SARAH LONGO details Australia’s response to refugee protection claims from children born outside the one-child policy.

A consequence of China’s one-child policy was the creation of a wave of refugees from China consisting of children born in breach of family planning regulations and their families. These children born ‘out of policy’ lack household registration cards, (户口 pinyin: hùkǒu) which confer official status to Chinese citizens. Without this status, they can’t access essential public services, such as education and medicine, and have thus being coined heihaizi (黑孩子 pinyin:hēiháizi) or “black” children.

Former Justice of the High Court of Australia, Michael Kirby described this phenomenon as a denial of “fundamental rights internationally enshrined in standards accepted as universal and basic.”[1] Given the predicament of these children, the Australian Government has acknowledged that they may be eligible for protection visas. While this is prima facie a positive move, the assessments of these claims can sometimes be problematic. In particular, the different criteria and information that the Refugee Review Tribunal (the appellate body responsible for assessing these claims) uses when deciding the outcome of these cases is often inconsistent. This article will briefly outline the Australian Law and then compare how the Refugee Review Tribunal has assessed some heihaizi claims in accordance with Australian law.

 Australian Law

For these children to receive protection in Australia, they must satisfy the definition of Refugee under the 1951 Convention relating to the Status of Refugees. [2] Thus, they:

  • Must be ‘outside [their] country of nationality’[3]
  • Have a ‘well founded fear of being persecuted’[4] and
  • Establish that they fear being persecuted because of their ‘race, religion, nationality, membership of a particular social group or political opinion.’[5]

Australia has recognised that heihaizi satisfy the final third element. However, the second element of this definition is more difficult to fulfil.[6]

There is no legal doubt in Australia that denial of access to medical and educational facilities amounts to persecution of heihaizi. What is in contention is whether there is a real risk of this happening to these children in China. The Australian government is understandably not going to award a Protection visa if the child is unlikely to face persecution.      However, Australian decision makers frequently use out of date information about China and use different sources from case-to-case to assess the risk of persecution to heihaizi. I’m not advocating for more heihaizi to be awarded protection visas, but I am pushing for a more uniform and consistent assessment by tribunals of these claims.

Refugee Review Tribunal (‘RRT’) decisions

The information that members of the RRT rely on to determine heihaizi claims is inconsistent. Some RRT tribunals have relied on recent country information regarding whether heihaizi would face persecution, while others relied on out of date information. In one 2014 decision the tribunal members relied on provincial information from 1 March 2014. [7] Another tribunal also deciding a case in the same year relied on Chinese government information from 2009, and did not even consider 2013 country information created by the RRT itself.[8]

A key part of the assessment of heihaizi claims is the ability of the parents in question to pay fees imposed by the Chinese government for their children being born outside family planning regulations. Upon payment of these fees, the child receives an identity card, enabling them to access essential services. However, enforcement of this rule varies upon highly specific factors such as what province the family is in, and the level of corruption in the area. In some parts of China, even if the parents have the required money they will be refused the identity card for their child because the local government is under pressure to meet population quotas. Therefore, the child will still be denied access to essential services. Some Australian RRT decisions have not taken into account this variability.

Furthermore, in assessing the financial situation of the families, RRT members have been quick to conclude that families with debt or families that have relied on members of their extended family are in a sound position to pay the aforementioned fine. In one case, a mother of a heihaizi had paid 80,000RMB for her passport, and her aunt and uncle paid the remainder $A 30,000 for a family visa to come to Australia. The RRT found that she was in a sound financial situation, and able to pay the fine.[9] This meant that her child’s claim for protection in Australia was denied. However, her story could also suggest that she was in substantial debt and relied on her extended family for financial resources, which could have been withdrawn at any time.

While this does not mean the RRT should automatically have interpreted her financial situation in this way, the possibility of the more pessimistic scenario occurring was not even considered. I found this particularly concerning as the legal threshold required is that the applicant, in this case her child, only has to possess a 10% risk of facing persecution in China. Give this low threshold, the tribunal members should have made a more thorough analysis.

Furthermore, in this case, there was some information that was easily accessible by the tribunal members which they overlooked. In 2011, there were reports that ‘the Chinese government forcibly took out of plan children from families who failed to pay the social compensation fee.’ [10] This raises serious concerns about the inadequacy of state protection for children. However, the risk of this occurring was not even contemplated by some RRT members. The officials involved were dismissed, ‘but were not charged with any crimes’[11]. Thus, it is unlikely that the incidences were ‘effectively investigated and those that were responsible effectively punished” as required under international law. [12] It would not have been an onerous task for the tribunal in the aforementioned 2014 case to consider a report on China written by their own tribunal, which raised these issues, and at least contemplate the likelihood of this occurring to the children applying for Australian protection.

Ultimately, the standard and quality of the assessment of heihaizi claims by the RRT is disappointing. If Australia wants to seriously adhere to its international obligations, particularly in light of it campaign to become a member of the Human Rights Council in 2018,[13] tribunals need to improve the standard of their assessment of heihaizi claims. Tribunals need to recognise the reality in China, including the inherent inconsistencies of the enforcement of the one-child policy and consequences of China’s family planning regulations. Otherwise, the RRT risks overlooking issues that are relevant in establishing whether heihaizi face a real risk of persecution. This may not result in the granting of more heihaizi protection visas, but a higher standard of evaluation is required, particularly if Australia wants to comply with its human rights standards. With the gradual liberalisation of the one-child policy by the Chinese government, it will be interesting to see whether Australia’s refugee policy becomes even more stringent in its assessment of these claims.

Sarah Longo is a final year Bachelor of Asia-Pacific Studies/Bachelor of Laws at the Australian National University. She recently completed the year in China program where she studied Mandarin at Zhejiang University in Hangzhou, China. She has an avid interest in Australia-China relations.

[1] Chen Shi Hai v The Minister for Immigration and Multicultural Affairs [2000] HCA 19, [55].

[2] Migration Act (Cth) 1958 s 36(2).

[3] Convention relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1951) art 1A(2).

[4] Convention relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1951) art 1A(2).

[5] Convention relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1951) art 1A(2).

[6] Convention relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1951) art 1A(2).

[7] 1411455 [2014] RRTA 868 (16 December 2014), [36].

[8] 1304839 [2014] RRTA 754 (29 October 2014). [33]

[9] 1304839 [2014] RRTA 754 (29 October 2014). [33]

[10] Refugee Review Tribunal, ‘Background Paper China: Family planning’ (Refugee Review Tribunal, 9 March 2013) 34.

<http://www.refworld.org/pdfid/51f61ea04.pdf&gt;

[11] Refugee Review Tribunal, ‘Background Paper China: Family planning’ (Refugee Review Tribunal, 9 March 2013) 34.

<http://www.refworld.org/pdfid/51f61ea04.pdf&gt;

[12] United Nations High Commissioner for Refugees, Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/09/08 (22 December 2009) 16.

[13] http://hrlc.org.au/australias-asylum-seeker-polices-treatment-of-gay-refugees-condemned-at-un/

Posted by Alice Dawkins

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