1713145 (Refugee)

1713145 (Refugee) [2021] AATA 925 (30 March 2021)
DECISION RECORD
CASE NUMBER:  1713145
COUNTRY OF REFERENCE:                   China
MEMBER:Rachel Westaway
DATE:30 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 March 2021 at 8:32am
CATCHWORDS
REFUGEE – protection visa – China – applicant child born out of wedlock – access to hukou – unable to pay social compensation fee – ability of applicant’s grandparents to have four children – applicants have ability to work and earn money – changes to social compensation fee policy – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 14 June 2016. On 30 May 2017 the delegate for the Minister refused the grant because the delegate was not satisfied that the applicant met the requirements for the visas.
The issues in this review are whether there is a real chance, if the applicant return to China, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk that she will suffer significant harm. The applicant is a child and her mother is fearful that being the child of unmarried parents and the second of three in the family she will not be entitled to hukou without paying a significant social compensation fee of which she cannot afford. Consequently, she will be deprived of a state education and healthcare and be ostracised. Further, the applicant in her initial application stated that her parents attend church and she is concerned about what she may face as the child of Christian church attending parents. However, in her review to the Tribunal, the applicant has since stated that she does not wish to rely upon these claims and will focus on her concerns pertaining to access to hukou.
Ultimately the delegate found that the applicant would not face a real chance of persecution or real chance of serious harm as a child born out of wedlock or as the second child in a family or as a child of Christian parents now or in the reasonably foreseeable future.
The Tribunal has noted that there is passport evidence before the Department confirming parental identity. I therefore find the applicant, born on [date], to be a national of China. For the purposes of this assessment her country of citizenship, the People’s Republic of China, is her receiving country.
The applicant’s mother appeared before the Tribunal on 7 October 2019 to give evidence and present arguments. The applicant, who is a minor, did not attend the hearing. The applicant’s representative attended the hearing.
Criteria for a protection visa
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: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 has a well-founded fear of persecution or areal chance of significant harm.
The applicant provided a statement with her protection visa claim Department file [number] ff:46-48. The statement was made by the applicant’s [mother] as the applicant is a child.
·     The applicant was born on [date]. She is the second child to parents in a de-facto relationship. Her father’s name is [deleted]. The applicant was [age] at the time of application.
·     The applicant’s family come from Fujian in China.
·     She claims her daughter is the second child born outside of marriage. She will be considered a black child and will not receive household registration which will deny her access to education and healthcare. She will therefore struggle to survive and support herself. She claimed that private health care is not affordable for them.
·     She also claims that she will face social discrimination.
·     She claims that the decision by the Tribunal pertaining to her parent’s application stated that the grandparents could assist in paying the fines however she stated that they cannot afford to. She claims her parents face financial difficulty and her maternal grandparents have no pension. The grandfather works in a [shop] and the grandmother does not work. Her paternal grandfather [works] and her paternal grandmother does not work.
·     The applicant’s parents are in Australia and claim not to have work rights and came to Australia on student visas and did not have money behind them as they were too young to have career work in China.
·     It is not possible to obtain registration in other parts of China as they have requirements to own property and live there for a number of years.
·     If they were to return to China she is uncertain her partner would find work or what type of work and she would need to look after the children.
·     She stated that she is not certain how they will manage as they have been away for a long time.
·     She stated that the child is not baptised but attends church with her parents. She does not know what impact if any this will have on them. No claims were made in this regard.
·     The applicant’s submission confirmed that the key issue is the concerns pertaining to Black Children in China. The submission stated that there is discretion on the fees associated for second children born prior to 1 January 2016 so the costs are unclear.
·     Fees are charged according to last year’s local disposable income per capita and the net annual income per capita in rural places. This can amount up to 10 times a person’s annual income.
·     The submission contained evidence which supports the applicant’s claims that they have limited funds in their bank account. That the applicant now has a brother, a third child and that the family are settled in Australia.
The applicant’s representative provided a submission to the Tribunal. Included were extracts from the DFAT report dated 21 December 2017 stating it is post the department’s decision. It highlighted that social compensation fees are in place as a disincentive for multiple children and that at local level public opposition to such policies are often treated by officials as political opposition. It also quoted the UK Home Office who referred to the ongoing difficulties in obtaining Hukou and the huge social compensation fees for children born out of wedlock. The Congressional Commission China Annual report for 2018 was also quote and reiterated coercive population control policies which violate international standards arguing that children born out of wedlock are out of policy and that couples should marry.
