1716847 (Refugee)

[2020] AATA 1545

1716847 (Refugee) [2020] AATA 1545 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716847

COUNTRY OF REFERENCE:                   China

MEMBER:Jason Pennell

DATE:22 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act.

Statement made on 22 April 2020 at 9.40am

CATCHWORDS

REFUGEE – protection visa – China – Federal Circuit Court remittal – child applicant –unmarried, single mother with three children – mother and older sibling’s protection visas refused – grandfather’s conviction, imprisonment and fine in China – mother’s low-level church attendance in China and Australia – country information – religion – family planning policies – ‘black child’ – corrupt charging of social compensation fee by local officials – socio-economic status – young mother with limited education and skills and no work experience – no support from mother’s parents and children’s fathers – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 36(2)(a), (aa), (2A), 65, 91R(1)(a), (2)(d), (e)

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379 at 396

Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIEA v Wu Shan Liang (1996) 185 CLR 259

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

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

2. The applicant, who claims to be a citizen of China, applied for the visa on 15 February 2013 and the delegate refused to grant the visa on 5 July 2013. The delegate refused to grant the visa on the basis that he 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 Act.

3. On 20 October 2017, the Tribunal, differently constituted (‘the First Tribunal’), affirmed the delegate’s decision to refuse the applicant a protection visa. On 31 October 2014, the applicant applied to the Federal Circuit Court of Australia (FCCA) for review of the first Tribunal’s decision.  By a judgement dated 16 June 2017, the FCCA ordered that the matter be remitted to the Tribunal for the review application to be determined in accordance with the law.

4. The applicant is a minor. As a result, the applicant’s mother, [Ms A] (‘the applicant’s mother’), appeared before the Tribunal on 30 October 2019 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The Tribunal also received oral submissions from the applicant’s migration agent.  

   RELEVANT LAW

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

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

19. 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

20. 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) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    The applicant’s migration history and identity

21. The applicant was born on [Date 1][1] (making him approximately [Age]) to Chinese citizen parents. His parents originate from Fujian Province, the People’s Republic of China (China). The applicant’s mother arrived in Australia [in] May 2008 as a holder of a Student (Class TU 571) visa. She formed a relationship with the applicant’s father, [Mr B] (‘the applicant’s father), in or about 2008 (after they arrived in Australia) and subsequently gave birth to a daughter, [Child 1], born on [Date 2][2] and the applicant. The evidence of the applicant’s mother was that she is now estranged from the applicant’s father.     

    [1]    Applicant’s Birth Certificate dated [Date 1], AAT File No 1311452 @ f.99

    [2]    Applicants Birth Certificate dated [Date 3], AAT File No 1311452 @ f.98

22. The applicant’s mother made an application for a protection visa, on the applicant’s behalf, on 15 February 2013. The applicant holds an associated Subclass (Bridging E) visa. His mother and sister hold Subclass (Bridging E) visas on departure grounds, having had their own protection visa applications finally determined. The Tribunal affirmed the delegate’s decision not to grant the applicant’s father, mother and sister a protection visa on 26 September 2012. 

23. The applicant has not travelled outside of Australia.

    Country of reference and family composition

24. The applicant was born in Australia but claims to be citizen of China. A copy of the applicant’s birth certificate was provided to the Department[3] and confirms that the applicant was born on [Date 1] in [Suburb 1], Victoria and that his mother is [Ms A] and his father is [Mr B].

    [3]    Applicant’s Birth Certificate dated [Date 1], AAT File No 1311452 @ f.99

25. Article 5 of the Nationality Law of the Peoples Republic of China (1980), states in part that any person born abroad whose parents are both Chinese nationals or one of whose parents are Chinese nationals shall have Chinese nationality.[4]  There is no evidence before the Tribunal to indicate that the applicant is not a national of China.

    [4]    Article 5 of the Nationality Law of the Peoples Republic of China (1980)

26. Therefore, based on the evidence of the applicant’s mother and the applicant’s birth certificate, the Tribunal 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 China as the country of reference and as the 'receiving country'.

