2022
Statelessness & Citizenship Review
4(1)
point of refugee status determination, when a hypothesised presence in the country
of reference is germinated. It is helpful to, again, visualise the heuristic of the
country of reference as a servile medium through which the qualities of
refugeehood are distilled (as distinct to the notion being a limiting definition in
itself). The exercise of recognising the intersection point of persecution through
this country medium is not defining the notion by the illegality of the harm, but
simply signalling a protection-sensitive factor which informs the medium through
which the future harm feared (persecution) and risk (well-foundedness) aspects of
the refugee definition are assessed.
This article will now turn to the effect of concurrent family claims and the
cascade of characteristics between family members in refugee status determination
assessments which engage the notion for the purposes of the inquiry.
C
Hypothesised Presence of the Family in the Country of Reference
The Refugee Convention is silent as to refugee status determination procedures per
se and as to how they may apply to children. It provides no guidance as to whether
a child’s status should be independently assessed or should flow from the successful
or unsuccessful determination of a parent’s claim. There are also no directives as to
whether a child’s status may be derived from their parent(s).124 As such, the
international protection regime has permitted states wide discretion as to the design,
implementation and adoption of procedures for refugee status determination.
To take the example of New Zealand: the IPT has adopted child-sensitive
procedures for refugee status determination, including a nuanced understanding of
how the concurrent nature of conjoined family claims inform the substantive
refugee definition for families that include children. In GD (China), the Tribunal
underscored the importance of an individualised assessment, where ‘family
members must establish their claim and identify the characteristic(s) or behaviour
said to give rise to a risk of transferred adverse interest’.125 Concerning concurrent
family claims, the IPT added that the inquiry as to risk cascades through the
assessment of family members as a group. This ensures that the assessments of
individuals comprising the family group are informed by the consideration of how
they would be treated by an agent of persecution in light of the accepted
refugeehood-related alienage of one or more family members. 126
What this means for a stateless child born outside the country of nationality or
former habitual residence of their parent(s) is that the assessment of their
hypothesised future presence in a designated country may be conducted with the
vector of time — that is, the forward-looking nature of the assessment —
projecting into the future. This, of course, is premised on an ‘evidentiallyestablished reality’ inherent in the well-founded, real chance standard and
identification of the relevant definitional indicia for a country of former habitual
residence as concluded later in the article.
124 See Pobjoy (n 38) 44.
125 GD (China) (n 48) 15 [62].
126 ibid 13 [55].
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