Singh v Minister for Immigration and Ethnic Affairs

[1994] FCA 1024

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v. RESPONDENT A, RESPONDENT B and
JANET WOOD, MEMBER, THE REFUGEE REVIEW TRIBUNAL
No. NG327 of 1994
FED No. 1024/94
Number of pages - 30
Immigration Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
SACKVILLE J

CATCHWORDS

Immigration Law - refugees - refugee status - Refugee Review Tribunal decision declaring refugee status for Chinese nationals with a well-founded fear of forced sterilisation under the Chinese government's "one child" policy - claim to "membership of a particular social group" - whether membership requires an associational interest - whether a particular social group can be defined by government policies and practices, including persecution.

Immigration Law - refugees - refugee status - persecution - complicity of the State - whether Refugee Review Tribunal failed to find that the persecution feared was a consequence of the national government condoning or failing to prevent forced sterilisation.

Migration Act 1958, s 4

Convention Relating to the Status of Refugees, 1951, Article 1A(2)
Protocol Relating to the Status of Refugees, 1967.

Cheung v Minister of Employment and Immigration (1993) 102 DLR (4th) 214 Kashayev v Minister for Immigration and Ethnic Affairs (1994) 122 ALR 503
Matter of Acosta, unreported, Interim Decision, 2986, 1 March 1985
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
Re Attorney-General of Canada and Ward (1993) 103 DLR (4th) 1
Sanchez-Trujillo of Immigration and Naturalization Service 801 F 2d 1571 (1986)

HEARING

SYDNEY, 15 November 1994
#DATE 6:12:1994
#ADD 15:5:1995

Mr J. Basten QC and Mr N.J. Williams instructed by the Australian Government Solicitor appeared for the applicant.

Mr G. James QC and Mr G. Craddock instructed by the Legal Aid Commission of N.S.W. appeared for the first and second respondents.

The third respondent made a submitting appearance.

ORDER

THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant to pay the respondents' costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Introduction
SACKVILLE J This case raises an important issue concerning a claim to refugee status by a married couple, nationals of the People's Republic of China. They have each been found by the Refugee Review Tribunal to be at risk of forcible sterilisation by reason of population control policies and practices followed (so the Tribunal determined) in some parts of China. The principal issue is whether the Tribunal erred in finding that the married couple, the first and second respondents in the present proceedings, satisfied the definition of "refugee" in Article 1A(2) of the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967 ("the Convention"). That definition is as follows:

"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; 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."

1. The resolution of this issue largely depends upon whether the Tribunal was incorrect in finding that the respondents each had a "well-founded fear of being persecuted for reasons of... membership of a particular social group".

2. The issue arises because the applicant, the Minister for Immigration and Ethnic Affairs, has applied to review two decisions of the third respondent, a Member of the Refugee Review Tribunal, given on 20 May 1994. In each case the Tribunal set aside a decision of the Minister to refuse applications by the first and second respondents (respectively) for refugee status and for a Domestic Protection (Temporary) Entry Permit ("DPTEP") or Domestic Protection (Temporary) Visa (Before Entry) ("DPTV"). The Tribunal (which made a submitting appearance in the present proceedings) remitted the applications for the grant of a DPTEP and DPTV to the Minister, with a direction that the first and second respondents are refugees under the Convention.

3. The Minister has sought to set aside the decisions of the Tribunal, pursuant to s.16 of the Administrative Decisions (Judicial Review) Act 1977. Mr Basten QC, who appeared with Mr Williams for the Minister, argued that the Tribunal committed errors of law in concluding that the respondents were refugees. I shall refer to the arguments in more detail later.

Background
5. The first respondent, the husband, was born in 1967 in the village of Bang Hu in the Province of Guangdong. His village was only 25 kilometres from Guangzhou City, but (as the Tribunal found) was isolated from it. The second respondent, his wife, was born in a suburb of Guangzhou, also in 1967. The first and second respondents were married in January 1993. After the marriage, the second respondent moved to her husband's village.