Also supplied with the submission were the following:
·     A statutory declaration dated September 2019 from the applicant’s mother explaining she now has a third [child]. She reiterated her concerns about unplanned pregnancies and limited financial means to pay for fines for children outside of marriage and therefore they will no be granted registration which will then mean they will not have access to education, health and other services as well as being discriminated against socially (Tribunal file ff:36-39).
·     A certified birth certificate for the applicant’s younger brother
·     [Bank] statements dated May to August 2019 which indicated a closing balance of $47.33 belonging to the applicant’s mother
·     Copy of transaction list for the applicant’s mother from 1 August 2018 to 1 September 2019
·     [Bank] statements dated May to July 2019 belonging to the applicant’s father
·     A letter dated 23 September 2019 from [a] Case worker supporting the application for review (Tribunal file f:29).
The applicant’s mother appeared before the Tribunal on 7 October 2019 on behalf of her daughter. The Tribunal is cognisant that the applicant is a [child] at the time of the Tribunal hearing. [The applicant’s mother] gave oral evidence to the Tribunal and explained she came to Australia by herself IN 2007 initially complete her high school education and she undertook VCAL and she met her partner in 2010. He came to complete his secondary education as well however he never finished high school. She explained that she wanted to study further and was interested in going to TAFE and studying to become a [course]. She was nearly [age] years of age when she arrived. She confirmed that she had never travelled outside of China before. She confirmed she is from a family of four children and all her siblings were educated in China. She confirmed she is the youngest. Both her and her partner (the applicant’s father) are from Fujian province. Her partner came to Australia in 2007. He has a younger sister.
The Tribunal asked [the applicant’s mother] what she feared for regarding her daughter returning to China and she stated that she was born out of marriage and she is the second child and the hukou is important. The Tribunal asked the applicant why she is seeking protection for her daughter and she explained that she will need to pay a fine for her daughter as she is born out of wedlock and is not the first child and the fine will then enable her to obtain the hukou. If she does not have this then she cannot be enrolled to attend school or receive health care. The Tribunal asked the applicant her expectation of the fine and she stated that she is not sure, but she understands it is in excess of 10,000 CY. The Tribunal discussed this with the applicant and acknowledged that she might incur a significant debit but asked her to consider whether this equates to a real chance of persecution or a real risk of significant harm.
She explained that the fine or social compensation fee will be hard for her to pay. She explained that she will have three children and she cannot return to China because she will find it hard to find a job and therefore she will not be able to pay the fine and her daughter will not receive the hukou and will therefore not have access to education or healthcare. She explained that now she has three children she will find it even harder to obtain employment.
She stated that her daughter’s father, her partner will not be able to work. She explained he is a [Occupation 1] in Australia, but he is not educated, and work will not be highly paid. She expressed concerns that they have been in Australia for over ten years and returning will be strange and they barely have enough to live on in Australia, but they will struggle in China.
The Tribunal asked [the applicant’s mother] if family could assist her in paying the fines and she stated that her partner works as a [Occupation 1] and earns $300-$400 per week cash. She stated that they sublease rooms to cover the costs in Australia and cannot save money. She has two sisters and one brother, and they have their own families to support and cannot assist in the payment of any form of social compensation fee. The applicant’s father has a sister, however she too has family commitments and the grandfather [works]. She explained that their basic living costs remain a concern even in Australia.
The Tribunal discussed the DFAT Country information report with [the applicant’s mother] and stated that the information available to the Tribunal indicates that there may be a range of options available to her. It asked her if she would pay the fine gradually, or whether she would consider private education and healthcare as discussed above.
Country Information:
The available country information from DFAT – Country Information report China (21 December 2017) was referred to during the hearing:
“3.109 The hukou (or household registration) 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. According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. 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”.
The Tribunal notes that the applicant was born on [date].
Also quoted and discussed with the applicant was the following from the ‘DFAT Thematic Report Fujian Province, People’s Republic of China 16 December 2016’:
“3.37 The hukou (or household registration) 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 (see 5.4). In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid.”
In terms of being born out of wedlock, the Tribunal notes that children whose authorised 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. That information is contained in the (general) DFAT Country Information Report People’s Republic of China report at 3.108 and 3.109:
“County-level governments collect the revenues from fees. The national law does not set out a fee schedule that applies to all localities. Instead, provinces formulate their own rules on specific fines based on the basic social compensation fee measure outlined above. Local authorities can decide whether to impose a more lenient fine if parents report an out-of-policy birth soon after it occurs. Authorities are likely to apply heavier penalties for uncooperative behaviour such as hiding children and can apply additional surcharges to those who fail to pay the required fee. The local family planning bureau and employers may pressure the parents of out-of-policy children. Awareness of the fees is widespread and, in many cases, couples wishing to have an additional child will save the required social compensation fee in order to do so. In these cases, social compensation fees operate as an additional tax, rather than as a punitive arbitrary measure.
The hukou (or household registration) 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. According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. 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.”
Further, the Tribunal drew [the applicant’s mother]’s attention to the country information outlining all Fujian babies, including abandoned babies, those born out of plan or out of wedlock, should now have access to household registration whether their parents pay the compensation fee.
The parties submitted post-hearing that “According DFAT Thematic Report Fujian Province, Peoples Republic of China – 16 December 2016, at 3.32 and 3.107 “The actual application of Social Compensation Fees varies across Fujian and is subject to local discretion (and leaves open the possibility of individual or institutionalized manipulation.”
The Tribunal has considered a more recent Country report DFAT China 20 October 2019. It states:
3.199 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.

The report acknowledges:
3.205 Some parents still avoid the SCF by hiding children born in violation of the law with friends or relatives. Such hidden children do not have access to social services and rights under the hukou system. Awareness of SCFs is widespread and, in many cases, couples wishing to have an additional child will save the required SCF. In these cases, the SCF operates as a pseudo tax, rather than as a punitive arbitrary measure.
Local authorities have the discretion to decide whether to impose a more lenient fine if parents report an out-of-policy (child born to a single woman) or unauthorised birth (additional child born to a married couple) soon after it occurs. Authorities are likely to apply heavier penalties for uncooperative behaviour, such as hiding children, and can apply additional surcharges to those who fail to pay the required fee. The local family planning bureau and employers may also pressure the parents of out-of-policy and/or unauthorised children.
In some provinces or counties, authorities have also imposed fines on entire work units in addition to the individuals concerned.
The report also goes on to say that several Government departments have been closed which historically were responsible for family planning. This is a trend which highlights the relaxation of the enforcement of the SCF – social compensation fee.
The Tribunal notes that the material contained in the 2019 report was materially the same as the country information report put to the applicants at the hearings. The Tribunal is satisfied that the issues arising from the 2019 report had been raised with the applicant at the hearing.
Notwithstanding this, the report does state:
that, while the introduction of the two-child policy has reduced the need for the application of penalties to those in violation of the Population Law and family planning policies, application of law and policy remains inconsistent and non-transparent across provinces. DFAT assesses inconsistent and non-transparent application of SCFs leaves open the possibility of individual or institutionalised corruption. If the government were to approve full liberalisation of the fertility policy at any stage, there would no longer be a use for the SCF or other punitive measures against married couples; however, the possible impact on single, unmarried mothers remains unclear. Whilst that may be so, the Tribunal is unable to concluded that this would be the likely situation and that DFAT’s wider view that that all Fujian babies, including abandoned babies, those born out of plan or out of wedlock, should now have access to household registration whether or not their parents pay the compensation fee, will not be the case here.
In regard to payment of the SCF, the report states:
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.
Responses from the applicant’s parent was speculative about how the system had not truly changed, and how corruption meant that the country information was incorrect. The Tribunal cannot speculate about whether China would dilute the laws on out of plan children, or why it might or might not. I also find that the applicant’s parent engaged in speculation that local authorities would ignore the rules in this case and still deny registration to their daughter. This claim was not evidenced by the applicant’s parents either qualitatively or quantitatively. The Tribunal can only in these circumstances find the balance of the scenarios in the country information to be the more reasonable likelihood.
The Tribunal asked [the applicant’s mother] if she returned to China would her mother or family assist her in with childcare so she can work and pay the fee. She responded that it is hard to obtain jobs. The Tribunal does not accept that she would not be able to work or that her partner could not obtain work as a [Occupation 1] as he is doing in Australia. She explained that her own mother is already looking after her brothers two children. She explained that her father has been employed. He has always worked in [an industry] and her grandmother is alive however her grandfather died 1 year before she came to Australia. The Tribunal said to [the applicant’s mother] that her own mother had four children of her own in China and queried why she would not assist her daughter in order for her to return to work and have child care and she said that she cannot because she is getting older.
She said that her in-laws could look after one child, but she will have three and this is a big burden as they also have other responsibilities. [The applicant’s mother] confirmed her siblings are married.
The Tribunal asked [the applicant’s mother] how her own family managed to have four children and have them all educated with healthcare and she stated she lived in a harsh environment and her father’s business got worse. She confirmed that her parents paid for her Hukou however the fines were smaller fines than now.
The Tribunal expressed concern that she was not able to meaningfully tell the Tribunal what the fine is as she has never calculated it and given that she is adamant that she does not want her daughter to return to China because she cannot pay the fine, it seems unusual that she would not meaningfully engage with the regulations regarding this.. [The applicant’s mother] said it is at least 100,000 CY.
