1709179 (Refugee)
[2019] AATA 6547
•2 December 2019
1709179 (Refugee) [2019] AATA 6547 (2 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1709179
COUNTRY OF REFERENCE: China
MEMBER:Jason Pennell
DATE:2 December 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 2 December 2019 at 11.25am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – the Local Church denomination – the Shouters – particular social group – child born out of wedlock – ‘heihaizi’ – ‘black children’ – access to health, education and other services – contravention of family planning policies – amendment to the Population Law in 2016 – social stigmatisation – Social Compensation Fee (SCF) liability – exemptions from the SCF – capacity to pay for the SCF – expenses pertaining to sibling’s disability – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
Wang v MIMA (2000) 105 FCR 548
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 April 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 30 December 2015. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Migration Act 1958 (the Act) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).
The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. As the applicant is a minor, the Tribunal received oral evidence, on the applicant’s behalf, from [Ms A], the applicant's biological mother. The applicant was represented in the course of the review by a registered migration agent; however, the agent did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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.[1] 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[2].
[1] s.5H(1)(a) of the Migration Act 1958
[2] s.5H(1)(b) of the Migration Act 1958
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, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion'). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
An applicant is considered not to be at a real risk of suffering significant harm in a country if:
·it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm;[3] or
·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]
[3] Migration Act 1958 s.36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
[4] Migration Act 1958 s.36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history and her parents
The applicant applied for a class XA subclass 866 protection visa on 2 September 2014 – more than 12 months after her birth. The applicant has never departed Australia.
According to the delegate’s decision, the applicant’s mother lodged a valid protection visa application on 18 July 2012. Her claims included that she was a Christian and an unwed mother who feared persecution. The applicant’s mother was refused by the Department on 13 February 2013 and the decision was affirmed by the Tribunal on 10 September 2013. The applicant’s mother then unsuccessfully appealed to the Federal Court, which affirmed the Tribunal’s decision [in] August 2014.
The applicant’s father and the applicant’s brother applied for protection visas on 4 May 2011. The applications included the applicant’s brother who was then around [age] months old. The claims included fears of persecution based on the father’s Christian religion. The application was refused by the Department and that refusal decision was unsuccessfully appealed to the Tribunal, as the Tribunal affirmed the delegate’s decision on 28 February 2012. The applicant’s father and brother then appealed to that decision to the Federal Court of appeal and the decision not to grant the visas was upheld by that court [in] July 2012.
A request for Ministerial Intervention was jointly made by the applicant’s mother, father and older brother who were refused. According to the decision record, the applicant’s mothers and father’s claims that they were Christians were not to be found credible by the Department or by the Tribunal.
The applicant’s mother claimed that she had been in a de facto relationship with the applicant’s father. However, during the Tribunal hearing, she claimed that they were no longer in a relationship. Her evidence was that the applicant’s father had left and she was unable to tell the Tribunal where he was living. The applicant’s mother claimed that she did not have permanent residency or Australian citizenship and that she was holding a bridging visa at the time of the hearing.
Country of Reference
The applicant claims to be citizen of the People’s Republic of China. A copy of the applicant’s parents’ passports,[5] together with the applicant’s birth certificate,[6] was provided to the Department. The passports of the applicant’s mother and father indicate that they were born in Fujian Province in the People’s Republic of China. The applicant’s mother was born on [date] and his father was born on [date]. The applicant’s birth certificate contains no information about the marriage of his parents.
[5] Department file [number] @ f. 83-84
[6] Department file [number] @ f.52
Accordingly, based on the applicant’s mother’s oral evidence to the Tribunal and the documentation provided by the applicant to the Department, the Tribunal accepts and finds that the applicant is a Chinese citizen. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the applicant’s protection claims will be assessed against the People’s Republic of China as the country of reference and as the 'receiving country'.
Background
The applicant was born in Australia on [date] and is a minor. According to the applicant’s birth certificate issued by the relevant authority in the State of Victoria, Australia, the applicant’s mother is [Ms A] and his father is [Mr B].[7] The applicant’s parents were both born in Fujian province, China. The applicant has a brother [Sibling C] (born [date]) and a sister [Sibling D] (born [date])[8] who were both born to the same parents as the applicant.
[7]ibid
[8] Birth certificates of [Sibling C] & [Sibling D]; Department file [number] @ f.80-81
The applicant’s mother claimed that she belonged to rural family near [County 1] near Fuqing City in Fujian province; that she remains in contact with her mother, aged [age], but not her father, aged [age], who is a struggling [in his work]. She claimed that she had one [brother]. He evidence was that he continued to live in Fujian province, that he has a low paid job [and] has [number of] children.
The applicant’s mother claimed that she had been in a de-facto relationship with the applicant’s father for the last eight years but that the relationship had not been stable and they had separated three or five times during that period. Her evidence was that the applicant’s father had now left and that they were no longer in a relationship. She stated that she had not had any contact with him for some time and that she was not aware of where he was living. The applicant’s father did not attend the hearing. In the absence of any evidence to the contrary, the Tribunal finds that the applicant’s mother and father are no longer in a relationship.
The applicant’s mother claimed that she arrived in Australia on a student visa in 2006 and had undertaken studies in [Occupation 1]. The applicant’s mother claimed that she applied for a protection visa because she had a child. She said that her father was angry that she had a child. In addition, she claimed that her [brother] had been arrested for belonging to an unregistered church. She elaborated that the business of the applicant’s grandfather (her father) had not done well and that he had arranged for her to marry the son of his business partner for [amount] RMB. Her mother did not approve of the marriage. When the Tribunal asked the applicant’s mother if her parents would accept and look after her children, she responded that they were not well off. She claimed that her father had accumulated debt from her [brother] when he took a loan from a loan shark or unlicensed money lender and the additional costs of the applicant and her siblings would not be accepted. She also said that her mother cares for her [brother’s] children.