1. The first and second respondents arrived in Australia on 5 December 1993, aboard a boat known as the 'Quokka'. At that stage the second respondent was eight months pregnant and she gave birth to a son shortly after arrival. Each respondent was detained upon arrival under s.54B of the Migration Act 1958 ("the Act"), as a person reasonably supposed to have been an illegal entrant. Neither was granted an entry permit. One consequence of this was that neither respondent was taken to have entered Australia at that time.

2. On 14 December 1993, the respondents lodged applications with the Department of Immigration and Ethnic Affairs for recognition as refugees. No separate application for refugee status was made on behalf of the child, but he was considered as a dependant of the second respondent. Section 22AA of the Act provides that, if the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee. The Act defines the term "refugee" to have the same meaning as in the Convention. Under the Migration (1993) Regulations, reg 2A.5, the respondents' applications were deemed also to be applications for a DPTEP and a DPTV.

3. The applications were refused by the Minister on 31 January 1994. On 7 February 1994 the respondents lodged applications with the Tribunal. Those applications were made pursuant to s.166BB of the Act, which allows for review of an "RRT-reviewable decision". Such a decision is defined to include a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Convention or that the applicant should be refused certain entry permits or visas, including a DPTEP and a DPTV.

The Tribunal Decision
9. The Tribunal, in each case, addressed whether the respondents satisfied the definition of "refugee" in Article 1A(2) of the Convention. It is convenient to consider initially the Tribunal's reasons in relation to the first respondent's case.

1. The first respondent gave evidence before the Tribunal that he left China because he feared sterilisation under the Government's "One Child Policy". This was a policy, as understood by him, which insisted that Chinese families were to have only one child. The Tribunal itself referred to papers describing the activist role of the central government in setting population and fertility goals at both national and family levels. In particular it referred to a document published by the State Family Planning Commission: 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. This showed, in translation, the emergence in the 1970s and 1980s of a national policy in China to restrict population growth. The policy, with some exceptions, limited people to one child per family. As the Tribunal pointed out, the document showed that the laws and regulations distinguished between sub-categories of people, including those with one child and those with more than one child. Regional and local regulations defined parents of one child as a category.

2. The Family Planning Regulations in force in Guangdong Province established guidelines for determining who could have children and how many were permitted. The guidelines were supported by various concessions, rewards and penalties. These included a 20% deduction of wages for State codes who had a second child without permission, the deduction to continue for the first seven years of the child's life. According to the Tribunal, all commentators agreed that the implementation of the one child policy was in the hands of local officials. Most commentators accepted that it was local variations in the application of the policy that gave rise to claims of serious abuse, including coercive measures such as forced sterilisation and abortion.

3. The first respondent also gave evidence that he had seen the Family Planning Police come to a neighbour's house and forcibly attempt to take a man away for sterilisation. He said that such raids were part of the normal workings of the Family Planning Organisation. In his village almost every family had a member who had been forced to undergo sterilisation. The first respondent and his wife had to obtain a permit for his wife to have the baby in hospital. This was a form of registration that he believed would result in his sterilisation a few months later. The applicant was insistent that in his village abortion and sterilisation were the primary penalties for infringing the one child policy and that the local authorities sought to reduce infringements of that policy with a program of sterilisation after one birth.

4. The Tribunal found that there was evidence that, although China's family planning program was directed to the goal of stabilising population growth, coercive measures were used, at least in some areas, and that these included forced sterilisation and abortion. It found that a non-consensual procedure which altered a person's reproductive capacity was an act of "such serious proportions" that it was persecutory in character.

5. In the course of its reasons, the Tribunal referred to evidence that Australia regards forced sterilisation as an abuse of a human right. Reference was made to Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218, although not to the specific passage in the judgment of Mason CJ, Dawson, Toohey and Gaudron JJ explaining why sterilisation is a special case in relation to parental powers. In that passage (at 253-254) their Honours referred to a "fundamental right to personal inviolability existing in the common law". The Tribunal did refer specifically, however, to the Report of the Second Australian Human Rights Delegation to China, 8-20 November 1992 (AGPS 1993). In that report the delegation (para 7.39)
   

"emphasised that forced abortion or sterilisation was not acceptable in any circumstances and was a clear violation of fundamental human rights".

