Applicant A v Minister for Immigration and Ethnic Affairs
Case
•
[1997] HCA 4
•24 February 1997
No judgment structure available for this case.
HIGH COURT OF AUSTRALIA
BRENNAN CJ, DAWSON, McHUGH, GUMMOW AND KIRBY JJ
"APPLICANT A" and "APPLICANT B" v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and JANET WOOD, MEMBER, THE REFUGEE REVIEW TRIBUNAL; F.C. 97/004
Immigration - Statutes
(1997) 190 CLR 225
24 February 1997
Immigration - Statutes
Immigration—Refugee status—Fear of persecution by forcible sterilisation pursuant to China's "One Child Policy"—Whether persecution feared "for reasons of ... membership of a particular social group"—Whether legitimate to define particular social group by reference to fear of persecution. Statutes—Interpretation—Statute incorporating provisions of international treaty—Approach to construction. Words and phrases—"particular social group"—"for reasons of". Migration Act 1958 (Cth), ss 4(1), 22AA, 54B. Migration (1993) Regulations (Cth), reg 2A.5. Convention Relating to the Status of Refugees, Art 1. Vienna Convention on the Law of Treaties, Arts 31, 32.
Hearing
Hearing - Canberra 6 March 1996
Judgment - 24 February 1997
#DATE 24:2:1997
T A Game and G P Craddock for the appellants (instructed by T Murphy, Legal Aid Commission of New South Wales)
J Basten QC with N J Williams for the first respondent (instructed by Australian Government Solicitor)
No appearance for the second respondent
Orders
Appeal dismissed with costs.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Decisions
BRENNAN CJ.
1. I have had the opportunity of reading in draft the judgment of McHugh J. I gratefully adopt what his Honour has written relating to the facts giving rise to this appeal and the statutory framework in which the proceedings were taken in the Refugee Review Tribunal and the Federal Court. The question for present determination is, as his Honour states it, whether the appellants are refugees within the meaning of that term in s 4(1) of the MigrationAct 1958 (Cth) ("the Act") and entitled to have their applications for visas and entry permits considered on that basis.
2. The term "refugee" is defined by s 4(1) of the Act[1] to have the same meaning as it has in Art 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") or in that Article as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). I respectfully agree with the principles stated by McHugh J which govern the interpretation of a treaty or a treaty provision enacted in or as part of a domestic statute. But I would add the following comment.
3. If a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty[2]. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way[3].
4. In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules. The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.
5. In the present case, I would interpret the definition of "refugee" in Art 1(A)(2) of the Convention as amended by the Protocol in the light of the object and purpose appearing in the preamble and the operative text and by reference to the history of the negotiation of the Convention. This leads me to a conclusion different from that at which McHugh J arrives. The points of departure will appear from the reasons which follow.
6. The first two considerations recited in the preamble contain an indication of the Convention's purpose. They read:
" CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, 1. CONSIDERING that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms".
7. By invoking "the principle that human beings shall enjoy fundamental rights and freedoms without discrimination" and by speaking of the United Nations' "profound concern for refugees" and its endeavour "to assure refugees the widest possible exercise of these fundamental rights and freedoms", the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms. As it is sadly notorious that, in many parts of the world, governments authorise or are unable or unwilling to prevent persecution, the fourth paragraph of the preamble recognises "that the grant of asylum may place unduly heavy burdens on certain countries". The Convention places on Contracting States a number of obligations the observance of which would afford a refugee who finds himself or herself in the territory of a Contracting State a substantial measure of protection of the refugee's fundamental rights and freedoms.
8. The protection of fundamental rights and freedoms is an object of the Convention and that object is reflected in the definition of the term "refugee" in Art 1A (2) as amended.
9. The relevant part of Art 1A (2) reads as follows:
"... the term 'refugee' shall apply to any person who:
...
(2) Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."
10. When a person has a well-founded fear of persecution, the enjoyment by that person of his or her fundamental rights and freedoms is denied. Forced sterilisation has been seen as a denial of a person's fundamental rights and freedoms[4]. It offends the fundamental human right to the security of the person[5] and it destroys, of course, a person's reproductive capacity[6]. It has not been argued that, if the other elements of the definition are satisfied, forced sterilisation does not satisfy the element of persecution. The Tribunal found that each appellant had a well-founded fear of forced sterilisation.
11. However, the object and purpose of the Convention is not simply the protection of those who suffer a denial of enjoyment of their fundamental rights and freedoms; they must suffer that denial by prescribed kinds of persecution, that is, persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion".
12. The feared "persecution" of which Art 1A (2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to "the country of his nationality" for protection of his fundamental rights and freedoms but, if "a well-founded fear of being persecuted" makes a person "unwilling to avail himself of the protection of [the country of his nationality]", that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent. Then, Art 1C (5) provides that a refugee can no longer "continue to refuse to avail himself of the protection of the country of his nationality" if "the circumstances in connexion with which he has been recognized as a refugee have ceased to exist". As the justification for the refugee's not availing himself of the protection of that country is the existence of the relevant "circumstances", those circumstances must have been such that the country of the refugee's nationality was unable or unwilling to prevent their occurrence. Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality[7].
13. Secondly, the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination ("race, religion, nationality, membership of a particular social group or political opinion") mentioned in Art 1A (2). The persecution must be "for reasons of" one of those categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms. The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee". But the categories of discrimination mentioned in the definition are very broadly stated, especially the category of "membership of a particular social group".
14. The discriminatory bases of feared persecution prescribed by Art 1A (2) were settled at the Conference of Plenipotentiaries held at Geneva from 2 to 25 July 1951. The inclusion of the basis "particular social group" is attributable to an intervention by the representative of Sweden, Mr Petren, who noted[8] that -
"experience had shown that certain refugees had been persecuted because they belonged to particular social groups. The draft Convention made no provision for such cases, and one designed to cover them should accordingly be included."
15. Neither the Swedish proposal[9] nor any reported discussion illuminates the intended scope of the term "a particular social group". Later in the Conference, when a draft of what became Art 33 was under consideration, the Swedish representative procured, without substantial discussion, the insertion of the same term in the draft of that Article[10]. The term "a particular social group" was added in order to make express provision covering the persecution of a group that might not fall within any of the other bases of persecution, even though the other categories ("race, religion, nationality ... or political opinion") might have identified the persons subject to persecution for any of those reasons as a "social group". Clearly, the term "a particular social group" is not confined to the groups constituted by the other categories of reference.
16. There is nothing in the term "a particular social group" which limits the criteria for selecting such a group nor anything in the travaux préparatoires which suggests that any limitation was intended. There is no reason to treat "a particular social group" as necessarily exhibiting an inherent characteristic such as an ethnic or national identity or an ideological characteristic such as adherence to a particular religion or the holding of a particular political opinion. By the ordinary meaning of the words used, a "particular group" is a group identifiable by any characteristic common to the members of the group and a "social group" is a group the members of which possess some characteristic which distinguishes them from society at large. The characteristic may consist in any attribute, including attributes of non-criminal conduct or family life, which distinguish the members of the group from society at large. The persons possessing any such characteristic form a particular social group[11]. If membership of a social group, however constituted, attracts persecution, the enjoyment by the members of that group of their fundamental rights and freedoms is denied, and the denial is prima facie discriminatory. In the definition of "refugee", should the term "a particular social group" be given some meaning more restricted than its words would ordinarily bear?
17. The leading concept in the definition of the term "refugee" is the "fear of being persecuted" for a discriminatory reason[12]. If a putative refugee's enjoyment of his or her fundamental rights and freedoms is denied by a well-founded fear of persecution for a reason that distinguishes the victims as a group from society at large, it would be contrary to "the principle that human beings shall enjoy fundamental rights and freedoms without discrimination". It would therefore be contrary to the object and purpose of the Convention to exclude that putative refugee from the protection which the Convention requires the Contracting Parties to accord. I see no warrant for reading down the categories of discrimination by postulating some a priori factor that restricts the denotation of the phrase "a particular social group", ignoring the actual reason for the feared persecution.
18. This is a view which commands some, but not universal, support[13]. Perhaps the most cogent argument against this view was stated by La Forest J, speaking for the Court in Canada (Attorney-General) v Ward[14]. His Lordship rejected a wide interpretation of the term "a particular social group" which would effectively make it a "safety net to prevent any possible gap in the other four categories"[15] of discrimination. He said[16]:
"Although the delegates inserted the social group category in order to cover any possible lacuna left by the other four groups, this does not necessarily lead to the conclusion that any association bound by some common thread is included. If this were the case, the enumeration of these bases would have been superfluous; the definition of 'refugee' could have been limited to individuals who have a well-founded fear of persecution without more."