[The applicant’s mother] also explained that she fears for her daughter based on the discrimination she will face as her parents are not married. She said that her peers will laugh at her situation. She said it is hard to return to China and send her children to Chinese schools because the children will have limited language skills.
The Tribunal asked [the applicant’s mother] if she speaks with her children in Mandarin and she confirmed she did. The Tribunal explained it did not accept that a language barrier would be a serious issue if they are communicating already in mandarin. [The applicant’s mother] responded that they are only studying English languages. is already left behind and she can speak but not reason and write, year [grade] in China. Explained concerns that it is not serious or significant harm and a offered her the chance to respond.
[The applicant’s mother] again reiterated that her daughter would be denied access to public schooling unless she could pay fines and she can’t, and this will be psychological damaging to her daughter, and she will also feel the social pressures.
The Tribunal asked [the applicant’s mother] how her own family and her husbands were able to financially support the her and her husband to come to Australia and yet they would not be able to assist with paying the SCF. She explained that her parents provided financial support, but it was only small, and she had a part time job and paid living expenses and tuition fees. Her parents have gone into bankruptcy. Her father’s shop shut down. She has no idea why and she didn’t ask. She said that it closed down after she came to Australia.
She said that her partner’s parents borrowed money to send him to Australia. Her partner’s father [works] and he is sick and getting older.
[The applicant’s mother] said her daughter was born in Australia and only knows this culture and China and she knows nothing about China.
The Tribunal asked if the representative would like to offer any further information. She agreed that the new country report advice has not changed. She stated that their concern is the right to access education pertaining to second and subsequent children. She explained the children are not registered, there is volatility in the system and how it is implemented is opaque. She said that with the lack of registration there is a concern. They could never have foreseen the associated costs and would not have enough money for their basic living expenses, and they came as teenagers with a limited education and have been in Australia now for twelve years. They have no guarantee of employment in China and no capacity so are living hand to mouth in Australia.
On 30 September 2019, the applicant provided a submission and confirmed they relied on the same claims submitted previously.
In addition, the applicant’s representative provided a statutory declaration from the applicant’s mother dated 30 September 2019. She confirmed that she has since had third child[born] on [date].
She summarised in her statement the Tribunal decision of the applicant’s father outlining that registration may be possible, but she stated that as the parents are not married, and this is not permitted, and you must pay a fine before the children can be registered. She stated that her pregnancies are unplanned and that even if they decided to marry it is too late. She explained that the fees will be much higher as they increase with each child born out of wedlock. [The applicant’s mother] stated that she and her partner are unable to pay the social compensation fine even if it was in instalments.
FINDINGS AND REASONS
The applicant was born in Australia to parents who are Chinese citizens. They provided copies of their Chinese passports and the Tribunal accepts that the applicant is a citizen of China. and that China is the receiving country for the purposes of s.36(2)(aa).
The Tribunal has considered country information from a number of sources which indicate that all children of Chinese nationality will be entitled to be granted household registration. Household registration provides access to medical and educational services and other government benefits.
At the hearing the Tribunal discussed with the applicant the available country information in relation to family planning issues in China. As noted above, the 2017 and 2019 reports are not dissimilar, if anything the rules continued to become more relaxed as Chinese citizens are permitted to have a second child and as the population rate drops. The Tribunal considered the report’s with respect to family planning laws consolidated and updated earlier reports including the 2017 Report and the Fujian Report which were discussed at the hearing.
The Tribunal notes that the country information indicates that the payment of a social compensation fee for children born out of plan has now been separated from the issue of household registration. The Chinese government has declared that all children irrespective of the circumstances of their births have the right to obtain household registration.
Essentially, with respect to Chinese family planning laws, [the applicant’s mother] claimed on behalf of her daughter, that they would be forced to pay a social compensation fee which will be very high because they are the unmarried parents of now three children and as such the applicant would not be able to obtain household registration until the fee was paid. She stated emphatically she cannot afford to so the applicant will be an unregistered child and will not be entitled to public education and will be blocked from basic social services such as healthcare and be socially isolated and mocked.
The Tribunal discussed the current country information relevant to obtaining a hukou for children who are born outside the current family planning regulations. The Tribunal put to the applicant that according to the national law, children now have a right to household registration and access to health and education services, regardless of the payment of social compensation fees. Some provinces, including Fujian, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for household registration. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for household registration irrespective of whether their parents have paid the relevant fees.
The Tribunal acknowledges that in practice, implementation of these laws and regulations varies in different locations. The applicant’s parents are both from Fujian Province and, as noted above, in August 2015 the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of social compensation fees as a prerequisite for accepting an application for a hukou (residence permit) and that children are now able to apply for a hukou irrespective of whether relevant social compensation fees have been paid.
