2301457 (Refugee)

[2024] AATA 2677

2301457 (Refugee) [2024] AATA 2677 (26 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Morag Milton

CASE NUMBER:  2301457

COUNTRY OF REFERENCE:                   China

MEMBER:Nicole Burns

DATE:26 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2024 at 3:56pm

CATCHWORDS
REFUGEE – protection visa – China – young child born in Australia while parents’ protection visa application in progress – deemed to have made application on date of birth – parents separated and applications for review administratively separated – mother’s claims as single woman with child born out of wedlock, economic hardship and capacity to subsist – parents previously married to others and divorced, with one child each – denied birth permit and warned of forced sterilisation – no contact with father and mother’s estrangement from family – living in church accommodation and relying on government financial assistance –developmental and psychological conditions and treatment – country information – social compensation fee, household registration, education, healthcare and social services – mother’s separate application remitted – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (3)(b), (4)(c), (5)(e), (f), 5LA(2), 36(2)(a), 65

Migration Regulation 1994 (Cth), Schedule 2

CASE

AGA16 v MIBP [2018] FCA 628

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 Home Affairs on 31 January 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was born in Australia on [Date] to Chinese national parents, who had applied for protection visas earlier (on 25 August 2015). After the applicant’s parents’ protection visa application was refused by the Department they sought a review at the Tribunal (constituted to the same Member). The applicant was deemed to have made a protection visa application on the date of his birth. A decision was made to refuse to grant him a protection visa on 31 January 2023 regarding his (then) pending parents’ review application, which is the subject of this review.

3. The applicant’s parents have since separated and the Tribunal has separated their matters administratively. The applicant’s mother has sole custody of the applicant and they live together in Melbourne. A decision was made on 26 June 2024 to remit the applicant’s mother’s case to the Department for reconsideration, with the direction she satisfies s 36(2)(a) of the Act. The Tribunal was satisfied she faces a well-founded fear of persecution on return to China as a single, divorced woman who had a child out of wedlock who would face significant economic hardship where it threatens her capacity to subsist.[1] 

   [1] AAT No. 1723485

4. The Tribunal held combined hearings for the applicant’s case and his mother’s case on 7 December 2023 and 31 January 2024. As the applicant is nearly [Age] years of age he did not attend the hearings and his mother gave evidence on his behalf.

5. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review. The representative attended the hearings.

7. The issue in this case is whether the applicant is owed protection either 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

    Mandatory considerations

13. 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.

14. DFAT’s most recent country information report on China was published on 22 December 2021.

    Nationality and background

15. The Tribunal accepts the following about the applicant’s nationality and background.

16. The applicant’s parents came to Australia from where they were living together in Anhui province, China in December 2014 holding visitor visas. They had both been married before, and divorced, and had a child each from their first marriage (who have remained in China). His parents were never married. As noted, they applied for a protection visa on 25 August 2015, claiming they had been denied a birth permit to have a further child by local family planning authorities, and warned of forced sterilisation, among other things.

17. The applicant was born in Australia in [Year][ to Chinese nationals, making him a Chinese national. The Tribunal accepts China is his receiving country for the purposes of the review.

18. The applicant’s parents separated in January 2020 although the applicant and his mother remained living with his father until mid-2020. The applicant’s father has had no contact with him since, nor his father’s family members in China.

19. The applicant’s mother is estranged from her remaining family members in China – that is her father and sisters – who were unhappy about her decision to have a relationship with the applicant’s father. She has had no contact with her daughter (the applicant’s half-sister) since she left China. 

    CLAIMS AND EVIDENCE

20. In summary the applicant’s mother claims the applicant will be subject to significant discrimination on return to China as a child born out of wedlock. Further she argues she will be unable to register herself and the applicant as a household – hukou – and will therefore struggle to find work and support them financially. Without household registration the applicant will not be able to access education and healthcare services, among other things. She fears significant economic hardship that will threaten their capacity to subsist.

21. Given the applicant was not born when his parents applied for protection in 2015 no specific claims were made on his behalf at that time, apart from general concerns about penalties and risks his parents may face if they had another child in breach of China’s family planning laws and policies in place at that time.

22. On 31 January 2023 the delegate refused the applicant’s protection visa application. In the decision record the delegate noted the applicant has not made specific claims, and that his mother’s protection visa application had been refused on 12 September 2017.

23. On review the applicant’s mother provided to the Tribunal the following documents, in support of her case and the applicant’s case:

    ·A written statement dated 20 January 2021

    ·A statutory declaration dated 9 February 2023 and

    ·A statutory declaration dated 17 November 2023.

24. Whilst reference is made to the applicant’s circumstances and fears about his situation on return to China in all three documents, the applicant’s mother outlines information specific to the applicant in her February 2023 statutory document. In it she gives an update about their family situation and the applicant’s development issues, including significant speech delays for which he is receiving therapy.

25. She chronicles the following fears (in summary) for the applicant (and herself) if they have to return to China:

    a.Being unmarried and without property (and unable to afford property) in China it would be extremely difficult for them to obtain a hukou.

    b.As he was born overseas the applicant does not have any basic Chinese identification or documents, making it even more difficult for him to be attached to a household register in China.

    c.Without registration they will be treated as unlawful residents; the applicant’s mother could not get a lawful job; and without a job will not have access to an income or be able to rent a home. Single mothers are not seen favourably in the rental market, particularly without all the required identity documents.

    d.The applicant’s mother has no assets, or relatives or friends who can or would be willing to support them in China, including to stay with initially whilst she tried to get a job and find accommodation.

    e.As a child of a single mother who is not registered on a hukou, the applicant will not be able to access education, health care or other services. They will not be able to subsist in China.

    f.As a result, the applicant would not be able to access surgery he requires for his left undescended testis, or speech therapy or ongoing psychological therapy in China.

    g.Even though there is no specific law that prevents discrimination against single mothers and their children, discrimination against single mothers and their children is part of China’s traditional culture. Further the government does not provide welfare support for single mothers.

26. The representative provided to the Tribunal a prehearing written submission,[2] and two post hearing written submissions,[3] as well as several supporting documents, including letters from the applicant’s speech therapist, psychologist and physiotherapist. These include reference to the applicant having a moderate to severe speech delay, and other developmental and psychological issues including selective mutism, for which he is receiving support in Australia from allied health professionals. On the basis of this evidence the Tribunal accepts that is the case.

    [2] Dated 1 December 2023

    [3] Dated 13 February 2024 and 24 April 2024

27. In her submission the representative sets out the applicant’s and his mother’s relevant background, current circumstances, and extant fears if they have to return to China, with reference to country information to support her contention that their fears on return are well founded.

28. At the Tribunal hearings the applicant’s mother gave evidence about the reasons she left China in 2014, her current circumstances (and that of the applicant) and present fears if they have to return home, despite changes to China’s family planning laws and policies, which remain discriminatory for single mothers who have had children born out of wedlock. A summary of her oral evidence is contained in the applicant’s mother’s Tribunal decision record. 

    FINDINGS AND WHETHER THE APPLICANT’S FUTURE FEARS ARE WELL FOUNDED

29. For the reasons set out in detail in the Tribunal’s decision record pertaining to the applicant’s mother’s case, the Tribunal accepted the following in relation to the applicant’s background, claims and circumstances, relying on country information where relevant:

    a.The applicant was born in Australia in [Year] to Chinese national parents who were unmarried. He was therefore born out of wedlock.

    b.The applicant’s biological father was abusive and threatening to the applicant’s mother. They have had no contact with him since moving out in around mid-2020. They also have no contact with the applicant’s father’s family in China.

    c.The applicant and his mother live together in accommodation provided by a church in Melbourne and rely on financial support from the government provided to asylum seekers in particularly dire financial circumstances.

    d.The applicant’s mother has no assets or savings and would struggle to find work on return to China.

    e.The applicant’s mother is estranged from her family members who remain in China who disapproved of her relationship with the applicant’s father. The applicant and his mother would therefore be returning to China without any family support.

    f.The applicant’s mother may be required to pay a social compensation fee (SCF) on return to China for having a child out of wedlock. Changes to China’s family planning laws and policies, including removal of SCF, does not apply to single mothers.

    g.The applicant’s mother is unlikely to be able to pay any SCF that may be imposed, even if able to do so in instalments and/or reduced on negotiation.

    h.Although hukou registration has been delinked from payment of SCF, there are likely to be several bureaucratic and other barriers to the applicant’s mother being able to register him on return to China, which could lead to significant delays.

30. The Tribunal, in the applicant’s mother’s case, found the applicant’s mother faces a real chance of serious harm in the form of significant economic hardship that threatens her capacity to subsist as a divorced, single mother who has had a child out of wedlock on return to China. The applicant, as a nearly [Age]-year-old dependent child, would return to China with his mother, with no other family support including from his biological father or his family. It is submitted as a member of a particular social group consisting of a ‘family unit containing a divorcee and a child born outside marriage’ the applicant also faces a real chance of significant economic hardship that threatens his capacity to subsist.

31. Relying on the same reasoning and relevant country information with respect to the applicant’s mother’s case, the Tribunal accepts that if the applicant were to return to China as a young child – still dependent on his mother, with no other family support – he faces a real chance of serious harm in the form of significant economic hardship that threatens his capacity to subsist: ss 5J(5)(e) and 5J(5)(f). It accepts the serious harm would be directed at him for the essential and significant reasons of his membership of a particular social group of his mother’s family. Further the Tribunal is satisfied the applicant’s mother faces a
    well-founded fear of persecution for an essential and significant refugee reason (as set out in that decision record). The Tribunal is also satisfied that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c).

32. In making this assessment, the Tribunal has taken into account the applicant’s personal vulnerabilities in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. Specifically the applicant’s young age, who is entirely reliant on his mother for his financial, emotional and other needs, and who also has developmental issues, including speech delays (in both English and Mandarin according to his speech pathologist in her letter to the Tribunal). Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm in the form of economic hardship that threatens a person’s capacity to subsist that the applicant may experience could amount to serious harm as contemplated in the Act.

33. Further, relying on the same reasoning as in the applicant’s mother’s case, the Tribunal is satisfied that the real chance of persecution relates to all areas of China and that the applicant would not be able to access effective protection if returned to China as required by ss 5J(1)(c) and 5LA(2).

34. Requiring the applicant to modify his behaviour would require him to conceal an innate or immutable characteristic which is impermissible pursuant to s 5J(3)(b) of the Act.

35. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

36. The Tribunal therefore finds the applicant has a well-founded fear of persecution on return to China for the purposes of s 5J.

37. Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.

    CONCLUSION

38. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

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

    Nicole Burns
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

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

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

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

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

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

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

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …