DVN19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1560
•26 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DVN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1560
File number(s): MLG 3405 of 2019 Judgment of: JUDGE COULTHARD Date of judgment: 26 September 2025 Catchwords: MIGRATION – Protection (Class XA) visa – judicial review of a decision of the Administrative Appeals Tribunal – whether failure to consider relevant country information – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H; 5J; 36(2)(a); 36(2)(aa); 36(2A); 476(1) Cases cited: BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291
DQD16 v Minister for Immigration [2021] FCA 1586
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16,
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of last submission/s: 3 June 2025 Date of hearing: 3 June 2025 Place: Brisbane Counsel for the Applicants: Mr Mutton of Counsel, instructed by Australian Legal Advisory Centre, appeared on behalf of the applicants Counsel for the First Respondent: Mr Kenneally of Counsel, instructed by AGS, appeared on behalf of the first respondent. Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
MLG 3405 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DVN19
First Applicant
DVO19
Second Applicant
DVP19 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
26 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Citizenship”.
2.The amended application is dismissed.
3.The first applicant and the second applicant are to pay the first respondent’s costs, fixed in the amount of $6,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (“the delegate”), to refuse to grant the applicants a Protection (subclass 866) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of China. The first applicant (“the applicant”) and second applicant (the first applicant’s partner) arrived in Australia on 7 March 2007 on a TU-571 visa. The third and fourth applicants were born in Australia on 7 November 2013 and 12 August 2016 respectively. On 16 December 2014, the applicant applied for a Protection (Class XA) visa (“the visa”) (Court Book (“CB”) 10-73). The second and third applicant were included in the application (CB 10-11). The fourth applicant was added to the visa application on 8 November 2016 (CB 178).
The protection claims made by the applicant were (without alteration):
1.My partner and I have not yet married, but we already have a child. The de facto relationship is not recognised in China. My child, and I as an unmarried parent, will face great pressure. Out hometown is quite a conservative town, people will treat me as immoral woman, neighbourhood will spit on my back, making it very hard to live among the people. The whole family will be ashamed of it and will also treat it as disgrace to the family tradition.
2.According to the Fujian family planning regulation, if we go back to China, I will be forced to sterilization which is against my wish and not humane. This also deprive our opportunity to have more children.
3.My child will be treated as a birth breaching the family planning regulation, we will face a lump-sum social compensation fees which we cannot afford to. Then my partner and I will be unable to support our child and our family’s daily life.
4.My child will be badly treated. In Fujian, it is very hard for child born out of wed lock to register Hukou (Household registration). Even the law is stated that “Children born out of wed lock shall enjoy the same right as children born in wedlock”, but the corrupt authority never do things immediately right. They will make simple things so complicate, and easy things so hard that you will have to bribe them so the things can be done. Without Hukou, my child will be denied to access any sort of social benefit and welfare such as public education and medicate. This denial would affect his capacity to subsist, and more cumulatively involved serious harm and discriminatory conduct. He will be starting his life at a very unfair and dark situation.
5.Although the law states that “Children born out of wedlock shall enjoy the same right as children born in wedlock, no one may harm or discriminate against them”, however, the Chinese society still deeply prejudiced against illegitimate children.
The applicant also claimed (without alteration) (CB 30):
If my partner goes back, his life is going to be miserable. We’ll have to pay a considerable social compensation fees, which we have no way to afford it. And also he will have to bribe the officer to get out child’s Hukou registration. It would be incapable for him to repay them and earn our family’s living. We believe we have the natural right to own our child. It is quite ridiculous that we have to pay for this. And some government officers just tried to extract their benefits from the social compensation fees and keep eyes on us. It will be a disaster.
The application submitted by the second applicant on behalf of the third and fourth applicant makes substantively the same claims (CB 46, 63, 197-199).
The application submitted by the fourth applicant also stated that all Chinese citizens are subject to the household registration system, which controls internal migration and that it would be nearly impossible for him to register Hukou in another city because his parents’ Hukou is Fujian (CB 198).