19. Although I find other parts of his Lordship's judgment compelling, with great respect I am unable to agree with this aspect. In the first place, the enumeration of the bases restricts the protection to victims of persecution that is officially practised or tolerated. Next, the enumeration of those bases restricts the protection to members of persecuted groups. But the insertion of the social group category of discrimination in both Art 1A (2) and Art 33 of the Convention was intended to include groups that would not be identified by any of the other categories of discrimination, whether or not the term "a particular social group" would be wide enough to encompass those other categories. Thus the inserting of the term was intended to be a "safety net" for any who fell within it. Further, the term "for reasons of" was needed to exclude persecutions that were not based on some characteristic which distinguishes the victims on racial, religious, national, social or political grounds.
20. In Canada (Attorney-General) v Ward, La Forest J identified[17] three possible sub-categories which he accepted as coming within the category of a particular social group:
"(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person."
21. However, in Chan v Canada, La Forest J (with the concurrence of L'Heureux-Dubé and Gonthier JJ) accepted[18] that persons who share a characteristic need not be associated one with another before the characteristic attracts persecution. And, for my part, I see no ground for holding that a characteristic must be "innate or unchangeable" before it can distinguish a social group. If a characteristic distinguishes a social group from society at large and attracts persecution to the members of the group that is so distinguished, I see no reason why a well-founded fear of that persecution might not support an application for refugee status. An attempt to confine the denotation of the term "a particular social group" in order to restrict the protection accorded by the Convention would be warranted if it were assumed that the Convention was intended to impose minimal obligations on the receiving State but, if the object and purpose of the Convention is the protection so far as possible of the equal enjoyment by every person of fundamental rights and freedoms, the term "a particular social group" should be given a wide interpretation. The term should be understood simply to connote a group constituted by those who share a common distinguishing characteristic which is the "reason" for persecution that is feared.
22. In my opinion, the appropriate way to apply the definition in the present case is to find the answer to a series of questions:
1.. Does the putative refugee fear persecution?
2. Is the fear well-founded?
3. Is the feared persecution practised or likely to be practised because of a characteristic of the victims that is not common to the members of the society at large?
4. Is the persecution practised officially or is it officially tolerated or is the government of the country of the putative refugee's nationality unable to control it?
5. Is the putative refugee unwilling to avail himself or herself of the protection of the country of his or her nationality?
6. Is that unwillingness due to the feared persecution?
23. In the present case, the Refugee Review Tribunal found that the appellants were members of a particular social group. The Tribunal said of the female appellant:
"The Tribunal believes that parents in the reproductive age group form a social group in China. There is an historical beginning to the defining of this group, with the establishment of a national policy to constrain the growth of the population, a policy which, by laws and regulations, throughout the 1970's and the 1980's produced sub-categories of people such as 'people with one child', 'people with more than one child', 'the floating population who are parents', 'rural people with children', 'minority nationality couples with children' (see Feng Guoping and Hao Linna, A Summary of the Family Planning Regulations for 28 Regions in China, Department of Policy and Regulations, State Family Planning Commission, translated from Population Research, No 4, 1992, pp 28-43). For the purposes of national goals, regional and local regulations define parents of one child among other categories of people with children. Therefore, the group of parents in the reproductive age group is defined by the government itself and accepted as a possible part of one's identification by China's citizens. It is not defined primarily by persecution since there are official rewards for practising birth control. This group may be sub-divided. For the purposes of the matter before the Tribunal two sub-groups are identifiable, those who win the approval of the government by having only one child and who voluntarily choose from the selection of birth control methods placed before them by officials and those who, having only one child, either do not accept the limitations placed on them or who are coerced or forced into being sterilised by the officials of their area of local government."
24. Similar findings were made in relation to the male appellant, though the Tribunal spoke of "parents of one child" rather than "parents in the reproductive age group". It is immaterial that the persecution which the appellants fear, namely, forced sterilisation, is practised locally by officials in the area of Bang Hu rather than throughout China. The practice is officially tolerated. It is not indiscriminate persecution that is feared. It is forced sterilisation of those who, being the parents of one child, have not voluntarily adopted one of the birth-preventing mechanisms approved by the local officials. The characteristic of being the parent of a child and not having voluntarily adopted an approved birth-preventing mechanism distinguishes the appellants as members of a social group that shares that characteristic[19]. It is their membership of that group that makes them liable to sterilisation if they return to Bang Hu. Affirmative answers appear from the findings of the Tribunal to each of the questions above set out. It follows that, on the findings made by the Tribunal, the Tribunal was right to hold that each of the appellants was a "refugee". Sackville J was therefore correct in dismissing the order of review.
25. I would allow the appeal, set aside the order of the Full Court and in lieu thereof dismiss with costs the appeal from the order of Sackville J to the Full Court.
DAWSON J.
26. The appellants are Chinese nationals who seek asylum in Australia as refugees. They were married in China and lived in a village near Guangzhou. On 5 December 1993 they arrived in Australia by boat and the wife gave birth to a son, their first and only child, shortly thereafter. They were detained upon arrival under s 54B of the Migration Act 1958 (Cth) ("the Act") as persons reasonably supposed to have been illegal entrants and were refused entry permits. On 14 December 1993, they lodged applications with the Department of Immigration and Ethnic Affairs for recognition as refugees pursuant to s 22AA of the Act. Those applications were deemed, by reg 2A.5 of the Migration (1993) Regulations (Cth), also to be applications in each case for a Domestic Protection (Temporary) Visa (before entry) and a Domestic Protection (Temporary) Entry Permit (before entry).
27. The applications were refused by a delegate of the Minister for Immigration and Ethnic Affairs on 31 January 1994. The appellants applied to the Refugee Review Tribunal ("the RRT") for review of that refusal pursuant to s 166B of the Act. The RRT reversed the Minister's decision and held that the appellants were refugees. That conclusion was held by Sackville J on appeal to disclose no error of law. However, his Honour's decision was unanimously reversed on an appeal to the Full Federal Court. The appellants now appeal by special leave to this Court.
28. The term "refugee" is defined in s 4(1) of the Act as having the same meaning as it has in Art 1 of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention"), as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. Article 1A(2) of the Convention in its amended form relevantly defines the term "refugee" as:
"any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".
29. The words "race, religion, nationality, membership of a particular social group or political opinion" are generally referred to as "Convention reasons".
30. The appellants claim that if they are returned to China they face forcible sterilisation pursuant to China's "One Child Policy" under which the Chinese government permits Chinese families to have only one child. The appellants claim, and the respondents do not dispute, that forcible sterilisation is persecution and that they have a well-founded fear of being forcibly sterilised if returned to China. The dispute between the parties is whether the appellants fear persecution "for reasons of ... membership of a particular social group". Before the RRT, the particular social group of which both appellants were found to be members was ultimately identified as follows:
" 'those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised' ... The group exists by virtue of government policy and government action and is thereby cognisable. The persecution feared is precisely because the [appellants are] defined into the group by government policy."
31. As is clear from that passage, it was by reference to the persecution which the appellants fear that the particular social group to which they were said to belong was defined. Whether that approach exhibits error is the question to be decided in this appeal.
32. Deciding that question involves the construction of a domestic statute which incorporates a definition found in an international treaty. Such a provision, whether it is a definition or otherwise, should ordinarily be construed in accordance with the meaning to be attributed to the treaty provision in international law. By transposing the provision of the treaty, the legislature discloses the prima facie intention that it have the same meaning in the statute as it does in the treaty. Absent a contrary intention, and there is none in this case, such a statutory provision is to be construed according to the method applicable to the construction of the corresponding words in the treaty[20].
33. The general rule of interpretation of treaty provisions appears in Art 31 of the Vienna Convention on the Law of Treaties ("the Vienna Convention"), par 1 of which provides:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
34. Under that rule, the starting point must be the text of the treaty. Of course, the text of a treaty is often couched in fairly general terms due to differences in language and legal conceptions among those to whom it is to be addressed and as part of an attempt to reach agreement among diverse nations. Accordingly, technical principles of common law construction are to be disregarded in construing the text. As Lord Wilberforce said in Buchanan & Co v Babco Ltd[21]:
"I think that the correct approach is to interpret the English text ... in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation".
35. Article 31(1) also allows, indeed requires, recourse to the context, object and purpose of a treaty[22]. Article 31(2) states that the context includes, inter alia, the text of the treaty including its preamble and annexures. Article 31 plainly precludes the adoption of a literal construction which would defeat the object or purpose of a treaty and be inconsistent with the context in which the words being construed appear. To say as much is, perhaps, to state no more than the accepted canon of construction that an instrument is to be construed as a whole and that words are not to be divorced from their context or construed in a manner that would defeat the character of the instrument[23].