    The applicant’s protection claims

27. The applicant’s claims for protection are contained in his protection visa application dated 15 February 2013[5] and the applicant’s mother’s statutory declaration dated 2 May 2013.[6] The claims are summarised in the delegate’s decision, dated 15 July 2013,[7] as follows:X

    [5]    Department file CLF2013/32101 @ f.16

    [6]    Ibid @ f.75

    [7]    Ibid @ f.113

    (a)The applicant is ethnic Han and a Christian.

    (b)The applicant’s mother came to Australia and to start a new life. In July or August 2008, she met and moved in with her ex-partner, the applicant’s father, who was also in Australia as a student. She ceased studying in February 2009 due to a misunderstanding about her enrolment.

    (c)In late 2008 or early 2009, the applicant’s mother learnt that her father had problems with the Chinese authorities. At the time, the applicant’s mother’s father was [an Occupation] [in a Workplace]. A fight broke out on site and her father attempted to intervene. As a result, he found himself implicated in violence and was arrested.

    (d)In July 2009, her father was convicted of wilful injury and was sentenced to [a term] in prison. He also had to pay approximately RMB[Amount 1] in compensation for which he had to borrow the money.

    (e)In January 2010, the applicant’s mother became pregnant. She realised that her child would be illegitimate because she and [Mr B] were unmarried and underage. She also feared that her family’s troubles in China would impact her, the applicant’s father and the new child. She was not aware that she could apply for a protection visa, so she overstayed her student visa and remained in Australia unlawfully.

    (f)On [Date 2], her daughter [Child 1] was born.

    (g)In September or October 2011, the applicant’s mother became pregnant again. She claimed that she felt even more anxious about what might happen to her, the applicant’s father and their children if they returned to China. Her second child would be born in breach of the one child policy. She realised she would have to pay an exorbitant fine. 

    (h)The applicant’s mother claimed that she would not be able to register her children in China and they would be regarded as ‘black’ children. This means that they would be denied public education and medical care.

    (i)Because of these fears, the applicant’s mother applied for a protection visa in November 2011. Her migration agent did not ably represent her. Prior to her Refugee Review Tribunal (RRT) hearing in May 2012, the applicant’s father broke of their relationship. She did not mention this at the RRT because she did not this this was relevant. Her case has been finally determined.

    (j)She made this application on the applicant’s behalf because she fears he will be seriously harmed by the authorities and the general public in China.

    (k)The applicant’s mother fears that the applicant will be imputed with an anti-government opinion as the son of an individual who has breached China’s family planning laws and due to his mother’s family’s existing problems with the Chinese authorities.

    (l)The applicant’s mother also fears that he will be mistreated for being young, unregistered, illegitimate second child living with his parents. She and her family cannot afford to pay the social compensation fee to have him registered in China. The applicant’s father and his family are also unable to support to protect him. He will be denied an education and medical care, which will affect his capacity to subsist in China. He will also be denied his parents love, care and protection.

    (m)She also fears that he will be mistreated for being a failed asylum seeker.  

    The evidence of the applicant’s mother   

28. The applicant’s mother claims that she was born on [Date 4] in Fujian Provence. She attended her local primary school [Location 1], Fujian, and then the [Location 2] Secondary School. The applicant’s mother claimed that she completed her middle school to year [Number] and then completed a [Subject] course at technical school.

29. The evidence of the applicant’s mother was that she travelled to Australia in May 2008 because her mother asked her to go. She initially arrived in Sydney but followed the applicant’s father to Melbourne. She claims that she commenced an English course was not able to complete the course. 