On 13 December 2016, the delegate refused to grant the applicant a protection visa on the basis that the delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa on the basis that she was not a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) as the delegate was not satisfied that the applicant was a refugee as defined in section 5H of the Act, and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(aa) of the Act as the delegate was not satisfied that as a consequence of being removed to China there was a real risk the applicant would suffer significant harm as defined in section 36(2A) of the Act. The delegate refused to grant the second, third and fourth applicants the visa on the basis that they were not members of the family unit of a person who held a protection visa (CB 214-221) (“the delegate’s decision”).
Application for review to the Administrative Appeals Tribunal
On 2 January 2017, the applicants applied to the Tribunal for a review of the delegate’s decision. The applicants appointed a registered migration agent to act as their representative (CB 222-224).
On 24 April 2019, the Tribunal invited the applicants to attend a hearing on 9 May 2019 to give evidence and present arguments relating to the issues arising in their case, stating that it was unable to make a favourable decision based on the information before it alone (CB 235-236). The hearing was later adjourned to 17 May 2019 at the request of the applicants’ representative (CB 237-252).
On 10 May 2019, the applicants’ representative emailed the Tribunal supporting documentation regarding the applicant’s diagnosis; the treatment the applicant was receiving for stage 4 nasopharyngeal cancer; and a translation into English of an article about “black children” in China (CB 253-278).
On 17 May 2019, the applicants attended the hearing. The applicants were assisted by their migration agent and an interpreter in the Mandarin and English languages. The applicants were given the opportunity to provide the Tribunal with additional information or comments in writing by 31 May 2019 (CB 280-282).
On 31 May 2019, the applicants provided written submissions to the Tribunal. The submissions dealt with the complementary protection obligations with respect to the applicant’s medical diagnosis and treatment and the availability of adequate health care in China. That claim is not relevant to the ground of judicial review now before the Court (CB 289-295).
On 7 September 2019, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (CB 299-313) (“Decision”).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicants had a well-founded fear of being persecuted for one or more of the five reasons set out in section 5J of the Act and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there was a real risk that they would suffer significant harm [10]; [14]; [15].
The Tribunal set out the criteria for a protection visa [5]-[8] and identified the mandatory consideration that in accordance with Ministerial Direction No.56, the Tribunal was required to take account of PAM3 Refugee and Humanitarian - Complementary Protection Guidelines and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any country information assessment prepared by the DFAT expressly for protection status determination purposes, to the extent that they were relevant to the decision under consideration [9].
The Tribunal set out the applicants’ claims in the protection visa application [16].
The Tribunal summarised the applicant’s evidence. Relevantly, the Tribunal accepted that the applicant and second applicant were unmarried and that the third and fourth applicants were born out of wedlock [17].
The Tribunal’s reasons summarised the questions the member put to the applicant about the social compensation fee, which she told the Tribunal she could not afford, and the applicant’s answers as to the amount the applicant thought she would be required to pay [17].
As to Hukou (household registration), the Tribunal’s reasons record that the applicant’s evidence was that registration was hard in the Fujian province and that if children were not registered, they could not attend school [17].
The Tribunal’s reasons then record that it put to the applicant country information which the Tribunal said suggested that her children would not have any difficulty obtaining household registration. The Tribunal said that the Fujian Public Security Department implemented on 25 August 2014 a new provincial Household Registration Management system where PSB officials were directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for household registration and referred, in that regard, to “China. Country Information Request – C1160219094880679 – Fujian registration of children and out of plan births’, DFAT, 24 March 2016 [17]. The Tribunal said that although historically linked, the issue of household registration is now independent of the payment of the social compensation fee. The Tribunal stated that as part of reforms, the National People’s Congress amended the Population law with effect from 1 January 2016, with changes including the full implementation of a ‘two child policy’ and the abolition of forced contraception referring, in that regard, to DFAT Country Information Report, People’s Republic of China, 21 December 2017 at 3.106.
The Tribunal recorded that the applicant said that maybe whilst in a big city, the registration / social compensation link might be abolished, that in small places like hers, a fine was still required. She said that officials might be corrupt and force her to pay [17]. The Tribunal observed that sources referred to by the Department, which although might not be recent, indicated there still might be a possibility of hypothetical payments being delayed or exempted. The Tribunal asked the applicant if that might apply here. The applicant said she did not think it could be avoided on the grounds of poverty, and she said that in her area some officials were very corrupt. The applicant said that she had not heard of instalments being paid [17].
The Tribunal then made several findings (set out at [23] in a series of seventeen bullet points). Relevantly to the ground of review, those findings were:
(a)The applicants would not be prevented from obtaining household registration in China. Considering the country information, the Tribunal did not accept that the applicants would be required to pay the social compensation fee as a condition of registration of the applicant. The two issues [social compensation fee and Hukou] are now separate and it did not accept that a failure to pay the social compensation fee would cause the applicant to not obtain household registration (bullet point one);
(b)The most recent China report (being the DFAT Country Information Report, People’s Republic of China, 21 December 2017) provided that the process of collection of social compensation fees had a considerable degree of nuance. The Tribunal set out in full paragraphs 3.107; 3.108; 3.109 and 3.110 of that report (bullet point four);
(c)Children whose authorised birth might previously have gone unregistered are now by law able to apply for Hukou irrespective of whether their parents have paid the compensation fee, referring to paragraph 3.109 of the DFAT Country Information Report, People’s Republic of China, 21 December 2017 (bullet point eight);
(d)All Fujian babies, including abandoned babies, those born ‘out of plan’ or wedlock should now have access to household registration, whether or not their parents have paid the compensation fee, referring to DFAT China Country Information request – C1160219094880679 – Fujian registration of children and out-of-plan births, 24 March 2016) (bullet point eight);
(e)A social compensation fee might be considered a law of general application, as it was applicable to all Chinese citizens who had children in excess of the policy but there was no evidence that the social compensation fee was imposed in a discriminatory way, and it was considered to operate as an additional tax, rather than as a punitive arbitrary measure, referring to para 3.106 of the DFAT Country Information Report, People’s Republic of China, 21 December 2017 (bullet point ten);
(f)The applicant would be able to obtain household registration and that consequently, there was no real chance of serious harm on account of a failure to obtain household registration if the applicant was removed from Australia to China (bullet point twelve);
(g)Considering the country information, the Tribunal did not accept that the applicant would not be required to pay the social compensation fee as a condition of registration of the third and fourth applicants (bullet point fourteen).
The Tribunal then turned to consider the cumulative effect of the applicant’s claims and said it was not satisfied that there was a real chance that, if the applicant were to return to China, she would face persecution due to the [cumulative] circumstances [of] these things [24] – [25] and was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) [26].
The Tribunal then turned to consider the complementary protection obligations and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to China, there was a real risk that the applicant would suffer significant harm pursuant to section 36(2)(aa) [27].
The Tribunal said that the applicant did not raise at the hearing a claim to fear harm as a necessary consequence of being returned to China apart from those articulated in the application for protection but did discuss indirectly the grounds of poverty, as a reason of being refused to delay or exempt from social compensation fines, or poverty generally [30]. The Tribunal said that from the same reasons as discussed above, it found that the even the imposition of an social compensation fine would not cause the applicant significant harm, due to capacity to either pay any sum levied or to work to repay it after returned to China, or because the fine would be waived or put into instalments [31].
The Tribunal said it also found that potential discrimination of the children or adjustment difficulties they may face on returning to China would not cause the applicants significant harm. The Tribunal said that for the same reasons as discussed above, it found that there was not a real risk that, as a necessary and foreseeable consequence of being returned to China, the applicant would suffer significant harm due to the imposition of social compensation, or because the children would be denied Hukou [32]-[33].
The Tribunal therefore concluded that the possible or hypothetical harms suggested did not meet the definition of ‘significant harm’, even when considered cumulatively with the applicants’ other claims. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there was a real risk that the applicants would suffer significant harm, even when all the applicants’ claims were considered cumulatively [34].
The Tribunal concluded that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(aa) [35].
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to section 476(1) of the Act by an application filed on 8 October 2019. The applicant also filed an affidavit on 8 October 2019. The affidavit annexes a copy of the Tribunal’s reasons for Decision.
The material before the Court was the amended application; the applicant’s affidavit; the first respondent’s response; the applicant’s written submissions; the first respondent’s written submissions; the first respondent’s further written submissions; the Court Book and a Supplementary Court Book (“SCB”).
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The ground of review set out in the amended application is (without alteration, but excluding the paragraphs that were struck through and excluding any underlining and bold type):
The Second Respondent (the Tribunal) erred by failing to take into account country information about access to Hukou (household registration) for children born out of wedlock.
1.1 The applicants claimed that the Third and Fourth Applicants were born out of wedlock and therefore could not access Hukou, which meant they would be unable to access social benefits such as public education and health care.
1.2 The Tribunal accepted that the Third and Fourth Applicants were born out of wedlock, but found that they would be able to obtain Hukou.
1.3 Direction No. 84 (the Direction) provided that the Tribunal must take into account Department of Foreign Affairs and Trade (DFAT) country information assessments where relevant. The Tribunal was required by s 499(2A) of the Migration Act 1958 to comply with the Direction.
1.4DFAT Report, People's Republic of China, dated 21 December 2017 (the report), was a country information assessment in effect at the time of the decision and was available to the Tribunal. The Tribunal was obliged to consider relevant parts of the report in making its decision.
1.5 Paragraph [3.112] of the report was relevant to the applicants' claim about access to Hukou, but the Tribunal failed to take it into account.
Failure to consider relevant country information
It is not in contention that, pursuant to Direction No. 84 (Consideration of Protection Visa Applications, 24 June 2019) and section 499(2A) of the Act, the Tribunal was required to consider the Department of Foreign Affairs and Trade (“DFAT”) country information assessments prepared expressly for protection status determination purposes where relevant to the applicants’ claims. A failure to do so would constitute jurisdictional error as a failure to take into account a mandatory relevant consideration (referring to BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291, at [33]-[34] and DQD16 v Minister for Immigration [2021] FCA 1586, at [66]). It is noted that the Tribunal mistakenly referred to Direction No. 56 in its reasons for Decision which had, by that time, been superseded by Direction No. 84. Nothing turns on that, as the two Directions were not materially different.
Nor can it be in contention that in their claims for protection the applicants claimed that it is difficult for a child born out of wedlock to obtain Hukou. As the applicants submit (applicants’ written submissions (“AS”) at [23]), that claim – access to Hukou for children born out of wedlock – was separate from the applicants’ claim that they would be required to pay social compensation.
The Court accepts the first respondent’s submission (first respondent’s further written submission (FRFS”) [4]-[5]) and the Court Book references there referred to) that the applicant’s claims in her application for a protection visa were based on the premise that the applicant would return to Fujian province. Further, at the hearing, the applicant gave evidence that she came from a small town and would not know how to survive in a larger centre (at [17]) and otherwise responded to the Tribunal member’s questions about the social compensation fee and Hukou on what she considered would happen in Fujian province.
The applicants’ ground of review in the amended application resolves into one issue which is whether the Tribunal – in finding that the third and fourth applicants would be able to obtain Hukou – failed to consider paragraph 3.112 the DFAT Country Information Report, People’s Republic of China, 21 December 2017 (“2017 Report”).
The 2017 Report (SCB 1-42) was in effect when the Tribunal made its decision and was prepared expressly for protection status determination purposes. The Tribunal was required to consider the 2017 Report to the extent that it was relevant to its decision.
Paragraph 3.112 – which is to be found under the heading “People Affected by Family Planning Policies” and consists of paragraphs 3.105 to 3.112 inclusive – provided that:
3.112 Although China’s Marriage Law states that children born outside of marriage have the same rights as those born to married parents, children born out of wedlock continue to be ‘outside of policy’ under the two-child policy. Single mothers must pay social compensation fees and all medical expenses associated with giving birth. State subsidies for maternal and child services are available only with the permission of family planning authorities, who require proof of marriage. As a consequence, many single mothers give birth outside of medical facilities with associated complications for both mother and child. Single mothers can find it difficult to obtain birth certificates. Children born out of policy are not eligible for hukou and the health and education services that registration provides.
The submission is that paragraph 3.112 of the 2017 Report informs that children born out of wedlock are outside of policy and that children born outside of policy are not eligible for Hukou.
The Court accepts the applicants’ submission that the Full Court has emphasised the importance of decision-makers taking into account the most recent country information when deciding whether a person has a well-founded fear of persecution, as it is the information most likely to give an accurate picture of ongoing circumstances ‘on the ground’ and is a core aspect of the lawful formation of the state of satisfaction in respect of the criterion in section 36(2)(a) of the Act (AS at [22] referring to Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, at [31],[38], [46], [73]).
As noted earlier, the Tribunal set out in full paragraphs 3.107 to 3.110 of the 2017 Report in its reasons for Decision. It did not set out or refer to paragraph 3.112. The applicants ask the Court to thus infer that the Tribunal did not consider the information in paragraph 3.112 (AS [25]-[27] referring to MZYTS at [49] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, at [34[). The submission is that given the relevance of the information to the applicants’ claim, it should be inferred that the Tribunal did not consider the information in paragraph [3.112] (AS [25]).
The applicants submit that the Court can readily draw this inference because:
(a)the information in paragraph 3.112 made clear that, despite the country information referred to by the Tribunal about what Chinese law states (being the reference by the Tribunal in its reasons to earlier country information – the Country Information Request C1160219094880679 Fujian registration of children and out of plan births, DFAT, 24 March 2016 (“Country Information Request March 2016”) and the DFAT Thematic Report Fujian Province, People’s Republic Of China 16 December 2016 (“2016 Fujian Report”), the practical reality was that children born out of wedlock were still not eligible for Hukou or the basic services that registration provided (AS [28]);
(b)the Tribunal set out in full paragraphs 3.107-3.110 of the 2017 Report in its reasons – an indication that those were the paragraphs the Tribunal considered to be of relevance and that it considered paragraph 3.112 not relevant – even though it was evident that the Tribunal considered that evidence about access to Hukou for children born out of wedlock was material to its decision given its reference to paragraph 5 of the Country Information Request March 2016 (AS [29]).
The Tribunal referred to paragraph 5 of the Country Information Request March 2016 in its finding at paragraph [23] (bullet point eight) where it made the following finding about the relationship between children born out of wedlock and access to Hukou:
[…] The country information states that all Fujian babies, including abandoned babies, those born ‘out of plan’ or wedlock should now have access to household registration, whether or not their parents pay the compensation fee.
Paragraph 5 provided:
Household registration (hukou) reform has been preceding in China as part of wider economic reforms for some time. On 25 August 2014, the Fujian Public Security Department (PSB) implemented a new provincial Household Registration Management system. Under the new system provincial PSB officials were directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for hukou registration. This means all Fujian babies, including abandoned babies or those born “out of plan” or out of wedlock, should now have access to household registration, whether or not they pay the fee.
If the Tribunal did prefer the earlier but more specific information in paragraph 5 of the Country Information Request March 2016 over the recent but more general information in paragraph 3.112 of the 2017 Report, this is not expressly explained in the Tribunal’s reasons. The Court accepts the applicants’ submission that if the Tribunal did prefer the information in paragraph 5 then it should explain why in circumstances where it was not otherwise clear from the Tribunal’s reasons (AS [30] referring to Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [50]). That the Tribunal did not expressly explain why it did not refer to paragraph 3.112 of the 2017 Report does not mean that it might not be clear from the Tribunal’s reasons for Decision, read as a whole, that the Tribunal considered paragraph 3.112 not to be material to its decision, or that it preferred other country information, and had a rational reason for doing so. The Court understands the applicants’ submission as accepting of that proposition.
The first respondent submits (FRFS [2]) that the ground of review is without merit because the Tribunal preferred more specific and relevant country information that children born out of wedlock could be registered or Hukou in Fujian province including paragraphs 3.106 - 3.109 of the 2017 Report, the Country Information Request March 2016 and the 2016 Fujian Report.
The submission was that these sources specifically indicated that children born out of wedlock in Fujian province – the applicants’ claims being premised on a return to Fujian province – could obtain registration for Hukou irrespective of the payment of social compensation fees rendering the information in paragraph 3.112 of the 2017 Report immaterial to the Tribunal’s findings (FRFS [2]).
Paragraph 5 of the Country Information Request March 2016 is set out above. It deals specifically with access to Hukou in Fujian province of children born out of wedlock. Paragraph 3.106 of the 2017 Report deals with the implementation of the ‘two-child policy’ and directs the reader – as to interpretation and implementation of that policy which is said to vary enormously across China – to the 2016 Fujian Report for more detailed information. Paragraph 3.107 is concerned with social compensation fees and their calculation. Paragraph 3.109 deals expressly with Hukou and provides:
The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see Human Rights Defenders (including Lawyers)). According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.
The Tribunal referenced the 2016 Fujian Report in its reasons for Decision although not in relation to Hukou. Paragraph 3.37 of the 2016 Fujian Report provided:
The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see 5.4). In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid.
The first respondent’s submission is that the above country information supported the Tribunal’s decision to reject the claim (FRFS [10]). The applicants contend, however, that the final line in paragraph 3.112 of the 2017 Report was directly relevant to the claim that the third and fourth applicants could not access Hukou because they were born out of wedlock (AS [24]). The first respondent makes the following points in relation to paragraph 3.112 (FRFS [12]-[13]):
(a)The final sentence must be understood in the context of paragraph 3.112 as a whole which is concerned with the difficulties single mothers face in access to medical services related to birth, post birth care and maternal child health. In that context, the final sentence is not to be understood as indicating children born out of wedlock can never obtain registration, but rather as a statement that, in China generally, children born out of wedlock are not eligible at birth;
(b)Paragraph 3.112 related to China generally. Paragraph 3.106 of the 2017 Report states that the interpretation and implementation of the two-child policy varies enormously across China and refers to the 2016 Fujian Report for more detailed information. The Tribunal had that report before it, having referred to it in footnote one of its reasons for Decision. The 2016 Fujian Report was not updated or replaced by the 2017 Report;
(c)Paragraph 3.37 of 2016 Fujian Report deals with Hukou. (The Court has set out above paragraph 3.37 noting that the paragraph was not cited by the Tribunal in its reasons.) The paragraph is in almost identical terms to paragraph 3.109 of the 2017 Report (which the Tribunal did set out in its reasons) and which refers to paragraph 5.4 of the 2016 Fujian Report which provides:
Under the new 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 wedlock, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.
(d)Therefore, the 2017 Report at 3.109, understood in the context of the more detailed information in the 2016 Fujian Report, provided that the children born out of wedlock could obtain registration;
(e)The information at 3.109 of the 2017 Report and 3.37 and 5.4 of the 2016 Fujian Report was consistent with the Country Information Request March 2016 which the Tribunal expressly cited.
The Court accepts that the Tribunal understood that evidence about access to Hukou for children born out of wedlock was material to its decision. It is evident from the applicants’ claims and evidence at the Tribunal hearing that the specific context for a consideration of evidence relevant and material to that issue was access to Hukou in Fujian province for children born out of wedlock.
Having regard to the preceding analysis of the country information referred to by the Tribunal, the Court is not prepared to infer that the Tribunal failed to consider paragraph 3.112 of the 2017 Report. Rather, reading the Tribunal’s reasons for Decision as a whole, the Court infers that the Tribunal preferred the more specific country information regarding access to Hukou in Fujian province for children born out of wedlock. Although that information dealt with the relationship between payment of the social compensation fee and access to Hukou, it was clear and specific in stating that children born out of wedlock in Fujian province could access Hukou and that they could do so irrespective of the payment of the social compensation fee.
Accordingly, the Court does not find that the Tribunal failed to consider country information that was relevant and material to the applicants’ claim that children born out of wedlock could not access Hukou in circumstances where that claim was premised on the applicant returning to Fujian province.
No jurisdictional error is found.
CONCLUSION
Accordingly, for the reasons given above, the amended application is dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 26 September 2025
SCHEDULE OF PARTIES
MLG 3405 of 2019 Applicants
Fourth Applicant:
DVQ19
0
5
1