The Tribunal asked the applicant’s mother why the applicant’s father had applied for a protection visa with the applicant’s [brother]. She explained that at that time he had taken the baby away from her to [another city in Australia]. She claimed that she had not reported the fact that her former partner had taken their child away because she was depressed and worried that and believed he was entitled to take the child away as was normal practice in rural China.
The applicant’s mother elaborated that she belonged to an underground church known as the ‘Shouters’. She claimed members of the church are very spiritual and shout out ‘Amen’ and ‘Hallelujah’. She claimed that the church was persecuted by the government as an evil cult. She refused to join the registered churches as those churches regard patriotism as more important than Jesus. The applicant’s mother claimed that she was baptised in 2011 but attended churches in China. She claimed she attended church at the various sites run by the ‘[Church 1]’ and they do not celebrate Christmas; she described the Old Testament of the Christian bible as focusing on Genesis and the twelve tribes of Israel while the New Testament focussed on the teachings of Jesus as the founder of Christianity, his crucifixion and his resurrection. The applicant’s mother went on to describe the foundational members of the Local Church movement and the distinctiveness of their bible translation.
Then applicant’s mother stated that her brother had been arrested as an unregistered Christian in Fujian province [in] 2011 and added that he had been arrested for five years and put in a labour camp in [City 1].
Under s.424AA of the Act, in relation to the applicant’s sisters protection visa application, it was put to the applicant’s mother by the previous Tribunal that she had told the Tribunal during the review of her protection visa application that her brother had lost his job due to religious persecution and had been in [City 1] for more than six months and was doing alright.[9] The applicant’s mother replied to this adverse information that her parents blamed her for his conversion from a Patriotic Church to an unregistered church and claimed that her brother had some contacts in that movement.
[9] RRT case No 1303694 @ para 114-115
The previous Tribunal also put country information to the applicant about the situation in her home province of Fujian that the environment was not hostile towards unregistered Christians; that those with a high profile are more likely to be serious or significantly harmed; there are very few reports of a crackdown or arrests in Fujian; and that there was only a low risk for ordinary members in being arrested or harassed as a member of an unregistered Protestant church. The applicant’s mother claimed that there is a crackdown towards members of the Eastern Lightning Christian cult but added she was not a member.
The applicant’s mother claimed that that the applicant’s family would not be able to afford the social compensation fee based on being a mother of three and that the applicant would not be able to access household registration or hukou. She claimed that the financial difficulties and the social compensation would seriously affect the family’s ability to subsist.
The applicant’s mother claimed that she had suffered from post-natal depression and experiences high anxiety. She said that the applicant’s sister, [Sibling D], is a child with [Medical Condition 1] and that she is is the primary care giver for her three children. She claims that she fears no one would care for her children if she were detained.
The Tribunal notes that the Tribunal’s decision dated 20 February 2017,[10] in relation to the applicant’s sister, refers to a letter from a medical professional dated [July] 2016 that the applicant’s mother has been treated since August 2012 with post-natal depression; that she has responded to well to treatment but has relapsed in treatment due to financial contracts and continues to experience difficulties in expressing herself.[11]
[10] Tribunal decision dated 20 February 2017; Department file [number]@ f136.
[11] Case Number 1504341 @ f.135.
The applicant’s mother also claimed that the applicant would not be eligible for hukou, suffer discrimination, overzealous officials and the likelihood of bullying, including verbal abuse, because the applicant would be considered a ‘black child. She claimed that she would not be able to afford private education for the applicant, particularly in light of the fact that she has to care and provide for two other children.
The applicant’s protection claims
The applicant’s claims for protection are contained in his statement attached to the applicant’s protection visa application dated 16 December 2015.[12] The applicant’s claims were summarised by the delegate as follows:[13]
(a)The applicant’s parents are not married due to family denial. Due to the Family Planning Policy, the applicant will suffer sanction of at least $120,000RMB. The family will be unable to pay such a high amount. Therefore, will fall into ‘vulnerability’ because will not have access to residential registration and suffer social bias in aspects such a public education and medical services. The family cannot afford private services. Therefore, he will not receive education, medical services and other social welfare services. Relationships of parents have never been acknowledged by their families. The family will be financially isolated as neither family will offer help. This will result in unpredictable situation.
(b)Another factor is the faith of the parents. Parents are pious Christians and are involved actively with the local church and preached gospels. Their protection visa applications failed. The Local Church has long been regarded as an evil cult and is outlawed and repressed by the government. Parents are at risk if they practice their religion in China. This will place the whole family at risk of worsen his poor social status.
(c)If they return to China, family life will be difficult. His mother failed to complete her schooling in Australia and will not be competitive in the job market. The family will become second class citizens, face economic struggle, stress and psychological traumas.
[12] Department file [number] @ f.46
[13] Delegate’s decision dated 4 April 2017 AAT File [number] @ f.10.
THE COUNTY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report: Peoples Republic of China, dated 3 October 2019 (‘the DFAT Report’), states:
Christians[14]
[14] The DFAT Report @ p.30
3.76 China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77 In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.
3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.
3.79 Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or Imputed) and Protesters/petitioners).
[…]
3.83 DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.’
‘People affected by Family Planning Policies[15]
[15] DFAT Report @ p.50
3.195 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.’
3.196 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).
3.197 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.
3.198 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.
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.’
[…]
Application of Family Planning Policy in Fujian[16]
[16] DFAT Report @ 53
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.
3.211The 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.
3.220 Trafficking of young girls, smuggling activity and illegal adoption catering to the child-bride market are common in Fujian, particularly from, between, and to Changle District, Putian City and Zhenping Village (also reported as ‘Child Bride Village’) in Donghai Town (see Children). DFAT is aware of cultural practice local to Changle District, Fuzhou (although likely to occur elsewhere), whereby female children are less desirable than males, and a man’s family will not allow the registration of their son’s marriage until their female partner gives birth to a male child. This causes an abundance of illegitimate, out-of-policy, female children born to unmarried parents in Changle District. This issue is reportedly due to economic pressure, family planning policies and the uneven male/female birth ratio in China, which make it difficult for women to secure husbands. To compensate, parents of daughters incentivise marriage through the purchase of cars and houses to secure a husband for their daughter. In 2018, media reported anecdotal evidence of a rural family in Changle District which gave birth to eight girls before giving birth to a boy. The family reportedly could not afford to raise nine children and voluntarily sent five children to a baby trafficker.