36. The words "for reasons of" require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group. For instance, the appellants in this case are each members of at least one recognised particular social group - a family, consisting of them and their son[24] - but it is not their membership of that specific family which motivates their prospective persecutors[25]. The question which arises in this appeal is whether the persecution they fear is by reason of their membership of a particular social group consisting of all such families who face persecution. That is not only a question about causal nexus, but about what constitutes a "particular social group".
37. As the Federal Court has recognised[26], the phrase "particular social group" should be given a broad interpretation to encompass all those who fall fairly within its language and should be construed in light of the context in which it appears. A "group" is a collection of persons. As Lockhart J pointed out in Morato v Minister for Immigration[27], the word "social" is of wide importand may be defined to mean "pertaining, relating, or due to ... society as a natural or ordinary condition of human life". "Social" may also be defined as "capable of being associated or united to others" or "associated, allied, combined"[28]. The adjoining of "social" to "group" suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word "particular" in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element[29]; the element must unite them, making those who share it a cognisable group within their society.
38. I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group. Nor is there anything which would suggest that the uniting particular must be voluntary. To the extent that Sanchez-Trujillo v INS[30]suggests the contrary I do not think it is persuasive. Furthermore, the significance of the element as a uniting factor may be attributed to the group by members of the group or by those outside it or by both.
39. However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution. There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention "completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa)"[31]. That approach would ignore what Burchett J in Ram v Minister for Immigration[32] called the "common thread" which links the expressions "persecuted", "for reasons of", and "membership of a particular social group", namely:
"a motivation which is implicit in the very idea of persecution, is expressed in the phrase 'for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group."
40. Moreover, if a shared fear of persecution were sufficient to constitute a particular social group, it would render at least three of the other four Convention reasons - race, religion and nationality - superfluous. It is one thing to say that the five Convention reasons can overlap; it is quite another to construe one of them in a manner which renders three of the others unnecessary and the fourth - political opinion - almost so. To construe the term "particular social group" in that way would make it an almost all-encompassing safety net[33], allowing a persecutory law or practice of general application to constitute those whose actions bring themselves within its terms members of a particular social group. Such a construction would be contrary to the context in which the words "particular social group" appear.
41. The requirement that the feared persecution be by reason of "membership" of a particular social group was taken by Black CJ (with whom French J agreed) in Morato v Minister for Immigration[34] to require that the persecution be on account of "what a person is - a member of a particular social group - rather than upon what a person has done or does". But as Black CJ himself recognised[35], that statement should not be taken too far. The distinction between what a person is and what a person does may sometimes be an unreal one. For example, the pursuit of an occupation may equally be regarded as what one is and what one does. At other times, the distinction may be appreciable but not illuminating. For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts - that the persons involved are parents - is quite central to what they are[36].
42. However, I think that Black CJ's remarks were directed more to the situation of a generally applicable law or practice which persecutes persons who merely engage in certain behaviour or place themselves in a particular situation[37]. For example, a law or practice which persecuted persons who committed a contempt of court or broke traffic laws would not be one that persecuted persons by reason of their membership of a particular social group. Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms. Viewed in that way, Black CJ's distinction between what a person is and what a person does is merely another way of expressing the proposition which I have already stated.
43. In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large. It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it. Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms. The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy. For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention.
44. In contending for a construction which would see the particular social group category take on the character of a safety net by allowing a persecutory law or practice of general application to define a particular social group consisting of those who by their actions bring themselves within its terms, counsel for the appellants submitted that the persecution of parents with one child by forcible sterilisation involves the infringement of fundamental human rights. Two were identified in written submissions - a right of personal security and a right to have children, or of reproductive control[38]. The right of personal security is infringed by the intrusion which is involved in the act of forcible sterilisation. The right to have children, or of reproductive control, is destroyed by the consequence of that intrusion, namely, that sterilised persons are unable further to reproduce.
45. The latter right is said to be based on the "right ... to found a family" as it appears in Art 16 of the Universal Declaration of Human Rights ("the Universal Declaration") and Art 23 of the International Covenant on Civil and Political Rights ("the ICCPR"). In truth, it involves the contention that that right extends to founding a family of unlimited size, or, in the words of La Forest J in Chan v Canada (MEI)[39], "the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children"[40]. Whether that accords with the intention of the Universal Declaration and the ICCPR is not clear. Accepting that proposition would mean that a one child policy enforced, for example, only by financial penalties and not by forcible sterilisation would contravene the Universal Declaration and the ICCPR. Governments faced with the dangers of enormous population expansion and limited space and resources may understandably take the view that measures are required to curb or prevent population growth to ensure that basic living standards (not to mention human rights) can be maintained. Indeed, the male appellant himself, in his evidence before the RRT, said that although he strongly objected to the government making the decision for him, he did not object to the limiting of families and believed that two children was a good number.
46. What the appellants in truth object to is not the one child policy per se, but its enforcement by officials in their area by forcible sterilisation. The right to personal security comes closer to sustaining that objection and appears to have a stronger foundation in international law. Article 3 of the Universal Declaration guarantees the "right to ... security of person". The appellants also refer to Art 5 of the Universal Declaration and Art 7 of the ICCPR, which are directed to cruel, inhuman or degrading treatment or punishment. No doubt forcible sterilisation involves significant bodily intrusion without consent and has important consequences.
47. For my part, however, I do not see how those considerations assist the appellants, since they merely suggest that the persecution which they fear is serious and may infringe internationally recognised human rights. That is not the issue in this appeal. The issue is whether that persecution is for one of the five Convention reasons. As Beaumont, Hill and Heerey JJ in the Full Court of the Federal Court observed in this case[41]:
1. "Since a person must establish well-founded fear of persecution for certain specified reasons in order to be a refugee within the meaning of the Convention, it follows that not all persons at risk of persecution are refugees. And that must be so even if the persecution is harsh and totally repugnant to the fundamental values of our society and the international community. For example, a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention."
48. They went on to say[42]:
"The foregoing may seem a truism, but it needs to be kept firmly in mind because some of the reasoning in the authorities does disclose a tendency to argue that the more abhorrent the persecution is, the more likely it is that the targets of that persecution are members of a particular social group."
49. If I may say so with respect, an example of that kind of reasoning is, it seems to me, to be found in the dissent of La Forest J in Chan v Canada (MEI)43. In the earlier decision of the Supreme Court of Canada in Canada (Attorney-General) v Ward[44], La Forest J had laid down as one guideline for determining the existence of particular social groups "groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association". In applying that reasoning in Chan, the majority in the Canadian Federal Court of Appeal had held that there was no "voluntary association" between parents with more than one child who disagree with forced sterilisation, referring to La Forest J's distinction in Ward[45] between what a person is and what a person merely does[46]. On appeal in Chan, La Forest J disagreed with the Federal Court of Appeal's application of his reasoning in Ward. His Lordship stated that the guidelines in Ward were not to be considered as definitive tests divorced from the "general underlying themes of the defence of human rights and anti-discrimination"[47] which had been the basis of his analysis in Ward. That analysis had relied, at least in part, on concepts taken from the Canadian Charter of Rights and Freedoms. Looking at the problem from that perspective, La Forest J in Chan[48] found it "difficult to conceive that the associative qualities of having children may be considered so sufficiently analogous to the associative qualities of being a member of a taxi-driver co-operative to warrant any meaningful comparison". Accordingly, in his Lordship's view[49]:
"the question that must be asked is whether the appellant is voluntarily associated with a particular status for reasons so fundamental to his human dignity that he should not be forced to forsake that association. The association or group exists by virtue of a common attempt made by its members to exercise a fundamental human right."
50. It may be observed that it is the very nature of a human right, especially, one would have thought, a "fundamental" one, that it is common to all humanity. The wish of a number of persons to exercise a right which all persons share and are entitled to exercise at any time can hardly be enough to unite those persons into a particular social group. Something more would be required, and indeed that is why La Forest J's reference to "voluntary association" in Ward made sense as far as it went. A fundamental human right could only constitute a unifying characteristic if persons associated with each other on the basis of the right or, it may be added, if society regarded those persons as a group because of their common wish to exercise the right. And in that situation, it would be the unifying aspect of that element, not its character as a fundamental human right, which allowed it to delineate a particular social group. The only relevance of the characterisation of the common element as a fundamental human right is, perhaps, that it might more readily suggest that, because it is fundamental, persons associated for the purpose of asserting the right are united so as to form a particular social group. If that is the case, then to adopt the language of Black CJ in Morato v Minister for Immigration[50] and La Forest J in Ward[51], the association might be viewed as going to what one is rather than being what one merely does.