1. The Tribunal recognised that not all persecution constitutes grounds for a successful claim for refugee status. The persecution that is the subject of a well-founded fear must be for a "Convention reason" - that is, "for reasons of race, religion, nationality, membership of a particular social group or political opinion". The Tribunal found that the one child policy was not one that was based, either in formulation or practice, upon ethnic discrimination. Nor was opposition to the planning program the expression of a political opinion, persecuted as such. Any persecution feared by the first respondent could not therefore be regarded as by reason of political opinion.

2. The Tribunal did conclude, however, that the first respondent was a member of a "particular social group". After referring to the decision of the Full Court of this Court in Morato v Minister for Immigration Local Government and Ethnic Affairs (1992) 39 FCR 401 (FCA/Full Court), the Tribunal found that parents of one child form a social group in China. The Tribunal reasoned as follows:
   

"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 a 'people with one child', 'people with more than one child', 'the floating population who are parents', 'rural people with children'.... For the purpose of national goals, regional and local regulations define parents of one child among other categories of people with children. Therefore, the group is defined by the government itself. 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.

The Tribunal finds that the criteria laid down for defining a particular social group in the Morato 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. These parents share a common social characteristic and are not set apart for another reason, such as race, religion, nationality or political opinion. Therefore the Tribunal will consider the Applicant's claims that he faces a real chance of persecution because of his membership of this particular social group."

1. The Tribunal then addressed the question of whether the first respondent had shown that he had a well-founded fear of persecution "on the ground of a particular social group", by which I take it the Tribunal meant "membership of a particular social group". The Tribunal accepted the first respondent as a forthright and consistent witness. It therefore accepted his evidence that, while the one child policy had been relaxed in some urban areas, in his village it was not possible to have a second child unless the family ran away. This was so even though "more flexible arrangements" were permitted in other areas of Guangdong, including the urban centre of Guangzhou. The Tribunal considered that the powers allocated to local officials may have served to isolate the village from the "more free-wheeling currents" in nearby urban areas. To run away would mean loss of household registration and difficulties in obtaining employment because it was illegal to relocate without a permit. The Tribunal also accepted the first respondent's evidence that he objected very strongly to sterilisation and feared what it would do to him physically and mentally. It also accepted that forcible sterilisation was carried out in the first respondent's village and that, as the father of one child whose forthcoming birth was registered with the Family Planning Organisation, he had "a real chance of being forcibly sterilised if he returned to his village". The Tribunal therefore found that the first respondent's fear of forcible sterilisation was objectively well founded and that the fear was of persecution for reasons of membership of a particular social group. Accordingly, the Tribunal concluded that the first respondent was a refugee.

2. The Tribunal's reasons for deciding that the second respondent was a refugee were very similar to those applying to the first respondent. Indeed, understandably, each set of reasons contains a number of passages that are identical. The passage quoted earlier in this judgment appears substantially intact as part of the reasons for finding that the second respondent was a member of a particular social group. However, there are two differences between the two passages. One is that the sentence
   

"Therefore, the group is defined by the government itself"

is replaced by the following passage in relation to the second respondent:

"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".

1. Secondly, in the case of the second respondent, the Tribunal concluded that the particular social group that could be recognised was
   

"those having only one child (who) do not accept the limitations placed on them or who are susceptible to being coerced or forced into being sterilised". (emphasis added)

1. The Tribunal found that the second respondent objected very strongly to and feared sterilisation for herself and her husband. The Tribunal also found that she had a real chance of being forcibly sterilised if she returned to her village. Accordingly, it concluded that she had a well-founded fear of persecution for a Convention reason and thus she was a refugee.