3.221The 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 outof- 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.’
Children[17]
3.222 Article 49 of the Constitution provides for the state protection of children, and prohibits maltreatment of children. The primary law protecting child rights, the Law on the Protection of Minors (2007; amendment) (Minors Protection Law), establishes that minors are defined as citizens less than 18 years old, and outlines the responsibilities of the families, the schools, and the government with regard to the protection of children’s rights, and judicial protection.
[…]
3.224 Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce.
3.225 ‘Left behind children’ are an unintended consequence of internal economic migration and the hukou registration system (see Children and Hukou (household registration) system). Over nine million rural children aged under 16 were estimated to be ‘left behind’ by both parents who migrated to urban areas for work in 2016. Up to 60 million children under18 were living without one or both of their parents in 2010. An estimated 89.3 per cent of left-behind children live with their grandparents and 4 per cent have no guardian. While 39.4 per cent see their parents once a year, many report no emotional connection to their parents. Many of these children are also unregistered, and considered ‘heihaizi’ (black children), as they are born in violation of the two-child (or former one-child) policy.
[…]
3.235 DFAT assesses out-of-policy and unauthorised children, children who are disabled, or children of migrant workers who are not registered under the hukou system can lack access to basic social services. DFAT assesses these children are vulnerable, cannot always access adequate state protection and can be at a higher risk of societal violence and/or trafficking. DFAT assesses ‘left behind’ children are also at higher risk of abuse, mental health issues, suicide and delinquency.
[17] DFAT report @
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[18]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[19]
[18] s.5AAA Migration Act 1958.
[19] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[20] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[20] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[21] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[21] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
Family Composition
In this case, claims for protection were submitted by the applicant’s parents on behalf of the applicant. The applicant’s mother provided oral submissions and evidence at the scheduled hearing in support of the applicant’s claims, including submissions in relation to the available country information.
Based on the birth certificates and copies of passports submitted, the Tribunal accepts and finds that [Ms A] is the applicant’s biological mother; that [Mr B] is the applicant’s biological father.
The Tribunal also accepts and finds that [Sibling C] and a sister [Sibling D] (born [date])[22] were both born to the same parents as the applicant and that they are the biological brother and sister to the applicant.
The accepted facts
[22] Birth certificates of [Sibling C] & [Sibling D]; Department file [number] @ f.80-81
Having considered the applicant’s protection visa application, prior decisions in relation to protection visa applications made by the applicant’s family members, and his applicant’s mothers evidence to the Tribunal relevant to the applicant’s claims for a protection visa, the Tribunal finds that:
(a)The applicant was born in Australia on [date].
(b)[Ms A] is the applicant’s mother.
(c)[Mr B] is the applicant’s father.
(d)The applicant’s parents were both born in Fujian province, China.
(e)The applicant has a brother, [Sibling C], born [date], and a sister, [Sibling D], born [date]. The applicant, his brother and sister are all the children of [Ms A] and [Mr B].
(f)[Ms A] and [Mr B] were not married but lived in a de‑facto relationship for a period of approximately eight years. They are no longer in relationship.
(g)The applicant’s mother completed a [qualification] in [Occupation 1].
(h)The applicant’s father has limited education to secondary school. He works as a [occupation].
(i)The applicant’s mother is a Christian and attends a Church known as ‘[Church 1]’.
(j)The applicant’s mother has, since early 2019, been engaged in [specified work].
Applicant’s Relevant Grounds
It is submitted on behalf of the applicant that his claims fall within the scope of s.5J(1)(a) of the Act by reason of his religion and membership of a particular social group. The applicant claims that he fears being identified by reason of his religion by reason that his parents are devout Christians. In addition, the applicant claims that he fears being identified as a member of a particular social group by failing to comply with China’s family planning policies and regulations and, as a result, being a child born out of wedlock. He claims that he will not be able obtain the hukou registration and that his family will be forced to pay a social compensation fee.
For the applicant to be considered part of a particular social group pursuant to section 5L of the Act, a person is considered to be a member of a particular social group if a characteristic is shared by each member of the group and the person shares, or is perceived to share, that characteristic. The characteristic must distinguish the group from the rest of society. It must be innate or immutable or so fundamental to the identity or conscience of the members of the particular group that a member should not be forced to renounce it.[23]
[23] Section 5L of the Act
In this case, the Tribunal accepts that the applicant, as a person who was born out of wedlock, (namely heihaizi or black children) for these purposes is a member of a particular social group within the scope of s.5J(1) of the Act.
The applicant claims that he falls within the scope of t s.5J(1)(a) of the Act by reason of his religion. The scope of ‘religion’ within the context of the Convention has been considered by the Federal Court in several cases including MIMA v Darboy[24] and Wang v MIMA.[25] In MIMA v Darboy the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’
[24] [1998] FCA 931 (Moore J, 6 August 1998).
[25] (2000) 105 FCR 548. Followed in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22].
The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and will often depend on the motivation of the persecutor or in circumstances where fear is by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[26]
[26] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[27] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[28]
[27] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 ( per Hill, Whitlam & Carr JJ, 10 February 2000)
[28] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
In this case, it is claimed by the applicant’s parents that they are devout Christians. As a result, in the event that the applicant returns to China, he would be harmed as a result of his parent’s faith. The evidence before the Tribunal is that the applicant’s mother attends a church, known as the ‘[Church 1]’ with the applicant and his siblings. In circumstances where his mother is Christian and he attends church regularly with his family, despite not being baptised he is likely to be perceived to be of the Christian faith. As such, the Tribunal accepts that his claims fall within the scope of s.5J(1) of the Act by reason of his religion.