The applicant’s parents claim that they would not be in a position to pay the social compensation fees as they do not have the resources to pay the fee without going into debt. They provided copies of bank accounts in Australia demonstrating their limited funds.
The Tribunal notes that the parents have lived in Australia for many years and have been able to support themselves in Australia as [the applicant’s mother] stated.
Having regard to all their circumstances and given [the applicant’s mother]’s oral evidence that her husband is a [Occupation 1] and she did work before she had children and they occasionally send money to China to their family, the Tribunal does not regard the parents statements that they will struggle to find employment and earn a living in China to be credible.
The Tribunal accepts that if the applicants return to China they may have to pay a social compensation fee, but as discussed, it also notes that local officials have considerable flexibility in how they apply these fees. They have the power to exempt fees or allow fees to be paid by instalments, depending on the circumstances of the parents.[1]
[1] DFAT Country Information Report: People’s Republic of China, 3 October 2019, p.3.221
Whilst accepting that corruption is a continuing issue in China and recognising that provinces in China have discretion with relation to the implementation and imposition of social compensation fees, the Tribunal does not accept the claim that there is any evidence that the parents will be required to pay a bribe in addition to the compensation fee which might be levied.
[The applicant’s mother] claims that the couple would have to pay a very large social compensation fee if they returned to China and they do not have the financial resources to pay the relevant fee. The Tribunal put it to them that their family could assist or that the applicant’s father has a trade, namely he is a [Occupation 1] and could earn a living. The Tribunal put to [the applicant’s mother] that country information indicated that authorities had discretion in the amount and form of imposition of fees and they are able to take into account capacity to pay in doing so. [the applicant’s mother] did not accept this was the case and expressed concern that the system was corrupt.
The Tribunal accepts that the applicant and her siblings are born out of wedlock and if the family return to China they may be liable to pay a social compensation fee for having three children out of wedlock in breach of family planning regulations. However, the Tribunal finds the family’s circumstances in Australia demonstrate that the first applicant’s father is capable of working and supporting his family and that the applicant’s parents have parents who would have capacity to assist given they also paid SCF in the past for their children and have sent their children overseas to study and help with childcare with other members of the family. Whilst the support might be limited, it is some support which would assist the couple in returning to employment and paying the SCF in instalments.
The Tribunal is not satisfied that the applicants would suffer financial hardship amounting to serious or significant harm as a result of a requirement to pay social compensation fees. As noted above, country information suggests that there is some flexibility in how such fees may be paid including that the fee may be paid in instalments. Further, on the evidence before the Tribunal it appears likely that the applicant’s father would have reasonable prospects of obtaining employment where he has experience working as a [Occupation 1]. The Tribunal also considers that [the applicant’s mother] would receive some assistance from her family in regard to childcare which would facilitate her returning to employment in China if she chooses to do so. The Tribunal is satisfied on the country information that if the applicants are employed, they would not suffer financial hardship due to a requirement to pay social compensation fees. The Tribunal finds such fees would be calculated according to their actual earnings or the average earnings applicable to their area in Fujian. The Tribunal finds the authorities have flexibility in the imposition of fees, including waiver of fees or payment of fees by instalments.
For these reasons the Tribunal does not accept the applicants claims that she is unable to register for hukou. The Tribunal finds on the evidence that the applicants’ fears of persecution from authorities or from any other group or individual due to the inability to register for hukou or due to the requirement to pay social compensation fees are not genuinely held. The Tribunal finds that on the evidence the applicant does not have a well-founded fear of persecution arising from an inability to obtain hukou in China or from the denial of services linked to hukou registration or public perception of such. The Tribunal finds on the evidence that the applicant does not have a well-founded fear of persecution arising from the imposition of social compensation fees on her return to China and in the reasonably foreseeable future.
The Tribunal finds, based on the applicant’s Mother’s evidence, she and her husband have the ability to work and earn money in China and, if they are required to pay a social compensation fee for having three children out of wedlock, the Tribunal is of the view that they will be able to pay this fee over time. Accordingly, the Tribunal does not accept that the payment of the fees in the applicants’ circumstances would amount to serious or significant harm either through the hardship caused by paying such fees or by the imposition of the fee itself.
The Tribunal rejects any implied claim that any economic hardship encountered by the applicant or her parents would give rise to a real chance that the applicant would face serious harm or significant harm in China.
The Tribunal has not considered the initial claim pertaining to religion as the applicant’s mother and migration representative did not want this claim pursued.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Westaway
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 925

30 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction