## Facts

- Chen Shi Hai was a young Chinese national whose father, Chen Ren Bing, applied in Australia for refugee protection on his behalf.
- Chen was born in contravention of China’s one-child policy and was said to fall within the class of *hei haizi* (“black children”), a label associated with children who may be unregistered or denied ordinary legal and social recognition.
- Evidence before the Refugee Review Tribunal (RRT) indicated that, if returned to China, Chen faced a real chance of serious harm because of that status, including major restrictions on access to basic services and opportunities (such as education and health care) linked to lack of registration and official recognition.
- The RRT accepted that Chen faced serious disadvantage amounting to persecution, but affirmed refusal of a protection visa on the basis that the harm was not “for reasons of” a Convention ground; it treated the harm as the by-product of population-control enforcement and noted the absence of “malignity, enmity, or other adverse intention” toward Chen personally.
- Proceedings in the Federal Court followed. On appeal within the Federal Court, the Minister succeeded; the Full Court treated “black children” as not amounting to a “particular social group” (or treated the Convention nexus as not met) and restored the refusal.
- Chen appealed to the High Court of Australia.

## Issues

1. Whether children treated as *hei haizi* (“black children”) because they were born in breach of China’s population-control rules constitute a “particular social group” under the Refugee Convention as applied in Australian migration law.
2. Whether the feared harms (including exclusion from or serious restriction on basic services tied to non-registration) were inflicted “for reasons of” Chen’s membership of that group, even if the state’s broader objective was enforcement of population policy.
3. Whether “persecution” for Convention purposes requires proof of personal hostility, enmity, or malign intent on the part of the persecutor.

## Decision

- The High Court allowed Chen’s appeal.
- The Court held that *hei haizi* (“black children”) could constitute a “particular social group” for Refugee Convention purposes.
- The Court accepted the RRT’s unchallenged findings that Chen faced a real chance of serious disadvantage amounting to persecution if returned to China.
- The Court rejected the view that persecution requires proof of “malignity” or personal animus; serious harm can be inflicted through impersonal laws or policies and still amount to persecution.
- The Court held that the Convention requirement that persecution be “for reasons of” group membership can be satisfied where the discriminatory harm is inflicted because the person is marked out by the characteristic defining the group, even if officials describe their conduct as policy enforcement.
- The High Court set aside the Full Court’s orders and dismissed the Minister’s appeal to the Full Court, restoring the outcome favorable to Chen.

## Legal Principles

- A “particular social group” may be identified by a shared status that is immutable or effectively beyond the individual’s control, including a status arising from birth and official classification.
- Severe discriminatory denial of basic rights and services (including education and health care) may amount to “persecution,” even where the mechanism of harm is administrative exclusion rather than physical violence.
- The “for reasons of” element focuses on the link between the harm and the protected characteristic; it is not defeated merely because the persecutor frames the conduct as enforcement of a law or policy.
- Convention persecution does not require proof of personal hostility, enmity, or malicious intent; persecution may result from the application of state policy that seriously harms a protected group.

## Conclusion

*Chen Shi Hai* held that children identified in China as *hei haizi* (“black children”) may form a “particular social group” under the Refugee Convention and that serious, discriminatory exclusion from basic services can constitute persecution “for reasons of” that group membership, without any need to prove personal malice by state authorities.


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)