The Applicant’s well-founded fear
Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
In Chan v MIEA[29] the Court, when considering ‘well-founded fear’ for the purposes of the Convention, held that it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[30] The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
[29] (1989) 169 CLR 379 at 396.
[30] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s [31]claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [32]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[31] ACIC letter dated 12 December 2018 AAT file No 1905388 @ f 85
[32] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that: [33]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[33] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
In this case, the applicant claims that if he is returned to China there is a real chance he will suffer serious harm by the authorities by reason that his parents are devout Christians and that as a result of being a child born out of wedlock he will not be able obtain the hukou registration and that his family will be forced to pay a social compensation fee. The applicant claims that as a being threatened due to fact that he will suffer significant economic hardship, a denial of basic services and that his capacity to earn a living will be denied in the event that he returns to China.
Therefore, based on the applicant’s evidence given on behalf of the applicant, the Tribunal accepts that he has a subjective fear of being harmed in the event that he returns to China. Accordingly, the applicant claims that he is a person who has a well-founded fear of persecution, pursuant to s.5J(1) of the Act, by reason of his religion and as a member of a particular social group.
The Applicant’s refugee claim
Christianity Membership and Related Claims
The applicant’s mother provided evidence of being a member of a church, known as [Church 1].[34] In this regard, the Tribunal notes that the applicant’s mother has previously been found to be a genuine Christian belonging to the Local Church as a practicing member. Accordingly, the Tribunal accepts and reiterates those findings.
[34] Letter dated [September] 2019 @ letter dated [September] 2017; AAT File No 1709179 @ f.97 & f.99
The applicant’s father did not appear before the Tribunal. Nevertheless, the Tribunal accepts that he was a member of the same Christian movement as the applicant’s mother and was otherwise committed to the Local Church if he were to return to China, now and into the foreseeable future.
The applicant’s mother claims that she belonged to an unregistered Christian religion, a Protestant denomination known as ‘the Local Church’ or, more pejoratively, as ‘the Shouters’. The Tribunal refers to the applicant’s mother’s claim at the Tribunal’s first hearing that her brother back in Fujian had been arrested in 2012 and then jailed for five years in a labour camp because he was a Christian. When the applicant’s mother had adverse information put to her by the previous Tribunal under s.424AA, arising from her earlier claims that her brother had been arrested and detained for a month in 2012, the applicant did not respond directly. She merely claimed that her parents blame her for her brother’s conversion to an unregistered church. Based on her response and her earlier claims it appears that the applicant’s mother has at the very least embellished her claims in relation to any harm suffered by her brother in China. The Tribunal notes that the applicant’s mother gave no evidence of her brother having been harmed in China and as a result theTribunal places no weight on her claim that her brother was arrested, detained and subjected to cruel and inhuman treatment or punishment. While the Tribunal accepts the brother of the applicant’s mother was a genuine Local Church member, the Tribunal finds there is no credible reason to believe that the applicant’s parents would be singled out by the authorities. Accordingly, there are no credible reasons that the applicant’s parents or the applicant himself would have any heightened profile as a Local Church member that would cause them to be arrested, detained, suffer significant physical harassment or harm, cruel or inhuman punishment, or degrading treatment or punishment, if they returned for Fujian province, now or into the reasonably foreseeable future.
While the Tribunal accepts that the applicant’s parents are Christian, it notes the country information that reports the ‘Local Church’ was targeted by the government in China in the 1980s as being counter revolutionary. As a result, it splintered into several other groups in China. The Tribunal notes that currently DFAT is unable to verify the extent to which the Local Church remains in China. The applicant’s mother did not provide any specific evidence of attendance at church in China, such as the location of the church or how often she attended. Therefore, based on the country information and the applicant’s mother’s lack of evidence in relation to her practice as a Christian in China, the Tribunal does not accept that the applicant’s mother was a member of the Local Church in China as claimed.
There is no evidence of the applicant’s mother or father having been involved in any human rights activities that would put them at risk of official discrimination or violence. The Tribunal notes that the DFAT report states that any adverse attention from the authorities will relate to a person’s activism and association with unregistered organisations rather than specifically to their Christian faith. Given that the applicant’s parents have not been involved in any human rights activities that would bring them to the attention of the authorities, the Tribunal finds that there is no real chance the applicant will suffer serious harm as a result of his parents’ (or any member of the applicant’s extended family) Christian faith in the event he is returned to China.
In any event, in this case the Tribunal will not be exhaustively discussing the country information about the unregistered churches in Fujian Province and making findings as it has remitted the matter based on other claims that the applicant is owed Australia’s protection obligations.
The applicant’s sister
The Tribunal refers to the Tribunal’s decision dated 20 February 2017[35] in relation to the applicant’s sister, [Sibling D]. The Tribunal repeats and affirms the findings of the Tribunal in that decision and in particular it finds that the applicant’s sister is a child with [Medical Condition 1] and that the applicant’s mother is the primary care giver of the applicant.
[35] Department File [number] @ f.136.
[Description of Medical Condition 1].[36]
Applicant born out of wedlock
[36] [Source deleted]
Based on the applicant’s mother’s evidence and the decision of the Tribunal in relation to the applicant’s other family members, the Tribunal accepts that the applicant and his siblings are all born out of wedlock and that the applicant’s parents were never married. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s mother’s evidence that she is no longer in a relationship with the applicant’s father and that she does not have any contact with him.
Although China’s marriage laws state that children born outside of marriage have the same rights as those born to married parents, the Population Law only refers to rights of married couples. As such, children born out of wedlock are considered to be ‘outside of the policy.’[37]
[37] DFAT Report @ 52
In Fujian Province, it is forbidden to give birth ‘before the stipulated time’. Article 14(1) of the 2002 Population and Family Planning Regulation of Fujian Province states that ‘a child is regarded as born before the stipulated time’ in the case where ‘those who give birth to a child before they get married (including those who become pregnant before they reach legally marrying age)’. The legal marrying age is 20 years for women and 22 years for men.