51. But in the absence of such an association, there is nothing to unite a collection of persons in China who do not accept the limits imposed upon their reproductive freedom and who fear forcible sterilisation in apparent contravention of their right to personal security other than their common fear of persecution. I must confess, with respect, that I do not understand La Forest J's reference in Chan[52] to the "associative qualities of having children" if one is speaking, as his Lordship appears to be, of disparate couples from all walks of life who do not know each other and may have nothing in common save for the fact that they are parents of one child who do not wish to be forcibly prevented from having more. To say that their behaviour in reproducing and their consequent status as parents have "associative qualities" because the exercise of fundamental human rights is involved is, I think, misleading.
52. Whether such reasoning has force in Canada, where the Charter of Rights and Freedoms has been seen as relevant, in my view it has no application in Australia and it is not assisted by reliance on the humanitarian character of the Convention. As I have said, Art 31 of the Vienna Convention directs a court to consider the context, object and purpose of treaty provisions, and, indeed, the construction which I have placed on the phrase "particular social group" is influenced by those considerations. But Art 31 does not justify, to adopt the words of the International Law Commission[53], "an investigation ab initio into the intentions of the parties" in order to achieve a result which is thought to further those intentions. In any event, it does not appear that reference to the context, object and purpose of the Convention provides a construction which would assist the appellants.
53. The humanitarian aims of the Convention are apparent from its preamble, the first of which refers to the affirmation by the General Assembly of the United Nations (in the Charter of the United Nations and the Universal Declaration) of "the principle that human beings shall enjoy fundamental rights and freedoms without discrimination". The second preamble refers to the manifestation of the United Nations, on various occasions, of "its profound concern for refugees" and to its endeavours to "assure refugees the widest possible exercise of these fundamental rights and freedoms". In the third preamble the parties speak of their intention to "extend the scope of and the protection accorded by" previous international agreements on refugees.
54. On the other hand, the fourth preamble recognises that "the grant of asylum may place unduly heavy burdens on certain countries" and the need for international cooperation, whilst the fifth preamble implores all States to recognise "the social and humanitarian nature of the problem of refugees" and "do everything within their power to prevent this problem from becoming a cause of tension between States". By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees.
55. There are other limitations on the humanitarian scope of the Convention and on the meaning of the term "refugee". However, what I have said is sufficient to illustrate the simple point that despite the reference in the Convention to the concern that persons enjoy the "widest possible exercise of ... fundamental rights and freedoms"[54], there are limits on the extent to which the Convention attempts to translate that concern into practical reality. In that respect, the Convention, like many international and municipal instruments, does not necessarily pursue its primary purpose at all costs[55]. The purpose of an instrument may instead be pursued in a limited way, reflecting the accommodation of differing viewpoints, the desire for limited achievement of objectives, or the constraints imposed by limited resources. No doubt many of those limits in the present context spring from the well-accepted fact that international refugee law was meant to serve as a "substitute" for national protection where the latter was not provided due to discrimination against persons on grounds of their civil and political status[56]. It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them.
56. I should add that the travaux préparatoires and the circumstances of conclusion of the treaty[57] do not, in my view, shed any real light on the problems raised by this appeal. Certainly, they do not stand in the way of the conclusions I have reached.
57. Counsel for the appellants before this Court ultimately accepted that the particular social group for which he contended relied, at least in part, upon the fear of persecution by forcible sterilisation. However, he submitted that there were other elements which delineated the particular social group of which the appellants were said to be members. It appears that the persecution feared by the appellants is not practised throughout China generally, being confined to particular rural localities in which over-zealous officials in the area enforce the one child policy by forcible sterilisation. It also appears that the appellants, as members of the Han majority, do not have the same indulgences afforded to them in relation to the number of children they may have as do the members of certain ethnic minorities. Counsel also referred to the fact that the appellants were a couple of reproductive age and that the one child policy applied economic and other sanctions, short of persecution, to persons in that situation.
58. This Court is handicapped to some extent by the fact that the RRT's findings on some of these issues are not altogether clear. But I am unable to see how all those couples of reproductive age, who have one child, who are not of a certain ethnicity and who live in a particular location are united by the existence of those characteristics rather than by the fact that they all fear persecution. The existence of economic sanctions in the enforcement of the one child policy is certainly not unique to them and does not unite them or set them apart.
59. In truth, the social group contended for by counsel for the appellants may be described in these words of Beaumont, Hill and Heerey JJ in the court below[58]:
"X fears persecution by reason of circumstances A, B and C which are applicable to him or her. X is therefore a member of a particular social group constituted by all people to whom circumstances A, B and C are applicable."
60. As their Honours pointed out, that is an argument which has been rejected by a line of United States cases[59]. The argument amounts to little more than the assertion of common demographic factors. What the appellants need to demonstrate is that circumstances A, B and C, or any one of them, operate to unite people such that they are an identifiable social group apart from the fact that they all face persecution. They have not done so.
61. I would therefore hold that the appellants are not refugees within the meaning of s 4(1) of the Act. I would dismiss the appeal.
McHUGH J.
62. The question in this appeal is whether the appellants are persons who, "owing to well-founded fear of being persecuted for reasons of ... membership of a particular social group", are outside the country of their origin and are unable or unwilling to avail themselves of the protection of the country of their origin. If they are, they are refugees within the meaning of s 4 of the Migration Act 1958 (Cth) ("the Act") and entitled to have their applications for visas and entry permits into Australia considered on that basis. In my opinion, however, they have not established any facts from which it could be concluded that they are "refugees" within the meaning of the Act.
The appellants' personal history
63. The appellants are husband and wife. They are nationals of the People's Republic of China ("PRC"). Until late in 1993, they lived in Bang Hu, an isolated village some 25 kilometres from Guangzhou City. On 5 December 1993, they arrived in Australia by boat but were detained under s 54B of the Act as persons reasonably supposed to be illegal entrants. Subsequently, they lodged applications with the Department of Immigration and Ethnic Affairs for recognition as refugees. Those applications were deemed to be applications for relevant entry permits and visas[60].
The statutory framework[61]
64. Section 22AA of the Act provided:
"If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee."
65. Pursuant to this section, the appellants lodged applications for refugee status. Regulation 2A.5 of the Regulations, made pursuant to s 181 of the Act, deemed an application for refugee status to be an application for relevant visas and entry permits[62].
66. Section 4(1) of the Act defines the term "refugee" as having the same meaning as it has in Art 1 of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention"), as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). Article 1A(2) of the Convention relevantly defines a "refugee" as:
"any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". (my emphasis)
The procedural history
67. The appellants' applications under s 22AA were refused by a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister"), the first respondent. That decision was reversed by the Refugee Review Tribunal ("the Tribunal"), the second respondent, which held that they were refugees within the meaning of s 4(1) of the Act. The Tribunal ordered the Minister to re-determine the appellants' applications for visas and entry permits. In the Federal Court, Sackville J held that the Tribunal had made no error of law in making its decision. The Full Court of the Federal Court unanimously reversed the decision of Sackville J and affirmed the decision of the Minister's delegate. Pursuant to the grant of special leave, the appellants now appeal to this Court.
The findings of the Tribunal
68. The Tribunal found the appellants had left the PRC because they feared sterilisation under the "One Child Policy", a government policy that insisted that Chinese families have only one child. The female appellant gave birth to a son on the day after the appellants arrived in Australia. The son was the first child of the marriage. The Tribunal found that there was "evidence that coercive measures are used [in the implementation of the PRC's family planning policy] and that these coercive measures range from forms of civil discrimination to fines and to forced contraception, sterilisation and abortion". The Tribunal found that such actions amounted to persecution for a Convention reason. In its findings concerning the husband, the Tribunal said:
"The Tribunal finds that the criteria laid down for defining a particular social group in the Morato[63] case permit the recognition of 'those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised' as such. The group exists by virtue of government policy and government action and is thereby cognisable. The persecution feared is precisely because the Applicant is defined into the group by government policy."
69. The Tribunal found that the husband's fear of persecution was "well founded" and that he was a refugee.
70. The Tribunal made similar findings in respect of the wife and declared her to be a refugee.
Interpretative principles
71. The term "refugee" in s 4 of the Act has the same meaning that it has in the Convention and the Protocol. In Australia, treaties are interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties ("the Vienna Convention")[64]. Article 31 of the Vienna Convention, referred to in this Court as the "leading general rule of interpretation of treaties"[65], is relevant. It provides:
"Article 31General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.72. The first paragraph of the article contains three separate but related principles. First, an interpretation must be in good faith, which flows directly from the rule pacta sunt servanda[66]. Second, the ordinary meaning of the words of the treaty are presumed to be the authentic representation of the parties' intentions. This principle has been described as the "very essence" of a textual approach to treaty interpretation[67]. Third, the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose[68].
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended."
73. Commentators differ as to the correct interpretation of Art 31. Differences of opinion exist as to the circumstances in which the "context ... object and purpose" of the treaty may be used to supplement the "ordinary meaning" of the treaty. Inherent in this debate is the question of whether the textual interpretation of the words, embodied in the phrase "ordinary meaning", should be afforded interpretative precedence. Some commentators have argued that the literal meaning has no precedence and that the object of the treaty must always be taken into account[69]; some have argued that the two general levels of inquiry embodied in par 1 of Art 31 have a single combined operation[70]; and some have argued that words and phrases of a treaty are in the first instance to be construed according to their plain and natural meaning and that it is only when the result of such an inquiry is doubtful that one should look to a treaty's context, object and purpose[71].
74. Australian decisions provide no clear answer as to whether Art 31 requires or merely allows recourse to the context, object and purpose of a treaty in interpreting one of its terms. It is clear that such recourse is, in some circumstances, permissible. On numerous occasions, Australian courts have sought to discern the purpose of a treaty so as to construe a treaty term[72]. What is not clear from the decided cases, however, are the circumstances which require or allow recourse to the context, object and purpose of a treaty. Nor have those cases clarified the nature of the relationship between the context, object and purpose of a treaty and the "ordinary" textual analysis of one of its provisions.
75. However, in my view, the opinion of Zekia J in the European Court of Human Rights in Golder v United Kingdom[73] states the correct approach for interpreting Art 31. Zekia J stressed that a holistic approach was required by Art 31 of the Vienna Convention. Having considered the text of Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention"), and having described the textual analysis as "'the primary source of ... interpretation'"[74], he said[75]:
"I pass now to the contextual aspect of Article 6(1). ... [T]he examination of this aspect is bound to overlap with considerations appertaining to the object and purpose of a treaty. There is no doubt, however, that interpretation is a single combined operation which takes into account all relevant facts as a whole." (emphasis in original)
76. Later, having considered the context, object and purpose of the European Convention, he concluded[76]:
"I have already endeavoured to touch the main elements of interpretation in some order. When all elements are put together and considered compositively, to my mind the combined effect lends greater force to the correctness of the opinion submitted."
77. Thus, Zekia J emphasised an ordered yet holistic approach. Primacy is to be given to the written text of the Convention but the context, object and purpose of the treaty must also be considered. Similar sentiments were expressed by Murphy J in The Commonwealth v Tasmania (The Tasmanian Dam Case)[77] where, in reference to the UNESCO Convention for the Protection of the World Cultural and National Heritage, his Honour said:
"The Convention should be interpreted giving primacy to the ordinary meaning of its terms in their context and in the light of its object and purpose (Art 31(1), Vienna Convention on the Law of Treaties)".
78. In my opinion, the approaches of Zekia J and Murphy J are correct and should be followed in this country. First, as Brownlie points out[78], Art 31 is headed in the singular: "General rule of interpretation". This use of the singular indicates that Art 31 is to be interpreted in a holistic manner. As the International Law Commission, whose draft articles on the law of treaties exactly mirrored Art 31 of the Vienna Convention[79], commented[80]:
"The Commission, by heading the article 'General rule of interpretation' in the singular ... intended to indicate that the application of the means of interpretation in the article would be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation. ... [T]he Commission desired to emphasize that the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule."
79. Second, taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on the "four corners of the actual text" in discerning the meaning of that text[81]. The text of the treaty, being the starting point in any investigation as to the meaning of the text, necessarily has primacy in the interpretation process. As the International Law Commission has noted[82]:
"The article ... is based on the view that the text must be presumed to be the authentic expression of the intentions of the parties; and that, in consequence, the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties."[83]
80. The need to give the text primacy in interpretation is accentuated by the tendency of multilateral instruments to be the result of various compromises by various States or groups of States. If the subjective intentions of their representatives were the criterion, the interpretation of many international instruments might be impossible.
81. Third, the mandatory requirement that courts look to the context, object and purpose of treaty provisions as well as the text is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation[84].
82. Fourth, international treaties often fail to exhibit the precision of domestic legislation. This is the sometimes necessary price paid for multinational political comity[85]. The lack of precision in treaties confirms the need to adopt interpretative principles, like those pronounced by Zekia J, which are founded on the view that treaties "cannot be expected to be applied with taut logical precision"[86].
83. Accordingly, in my opinion, Art 31 of the Vienna Convention requires the courts of this country when faced with a question of treaty interpretation to examine both the "ordinary meaning" and the "context ... object and purpose" of a treaty.
The meaning of "membership of a particular social group" must be construed in the light of the definition of "refugee" taken as a whole
84. For the purpose of this appeal, the definitional phrase that the Court is required to construe is neither "membership of a particular social group" nor the more limited phrase "particular social group". The real question, dictated by s 4(1) of the Act, is to ascertain whether the Tribunal erred in law in finding that the appellants are persons:
"who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [are] outside the country of [their] nationality and [are] unable or, owing to such fear, [are] unwilling to avail [themselves] of the protection of that country".
85. The first respondent has conceded that sterilisation could be the basis of a well-founded fear of persecution by the appellants. But that does not mean that the words "well-founded fear of being persecuted" should be ignored when construing that part of the phrase which is in dispute. The phrase "a well founded fear of being persecuted for reasons of ... membership of a particular social group" is a compound conception. It is therefore a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations. Indeed, to ignore the totality of the words that define a refugee for the purposes of the Convention and the Act would be an error of law by virtue of a failure to construe the definition as a whole.
86. Where the claim is one of a "well-founded fear of being persecuted for reasons of ... membership of a particular social group", the interaction between the concepts of "persecuted", "for reasons of" and "membership of a particular social group" is particularly important. Defining the group widely increases the difficulty of proving that a particular act is persecution "for reasons of ... membership" of that group. Thus, if the social group in the present case is defined to mean parents with one child, any involuntary sterilisation of the appellants (which is the relevant persecutory act) would not be "for reasons of ... membership" of that group because, even on the most favourable view of the appellants' case, it would be the particular refusal of the appellants to undergo voluntary sterilisation or to comply with government policy - not their membership of the group of parents with one child - that would lead to action against them. As the Tribunal acknowledged, those who complied with the government's policy - whatever their own wishes about having more than one child - were rewarded, not punished. Persons with one child, therefore, are not indiscriminately sterilised for the reason that they have one child. Involuntary sterilisation is neither the policy of the government nor the usual effect of its one child policy. According to the evidence before the Tribunal, involuntary sterilisation occurs mainly in rural areas and is the result of the attitudes of over zealous local officials. It would seem that most Chinese parents are not involuntarily sterilised even when they breach the policy. To succeed in this case, the appellants need to prove membership of a group other than the group of Chinese parents with one child.
87. Paradoxically, defining the group narrowly may take it outside the concept of "a particular social group" and increase the difficulty of proving that the act relied on is persecution "for reasons of ... membership"of the group. If the definition of a group has to be hedged with qualifications to relate it an alleged persecutory act, the proper conclusion may be that the reason for the act was not membership of the group but the conduct of the individual. Prisoners, for example, are arguably a particular social group. If they are routinely beaten because they are prisoners, they may well qualify for refugee status. But narrow the group to prisoners who refuse to obey prison regulations and the case for an applicant becomes so much harder of proof. The applicant will have difficulty in proving the existence of "a particular social group" and in proving that the persecution (bashings) are "for reasons of ... membership" of that group rather than for his or her refusal to obey the regulations.
88. When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.
Persecution
89. Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.
90. Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution[87]. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race[88].
91. However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny[89]. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.
92. In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime.
The meaning of membership of a particular social group
93. Courts and jurists have taken widely differing views as to what constitutes "membership of a particular social group" for the purposes of the Convention. This is not surprising. The phrase is indeterminate and lacks a detailed legislative history and debate. Not only is it impossible to define the phrase exhaustively, it is pointless to attempt to do so.
94. Records of the Convention's preparation, which are legitimate interpretative material under Australian law[90], reveal that the category of "particular social group" was the last of the enumerated grounds in Art 1A(2) to be added and that it was added with the intention to broaden the reach of the other four grounds[91]. However, nothing in the prior history or the record of the Convention supports the conclusion that the category of "particular social group" was added to provide a safety-net for all persons subject to persecution who did not fall within the other enumerated grounds. Dr Hathaway correctly notes that while "[t]he notion of social group as an all-encompassing residual category is seductive from a humanitarian perspective, since it largely eliminates the need to consider the issue of a linkage between fear of persecution and civil or political status"[92], it ignores the purpose of the instrument's drafters. If they had intended to provide a "catch-all which could include all the bases for and types of persecution which an imaginative despot might conjure up"[93], it is more likely than not that they would have amended the draft treaty by eliminating the specified grounds of persecution. Indeed, if the drafters had intended the term "a particular social group" to act as a "catch-all", it is surprising that they did not amend the Convention to provide that any person who had a well-founded fear of persecution was a refugee[94].
95. Some decisions have interpreted the definition of refugee very narrowly[95]. In Sanchez-Trujillo v INS[96], for example, the United States Court of Appeals for the Ninth Circuit, in holding that a "class of young, urban, working-class [El Salvadorian] males of military age who had maintained political neutrality"[97] was not a "particular social group", said[98]:
"The statutory words 'particular' and 'social' which modify 'group,' ... indicate that the term does not encompass every broadly defined segment of a population, even if a certain demographic division does have some statistical relevance. Instead, the phrase 'particular social group' implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group."
96. The decision, and particularly its employment of the notion of the necessity of a "voluntary associational relationship", has been criticised as an unduly narrow interpretation of the phrase[99].
97. The reasoning in Sanchez-Trujillo can be contrasted with the reasoning of MacGuigan JA in his dissenting judgment in the Canadian Federal Court of Appeal in Canada (Attorney-General) v Ward[100]. In Ward, the Court of Appeal had to consider whether a former member of the Irish National Liberation Army who had assisted the escape of certain hostages, whom he was guarding, was a member of a "particular social group". His Lordship rejected an approach that would have placed the ordinary meaning of the phrase in a position of interpretative primacy. He said that attempts to derive "an absolute definition in the abstract"[101] were erroneous because they tended to eliminate the "personal element" of the definition. Instead, he preferred a definition of "membership of a particular social group" that included persons who were "united in a stable association with common purposes"[102], reasoning that "[i]n a world fractured by racism and religion, politics and poverty, reality is too complex to be thus limited by conceptual absolutes"[103]. On appeal, the Supreme Court of Canada criticised MacGuigan JA's definition as an example of "a very wide definition" founded on the notion that the Convention's purpose or object in including the category of "membership of a particular social group" was an attempt to provide a safety-net for all persecuted persons who would not fall within the other four categories of persons enumerated in Art 1A(2) of that Convention[104].
98. In the result, courts and tribunals in the United States and Canada have given many decisions which cannot be reconciled with each other, having regard to their material facts. Thus, courts and tribunals in the United States have held that the following groups were not "particular social groups": a co-operative of taxi drivers in El Salvador[105], cheesemakers in El Salvador[106], family members of deserters from the Salvadorian army[107], women who have previously been raped and bashed by Salvadorian guerillas[108], urban working class males of military age[109], associates of Imelda Marcos in the inner circle of a social and philanthropic group in the Philippines known as the Blue Ladies[110], "poor Yemeni Moslems who were discriminated against because they could not avoid execution by paying 'blood money' to the victim's family"[111], a family in which one member had been killed and another kidnapped[112], Chinese citizens whose flight aboard a vessel had attracted embarrassing publicity for the PRC government[113] and drug traffickers[114]. In Yang v Carroll[115] a Federal District Court held that "[o]n the facts of this case, PRC families with more than one child are more appropriately characterized as a demographic division than as a social group". On the other hand, the First Circuit Court of Appeals has held[116] that a student who claimed that she was a member of three groups: (1) the Ashanti tribe; (2) professional, business and educated people; and (3) those associated with a recently overthrown government was a member of "a particular social group". The Third Circuit has also recognised the women of Iran as "a particular social group"[117].
99. Canadian courts and tribunals have held that former members of a paramilitary terrorist organisation were not a particular social group[118] but that a sports club[119] and Trinidadian women subject to wife abuse[120] were particular social groups. They also have divided on the question of whether Chinese groups similar to those involved in the present appeal are "a particular social group". In Cheung v Canada (Minister of Employment and Immigration)[121], the Federal Court of Appeal held that they were, while in Chan v Canada (Minister of Employment and Immigration)[122] a differently constituted court held that they were not.
Persecution as a defining element of "a particular social group"
100. The concept of persecution can have no place in defining the term "a particular social group". While decisions that have sought to apply the ejusdem generis principle to discern the meaning of "particular social group" are problematic because it is difficult to identify a genus common to "race, religion, nationality ... [and] political opinion"[123], one factor common to these four categories is that the fact or fear of persecution plays no role in understanding their content. If the drafters did not intend persecution to be relevant in defining those four categories, it would seem likely that they did not intend persecution to play any part in defining what is a "particular social group". Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the "particular social group" ground to take on the character of a safety-net. It would impermissibly weaken, if it did not destroy, the cumulative requirements of "fear of persecution", "for reasons of" and "membership of a particular social group" in the definition of "refugee". It would also effectively make the other four grounds of persecution superfluous.
[91] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 923-926.
[92] Hathaway, The Law of Refugee Status, (1991) at 159.
[93] Helton, "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39 at 45.
[94] See further Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 at 26-29.
[95] Sanchez-Trujillo v INS (1986) 801 F 2d 1571; De Valle vINS (1990) 901 F 2d 787; Gomez v INS (1991) 947 F 2d 660; Saleh v US Department of Justice (1992) 962 F 2d 234.
[96] (1986) 801 F 2d 1571.
[97] Sanchez-Trujillo (1986) 801 F 2d 1571 at 1571.
[98] Sanchez-Trujillo (1986) 801 F 2d 1571 at 1576.
[99] See, for example, Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 921-923; Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 555-556; Godfrey, "Defining the Social Group in Asylum Proceedings: The Expansion of the Social Group to Include a Broader Class of Refugees", (1994) 3 Journal of Law and Policy 257 at 266-268.
[100] (1990) 67 DLR (4th) 1.
[101] Canada (Attorney-General) v Ward (1990) 67 DLR (4th) 1 at 19.
[102] Ward (1990) 67 DLR (4th) 1 at 18.
[103] Ward (1990) 67 DLR (4th) 1 at 19.
[104] Ward (1993) 103 DLR (4th) 1 at 25-29.
[105] Matter of Acosta, Board of Immigration Appeals (1985) Interim Decision 2986.
[106] Alvarez-Flores v INS (1990) 909 F 2d 1.
[107] De Valle (1990) 901 F 2d 787.
[108] Gomez (1991) 947 F 2d 660.
[109] Sanchez-Trujillo (1986) 801 F 2d 1571.
[110] Rodriguez v INS No 91-70226, 1992 WL 116029 (9th Cir 29 May 1992) cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 542, n 222.
[111] Saleh (1992) 962 F 2d 234 at 240.
[112] Estrada-Posadas v INS (1991) 924 F 2d 916.
[113] Si v Slattery (1994) 864 F Supp 397.
[114] Bastanipour v INS (1992) 980 F 2d 1129.
[115] (1994) 852 F Supp 460 at 470.
[116] Ananeh-Firempong v INS (1985) 766 F 2d 621.
[117] Fatin v INS (1993) 12 F 3d 1233. In that case, however, the Court held that there was no "persecution".
[118] Ward (1993) 103 DLR (4th) 1.
[119] Astudillo v Minister of Employment and Immigration (1979) 31 National Reporter 121 cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 535, n179.
[120] Canada (Minister of Employment and Immigration) v Mayers [1993] 1 FC 154. The Canadian Court of Appeal upheld a finding that a Trinidadian woman who had been abused by her husband for many years was a refugee because she was a member of a particular social group. The decision must surely be wrong even if the definition of refugee is given a very liberal interpretation. It is difficult to see how the designated group was a particular social group for Convention purposes. However, it seems to have been common ground between the parties that the relevant group was "Trinidadian women subject to wife abuse". Nevertheless, it does not follow that the applicant was abused because of her membership of that group.
[121] (1993) 102 DLR (4th) 214; [1993] 2 FC 314.
[122] [1993] 3 FC 675 at 692-693.
[123] Art 1A(2) of the Convention.
[124] Secretary of State for the Home Department v Savchenkov [1996] Imm AR 28 (Court of Appeal (Civil Division)).
[125] Chan [1993] 3 FC 675 at 692-693.
[126] Hernandez-Ortiz v INS (1985) 777 F 2d 509 at 517.
[127] Statement of Mr Petren, UN Doc A/CONF 2/SR3 at 14.
[128] Goodwin-Gill, The Refugee in International Law, 2nd ed (1996) at 46.
[129] (1992) 980 F 2d 1129 at 1132.
[130] (1986) 801 F 2d 1571.
[131] Morato (1992) 39 FCR 401.
[132] Sections 14 and 17 were repealed by s 7 of the Migration Reform Act 1992 (Cth) ("the 1992 Act"), but with effect from 1 September 1994 by reason of the amendment to s 2(3) of the 1992 Act by s 5 of the Migration Laws Amendment Act 1993 (Cth) ("the 1993 Act").
[133] Sections 54A-54H were repealed by s 12 of the 1992 Act but, by reason of s 5 of the 1993 Act, with effect from 1 September 1994.
[134] Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178. It is unnecessary to consider whether these provisions also may be supported as laws with respect to immigration (s 51(xxvii)) or external affairs (s 51(xxix)).
[135] Sections 22AA-22AD were repealed by s 9 of the 1992 Act with effect, by reason of s 5 of the 1993 Act, from 1 September 1994.
[136] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274.
[137] The Regulations were repealed by Statutory Rules 1994 No 261.
[138] The RRT was established by s 31 of the 1992 Act.
[139] (1995) 57 FCR 309.
[140] (1994) 127 ALR 383.
[141] The text appears in Australia. Treaty Series, 1954, No 5.
[142] Weis, "Legal Aspects of the Convention of 25 July 1951 Relating to the Status of Refugees", (1953) 30 The British Year Book of International Law 478.
[143] The text of the Protocol appears in Australia. Treaty Series, 1973, No 37.
[144] Sadruddin Aga Khan, "Legal Problems Relating to Refugees and Displaced Persons", (1976) 149 Recueil des Cours, Pt 1, 287 at 316-317.
[145] (1993) 125 L Ed 2d 128, criticised by Jones, Note, (1994) 88 American Journal of International Law 114.
[146] [1996] AC 742.
[147] See Krenz, "The Refugee as a Subject of International Law", (1966) 15 International and Comparative Law Quarterly 90 at 106. See also Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 510; and Sale v Haitian Centers Council (1993) 125 L Ed 2d 128 at 152-155. The contrary view, that the obligations contained in the Convention arise whenever a State acts, with no exceptions for State conduct that occurs outside the territory or territorial waters of the State, had been put to the Supreme Court in Sale in the Amicus Brief filed by the United Nations High Commissioner for Refugees. This is reproduced at (1994) 6 International Journal of Refugee Law 84.
[148] T v Home Secretary [1996] AC 742 at 754.
[149] Robtelmes v Brenan (1906) 4 CLR 395 at 413.
[150] Article 31.1 states:
"The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."
Article 33.1 provides:
"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
[151] In their dissenting judgment in Nguyen Tuan Cuong v Director of Immigration [1997] 1 WLR 68 at 79. Those comprising the majority of the Board (Lord Mustill, Lord Cooke of Thorndon and Sir John May) did not find it necessary to deal with the text of the Convention.
[152] Mathew, "Sovereignty and the Right to Seek Asylum: The Case of Cambodian Asylum-Seekers in Australia", (1994) 15 The Australian Year Book of International Law 35 at 54-55.
[153] See, respectively, s 243 of the Immigration and Nationality Act of 1952 (8 USCS SS1253); Asylum and Immigration Appeals Act 1993 (UK); s 2(1) of the Immigration Act (RSC), 1985, c I-2; and s 35 of the Immigration Act 1987 (NZ) and the executive arrangements described in Khalon v Attorney-General [1996] 1 NZLR 458 at 460-462.
[154] cf Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288, 298-299; Minister for Foreign Affairs v Magno (1992) 37 FCR 298 at 303-305.
[155] cf Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 406-407.
[156] As in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
[157] Australia. Treaty Series, 1954, No 5 at 4.
[158] Graves, "From Definition to Exploration: Social Groups and Political Asylum Eligibility", (1989) 26 San Diego Law Review 739 at 770, 789-790, a paper referred to in Canada (Attorney-General) v Ward [1993] 2 SCR 689 at 730; (1993) 103 DLR (4th) 1 at 27.
[159] cf Roth v United States (1957) 354 US 476 at 489-492; Jacobellis v Ohio (1964) 378 US 184 at 197.
[160] cf Liversidge v Sir John Anderson [1942] AC 206 at 244-245.
[161] These rules of interpretation are applicable both under customary international law and as it is now stated in the Vienna Convention on the Law of Treaties: see Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 348-350, 356-357.
[162] Hathaway, "The Evolution of Refugee Status in International Law: 1920-1950", (1984) 33 International and Comparative Law Quarterly 348 at 348.
[163] The decrees of the Soviet Government affected some 2 million people: Williams, "Denationalization", (1927) 8 The British Year Book of International Law 45 at 46. The National Socialist laws which withdrew nationality on racial and political grounds are described by Holborn, "The Legal Status of Political Refugees, 1920-1938", (1938) 32 American Journal of International Law 680 at 690-692; and see Oppenheimer v Cattermole [1976] AC 249 and Mann, "The Present Validity of Nazi Nationality Laws", (1973) 89 Law Quarterly Review 194.
[164] The text of which appears respectively in League of Nations - Treaty Series, vol 89 at 47, 53. These "Arrangements" were anomalous instruments; although in treaty form they did not contain categorical stipulations, but merely recommendations that a particular course of conduct be followed: Jennings, "Some International Law Aspects of the Refugee Question", (1939) 20 The British Year Book of International Law 98 at 99.
[165] The definition in corresponding terms was accepted in respect of Armenians who had been subjects of the Ottoman Empire.
[166] The text appears in League of Nations - Treaty Series, vol 192 at 59.
[167] Australia. Treaty Series, 1948, No 16 signed by Australia 13 May 1947 with effect from 20 August 1948.
[168] Annex 1, Pt 1, s C(1)(a)(i); see Hathaway, "The Evolution of Refugee Status in International Law: 1920-1950", (1984) 33 International and Comparative Law Quarterly 348 at 375.
[169] Borne out by perusal of the Summary Record of the Third Meeting of Plenipotentiaries held at Geneva on 3 July 1951 (United Nations Document A/CONF.2/SR.3, 19 November 1951).
[170] See Helton, "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39 at 40-44. Professor Fullerton notes that the delegations appeared far more concerned with restricting the geographical and time limits for the definition of refugee than with discussing the categories of persecution: "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 509-510. These restrictions later were removed by the Protocol.
[171] (1986) 801 F 2d 1571.
[172] (1986) 801 F 2d 1571 at 1576.
[173] The Oxford English Dictionary, 2nd ed (1989), vol 4 at 444.
[174] (1991) 947 F 2d 660 at 664.
[175] See also Saleh v US Department of Justice (1992) 962 F 2d 234 at 240; Bastanipour v Immigration and Naturalization Service (1992) 980 F 2d 1129 at 1132.
[176] (1994) 852 F Supp 460.
[177] (1994) 852 F Supp 460 at 470.
[178] (1994) 852 F Supp 460 at 471. cf Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 45-46, 52-53.
[179] [1993] 2 SCR 689; (1993) 103 DLR (4th) 1.
[180] [1989] 1 SCR 143; (1989) 56 DLR (4th) 1.
[181] Namely, "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".
[182] [1993] 2 SCR 689 at 739; (1993) 103 DLR (4th) 1 at 33-34.
[183] [1993] 2 SCR 689 at 739; (1993) 103 DLR (4th) 1 at 34.
[184] [1995] 3 SCR 593; (1995) 128 DLR (4th) 213. The Supreme Court decision postdates that of the Full Court in the present case.
[185] [1995] 3 SCR 593 at 642-643; (1995) 128 DLR (4th) 213 at 246-247.
[186] [1995] 3 SCR 593 at 645-646; (1995) 128 DLR (4th) 213 at 249.
[187] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
[188] The Oxford English Dictionary, 2nd ed (1989), vol 11 at 592.
[189] (1995) 57 FCR 565 at 568. Judgment in Ram was delivered after that of the Full Court in this case.
[190] (1995) 57 FCR 565 at 569.
[191] Macklin, "Canada (Attorney-General) v Ward: A Review Essay", (1994) 6 International Journal of Refugee Law 362 at 377; see also Goodwin-Gill, The Refugee in International Law, 2nd ed (1996) at 359-360.
[192] Chan v Canada (Minister of Employment and Immigration) [1993] 3 FC 675 at 693.
[193] Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593; (1995) 128 DLR (4th) 213.
[194] [1993] 3 FC 675 at 692-693. See also the remarks of French J in Jahazi v Minister for Immigration (1995) 61 FCR 293 at 299-300 and the decision of the English Court of Appeal in Secretary of State for the Home Department v Savchenkov [1996] Imm AR 28.
[195] (1995) 57 FCR 309 at 324-325.
[196] Convention Relating to the Status of Refugees signed at Geneva, 28 July 1951; Australia Treaty Series (1954), No 5.
[197] Signed at New York, 31 January 1967; Australia Treaty Series (1973), No 37.
[198] Australia was one of the original signatories.
[199] Migration Act 1958 (Cth), s 4(1) (definition of "refugee") and Part 2 Div 1AA ("Refugees"). References are to the provisions of the Act as they applied at the time the current proceedings commenced.
[200] See analysis by McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 423-431.
[201] Unreported, 20 May 1994.
[202] Domestic Protection (Temporary) Visa (Before Entry) and Domestic Protection (Temporary) Entry Permit (Before Entry); see Migration Act 1958 (Cth), ss 23 and 33; Migration (1993) Regulations (Cth), regs 2.1, 2.2.
[203] Pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16.
[204] Minister for Immigration and Ethnic Affairs v Respondent A (1994) 127 ALR 383.
[205] Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309.
[206] cf Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569, where Burchett J noted that it may have been open to the applicant to relocate his residence out of the Punjab, a point of distinction from this case.
[207] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 427-431.
[208] cf Cheung v Canada (Minister of Employment and Immigration) (1993) 102 DLR (4th) 214 at 221.
[209] Chan v Canada(Minister of Employment and Immigration) [1993] 3 FC 675 at 686.
[210] See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392, 424-426; Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 414.
[211] Lek v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 45 FCR 418; Kashayev v Minister for Immigration and Ethnic Affairs (1994) 122 ALR 503. See also Lo, Fu Shuang v Minister for Immigration and Ethnic Affairs (1995) 134 ALR 73.
[212] Sanchez-Trujillo v Immigration and Naturalization Service (1986) 801 F 2d 1571; Matter of Acosta, Interim Decision 2986, Department of Justice, Board of Immigration Appeals, 1 March 1985; see Parish,"Membership in a Particular Social Group Under the Refugee Act of 1980: Social Identity and the Legal Concept of the Refugee", (1992) 92 Columbia Law Review 923 at 940-944.
[213] Cheung v Canada (Minister of Employment and Immigration) (1993) 102 DLR (4th) 214; Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1.
[214] (1989) 169 CLR 379 at 423-431.
[215] (1994) 127 ALR 383 at 404-405, 406.
[216] (1993) 102 DLR (4th) 214 at 220.
[217] (1995) 128 ALR 705.
[218] (1995) 57 FCR 565.
[219] (1995) 57 FCR 309 at 325.
[220] (1992) 39 FCR 401.
[221] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 915.
[222] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407.
[223] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 566.
[224] cf Reg v Home-Secretary; Ex parte Sivakumaran [1988] AC 958; Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421.
[225] Helton, "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39 at 51 citing Powell J in Blue Chip Stamps v Manor Drug Stores (1975) 421 US 723 at 756.
[226] Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568.
[227] Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 416.
[228] Hathaway, The Law of Refugee Status, (1991) at 43.
[229] Acts Interpretation Act 1901 (Cth), s 15AB(2)(d) read with the Vienna Convention on the Law of Treaties.
[230] Vienna Convention on the Law of Treaties, adopted 22 May 1969 - UN doc A/Conf 39/27.
[231] eg Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 356.
[232] eg Fothergill v Monarch Airlines Ltd [1981] AC 251 at 281-282, 293.
[233] See discussion in Matter of Acosta, Interim Decision 2986, Department of Justice, Board of Immigration Appeals, 1 March 1985; cf Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94.
[234] Helton "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39 at 49-50.
[235] Hathaway, The Law of Refugee Status (1991) at 159-160.
[236] See for example Matter of Acosta, Interim Decision 2986, Department of Justice, Board of Immigration Appeals, 1 March 1985 at 37-39; Sanchez-Trujillo v Immigration and Naturalization Service (1986) 801 F 2d 1571 at 1576.
[237] Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 at 26-29.
[238] cf Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 437 at 443.
[239] Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569.
[240] Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 567.
[241] Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 at 29.
[242] esp Arts 3, 5 and 16.
[243] esp Arts 7, 23.
[244] Brown, Who will Feed China? Wake up Call for a Small Planet (1995) Ch 2; United States of America, Bureau of the Census, World Population by Country and Region 1950-1990, (1993), fig 2-4.
[245] (1993) 102 DLR (4th) 214.
[246] The Swedish delegate, Mr Petren, doubted that the International Court of Justice would look at the history. See "United Nations, General Assembly, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons", Record, 26 November 1951; UN doc A/Conf 2/SR 19, 13-15.
[247] Helton, "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39.
[248] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 924. See also Kahn, "Legal Problems Relating to Refugees and Displaced Persons", (1976) 149 Recueil des Cours 287. See also discussion in Canada (Attorney-General) v Ward (1993) 103 DLR 1 at 27.
[249] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 924 referring to the Convention, Art 1 par B(2).
[250] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 925-926.
[251] A/Conf. 2/SR.23 at 8.
[252] Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 509.
[253] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 926.
[254] Compton, "Asylum for Persecuted Social Groups", (1987) 62 Washington Law Review 913 at 926.
[255] Sanchez-Trujillo v Immigration and Nationalization Service (1986) 801 F 2d 1571 at 1575-1578.
[256] Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 525 fn 125.
[257] Matter of Acosta, Interim Decision 2986, Department of Justice, Board of Immigration Appeals, 1 March 1985 cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 545.
[258] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 922; cf Helton, "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39 at 48-50.
[259] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 926.
[260] UN Doc HCR/PRO/4 (1979).
[261] Sanchez-Trujillo v Immigration and Naturalization Service (1986) 801 F 2d 1571 at 1576.
[262] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392.
[263] Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 414.
[264] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 929.
[265] Grahl-Madsen, The Status of Refugees in International Law (1966) at 219; Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 515.
[266] Judgment of the Saarland Administrative Court of 10 December 1982, No 10 K 115/80, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 532.
[267] CRDD T89-02579, 8 December 1989, Federal Court of Appeal of Canada, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 539.
[268] Judgment of the Gelsenkirchen Administrative Court, 29 March 1995, No 17 K 10.343/83, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 531-532.
[269] The Minister of Employment and Immigration v Marcel Mayers, A-544-92, 5 November 1992, Federal Court of Appeal of Canada, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 537 but criticised at 539; Godfrey, "Defining the Social Group in Asylum Proceedings: The Expansion of the Social Group to Include a Broader Class of Refugees", (1994) 3 Journal of Law and Policy 257.
[270] eg Judgment of the Wiesbaden Administrative Court, 26 April 1983, No IV/I E O6244/81, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 534 (Iran); Re GJ, Refugee Status Appeals Authority (New Zealand), Refugee Appeal No 1312/93, 30 August 1995.
[271] Hathaway, The Law of Refugee Status (1991) at 166.
[272] Re Incirciyan, United States Immigration Appeal Board decision, M87-1541X, 10 August 1987, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 520.
[273] IRB Decision M89-01213, June 1989, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 539.
[274] CRDD T89-03954, 16 March 1990, Federal Court of Appeal of Canada, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 539.
[275] Helton, "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39 at 50.
[276] Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 526-527.
[277] Helton, "Persecution on Account of Membership in a Social Group As a Basis for Refugee Status", (1983) 15 Columbia Human Rights Law Review 39 at 50.
[278] CRDD T89-03344, 5 February 1990 (Federal Court of Appeal of Canada), cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 539.
[279] Grundul v Bryner & Co, GMBH and Richteramt III Bern 24 ILR 483, Switzerland, Federal Court, 27 March 1957, cited in Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 928.
[280] Ansbach Administrative Court, No AN1269-XII/79, 4 January 1985, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 532.
[281] Hathaway, The Law of Refugee Status (1991) at 168; Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 522.
[282] Hanover Administrative Court, No 1 OVGA 91/82, 6 June 1984, cited in Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 533-534.
[283] Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1.
[284] Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401.
[285] Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 309.
[286] Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 437.
[287] Quijano v Secretary of State for the Home Department, unreported, Court of Appeal (England), 18 December 1996.
[288] (1986) 801 F 2d 1571.
[289] Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar", (1987) 62 Washington Law Review 913 at 921.
[290] (1992) 97 DLR (4th) 729.
[291] (1992) 97 DLR (4th) 729 at 737.
[292] (1993) 103 DLR (4th) 1 at 33.
[293] (1993) 103 DLR (4th) 1 at 33.
[294] (1993) 103 DLR (4th) 1 at 33-34.
[295] Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401.
[296] Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 539.
[297] Graves, "From Definition to Exploration - Social Groups and Political Asylum Eligibility", (1989) 26 San Diego Law Review 739.
[298] Graves, "From Definition to Exploration - Social Groups and Political Asylum Eligibility", (1989) 26 San Diego Law Review 739 at 789-792.
[299] Fullerton, "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 533.
[300] Graves, "From Definition to Exploration - Social Groups and Political Asylum Eligibility", (1989) 26 San Diego Law Review 739 at 789; see also Fullerton "A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group", (1993) 26 Cornell International Law Journal 505 at 530.
[301] cf Chan v Canada(Minister of Employment and Immigration) (1995) 128 DLR (4th) 213 at 219; Cheung v Canada(Minister of Employment and Immigration) (1993) 102 DLR (4th) 214 at 221.
Cases Cited
21
Statutory Material Cited
0
ABT16 v Minister for Home Affairs
[2019] FCA 836
Chetcuti v Commonwealth of Australia
[2020] HCA 42
Chetcuti v Commonwealth of Australia
[2020] HCA 42
Cited Sections