unmarried) mothers are not mentioned in the national family planning law and as such, any children born to a single mother (who does not marry within 60 days of the child’s birth) are considered outside the policy. Single mothers may be required to pay a social compensation fee although it is unclear whether this will still be enforced now the social compensation fees have been abolished in line with the updated 3-child policy (see Single and unmarried mothers).

   2.4.16 Many local governments require a marriage permit in order for an expectant mother to be able to access maternity benefits. Guangdong province and Shanghai have removed this requirement, resulting in single women being able to access these benefits (see Single and unmarried mothers).

   2.4.17 In the past many children born to single/unmarried parents were denied a household registration document (hukou) preventing them from accessing public services, medical treatment and education. In December 2015 President Xi Jinping announced that China would be providing household registration for the nearly 13 million unregistered children in China. He also announced that registration for a hukou should take place irrespective of family planning and birth limits. However, there is limited information to show that the 13 million unregistered did actually gain documentation and some sources suggest that unregistered children still have difficulties accessing public services (see Single and unmarried mothers, Unregistered children (Heihaizi/ ‘black children’) and Hukou (registration) system).

   2.4.18 As they are outside the family planning policy, AX is of less value in cases of single unmarried mothers. The onus will be on a mother with an illegitimate child to show that, if returned, she does not have sufficient family support or income, such that any enforcement of the social compensation fee along with the denial of service, education and health care to the child would reach the threshold of treatment in breach of Article 3 ECHR.[6]

   [6] Ibid.

7. In this commentary, the Home Office focuses on single unmarried mothers, rather than mothers who have children born out of wedlock but are otherwise in a relationship. However, the reference to the Upper Tribunal decision in AX is of interest in relation to the applicant’s claims because the Upper Tribunal made the following observations:

   Foreign-born children

   186.     In general, the evidence before us indicates that the consequences of an unauthorised birth once it has occurred (whether within or outside China) are social and financial. We remind ourselves that breach of the family planning policy is not a criminal offence but a civil matter, and that after a down payment of 50%, the balance of any SUC imposed may be paid over at least three years.  We accept Professor Fu's evidence regarding the existence of statutory protection against destitution for those who cannot pay. We note that many couples regard giving birth abroad as evidence of wealth and status, and that significant numbers of parents travel to Hong Kong and Macao, in particular, for that purpose.

   187.     The attitude taken by provincial birth control authorities to parents returning with foreign-born children remains unclear; some provincial officials indicated that the additional child would be treated as unauthorised and registered only on payment of SUC; others, that foreign-born children do not breach the family planning scheme because their birth did not breach the PFP Regulations in any particular province.

   188.     Parents returning with foreign-born children are expected to produce birth certificates for that birth and to pay the SUC.  In general, the rate of SUC, even if it is imposed, is not likely to be beyond the means of a couple who have lived abroad for some years.  There is very little evidence of parents being disproportionately penalised when they return to China with foreign-born children.

   189.     We find that in general, couples with foreign-born children, over and above the permitted number for that couple (which is variable, depending whether they are a double-single couple, children of heroes or miners, members of ethnic minorities and so forth) will on return to China not be at real risk of persecution, serious harm or human rights breaches engaging international protection. [7]

   [7] AX (family planning scheme) China CG [2012] UKUT 00097 (IAC).

8. These observations focus on claims relating to couples with foreign-born children, rather than claims by foreign-born children, but they are nonetheless relevant insofar as it is claimed that the impact on the applicant’s parents will have an impact on her and thereby enliven Australia’s protection obligations.

9. As already noted, the applicant has not made any claims about societal discrimination as a child born out of wedlock but given this is a claim available on the materials, I have examined this issue. In this regard, my findings about this matter are consistent with the decision of Senior Member Louise Nicholls dated 21 June 2022 in 1800867 (Refugee) [2022] AATA 2525. In that case, which similarly dealt with a child applicant, the Tribunal found, at [52], that ‘[w]hile the country information indicates that unwed mothers may face some disapproval in the community there is no current evidence that the children of unwed mothers face societal discrimination’. This is consistent with the assessment of DFAT in its 2021 report, as outlined at [3.121]. I have also reviewed the country information published by the UK Home Office and I could not find any information to suggest that a child born out of wedlock in the applicant’s circumstances would face official or societal discrimination or social stigma, nor was I referred to any such country information by the applicant’s parents.

