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

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY AND HAYNE JJ

CHEN SHI HAI (an infant) by his next friend

CHEN REN BING APPELLANT

AND

THE MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS RESPONDENT

Chen Shi Hai v The Minister for Immigration and Multicultural Affairs

[2000] HCA 19

13 April 2000

P41/1999

ORDER

1. Appeal allowed with costs.

2. Set aside the orders made by the Full Court of the Federal Court of Australia on 13 April 1999 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

R E Lindsay with H N H Christie for the appellant (instructed by Director of Legal Aid, Legal Aid Western Australia)

R R S Tracey QC with P R Macliver for the respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Chen Shi Hai v The Minister for Immigration and Multicultural Affairs

Immigration law – Refugees – Appeal from decision of Refugee Review Tribunal – Application on behalf of minor by his next friend for grant of protection visa – Application refused – Appellant "black child" under the one child policy of the People's Republic of China – Unchallenged finding by Refugee Review Tribunal that appellant would suffer serious disadvantage amounting to persecution – Whether "black children" constituted a "particular social group" for the purposes of the Convention relating to the Status of Refugees – Whether appellant faced persecution "for reasons of" membership of such a group or by reason of parents' conduct in contravening the one child policy – Whether persecution can arise in the absence of "enmity" or "malignity".

Word and phrases – "persecution" – "for reasons of" – "membership of a particular social group".