As a result, the applicant claims that because he was born out of wedlock he will be unable to be registered under the hukou system and will be denied access to services including health and education. The hukou system requires all Chinese citizens to register at birth with the local Public Security Bureau (PSB), that is, with their local police, according to their place of residence or household. [38]
[38] Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) (1998-2004), February, Section 2 & 7.1 ; Wang, FL 2005, Organising Through Division and Exclusion: China’s Hukou System, Stanford University Press, Stanford, p.70
The 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. As a result, the applicant’s mother claims that the applicant would be denied access to health, education and other services. By not having access to residential registration, the applicant’s mother claimed that the applicant will not have access to state funded education and medical services as the family cannot afford private services. As a result, the applicant will be denied education, medical services and other social welfare services.
The Population Law requires those who give birth to a child in contravention of family planning policies (including second children born before 1 January 2016) to pay a Social Compensation Fee (SCP), irrespective of hukou status.[39] The applicant’s mother estimated that the SCP would be at least 120,000 RMB. She claimed that the family would be unable to pay such an amount. The applicant’s mother claims that as the applicant was born prior to 1 January 2016 she will be liable to pay the SCP for the applicant as well her two other children.
[39] ibid
The country information reports that China has relaxed its family planning laws by replacing the ‘one-child’ policy with a ‘two-child’ policy. A new amendment to the Population Law was introduced in 2016[40] which included the implementation of a ‘two child’ policy, the abolition of forced contraception, and changes to certain leave entitlements for parents. Consistent with the applicant’s mother’s evidence, the country information notes[41] that lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. As a result, the interpretation and implementation of the policy varies enormously across China.
[40] DFAT Report @ f.51
[41] ibid
Prior to the 2016 amendment, payment of the SCF ensured children born in violation of the birth restrictions had access to government-provided social services and rights under the hukou system.[42] The 2016 amendment provides that children born before 1 January 2016 have a right to hukou and access to health and education services irrespective of SCF payment. That is, children whose unauthorised birth might have previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.[43] As such, it appears that the applicant will be able to be registered under the hukou system, notwithstanding the fact that the SCP, in relation to his particular breach of the Population Law, remains unpaid.
[42] ibid
[43] ibid
Prior to the new plan, many cities had already relaxed residency requirements in a bid to attract domestic migrants – especially young graduates – to sustain local property markets and promote economic growth. These incentives, however, tend to favour young and educated workers rather than those without higher education qualifications. Many of these migrants have continued to struggle to gain hukou in the urban areas where they’ve been working. Hukou restrictions have long been blamed for pushing rural migrant workers – China’s vast “floating population”, which makes up 18 percent of the total population – to the margins of urban society.[44]
[44] China Briefing ‘China is relaxing Hukou Restrictions in Small and medium sized Cities’ by Zoey Ye Zhang 17 April 2019
Unregistered children, commonly known as black children, or in Chinese as heihaizi, have in the past, not had the full rights of a registered child. The ‘black’ in black children connotes ‘illegal’ in Chinese. In particular, they are not entitled to public education and, as a result, their parents must pay for private education. Fees charged by private education providers are usually higher than for public schools.
Information in the China Daily, dated 29 April 2014,[45] gives an indication of the relaxing of restrictions for obtaining hukou for children born in contravention of family planning laws in Fujian province:
‘Registration of hukou, or permanent residency permit in China, for infants will become much easier in Fujian province, according to authorities on April 28. Starting on May 1, all newborns will be eligible to obtain their hukous regardless of their parents providing a birth certificate Under China’s birth policy; couples can have only one child. Those who violate the rule can be penalized, and previously, their “extra” children could not get a hukou, which could pose a hurdle in many aspects of life. But now, the new regulation says that no matter whether an infant is born in violation of the birth policy, he or she will be granted a hukou to guarantee his right to enjoy public services, said an official from the provincial public and security bureau at a press conference on Monday. They can sue if the local public bureau turns down the hukou registration for their children, he added. But parents will still receive punishment for breaching birth rules. The announcement marks a historical improvement and shows more humane touches in Fujian’s birth regulations, insiders said. Fujian adopted the so-called second-child policy earlier this month, allowing couples to have a second child if one of them is a single child.’
[45] ‘Fujian relaxes hukou registration for infants’ 2014, China Daily, 29 April,
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According to the Immigration and Refugee Board of Canada, a report published on the official government news portal China.org.cn stated:[46]
‘[i]f a family's second child was born before midnight on Dec. 31, in a family that already has a child and doesn't meet the requirements which allow them to have two children, the baby would be deemed illegal as the one-child policy was still in effect, and its parents would have to pay a heavy fine. However, if the baby was born after midnight on Jan. 1, there would be no problem at all, as the new law allows all Chinese couples to have two children. (5 Jan. 2016)’
[46] Canada: Immigration and Refugee Board of Canada, China: Treatment of "illegal" or "black" children born outside the family planning policy; whether unregistered children are denied access to education, health care and other services; information on punitive measures taken against parents who violated family planning policy before and/or after policy changes effective January 2016 (2013-September 2016), 20 October 2016, CHN105636.E, available at: 15 November 2019]
The applicant is the third child of his parents and was born on [date]. As such, the applicant was born outside the Population Law and would not be automatically be entitled to be registered under the hukou system.
Based on this country information above, the Tribunal is also satisfied that being born offshore will not pose a barrier to the applicant and his siblings being registered on their parents’ hukou. This means that basic social services, including health and education services, ordinarily available to Chinese nationals with household registration, will be accessible to him. As such, the applicant may be able to avoid much of the societal stigma that might be attached to a child born out of wedlock arising from the denial of publicly funded services.
Social Stigmatisation
It is claimed by the applicant’s mother on behalf of the applicant that social attitudes towards heihaizi will mean the applicant will face a real chance of serious harm or a real risk of significant harm based on the combination of these reasons.
