Minister for Immigration and Ethnic Affairs v Respondent A

The respondents, a married couple, appealed against the Minister's decision to refuse them recognition as refugees. The Tribunal had found that the respondents satisfied the definition of "refugee" because they each had a "well-founded fear of being persecuted for reasons of... membership of a particular social group". The respondents argued that they were at risk of forcible sterilisation by reason of China's population control policies and practices. The Minister argued that the respondents' fear of persecution was not for reason of membership of a particular social group. The appeal raises the question of whether the respondents were members of a particular social group for the purposes of the Convention. The Court held that the respondents' fear of persecution was not for reasons of membership of a particular social group. The Court found that forced sterilisation formed part of the law or formal government policy in China and would therefore constitute persecution. However, the respondents' fear of persecution was not for reason of membership of any social group having a recognisable existence separate from the persecutory acts complained of. The appeal was allowed and the orders made by the learned primary judge on 6 December 1994 were set aside. In lieu thereof it was ordered that the decisions of the Tribunal made on 20 May 1994 be set aside and that the decision of the Minister's delegate, that the first and second respondents were not refugees, be affirmed.