Chen Shi Hai (an Infant) by His Next Best Friend Chen Ren Bing v. The Minister for Immigration and Multicultural Affairs

162 A.L.R. 577 (2000)

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Chen Shi Hai (an Infant) by His Next Best Friend Chen Ren Bing v. The Minister for Immigration and Multicultural Affairs

Australian High Court
162 A.L.R. 577 (2000)

Facts

Chen Shi Hai (defendant) was a three-year-old who was born in mainland China; Chen Ren Bing filed application for asylum on his behalf. Chen Shi Hai was born in violation of China’s One Child Policy, making Chen Shi Hai one of China’s hei haizi (black-market children), Chen Ren Bing argued that hei haizi constituted a particular social group and that Chen Shi Hai would face persecution as a result of being part of the hei haizi. The Refugee Review Tribunal (RRT) found Chen Shi Hai would face persecution. However, the RRT concluded that absent “any malignity, enmity, or other adverse intention towards him” by the Chinese government, the court could not rule the persecution was linked to race, religion, nationality, membership in a particular social group, or political opinion. The Federal Court of Australia reviewed the RRT decision, finding that any adverse intention from the Chinese government was not required for Chen Shi Hai’s case. However, the federal court found Chen Shi Hai ineligible for asylum because the hei haizi were not a particular social group. The RRT and the federal court both found that any persecution Chen Shi Hai faced was as a consequence of China’s population laws, not on account of his membership in the hei haizi. Chen Ren Bing appealed to the High Court of Australia.

Rule of Law

Issue

Holding and Reasoning (Gleeson, C.J.)

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