A Teleological and Child-Sensitive Interpretation
demonstrate residence of some duration as well as a level of attachment in the
concerned territory. From this baseline a broader band of indicia inform the notion,
depicted in terms of the character and durability of ties in the country.
Rigid adherence to this baseline interpretation prevents a stateless child born
outside the country of nationality or former habitual residence of their parent(s)
from satisfying the definition and predominantly reflects adult-centric
experiences, with the exception of a stateless child who might be born in the
country of reference prior to their arrival in the country of refuge.
From this underbelly of inequity, a teleological perspective beckons. As
emphasised by Foster and Lambert, the Refugee Convention’s humanitarian
purpose, and the tug of a live protection issue embedded in the discriminatory
nexus, may well signify a country of former habitual residence for stateless
children born outside their parent(s) country of nationality or former habitual
residence — in such circumstances where that country is ‘the centre of [a child’s]
interests’, notwithstanding that they have not resided there. 106
It is prescient to keep the definition’s rationale front and centre — as the
drafters made plain, their intention that individuals without a nationality would, in
accordance with the principle of equality of status, maintain a foothold to a claim
for refugee protection with a country of former habitual residence serving as their
country of reference.
Fundamentally, where a claimant — a stateless minor born outside their
parent(s) country of nationality or country of former habitual residence who has
not resided in the designated country — asserts an unwillingness to access the
protection of that designated country (an unwillingness embedded in
discrimination and a real chance of serious harm), the definitional scope for the
notion of that country of former habitual residence should not undermine the
Refugee Convention’s protection purpose.
Plainly, the indicium of having a residence of some duration in the country of
former habitual residence is an ill-fit for children. In search of a better fit, this
article next explores the question of what child-specific experiences might better
inform the more broadly formulated ‘centre of [a child’s] interests’ definition. As
can be expected, a purposive interpretation affords some leeway to imbue the
notion of a country of former habitual residence with child-sensitive indicia to
fairly apply the individualised refugee assessment to children born outside the
country of nationality or former habitual residence of their parent(s).
With this flexibility in mind, a child-sensitive lens is now employed in the analysis.
VI
A CHILD-SENSITIVE LENS
It has long been recognised in refugee status determination that children may be
imbued with the characteristics of their parents. They inherit entitlements and
qualities from their parents, and agents of persecution also impute children with their
parents’ characteristics, including their civil and political status. In view of this
vicarious parent–child aspect, state parties have, incrementally, employed a childsensitive lens to substantive and procedural aspects of refugee status determination.
However, with the exception of the thread of jurisprudence in Australia outlined
previously, and now in New Zealand, there has been little engagement by state
parties with regards to the question of how the unique characteristics of children,
106 Foster and Lambert (n 17) 136–37.
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