30. The applicant’s mother claimed that her parents separated in or about 2016.[8] Her father continues to live in China, but her mother now lives in [Country].[9] She claimed that her father worked as [an Occupation]. As a result of a fight that occurred at work, her father was charged with a criminal offence and served a prison sentence in China. In addition, she claimed that he was ordered to pay compensation and a fine of approximately RMB [Amount 2]. She claims that he borrowed the money to pay the fine and is still paying it off. She claims that her father has been able to work but experiences discrimination in the workplace because he went to jail. Documentary evidence of the applicant’s maternal grandfather being imprisoned in China was provided to the RRT in relation to the applicant’s mother’s protection visa review. No such evidence was put to the Tribunal in this hearing.

    [8]    Applicant’s submissions dated 24 June 2019 @ [24]-[28], AAT File 1716847 @ f.187

    [9]    Ibid @ [25]

31. The applicant’s mother claims that she is not close to her parents. She claims that she does not know where her father is living and that he is not in a financial position to help her or the applicant.[10] She speaks to her mother a few times a year. However, she states that she has not seen her parents since moving to Australia. 

    [10] Ibid @ [29]-[30]

32. At a young age, the applicant’s mothers’ parents moved to Fujian City. As a result, she lived with her grandmother. The applicant’s mother claimed that her grandmother was a practising Christian and as a result she would take her to Church. In or about 2001 at the age of [Number] years, the applicant’s mother was relocated to Fujian City to be reunited with her parents.   At about this time the applicant’s mother claimed that she commenced attending [a] Church with her grandmother. She claims that she attended regularly but as she got older, she was not able to attend as frequently. [11]

    [11] Ibid @ [10]

33. In or about 2008/2009, the applicant’s mother attended several Christian Churches while she was in Sydney.[12]

    [12] Ibid @ [12]

1. In or about 2010, the applicant’s mother claims that when she was at home, she was approached by two Jehovah Witness preaches. As a result of meeting of meeting them she commenced attending Kingdom Hall of Jehovah’s Witnesses Church (JWC) in [Suburb 2], Victoria weekly as well as bible classes at home. The applicant’s mother claims that until 2012 the JWC would conduct bible classes on each Tuesday and Wednesday at her home.  She claimed that she felt comfort in the gospel and that it renewed her belief and faith.

2. In or about 2012, the applicant’s mother stopped attending church as it was hard to manage attending as a single mother with two young children.  However, the JWC continued to attend her premises. She claimed that shortly thereafter some of her friends found out about her affiliation with the JWC and advised against her in believing in the gospel as it was not the true Christianity. She was upset by their comments but put a stop to the JWC church attending for fear of any repercussions. Nevertheless, she claimed that she continued her practice for some time, sharing videos with her children as well as lessons for the gospels.[13] 

   [13] Ibid @ [17]-[18]

3. With the abundance of recent news about the JWC, as well as China’s views that the JWC is a cult, the applicant’s mother fears that if the applicant is returned to China, he will be deemed to be a member of the Church, or at least affiliated with the Church.[14]

   [14] Ibid @ [19]

4. The applicant’s mother stated that she did not previously make any claims in relation to her religion as her previous representative did not raise whether she had any concerns. She claimed that whilst she no longer attends the JWC and is not a practising Christian, in the sense of attending Church and being involved in the community, her actions in Australia make her fear an affiliation with the JWC and she has been born and raised a Christian.[15]

   [15] Ibid @ [20]

5. On [Date 5] the applicant’s mother gave birth to a third child, [Child 2] (‘the applicant’s brother’), to another father. The applicant’s mother provided the Tribunal with a copy of his birth certificate which confirmed that he was born at [Suburb 1] on [Date 5]. The applicant’s brother’s father is not recorded on the birth certificate as his relationship with the applicant’s mother was brief. The applicant and his sister [Child 1] have the same father, being [Mr B].

6. The applicant’s mother’s evidence was that her relationship with the applicant’s father ended in or about 2012, although he continued to maintain contact with the children. Her evidence was that he did not provide any financial support to her or her family. She claimed that she has not had any contact with him since February 2019.[16]

   [16] Ibid @ [22]

7. The applicant’s mother stated that she was currently unemployed and sharing accommodation in a friend’s house. She stated that she does not receive any financial support for her family, or her ex-partner. She claims that she is currently receiving benefits from the Red Cross.