The Applicant's Argument
21. Although the amended application raised a number of issues, Mr Basten confined his argument on behalf of the applicant that the Tribunal had erred, to two grounds. First, Mr Basten submitted that the Tribunal was not entitled to find that the respondents had a fear of persecution for a Convention reason. In particular, while he did not challenge the Tribunal's finding that each respondent had a well-founded fear of forcible sterilisation, Mr Basten contended that the respondents could not be members of any appropriately defined "particular social group". Thus any persecution feared by the respondent was not for a Convention reason. Secondly, Mr Basten argued that the Tribunal, although finding that the respondents had "a real chance of being forcibly sterilised" if they returned to their village, had failed to consider whether the risk of forcible sterilisation was a consequence of government policy, or at least was a risk that the government either condoned or was unable to prevent. In the absence of such a finding, he contended that it was not open to the Tribunal to conclude that "persecution" in the Convention sense had occurred.

The Argument on "Particular Social Group"
22. I shall deal first with Mr Basten's argument disputing that the respondents could not properly have been found to be members of a "particular social group". On this issue Mr Basten referred extensively and helpfully to authorities, but I think it is helpful initially to outline the substance of his argument without close reference to the authorities. Mr Basten criticised the formulation by the Tribunal of the "particular social group" to which the respondents were said to belong. The Tribunal had identified the particular social group by reference to three criteria. The group consisted of parents

(i) who had one child;

(ii) who did not accept the limitations placed on them by official policy; and

(iii) who were coerced or forced into being sterilised (or who, on the formulation in the second respondent's case, were susceptible to being coerced or forced into being sterilised).

1. In this connection it should be noted that the Tribunal appears to have regarded the second and third criteria as alternatives, rather than cumulative requirements. This appears from the Tribunal's use of the word "or" in each of the formulations.

2. Mr Basten contended that the difficulty with the Tribunal's approach as he identified it was that it defined the existence of a particular social group by reference to the very persecution feared by an applicant for refugee status. The structure of the Convention required that the persecution feared by the applicant and the reason for the persecution should be separately identified. He emphasised that a well-founded fear of persecution is not enough to qualify a person as a "refugee". The fear of persecution must be for a Convention reason, one of which is membership of a particular social group: see, for example, Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 387-388, 396. In this sense, it was circular to attempt to define the group by reference to the feared act of persecution. In other words, the group was defined by the very act of persecution that the applicant had to show he or she feared. In Mr Basten's submission there had to be some "acceptable characteristic" that defined the group other than the fact of persecution.

3. Mr Basten warned of the danger that, if the phrase "membership of a particular social group" were given a broad construction, it might mean that almost any form of persecution would give rise to an entitlement to refugee status, if the applicant could show that his or her fear was well-founded. This point is made by J.C. Hathaway, The Law of Refugee Status (1991), in the course of disputing a contention that the "social group" category was meaft to be a catch-all, that could include all types of persecution that "an imaginative despot might conjure up". (This contention has been put, among others, by Arthur C. 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.) In response to the contention, Dr Hathaway says this (at 159):
   

"The 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. Yet this is precisely the reason that Helton's analysis cannot stand. The drafters of the Convention did not wish to avoid drawing distinctions among various types of putative refugees, but rather intended to establish a demarcation between those whose fear was attributable to civil or political status (refugees) and those whose concern to flee was prompted by other concerns (not refugees)." (Footnote omitted)

1. Mr Basten argued that the distinguishing element of a "particular social group" was that the members shared some interest or experience in common. It was not enough that people had a shared characteristic or were defined by government policy. There had to be some interlocking involvement or "associational interest". Mr Basten accepted in the course of argument that, if that were correct, it could be difficult to say that people whose interest in common included, for example, education, language, vocation or sexual preference were "members of a particular social group" for the purposes of the Convention.

2. In assessing Mr Basten's argument it must be remembered that the merits of an administrative decision are not within the scope of judicial review. An error of law must be shown before the Court will intervene: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 (FCA, Full Court), at 276, per Beaumont J. With this in mind I turn to the Convention definition and the authorities interpreting it.

Summary
28. Because of the length of this judgment it is appropriate that I state at the outset the major conclusions I have reached on matters of principle concerning whether the respondents feared persecution by reason of membership of a particular social group.

