1800867 (Refugee)

The applicant, a child born in Australia to Chinese citizen parents who did not hold substantive visas, sought a protection visa. The dispute concerned whether the applicant met the criteria for a protection visa, specifically whether they were a refugee or entitled to complementary protection. The matter was heard by the Tribunal.

The Tribunal was required to determine if the applicant was a refugee within the meaning of the Migration Act 1958, considering whether they had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Additionally, the Tribunal had to consider if the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia, which would entitle them to complementary protection. A key issue was whether the applicant was stateless, as claimed, or a Chinese citizen, and the implications of their parents' status and China's family planning policies on their ability to obtain household registration (hukou) and access essential services.

The Tribunal found that the applicant was not stateless but was a Chinese citizen by descent, as their mother was a Chinese national. The Tribunal considered the applicant's claims regarding potential harm in China due to their inability to participate in organised Christian activities and the consequences of their mother having two children out of wedlock, which could lead to difficulties in obtaining household registration and accessing education and healthcare. However, the Tribunal noted that China's family planning policies had been liberalised, and recent country information indicated that children born overseas could obtain hukou in Fujian Province, and that household registration was increasingly de-linked from social compensation fee payments. Furthermore, the Tribunal found that the applicant's elder sibling, also born out of wedlock in Australia, had obtained a Chinese passport, suggesting that obtaining travel documents for the applicant was feasible. The Tribunal concluded that the applicant did not meet the criteria for being a refugee or for complementary protection.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.