Regarding societal attitudes towards children born out of wedlock, DFAT advises that children born out of wedlock without a household registration may have experienced discrimination in the past due to traditional and cultural disapproval. DFAT assessed, however, that social acceptance of children born out of wedlock is ‘likely to have improved’ and that such children may be entitled to the same educational rights as others if they have gained household registration since birth.
In 2010, the Tribunal, differently constituted, contacted Dr Alice de Jonge, a Senior Lecturer of Business Law and Taxation at Monash University, for information about children born out of wedlock in China. According to information provided on the Monash University website Dr de Jonge has ‘lived and studied in China and was a Visiting Scholar at Nanjing University, China’.[47] In her response, Dr de Jonge stated:[48]
[Children born out of wedlock] are still regarded with pity and disdain. They are teased at school. Single mothers are subject to discrimination when it comes to accessing housing, education and medical services…Women pregnant out of wedlock typically face discrimination in obtaining appropriate medical care. Single mothers are often discriminated against when seeking housing, education for their child, job opportunities and more generally in the context of social interactions.
[47] Refugee Review Tribunal Advice on China 18 February 2010 De Jonge, A 2010, Email to RRT, RE: Request for assistance from Refugee Review Tribunal,
Since 2010, attitudes and policies have positively have changed toward unmarried mothers. Changing social mores and economics are affecting parenthood in China. Chinese women are becoming increasingly financially independent, the marriage rate has dipped in recent years, and couples are divorcing more often than in the past.
However, the applicant’s mother claims that her parents are from a rural area and that the applicant and his family are likely to return to a rural area based on either of the hukous of his parents. The applicant’s mother has mentioned that she feared the rural conventions in her written statement at the time of the applicant’s visa application in 2013.[49]
[49] Tribunal decision dated 20 February 2017; Department file [number]@ f136.
While the Tribunal is satisfied that the applicant and her brothers will face some stigma arising from their heihaizi status, the Tribunal notes that it has made an earlier finding that they will not denied hukou and a range of education, health and other services. The Tribunal accepts that the applicant and his siblings will have a real chance or a real risk of returning to rural areas in Fujian where social conventions towards children born out of wedlock and their parents will evoke disdainful or pitying comments. While social attitudes have become tolerant towards heihaizi and will be more prevalent than in urban areas, the Tribunal is not satisfied that this stigma towards the applicant and his siblings will amount to serious harm, if they were to return to rural Fujian.
Social Compensation Fee Liabilities
The Tribunal has considered if there is a real chance that applicant will suffer serious harm, taking into account his and his family’s particular circumstances, in the event that he returns to China. In this case, the applicant’s mother has limited education and qualifications, no financial resources and has the care of three young children, one of whom has special needs due to the fact that she suffers from [Medical Condition 1], together with the fact that she will be required to pay a social compensation fee in respect of the applicant and his siblings.
According to provincial government regulations, social compensation fees are strictly implemented in relation to families returning to Fujian with additional children born overseas, unless waived by relevant authorities. Returning student couples are exempt from the social compensation fee when they return to China with a second child if both parents studied in another country for more than a year and have stayed in another country for at least a year with their additional child. DFAT advises in relation to Fujian province that to qualify for the exemption, both the mother and father needed to be overseas Chinese students with their second child born and living outside China for at least a year; the first child is a daughter; if both couples are from rural areas. The Tribunal notes that the applicant and both of the applicant’s brothers were born prior to the announcement of the ‘two-child’ policy in late 2015.
DFAT reports if a child is conceived out of wedlock, but the parents marry within 60 days of the child’s birth, no social compensation fee is charged.[50] DFAT advice also indicates that to apply for a child’s household registration in Fujian province, the parents are required to provide, among other documentation, a certificate of marriage. The Tribunal has already made finding that the applicant’s parents are not in a solemnised marriage and do not have a marriage certificate. The country information states that if a child is born out of policy the registering parent must supply a declaration of the child’s situation and/or a paternity test.[51] The country information therefore indicates that the applicant’s mother will have an increased risk of liability to pay the social compensation fee in the event that they return to China.
[50] DFAT Report @ p.
[51] DFAT Report @ p54
According to the country information, parents, including those in wedlock, may still be liable to pay the social compensation fee if additional children to Chinese nationals holding student visas are born outside of China and that those parents did not complete their studies. The Fujian Province’s 2013 Family Planning Commission notices refers to advice that ‘overseas student ‘means ‘people studying, getting a degree, receiving training or engaging scientific research or academic exchange in a foreign formal higher education institutions and scientific research institutions for purpose of studying and further education and living abroad’. As mentioned above, the Tribunal accepts that the applicant’s mother did not finish her enrolled courses while in Australia.[52]
[52] Immigration and Refugee Board of Canada 2009, China: treatment of pregnant, unmarried women by state authorities, particularly in Guangdong and Fujian; whether unmarried women are obliged to undergo pregnancy tests by family planning officials (2005 – April 2009), CHN103135.E, 23 June cisr.gc.ca:8080/RIR_RDI/RIR_RDI.aspx?l=e&id=452415; US Department of State 2007, China Profile of Asylum Claims and Country Conditions, May, pp. 97 – 98
This source translates Article 39(3) as: ‘For the birth of a child outside wedlock, a fine from four to six times this figure. For the birth of a second or subsequent child outside of wedlock, a higher fine will be levied’.
The Tribunal finds that, on arrival in China, the applicant’s mother will not be able to demonstrate she has completed even one year of studies while holding Australian student visas and that she will present three children born out of wedlock. Additionally, the Tribunal accepts that applicant’s older siblings as the first born is male and not subject to the exemption for rural couples. In addition, she has an autistic child that requires special care and attention. Based on the information before it, the Tribunal finds that the applicant’s mother will be liable for the social compensation fees for all three of children and that they will not qualify for any exemption from the Planning Law.
The applicant’s mother stated that she would be subjected to corrupt or zealous officials who would increase the amount of the combined social compensation fee to be paid. The country information states that the enforcement of the social compensation fee is administered at the discretion of the local authorities and as a result the implementation of the policy is inconsistent.[53] The Tribunal is mindful of the incentive to local officials to levy extra fees and that levels of corruption in China are relatively high. The information before the Tribunal suggests a trend towards a general relaxing of family planning policies in Fujian. However the application of laws and regulations in China, including in Fujian province, remain arbitrary. Officials responsible for the application of social compensation fees are known to be motivated by capriciousness, over-zealousness and with one eye on raising revenue, corruptly or otherwise.
[53] DFAT report @ p.55
In the applicant’s circumstances, the Tribunal finds that his mother is more vulnerable than other ordinary returning Chinese students to those more capricious aspects of China’s approach to governance. Their vulnerability is based on the children being born prior to the ‘two-child’ policy announcement in late 2015, that she is now single, has three children, one of whom is autistic and requires special care and attention, that she is of both low educational attainment and social standing, and has limited chance in avoiding any exemption to the social compensation fee through leniency of local officials.
For the cumulative reasons above, the Tribunal is not satisfied that the real chance of the applicant, along with his two siblings, being exempt from the social compensation fee liability will be remote or far-fetched.
The applicant’s capacity to pay for the social compensation fees
The Tribunal has considered whether, in the applicant’s circumstances, the applicant’s immediate family will have the capacity to pay for the social compensation fees.
The country information reports that both the previous and current Population Law require that those who give birth to a child in contravention of planning policies (including a child born prior to 1 January 2016) to pay a social compensation fee irrespective of hukou status. The Tribunal notes that the applicant and his siblings were all born prior to 1 January 2016.
According to the Fujian family planning office, Fujian social compensation fees 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 or 300 percent of an individual’s prior year’s salary, whichever is the greater.[54] The social compensation fees for single women who have had a child out of policy are calculated at 60 to 100 percent of the individual’s income in the prior year or the county average, whichever is the higher.[55]
[54] DFAT report @ 53
[55] ibid
DFAT reports that “social compensation fee[s] differed across districts”.[56] This is because the average income levels differ between districts (counties).[57] In some cases, this can amount to up to 10 times a person’s annual disposable income. Information on actual fees charged is difficult to obtain as they are subject to local discretion.[58] It is also because local authorities issue notices that “guide local officials in their application of relevant regulations”.[59] The DFAT report on China notes that there are no country-wide social compensation fees. Provinces formulate their own policies and local authorities decide how lenient they want to be. Generally, fees increase annually and they rise as annual incomes rise.
[56] ibid
[57] ibid
[58] DFAT Report @ p.51
[59] ibid
Fee are not based on a formula that a person can use to predict how much they would be liable to pay in the future. Therefore, the Tribunal has taken into account the fact that the fees listed below should be used as a guide only.
In this regard, the Tribunal also accepts the applicant and his siblings will be settled to Fujian province in the rural county of [County 1], under the aegis of the Fuqing prefecture, where the applicant’s mother is registered to live. As mentioned above, the Tribunal has made a finding that the applicants are more likely to reside in a rural area where employment opportunities are commensurate with their low levels of educational attainment.
The Tribunal acknowledges the exact figure of social compensation fees is based on county or municipal level statistics which means that the baseline varies throughout each province. The individual’s ‘actual income level’, the specific circumstances’ of their family planning violation, and provincial regulations also determine the fee. The DFAT report notes that there is no country wide social compensation fee; that provinces formulate their own polices and local authorities decide how lenient they want to be; and there are reports that revenues from fees are directed at municipal governments.[60] Fees rises annually as incomes rise and they are not based on a formula which a person can predict to measure his or hers liabilities. The Tribunal has taken into account, accordingly, this fact.
[60] DFAT Report @ p51
The applicant, together with his brother and sister, were both born out of wedlock and therefore ‘out of policy.’ The average income in China is approximately 82,461 RMB.[61] As a result, the Tribunal estimates that the social compensation fee that will be payable by the applicant’s mother in the event that they return to China will be 100 percent of the county average income for each child. That is, approximately 247,383 RMB or $52,000 AUD (at the available exchange rate at the time of this decision).
[61] Trading Economics Tribunal notes the country information that payments are permitted by lump sums or by instalments (that must not exceed three years).[62] The Tribunal notes that paying down the liability will be onerous; however it would not be, on this occasion in and of itself, amount to serious harm towards the applicant’s family as costs of living and other foreseeable out of pocket expenses will continue to be affordable.
[62] DFAT p.53
101.At the hearing, the applicant’s mother stated that she was not working. She said that she was living in a friend’s house and she was currently a full time home-maker. She said the fact that the applicant was still young and that her daughter suffered from [Medical Condition 1] meant that she was required to provide full time care to her children. However, she did say that from time to time she would obtain casual [work], but stated that on the whole she is currently living off the generosity of a friend. The applicant’s mother stated that she had never worked as a [Occupation 1] and that her qualification was only limited and would not be enough for her to obtain employment in China.
102.The Tribunal also acknowledged that she cannot rely on the applicant’s maternal father, whom the Tribunal accepts is unsupportive; that her mother (the applicant’s maternal grandmother) is financially and otherwise strained in caring for her brother’s child and that her brother could not be relied upon to assist an additional family. In this regard, the Tribunal accepts the capacity of the first applicant is significantly restrained.
103.The Tribunal has also considered the capacity of the applicant’s father, who is relatively young and available to the labour market. However, the applicant’s mother’s evidence was that he has left the family and she does not know where he is. As such, it is unlikely he would have any further contact with the applicant or his family. Nevertheless, the Tribunal acknowledges that the applicant’s father has very low educational qualifications and low skills. The Tribunal anticipates that there would be some support from family who are unskilled rural workers with no regular salary. In the event that the applicant’s father did return to China with the applicant and his family, the Tribunal anticipates that he would be only able to access low paid work, even if he commutes or relocates to urban labour markets. The average disposable income of urban residents in Fuqing is about approximately 64,412 RMB and the Tribunal assumes the applicant’s father will be earning lower than the average salary or wage earner in Fujian province due to his lack of qualifications.