First, the concept of a "particular social group" is not confined to groups comprising members with an associational interest. Secondly, whether people with characteristics in common constitute a particular social group is likely to depend not only on the characteristics but on the extent to which the society to which they belong recognises those characteristics as creating an identifiable social group. In other words the perceptions and responses of government are likely, in some cases, to be crucial in determining whether a particular social group exists. Thirdly, the responses of government can include conduct capable of amounting to persecution in a Convention sense. There is nothing circular in taking account of such conduct. Fourthly, a particular social group does not necessarily have to be defined by reference to the innate or immutable characteristics of members. In any event a person does not cease to be a member of a particular social group, because he or she can discard an identifying characteristic, but is prepared to do so only because to do otherwise risks sanctions breaching fundamental human rights.

1. For these reasons I think it was open to the Tribunal to find that the respondents had a well-founded fear of being persecuted for reasons of membership of a "particular social group".

The Convention Definition
30. The 1951 Convention, as originally drafted, defined a "refugee" as any person who

"(a)s a result of events occurring before 1 January 1951 and 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it." (Emphasis added)

1. The 1967 Protocol amended the definition by deleting the opening words, which had limited the category to persons affected by pre-1951 events, and by omitting the words "as a result of such events". (See D. Compton, "Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar - Sanchez-Trujillo v INS" (1987) 62 Washington Law Review 913, at 915.) The limitations in the original Convention definition reflected the fact that the Convention itself was largely a response to the massive upheavals in Europe following World War II and the creation of the Eastern Bloc: D. Compton, at 924.

2. The definition of "refugee", as framed in 1951, was derived in part from the constitution of the International Refugee Organisation. This had listed as valid objections to returning to a country of nationality "persecution, or fear, based on reasonable grounds of persecution, because of race, nationality or political opinions": A.C. Helton, at 40-41. The reference to "membership of a particular social group" was added to the draft Convention definition at the suggestion of the Swedish delegation. There was little debate on the proposal, most discussion at the time focussing on whether the Convention should be limited to European refugees: D. Compton, at 925; A.C. Helton, at 41-42. Daniel Compton remarks (at 926) that the best known examples of persecution based on membership of a social group at this time occurred in Eastern Europe, following the establishment of Communist regimes. Persecution of this kind was directed at so-called "capitalists" who, as he pointed out, would not necessarily be bound by a voluntary associational relationship.

3. Different commentators have drawn different conclusions from the history of the drafting of the Convention. As noted earlier, Arthur C. Helton sees the intent of the framers of the Convention as being to save individuals from future injustice, by developing a catch-all category to include all types of persecution that "an imaginative despot might conjure up" (at 45). In his view, the intention was illustrated by the activities of the United Nations to combat persecution and discrimination against such groups as women, children, the elderly, the disabled, the unemployed and migrant workers. Others, such as Dr Hathaway, in the passage cited earlier, take a more restrictive approach.

4. Daniel Compton, relying partly on the Handbook on Procedures and Criteria for Determining Refugee Status (1979), promulgated by the UN High Commissioner for Refugees ("the Handbook"), rejects any notion that a "particular social group" necessarily involves a voluntary associational interest (at 922-923). A social group, in his opinion, implies a recognised grouping within a society, or a group sharing a common experience.

5. As Lockhart J pointed out in Morato v Minister for Immigration, at 414, the judgments of the High Court in Chan v Minister for Immigration indicate that the Handbook can be used to assist in interpreting the Convention. However, the Handbook is only one element to take into account and it is also necessary, to bear in mind the cautionary words of Mason CJ, in Chan at 392, concerning the use that can properly be made of the Handbook. With these restrictions in mind, the Handbook nonetheless suggests that a narrow approach to the interpretation of the phrase "particular social group" should be avoided.
   

"77. A 'particular social group' normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government's policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution."

1. Daniel Compton reads these guidelines as stressing flexibility, as well as the importance of the perception of the persecutor in the identification of refugee social groups. In particular he reads paragraph 78 as reflecting the importance of government perceptions, whether or not grounded in reality (at 929-930). As he points out (at 933-935) a group may be externally defined, as well as internally defined. If this is correct, circumstances external to the group may cause it to be isolated from society. These circumstances can include government policies and practices, seizing upon the common characteristics of members of an asserted group. The circumstances can also include the "persecuting realities".