   COUNTRY INFORMATION

8. The Department of Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 3 October 2019 (the ‘DFAT Report’), states:

   Government framework regarding religion[17]

   [17] Department of Foreign Affairs and Trade, Country Information Report: People’s Republic of China, 3 October 2019 (the ‘DFAT Report’) @ p.24

   3.37 Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).

   3.38Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.

   3.39 Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office and has been elevated to a level of importance not seen since 1949.

   3.40 The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.

   3.41 The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.

   3.42According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices, and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations, or raising funds on their behalf.

   3.43The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).

   3.44Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.

   3.45Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.

   3.46Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.

   3.47Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’ DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities.

   3.48DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.

   3.49While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.

   Christians[18]

   [18] 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.

   Jehovah’s Witnesses and Mormons[19]

   [19] DFAT Report @ p.36

   3.115Interest in non-sanctioned religions, including Mormonism, Jehovah’s Witnesses, Eastern Orthodox Christianity and the Baha’i faith, appears to be rising in China, but numbers are difficult to verify, not least because of their illegal status. Government sensitivity towards foreign influence and CCP mistrust of organisations it does not control would likely make it difficult for Jehovah’s Witnesses and Mormons to practise their faith in China. In particular, the legal prohibition on proselytisation under the 2018 RRA (see Government Framework regarding religion) directly conflicts with the religious requirement of both Jehovah’s Witnesses and Mormons to proselytise in the broader community.

   3.116Jehovah’s Witnesses claim they have faced increased nationwide religious persecution since May 2018, and report maltreatment has occurred in, but is not limited to, Zhejiang, Guangzhou, Qingdao, Xinjiang, Nanjing, Tibet, Chongqing, Zhuhai, Shangxi and Dali. Jehovah’s Witnesses also claim community members have experienced home raids, physical abuse, separation from families (including visa cancellation and deportation for couples with foreign spouses), interrogation, detention and placement in re-education centres, and that authorities seized phones and laptops in 2018. Jehovah’s Witnesses claim it is common for the foreign spouses of Chinese citizens who are Jehovah’s Witnesses to be separated from their families and deported, with no right to return for five years.

   3.117The present status of Jehovah’s Witnesses in China is unclear and DFAT is not able to verify the extent to which Jehovah’s Witnesses practise their faith in China. China is not on the Jehovah’s Witness website’s world listing. However, DFAT assesses restrictions on the free practice of religion continue to tighten in mainland China and would likely affect Jehovah’s Witnesses (and potentially the faith’s willingness to list its operation in China on its official website), as they would followers of any other unsanctioned underground religion. While the group is not currently considered an 'active' cult in China, DFAT assesses followers may face a degree of harassment and be subject to suppression by Chinese authorities and police. DFAT is unable to verify the extent or severity of such harassment or suppression.

   3.118DFAT does not have any specific information in relation to Mormons in China.

   People affected by Family Planning Policies[20]

   [20] 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[21]

   [21] DFAT Report @ p.53

   3.210The 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’.

   3.212As 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).

   3.213The 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[22]

   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.

   ASSESSMENT OF CLAIMS AND FINDINGS

   [22] DFAT Report @ p.32

   Credibility 

1. 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 considered in these findings.

2. 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 enough 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[23]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[24]

   [23] s.5AAA Migration Act 1958.

   [24] 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.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[25] 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.

   [25] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p.482

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[26] 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.

   [26] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 @ para. 196

   Applicants’ refugee claim

   Relevant grounds

5. The applicant claims to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of his religion as a Christian and more specifically as a Jehovah’s Witness. The Tribunal accepts that the applicant’s religion as a Christian and Jehovah’s Witness falls within the scope of s.91R(1)(a) of the Act.