10. I requested further information from the Tribunal’s internal research team. The research was contained in a report dated 18 August 2023. The information in this internal report has drawn on information contained in other sources such as reports from DFAT and the UK Home Office. This internal report and the DFAT reports were provided to the applicant’s parents and were discussed with them at both hearings.

11. The internal report summarises the requirements for registration under the hukou system, and refers to several source documents.

12. The first source document is a DFAT cable which notes the verbal advice obtained by DFAT in 2018 from the Fujian Public Security Department stating 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.[8]

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

13. The second source document is an academic paper published in 2019, which notes that registration of children generally requires the production of the following information:

    ·the child’s birth certificate,

    ·household registration books of the parents,

    ·identification cards of the parents and the marriage certificate of the parents.[9]

    [9] 'China’s Missing Children: Political Barriers to Citizenship through the Household Registration System', Samantha Vortherms, The China Quarterly, 2019, 20220329124403; DFAT Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550 at [3.219].

14. It is also noted in the paper that, while registration of a child’s birth is to occur within one month, late registration does occur but there may be administrative delays.[10] This research further notes that in many cities, registration of children older than three months requires additional paperwork and a separate registration process.[11]

    [10] 'China’s Missing Children: Political Barriers to Citizenship through the Household Registration System', Samantha Vortherms, The China Quarterly, 2019, 20220329124403.

    [11] Ibid.

15. The final source documents are the DFAT reports. The earlier 2019 report notes that if the child is born ‘out of policy’, the registering parent must also supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.[12] The most recent DFAT report notes that hukou registration of a child can only be done from inside China.[13]

    [12] DFAT Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550 at [3.219].

    [13] DFAT Country Information Report - People's Republic of China, Department of Foreign Affairs and Trade, 22 December 2021, 20211222100210 at [5.43].

    FINDINGS ON COUNTRY INFORMATION

16. The following matters are apparent from reviewing the country information referred to above and having regard to the country information sourced in the various reports:

    (1)China’s family planning policies and the implementation of those policies have been relaxed since 2019. The revised 2021 Population and Family Planning Law abolished social maintenance fees, also referred to as social compensation fees. However, this amendment may not apply to single or unmarried women. As such, it is possible that children born to single or unmarried women, including children born out of wedlock, may be considered to be ‘out of plan’. However, the applicant and her brother were born out of wedlock but within the terms of the one and two child policies prevailing at the relevant time.

    (2)If the applicant and her family return to China, it is possible that social compensation fees would apply to the applicant’s parents, although according to the most recent DFAT report, it is DFAT’s understanding that Fujian does not enforce its family planning policy strictly and penalties have not been imposed in some years.[14] Further, while DFAT does not expressly state whether this is the case for children born to unmarried parents, in its report of May 2022, the UK Home Office states that it is unclear whether social compensation fees will be enforced against this cohort.[15]

    (3)While the available country information suggests that enforcement of the social compensation fee is a low priority for government, it is theoretically possible that local authorities may seek to enforce the fee. However, non-payment of social compensation fees cannot be a basis for local authorities to refuse registration of a hukou and, as observed by the Upper Tribunal in AX, enforcement is a civil rather than criminal matter. Furthermore, the UK Home Office report notes that media reports mention cases where couples who have been unable to pay social compensation fees have been permitted to make payments in instalments or have had fines reduced.[16]

    (4)China does not recognise dual citizenship. According to the Nationality Law of the People's Republic of China (1980), any person born abroad has Chinese nationality at birth if one or both of their parents are Chinese nationals. However, if one or both parents have settled abroad, and the individual child acquired foreign nationality at birth, they are not recognised as nationals of China. The Shanghai Ministry of Public Security (MPS) Exit-Entry Administration Bureau currently recognises that the term ‘settled abroad’ applies where: an individual has obtained a foreign permanent residence permit; or the person has lived abroad for five consecutive years with a cumulative stay of no less than nine months each year. Relevant to the facts of this case, the applicant’s parents may be taken to have ‘settled abroad’ but the applicant did not acquire foreign nationality at birth (for the reasons previously outlined) and, as such, she is a Chinese national.

    (5)This is consistent with the advice available on the website of the Chinese Embassy in Australia, which states that newborns born in Australia to Chinese parents are considered nationals and can apply for a Chinese passport. It is also consistent with the fact that the applicant’s brother was able to previously obtain a passport.

    (6)According to the Embassy website, the information required to obtain a passport includes original and photocopies of the passports of both parents, the Australian visa information of the parents, when the child was born, originals and copies of the child’s birth certificates and passport size photographs. Chinese citizens must apply for passports with the Consulate General in the relevant region, in this case, Sydney.[17]

    (7)The hukou registration system with the local government entitles a resident to use government services such as education or health services in that local government area. It is an important entitlement for residents to access.[18]

    (8)Overseas born children who are Chinese nationals are eligible for hukou registration, even in the case of non-payment of the social compensation fee. In 2015 the Fujian Public Security Department implemented a new ‘Household Registration Management System,’ which in part directed local authorities not to treat the payment of the social compensation fee as a prerequisite for accepting an application for a hukou.[19] This was confirmed in 2016, when the National Government ordered all local governments to register children with a hukou, even if they were born ‘out of plan’.[20]

    (9)In contrast to other forms of identification, such as the national identification card, hukou registration is available to Chinese nationals at birth.[21] Registration is to occur within one month of a child’s birth. However, later registration can occur but there may be administrative delays.

    (10)Generally, registration requires the production of the child’s birth certificate (which may include a foreign birth certificate translated and duly notarised by a Chinese mission abroad), certain household registration and identification information relating to the child’s parents and, if the child is born out of wedlock, further information such as a statutory declaration or a paternity test certificate. Registration must be undertaken in China and, in this case, within Fujian Province.

    (11)The available country information does not suggest that overseas children born out of wedlock are stigmatised by society or the government or that they face societal discrimination.

    [14] DFAT Country Information Report - People's Republic of China, Department of Foreign Affairs and Trade, 22 December 2021, 20211222100210 at [3.120].

    [15] United Kingdom Home Office: Country policy and information notes: contravention of the population of family planning law, China, dated May 2022.

    [16] Ibid.

    [17] ‘Applying for passports for minors, Embassy of the People's Republic of China in the Commonwealth of Australia’ 1 December 2019, Applying for a passport for minors_Embassy of the People's Republic of China in the Commonwealth of Australia (au-china--embassy-gov-cn.translate.goog).

    [18] DFAT Country Information Report - People's Republic of China, Department of Foreign Affairs and Trade, 22 December 2021, 20211222100210 at [5.25].

    [19] DFAT Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550 at [3.219].

    [20] DFAT Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550 at [3.219]; Country Policy and Information Note China: Contravention of the Population and Family Planning law, UK Home Office, 19 May 2022, 20220530112205 at [5.8]; see also 'China: The hukou [residential registration] document, including appearance, content, fraud, pathways for obtaining, requirements, and procedures; hukou policy, including national regulations and local policies [etc]', Immigration and Refugee Board of Canada, 20 September 2022, 20221017121824.

    [21] DFAT Country Information Report – People’s Republic of China, Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550 at [3.219].  See also: 'China’s Missing Children: Political Barriers to Citizenship through the Household Registration System', Samantha Vortherms, The China Quarterly, 2019, 20220329124403.

1. In summary, I am satisfied that if the applicant and her family return to China , the applicant’s parents will be able to register her birth with local authorities in the Fujian province by submitting her birth certificate and updated household registration and identity documents for themselves, together with a statutory declaration or a paternity test from the applicant’s father. She has Chinese nationality and is entitled to the issue of a passport. I accept there may be administrative delays and additional paperwork required for the issue of the applicant’s passport and to register her. I also accept that any registration must take place in Fujian Province.

2. There is no evidence before me to suggest that the necessary documentation referred to in the country information is not available to the applicant’s parents or otherwise is unable to be obtained. I cannot discount the possibility that the applicant’s parents may be charged a social compensation fee in relation to their two children born out of wedlock, and therefore potentially out of policy. However, having regard to the country information available, I find that this will not impact the ability of the applicant to be registered. I am also satisfied that there has been a relaxation of China’s family planning policy since 2019 and that any fee may be negotiated with local authorities and reduced or, alternatively, paid by instalments. As noted in the country information outlined above and confirmed in the decision of AX, there is no criminal liability for breach of the policy and payment of the social compensation fee is a civil matter for enforcement by the local authority, which may be capable of negotiation.

   CONSIDERATION

3. The issue in this case is whether the applicant meets the refugee criterion for protection in s 36(2)(a), or, alternatively, the complementary protection criterion set out in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the decision under review should be affirmed.

   Does the applicant meet the refugee criterion?

4. To meet the criterion for protection under s 36(2)(a), an applicant must satisfy the Tribunal that they are a ‘refugee’ within the meaning set out in the Act. Relevantly, s 5H defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country owing to a well-founded fear of persecution. In a case where the person does not have a nationality, the person will be a ‘refugee’ if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to it.

5. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA of the Act.

6. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

7. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

8. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

9. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.

10. I accept that there is a subjective fear that if the applicant returns to China, she will face serious harm and disadvantage, and thereby persecution. The question is whether this fear is well-founded and whether the fear relates to one or more of the reasons mentioned in s 5J(1)(a) of the Act.

11. I accept that the concern about the applicant being a ‘black child’ raises a refugee nexus because I accept that this claim is based on the applicant’s membership of a particular social group, which, at its broadest, can be characterised as children born out of wedlock or, alternatively, as overseas children born out of wedlock to Chinese nationals whose birth has not been registered with the local authorities.

12. Having regard to my findings of fact and the country information outlined above, I am not satisfied that the applicant will face a real chance of serious harm on her return to China because of her membership of this particular social group. This is because I am not satisfied that she will be unable to be registered or she will be unable to obtain the benefit of the hukou registration system. Her parents are motivated, educated and have financial means and family support to facilitate the registration process. In my view, any administrative delay of a few months would not amount to serious harm having regard to the examples set out in s5J(5) of the Act. For instance, there is no claim, nor is there any country information to the effect, that the delay would lead to the applicant being significantly harassed or illtreated or that she would be denied access to basic services threatening her capacity to subsist.

13. On the issue of the impact or potential impact on the applicant of any social compensation fee that may be imposed, the preponderance of country information is to the effect that even if the applicant’s parents are subjected to a social compensation fee, this will not impact the applicant’s ability to be registered. The applicant’s parents will not be imprisoned for failure to pay, and she will not be deprived of the ability to be registered. I am satisfied, based on the available country information, that the applicant’s parents will not be bankrupted or face significant economic hardship such that it would threaten their capacity, and therefore the applicant’s capacity, to subsist. The applicant’s parents have family support, a place to live and substantial savings. I am also satisfied they would be able to negotiate or pay any such compensation fee if required, which, at worst, may be in the vicinity of AU$50,000 to AU$60,000.

14. In other words, having regard to the country information cited, I am not satisfied that there is a real chance the applicant will face serious harm, and therefore persecution, by reason of any economic harm her parents may face through possible social compensation fee penalties.

15. As already noted, I am not satisfied that the applicant will face societal discrimination. Nor am I satisfied that any of these matters, either individually or cumulatively, will expose the applicant to serious harm.

16. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

17. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).

18. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to China, there is a real risk she will suffer significant harm.

19. ‘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.

20. As set out in my findings and conclusions on the refugee criterion, I am satisfied that the applicant will be able to be registered and she will ultimately obtain the benefit of the hukou system. Any disadvantage resulting from administrative delay or additional paperwork does not fall within the definition of significant harm. Nor am I satisfied that any potential issue in relation to the payment of a social compensation fee would result in significant harm and in this regard, I repeat my findings and assessments in relation to the question of serious harm under the refugee criterion. Having regard to my previous findings, I am not satisfied that the applicant will face societal discrimination and I am therefore not satisfied there is a real risk she will suffer significant harm.  

21. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

22. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a protection visa.

    J.L Redfern PSM
    Deputy President

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

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

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …