1716847 (Refugee)

This matter concerned a protection visa application made on behalf of a child applicant, a Chinese national born in Australia. The applicant's mother, who had previously had her own protection visa application refused, sought protection for her son, citing fears of serious harm should they be returned to China. The dispute centred on whether the applicant met the criteria for a protection visa under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth).

The primary legal issues before the Tribunal were whether the applicant would face a real chance of serious harm due to his status as a child born out of wedlock and in breach of China's family planning laws, and whether he would face significant harm under complementary protection provisions. This involved assessing the impact of China's 'hukou' system, the potential for social stigmatisation, and the financial burden of social compensation fees on a low-income, unskilled family. The Tribunal was required to consider country information regarding the enforcement of these policies and the potential for corruption among local officials.

The Tribunal reasoned that while social attitudes towards unregistered children ('heihaizi') had become more tolerant, the applicant's family lacked the financial capacity to pay the substantial social compensation fees and associated costs for healthcare and education. It found that the applicant's mother, with limited education and work experience, would struggle to generate sufficient income, potentially leading to debt and destitution. This economic hardship, coupled with the inability to access basic services, was considered to constitute serious harm. The Tribunal also considered the applicant's complementary protection claim, finding a real risk of significant harm due to his status as a 'heihaizi'.

Consequently, the Tribunal concluded that the applicant met the criteria for a protection visa under both s.36(2)(a) and s.36(2)(aa) of the Migration Act. The matter was remitted for reconsideration with a direction that the applicant satisfies these criteria.