1709179 (Refugee)

This decision concerned an application for a protection visa by a child from China. The applicant's mother claimed that her son would face serious harm if returned to China due to his status as a child born out of wedlock, known as a 'heihaizi' or 'black child'. The dispute centred on whether the applicant's circumstances, particularly the potential liability for social compensation fees and the family's limited capacity to pay them, constituted a real chance of serious harm, thereby engaging Australia's protection obligations. The matter was heard by the Refugee Review Tribunal.

The primary legal issues before the Tribunal were whether the applicant faced a real chance of serious harm as a refugee under section 36(2)(a) of the Migration Act 1958 (Cth), and alternatively, whether he faced a real risk of significant harm constituting degrading treatment or punishment under section 36(2)(aa) of the Act. Specifically, the Tribunal had to determine if the social stigmatisation associated with being born out of wedlock, combined with the financial burden of social compensation fees for contravening family planning policies and the family's limited capacity to pay these fees, particularly in light of a sibling's disability, amounted to serious harm. The Tribunal also considered whether it would be unreasonable for the applicant and his family to relocate within China to avoid such harm.

The Tribunal reasoned that while social attitudes towards children born out of wedlock had improved and access to basic services like hukou, health, and education was generally available, the applicant's family faced significant financial challenges. The applicant's mother had limited education and financial resources, and the family had three children, one with a disability requiring special care. The Tribunal found that the applicant's mother would likely be liable for substantial social compensation fees upon return to China, with no clear exemptions applicable to their circumstances. Given the family's low income, limited employment prospects, and the ongoing costs associated with the sibling's disability, the Tribunal concluded that the cumulative financial burden of these fees and expenses would likely lead to significant economic hardship, potentially forcing the family to forgo essential health and education services or fall into destitution. This, the Tribunal found, amounted to serious harm. The Tribunal also determined that relocation within China would not be a reasonable or practicable option for the family due to their financial constraints and the need for specialised care for the sibling.

Consequently, the Tribunal found that the applicant satisfied the criterion for a protection visa under section 36(2)(a) of the Migration Act. The Tribunal also found that the applicant faced a real risk of significant harm under section 36(2)(aa) of the Act. The matter was remitted for reconsideration with a direction that the applicant satisfies section 36(2)(a).