2301457 (Refugee)

This matter concerned an application for a protection visa by a young child born in Australia, whose parents were Chinese nationals. The dispute arose when the delegate refused the child's protection visa application, noting that the child's mother's own protection visa application had previously been refused. The applicant's mother sought review of this decision, providing further evidence regarding their circumstances in China. The case was heard by Nicole Burns.

The primary legal issue before the Tribunal was whether the applicant, as a child born in Australia to parents who had applied for protection visas, met the criteria for the grant of a protection visa. This involved considering whether Australia had protection obligations towards the applicant, particularly in light of the complementary protection criterion under section 36(2)(aa) of the Migration Act 1958, which addresses the risk of significant harm upon removal to a receiving country. The Tribunal also had to assess the applicant's mother's claims regarding the potential discrimination and hardship they would face if returned to China, including issues related to household registration (hukou), access to education and healthcare, and the capacity to subsist.

The Tribunal reasoned that while the applicant was not born when his parents initially applied for protection visas, his birth in Australia meant his own application was deemed to have been made on that date. The Tribunal accepted that China was the applicant's receiving country. The mother's claims, supported by statutory declarations, detailed fears of significant discrimination as a child born out of wedlock, the inability to obtain a hukou, and consequently, the lack of access to essential services like education and healthcare, as well as difficulties in securing lawful employment and accommodation. The Tribunal considered the country information provided by the Department of Foreign Affairs and Trade and the relevant guidelines on refugee and complementary protection. Ultimately, the Tribunal was satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the Act.

The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Act.