104.Assuming that the applicant’s father does not return to China with the applicant and his family, then the Tribunal notes that women in China receive approximately 36% less income than males for the same position.[63] In addition, women in the workforce suffer from discrimination, as the majority of positions are openly advertised as preferring male workers. Accordingly, the Tribunal anticipates that the applicant’s mother, as an unskilled worker in China, will have difficulty in obtaining employment. In the event that she does, it will be poorly paid.
[63] Catalyst ‘Women in the workforce -China Quick Take’ 9 Jan 2019 Tribunal has considered whether any of the applicant’s grandparents would be able to pay the social compensation fees with their combined assistance. However, the Tribunal accepts the evidence that the modest incomes of the applicant’s grandparents derives from farmland that mostly subsists them and that it would be unreasonable to divest of this land either as an asset or as a source of income.
106.The Tribunal finds that given the lack of family support available, the cost of the social compensation fee, out of pocket expenses for ad-hoc and specialist consultations, rehabilitation and schooling costs or through health insurance would fall on the applicant’s mother and significantly affect the disposable income required for a single parent family of four with a disabled child. The country information outlined above indicates that a large proportion of families cannot meet the costs and fall into debt.
107.Based on the evidence before it, the Tribunal is satisfied that the applicant’s family does not have the capacity to pool the resources together, given all its members have the real chance of relying on just a single income earner to pay social compensation fees as required by China’s family planning and household registration policies, as well the ongoing private costs for basic health and education services for the applicant and general living expenses. Even if the applicant’s family had to borrow the money through a licensed or an unlicensed money lender, the family’s capacity to pay down this sizeable debt is severely restrained, which will negatively impact on their capacity to meet living expenses and may even open the applicant and her siblings to the illegal practice of bonded servitude, which remains persistent throughout China. In this regard, the Tribunal notes a 2016 US State Department report of traffickers targeting children whose parents have migrated to the cities and left them with relatives and persons with developmental disabilities for forced labour and begging.[64]
[64] 2016 Trafficking in Persons Report by the US State Department: Country Narratives A-D pp, 128-132, this regard, the Tribunal has considered that paying liabilities to the Fujian provincial government, as well as the ongoing out-of-pocket experiences pertaining to the applicant’s sibling’s disability, would be overly onerous. These conditions may compel this low-income low skilled family to fall into further debt to meet these costs. In these circumstances, the applicant faces a real chance of her family forgoing basic health and education services so as to deny the applicant basic health and education services. Alternatively the applicant’s family would otherwise face a real chance of significant economic hardship that threatens the capacity of the applicant’s family to subsist. This is based on the Tribunal’s assessment there is a chance that is more than remote or far‑fetched in which the applicant’s family will fall into debt and destitution to cover the combined costs of the applicant’s services pertaining to her [Medical Condition 1], the social compensation fee liabilities to the family and basic living costs based on the family’s combined capacity to generate income, if they return to Fujian Province, into the foreseeable future. The Tribunal finds that these dilemmas facing the applicant and her family do amount to serious harm, as the harm closely corresponds to the serious harm instances as outlined in s.91R(2)(d) and (e).
109.Having considered the accepted circumstances of the applicant and her immediate family, both individually and cumulatively, the Tribunal finds that she faces a real chance of serious harm for a Convention reason, if she, with her family, were to return to Fujian Province, now and into the foreseeable future.
Whether there is a real risk of harm occurring or if it is unreasonable for the applicants to relocate outside Fujian province
110.Based on country information and the applicants’ personal circumstances, the Tribunal finds that the applicant will face a real chance of serious harm not only within his home province of Fujian, but also in another province in the People’s Republic of China if his hukou permits.
111.The Tribunal finds that it would not be reasonable for the applicant and his family to relocate outside the area of her hukou or outside the province, because of their financial situation, low skills, their liabilities and the applicant’s sibling’s disability, as they could not easily afford to move or access basic services for the applicant.
112.The Tribunal further finds, by reference to the information about the situation in China, that if the applicant was to relocate without a change of hukou, he would face serious difficulties and precarious uncertainty in his new place of abode, in access to housing, employment, education, and (possibly) health services. In the applicant’s circumstances, given his age, the fact that the family has no financial resources and one of the applicant’s family members suffers a behavioural disability requiring professional attention, the unreasonableness, in the sense of being not practicable, is particularly heightened.
113.Therefore, having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are substantial grounds for believing that, as a consequence of being removed from Australia to China, there is a real chance that the applicant will suffer serious harm.
114.The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is a person to whom Australia has protection obligations under the Act.
115.In arriving at this decision, the applicant’s parents should know that the Tribunal has made these findings only marginally in favour of the applicant. In the light of this decision, it is strongly recommended that the applicant’s family seek out professional migration advice and assistance regarding the migration options open to them.
Applicant’s complementary protection claim
116.The applicant claims that, without conceding in any way his claims under the Refugee Convention, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm upon his return to China as a result of being a person born out of wedlock, (namely heihaizi or black children).
117.Having considered the evidence provided by the applicant’s mother and the available country information for the reasons detailed above, the Tribunal accepts his claims and finds that there is a real risk that the applicant will suffer significant harm as a person born out of wedlock that would constitute degrading treatment or punishment pursuant to section 36(2A) of the Act.
118.At no stage did the applicant advance any other reason, such as his nationality or political opinion, in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
119.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm as required by s36(2)(aa).
CONCLUSION
120.The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
121.Having concluded that the applicant meets the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) and is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
122.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Jason Pennell
Senior MemberSydney (RRT ref: CHN36060), 15 January; De Jonge, A 2010, Email to RRT, RE: Request for
assistance from Refugee Review Tribunal, Sydney (RRT ref: CHN36060), 20 January
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