6. In addition, he claims that that having been born out of wedlock he will be persecuted by being denied Hukou registration and being considered a ‘black child.’ He claims that the denial of registration on the household register will deprive him of services, and as a result he will have no legal status nor be entitled to social benefits or welfare such as public education and medical services. In addition, he claims that his mother will be forced to pay a social compensation (SCF) that she cannot afford, which will cause him significant economic hardship and denial of basic services that will threaten his capacity to subsist. Finally, he also states that he will be discriminated against and abused by society and the government in China. 

7. To be considered as part of a particular social group it is necessary for the applicant to share, or be perceived to share, a characteristic with each member of the group. 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 group that a member should not be forced to renounce it.[27]

   [27] Section 5L of the Act.

8. The Tribunal accepts that being a person born of out wedlock may be considered a characteristic that would distinguish a group from the rest of society. As such, it accepts that the applicant is a member of a particular social group within the scope of s.91R(1)(a) of the Act.

   Applicants’ well-founded fear

9. In Chan v MIEA[28] the Court held that ‘well-founded fear’ 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. Dawson J 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.[29]

   [28] (1989) 169 CLR 379 at 396.

   [29] (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.

10. 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. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed or being persecuted if he is returned to China.

11. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[30]

    “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.

    [30]  Chan v MIEA (1989) 169 CLR 379 per Dawson J @ p.397

12. In MIEA v Guo, the Court stated that:[31]

    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.

    [31]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

13. In this case, for the reasons stated in this decision, the Tribunal does not accept that the applicant’s fear of being returned to China due to the fact that he is a Christian, in particular a Jehovah’s Witness, is plausible or well-founded on an objective basis.

14. However, as set out in the below reasons, the Tribunal does accept that the applicant’s fear of being seriously harmed as a result of being born out of wedlock in breach of the Chinese Family Planning Laws in China is, on an objective basis, plausible and well-founded.  

    Applicant as a Christian

15. In his submissions to the Tribunal dated 24 June 2019 and in the applicant’s mother’s evidence to the Tribunal, the applicant claimed that there was real chance that he would be seriously harmed by reason of him being a Christian, in particular as a member of the JWC.

16. However, while the applicant’s protection visa application does refer to the fact that he is a Christian, it makes no mention of him being a member of the JWC. In addition, while the applicant’s mother, by her statutory declaration dated 2 May 2013, states that the applicant is Christian. The statutory declaration makes no reference to the applicant or her being a member of the JWC. Finally, the Refugee Review Tribunal’s decision, dated 26 September 2012, in affirming the delegate’s decision to refuse the applicant’s mother a protection visa, makes no reference to any claim or evidence made by her that she was Christian or a member of the JWC.

17. In addition, the applicant’s mother did not provide any independent evidence in support of her claim that she and the applicant are Christians and members of the JWC. There was no evidence that the applicant or his mother had been baptised and no independent statements or evidence by friends or members of the JWC was provided to the Tribunal as to their faith and their membership of the Church.

18. Therefore, given the fact no claim had been made by the applicant or his mother in relation  to his membership of the JWC or that he would be persecuted by reason of being a Christian,  together with the absence of any independent evidence to support any such claim, the Tribunal does not accept the applicant’s mother’s evidence that she and the applicant are Christian and members of the JWC. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed as a result of being a Christian or being a member of the JWC as claimed.

    Applicant born out of wedlock

19. The Tribunal accepts and finds that [Ms A] and [Mr B] are the applicant’s parents. In addition, the Tribunal accepts and finds that the applicant was born out of wedlock as claimed. 

20. As a result, the applicant claims that if he returns to China, he will be considered a ‘black child’ and will face continual discrimination and be denied basic services as a result of being born out of wedlock. In addition, by being unable to pay the SCF, he will suffer serious economic harm as a result of being denied basic services and resulting in him being unable to subsist.

21. Finally, he claims that he will be discriminated against generally by society and the government.

22. 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 ‘outside of the policy.’[32]

    [32] DFAT Report @ p.52

23. 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.

24. The applicant claims that as a result of being 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. ^[33]

    [33] 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

25. 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. The applicant claims that he will be denied access to health, education and other social welfare services provided by the state. In addition, the evidence of the applicant’s mother was that that she cannot afford to pay the SCF and that her family (particularly her father as he had been fined and jailed) cannot provide any financial assistance to help her.

26. 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 an SCF irrespective of hukou status.[34] The applicant did not provide any estimate of the amount his mother will be required to pay. However, her evidence was that she now had three children and that she was not in the financial position to meet any SCF imposed.

    [34] Ibid

27. 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[35],  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 applicants’ evidence, the country information notes[36] 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. 

    [35] DFAT Report @ p.51

    [36] Ibid

28. 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.[37] 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.[38] As such, it appears that the applicant will be able to be registered under the hukou system, notwithstanding the fact that the SCF, in relation to this particular breach of the Population Law, remains unpaid.

    [37] Ibid

    [38] Ibid

29. 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 per cent of the total population – to the margins of urban society.[39] Therefore, while the hukou reforms in last few decades have gradually removed most administrative obstacles to migrants settling in towns as well as small and medium-sized cities, provincial capitals and other large cities have maintained localised, selective barriers to migrants’ formal settlement.[40]

    [39] ‘China is relaxing Hukou Restrictions in Small and medium sized Cities’, China Briefing, dated 17 April 2019

    [40] Wang, X ‘Permits, Points, and Permanent Household Registration: Recalibrating Hukou Policy under “Top-Level Design”’, Journal of Current Chinese Affairs, 30 March 2020, >

    Unregistered children, (or ‘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. 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.

30. Information in the China Daily, dated 29 April 2014,[41] 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.

    [41] ‘Fujian relaxes hukou registration for infants’, China Daily, 29 April 2014,

    >

    According to the Immigration and Refugee Board of Canada, a report published on the official government news portal China.org.cn stated:[42]

    [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)

    [42] 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]

31. The applicant was born on 17 June 2012, outside the Population Law and as such would not be automatically entitled to be registered under the hukou system. 

32. Based on this country information above, the Tribunal is also satisfied that being born offshore will not pose a barrier to the applicant being registered on the applicant’s hukou. This means that basic social services, including health and education services, ordinarily available to Chinese nationals with household registration, will be accessible. 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

33. It is claimed by the applicant that social attitudes towards heihaizi will mean that he will face a real chance of serious harm or a real risk of significant harm based on societal attitudes towards him. 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.

34. 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’.[43] In her response, Dr de Jonge stated:[44]

    [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.

    [43] Refugee Review Tribunal Advice on China 18 February 2010  De Jonge, A 2010, Email to RRT, RE: Request for assistance from Refugee Review Tribunal,

1. Since 2010, attitudes and policies have positively changed toward unmarried mothers and couples. 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.

2. However, the applicant claims that his mother is not financially able to support him if he returns to China. Her family are not well off, with her father having been to jail and her mother now living in [Country]. In addition, she does not receive any support from the applicant’s father who, it is claimed, no longer has any contact with the applicant, his sister or his mother.   

3. While the Tribunal is satisfied that the applicant will face some stigma arising from his heihaizi status, the Tribunal notes that it has made an earlier finding that he will not be denied hukou and a range of education, health and other services. 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 will amount to serious harm, if he were to return to Fujian.

   Social compensation fee liabilities

4. The Tribunal has considered if there is a real chance that applicant will suffer serious harm in light of his family’s particular circumstances in the event that they return to China. In this case, the applicant is a minor. born on [Date 1]. The applicant’s mother has limited education and limited qualifications. While she has a qualification in [Subject] it was obtained some time ago and she has never worked in the area. The applicant’s mother has not worked regularly and is currently receiving aid from Red Cross. She is renting a room in a friend’s home and currently has three children under the age of 10.  In the event that the family returns to China, the applicant’s mother will be required to pay an SCF in respect of each child. 

5. 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. Under certain circumstances, 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. The Tribunal notes that the applicant was born prior to the announcement of the ‘two-child’ policy in late 2015.

6. 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. The DFAT Report 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 a finding that the applicant’s parents were not married. In the unlikely event that they were to marry, they would still be outside the 60-day limit.  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.[45] The country information therefore indicates that the applicant will liable to pay the SCF in the event that they return to China.

   [45]   DFAT Report @ p.54

7. According to the country information, parents, including those in wedlock, may still be liable to pay the SCF 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 in 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 referred to above, the Tribunal accepts that the applicant did not finish her enrolled courses while in Australia.[46]

   [46] 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’.

8. The Tribunal finds that, on arrival in China, the applicant’s mother will not be able to demonstrate they have successfully completed even one year of study while holding Australian student visas and that she will present three children born out of wedlock. Therefore, based on the information before it, the Tribunal finds that the applicant’s mother will be liable for the SCF for all her children and that they will not qualify for any exemption from the Planning Law.

9. The applicant’s mother claims that the authorities are corrupt and that she would be subjected corrupt or zealous officials who would increase the amount of the combined SCF to be paid. The country information states that the enforcement of the SCF is administered at the discretion of the local authorities and as a result the implementation of the policy is inconsistent.[47]  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.

   [47] DFAT report @ p.55

10. In the applicant’s circumstances, the Tribunal finds that the applicant is more vulnerable than others returning to China. He is a minor, having been born prior to the ‘two-child’ policy announcement in late 2015, and the applicant‘s mother has limited skills and qualifications. As a result of her low educational attainment and social standing she has limited chance of avoiding any exemption to the SCF through the leniency of local officials. As a result, the Tribunal is satisfied that the applicant’s mother will be required to pay the SCF for the applicant and her other two children in the event they return to China.

    The applicant’s capacity to pay for the SCF

11. The Tribunal has considered whether, in the applicant’s circumstances, his immediate family will have the capacity to pay for the SCF.

12. The country information reports that both the previous and current Population Law require those who give birth to a child in contravention of planning policies (including a child born prior to 1 January 2016) to pay an SCF irrespective of hukou status.

13. According to the Fujian Family Planning Office, Fujian’s 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 per cent of an individual’s prior year’s salary, whichever is the greater.[48]  The social compensation fees for single women who have had a child out of policy are calculated at 60 to 100 per cent of the individual’s income in the prior year or the county average, whichever is the higher.[49]

    [48] DFAT Report @ p.53

    [49] Ibid

14. DFAT reports that “social compensation fee[s] differed across districts”.[50] This is because the average income levels differ between districts (counties).[51] 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.[52] It is also because local authorities issue notices that “guide local officials in their application of relevant regulations”.[53] The DFAT Report 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.

    [50] Ibid

    [51] Ibid

    [52] DFAT Report @ p.51

    [53] Ibid

15. The SCF is 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 considered the fact that any fees referred to should be used as a guide only.

16. In this regard, the Tribunal also accepts that the applicant will be settled to Fujian province. The Tribunal considers that the applicant and his family are more likely to reside in a rural area where employment opportunities are commensurate with his mother’s low levels of educational attainment.

17. The Tribunal acknowledges the exact figure of the SCF 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 countrywide SCF; 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.[54] The SCF rises annually as incomes rise and they are not based on a formula which a person can predict to measure his or her liabilities. The Tribunal has considered this fact.

    [54] Ibid

18. The average income in China is approximately 82,461 RMB.[55] As a result, the Tribunal estimates that the SCF that will be payable by the applicant’s family, in the event that they return to China, will be 100 per cent 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). 

    [55] Trading Economics >

    The Tribunal notes from the country information that payments are permitted by lump sums or by instalments (that must not exceed three years).[56] The Tribunal notes that paying down the liability will be onerous but is of the view that, in and of itself, will not necessarily amount to serious harm. 

    [56] DFAT Report @ p.53

19. At the hearing, the applicant’s mother stated that she was not working and that she is currently a full-time homemaker. Her evidence was that the fact that her children were still very young meant that she was required to provide full-time care to her children. The applicant has limited education and no formal qualifications and does not receive any support from her ex-partner or her family. The Tribunal acknowledges and accepts that the applicant’s grandparents and father are unsupportive and unable to assist financially. In this regard, the Tribunal accepts the capacity of the applicant is significantly restrained.

20. The Tribunal notes, in relation to the applicant’s mother, that women in China receive approximately 36% less income than males for the same position.[57] In addition, women in the workforce suffer from discrimination, as most 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. If she does, it will also be very poorly paid.  The country information indicates that a large proportion of families cannot meet the costs and fall into debt.[58]

    [57] Catalyst ‘Women in the workforce -China Quick Take’ 9 Jan 2019 DFAT Report @ p.53

The Tribunal finds that given the lack of family support available, the cost of the SCF, along with healthcare and schooling costs, would fall on the applicant’s mother and would significantly affect the family’s disposable income. Based on the evidence before it, the Tribunal is satisfied that the applicant’s family does not have the capacity to pool their resources together, given all its members have the real chance of relying on just a single income earner to pay the SCF as required by China’s family planning and household registration policies, as well the ongoing private costs for basic health and education services and general living expenses. Even if the applicant’s mother had to borrow the money through a licensed or an unlicensed money lender, her capacity to pay down this sizeable debt is severely restrained, which will negatively impact on her capacity to meet living expenses and may even open the applicant and his 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.[59]

[59] 2016 Trafficking in Persons Report by the US State Department: Country Narratives A-D pp, 128-132,  In this regard, the Tribunal has considered that paying the SCF, as well as the ongoing out‑of-pocket experiences pertaining to the applicant’s family, 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 will face a real chance of his family forgoing basic health and education services. Alternatively, the applicant would otherwise face a real chance of significant economic hardship that threatens his capacity 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 mother will fall into debt and destitution to cover the combined costs of the SCF 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 his 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).

101.   Having considered the accepted circumstances of the applicant, both individually and cumulatively, the Tribunal finds that the applicant will face a real chance of serious harm for a Convention reason, if, with his mother, he returns 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

102.   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 their home province of Fujian, but also in another province in China if their hukou permits.

103.   The Tribunal finds that it would not be reasonable for the applicant and his mother to relocate outside the area of their hukou or outside the province, because of their financial situation, low skills and their liabilities, as they could not easily afford to move or access basic services for the applicant.

104.   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. The applicant is particularly precarious given his age and the fact his family has no financial resources.

105.   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.

106.   The Tribunal is therefore satisfied that the applicant meets 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.

107.   In arriving at this decision, the applicant should know that the Tribunal has made these findings only marginally in his favour. In the light of this decision, it is strongly recommended that the applicant’s family obtain advice and assistance regarding the migration options open to them.

Applicant’s complementary protection claim

108.   The applicant claims that, without conceding in any way his claim 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 applicants’ circumstances.

109.   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 in breach of the Chinese Family Planning Laws. Having considered the evidence provided by the applicant’s mother and the available country information for the reasons detailed above, the Tribunal does accept the applicant’s claims and finds that there is no real risk they will suffer significant harm as result of being a Christian or as  a member of the JWC that would constitute degrading treatment or punishment pursuant to section 36(2A) of the Act.

110.   The Tribunal has also considered if the applicant will face a real risk of significant harm upon their return to China as a person having been born out of wedlock in breach of the Chinese Family Planning Laws (namely heihaizi or black children). Having considered the evidence provided by the applicant’s mother and the available country information, for the reasons detailed above, the Tribunal accepts and finds that there is a real risk he will suffer significant harm as a result of being born out of wedlock in breach of the Chinese Family Planning Laws that would constitute degrading treatment or punishment pursuant to section 36(2A) of the Act.

111.   At no stage did the applicant advance any other reason, such as their nationality or political opinion, in 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.

112.   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).

CONCLUSIONS

113.   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).

114.   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

115. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act.

Jason Pennell

Senior Member

Sydney (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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