The Authorities
37. There is relatively little authority concerning the scope of the phrase "membership of a particular social group", although Australian and North American courts have considered the issue. In Australia, the Full Federal Court (Black CJ, Lockhart and French JJ) addressed the question in Morato v Minister for Immigration. It has also been considered, briefly, by Wilcox J in Lek v Minister for Immigration Local Government and Ethnic Affairs (No.2) (1993) 45 FCR 418 (FCA/Wilcox J)and at greater length by Northrop J in Kashayev v Minister for Immigration and Ethnic Affairs (1994) 122 ALR 503 (FCA/Northrop J). It is convenient to commence with Morato and then to consider the Canadian authorities. In the course of doing so reference will be made to some of the United States decisions. I shall refer later to Lek and Kashayev.

Morato v Minister for Immigration
38. In Morato, the Full Court unanimously dismissed an appeal from the trial judge, who had held that there had been no error by the Minister in refusing to grant refugee status to the appellant. The appellant was a Bolivian citizen who had entered Australia for the purpose of trafficking in cocaine. He was sentenced to imprisonment in Australia, but co-operated with the police in relation to the trial of his co-offender. The co-offender was a member of a prominent Bolivian family, heavily involved in the drug trade. The appellant genuinely feared for his life if he returned to Bolivia because (as he said) drug trade informants are hated in that country.

1. Black CJ, with whom French J agreed, noted that the issue was not whether the appellant had a well-founded fear of persecution. The question was whether the fear was for reasons of his membership of a particular social group. Counsel for the appellant had defined the particular social group as being people who had given evidence for the prosecution against other co-accused or, in other words, "had turned Queen's evidence".

2. The Chief Justice pointed out that care had to be taken in attempting to define something that was itself a definition, because even small differences could be decisive in a particular case. The Chief Justice then emphasised that the fear held by the applicant must be for reasons of membership of a particular social group (at 404-405):
   

"Each element of the definition must be considered. A critical element in the present case is the fear of persecution relied upon must be a fear for reasons of membership of a particular social group. It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who had done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is - a member of a particular social group - rather than upon what a person has done or does. It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group.

The need to show that persecution is for reasons of membership of a group, rather than for an act or acts done, tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character. I emphasise "sole" because that is how the particular social group is sought to be defined in this case. The doing of an act or acts of a particular character may, in some circumstances and together with other factors, point to the existence of a particular social group but in this case it is only the common action of turning Queen's evidence that is said to define the group."

1. People who had turned Queen's evidence in various parts of the world had done so for a wide variety of reasons in a wide variety of circumstances. The only thing they had in common was that they had acted in a particular way with respect to the enforcement of the criminal law. The Chief Justice then said this (at 406):
   

"For if the approach suggested by the appellant is correct, any person who feared persecution in his or her country of nationality, for reason of an act done that would attract persecution in that country, could validly claim to be a refugee by doing no more than pointing to the existence of other persons who had done the same thing, whatever that thing was. This is because the approach for which the appellant contends relies solely on an act or acts done as defining the asserted social group.

...

The conclusion may be tested by asking whether, in respect of a group as defined by the appellant, it could ever be said that persecution would be for reasons of membership of such a group rather than for the reason that the person who feared the persecution had engaged in the activity that was said to define the group. The answer must be that the supposed particular social group, defined by an act or acts done, is so lacking in common characteristics that persecution, if it occurred, would be by reason of those acts and not by reason of membership of a particular social group."

1. The Chief Justice's analysis does not, in my view, lead to the conclusion that, in order for persecution to be by reason of membership of a particular social group, the social group must be bound together by an associational interest, in the sense of a voluntary associational relationship or affiliation. The Chief Justice states that the primary focus of the definition is upon an aspect of what a person is, rather than what a person has done. Without elaboration, that distinction may perhaps be difficult to apply in a particular case, since a person's status in society, including his or her susceptibility to sanctions capable of amounting to persecution, may be inextricably intertwined with what the person has done. Religion is of course specifically mentioned in the Convention as a reason for persecution. But, if it were not, are members of a religion to be regarded as members of a particular social group? And if they are, is that because of something they are or something they have done (such as voluntary acceptance of the tenets of a particular creed)?

2. The Chief Justice's observations were made in a case where the appellant had identified only one characteristic that he had in common with certain other people. This was that he had committed a particular act, namely, turning Queen's evidence. The present case involves an asserted group whose members have more in common than simply the commission of a particular act. They have, among other things, a continuing status as parents and they wish to have more children. Perhaps more importantly, official policy in China accords them a status in common with others who share the same characteristics. Black CJ specifically recognised that the doing of an act might, in certain circumstances and together with other factors, point to the existence of a particular social group (at 405). His Honour also accepted that what was important was how those acts bore on the individual's identity and how they defined that person's place in society.
   

"It may be, for example, that over a period of time and in particular circumstances, individuals who engage in similar actions can become a cognisable social group. The actions may, for example, bear upon an individual's identity to such an extent that they define the place in society of that individual and other individuals who engage in similar actions. There may be such an interaction in a particular society that a group of people becomes a cognisable element within the society by virtue of their common activity. Persecution may be part of that interaction and may contribute to the development of the social group. Thus similar actions engaged in by people may be a factor to be considered when examining whether a particular social group in fact exists or whether a person is a member of such a group. But all this is far removed from the present case where acts, without anything at all more, are said to define a particular social group (at 406)."

1. This passage suggests that policies and practices amounting to persecution by government, or the agencies of government, may contribute to the development of a social group, notwithstanding the need for a person seeking refugee status to establish that he or she has a well-founded fear of persecution. The passage also suggests that acts capable of constituting persecution (together with other factors) may define the place in society of an individual and of others who engage in similar actions, whether or not in concert.

2. Lockhart J reached the same conclusion on the facts of Morato as Black CJ and French J, but did so on grounds perhaps more explicitly favourable to a broad approach to the interpretation of a "particular social group". His Honour referred to a decision of the United States Court of Appeals for the Ninth Circuit, Sanchez-Trujillo v Immigration and Naturalization Service 801 F 2d 1571 (1986). The Court of Appeals there held that young urban working class males of military age in El Salvador, who had maintained political neutrality, could not be regarded as a "particular social group", within the definition in the Refugee Act 1980, which in turn incorporated the definition in the Convention. Beezer, Circuit Judge, speaking for the Court, considered that the term could not be "without some outer limit". He propounded a fourfold test for determining whether relief could be premised upon group membership (at 1574-1575).
   

"First, we must decide whether the class of people identified by the petitioners is cognizable as a 'particular social group' under the immigration statutes.... Second, the petitioners must have established that they qualify as members of the group. Third, it must be determined whether the purported 'social group' has in fact been targeted for persecution on account of the characteristics of group members. Finally, we must consider whether such 'special circumstances' are present to warrant us in regarding mere membership in that 'social group' as constituting per se eligibility for asylum or prohibition of deportation".

1. In the view of the Court (at 1576)
   

"...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."

1. The "protypical example" of a particular social group was constituted by the members of a specific family. This was to be contrasted with a statistical group of males taller than six feet, who could not constitute a particular social group, even if shown to be at greater risk of persecution than the general population. The class of males said to constitute a particular social group comprised individuals with a plethora of lifestyles, diverse interests, cultures and political leanings.

2. Lockhart J referred specifically with approval to the views of Arthur C. Helton to which reference has been made earlier in this judgment. His Honour then went on to reject the argument, put forward in Sanchez-Trujillo v Immigration and Naturalization Service, that a voluntary association is a necessary precondition for a "particular social group" (at 416).
   

"'Social' is a word of wide import. The Oxford English Dictionary states as one of its definitions 'pertaining, relating, or due to...society as a natural or ordinary condition of human life'. This is a helpful guide for present purposes. In my opinion the words 'social group' signify a cognisable or recognisable group within a society, a group that has some real common element. Although a voluntary association of persons may fall within the definition, it is not a requirement that there be such an association to constitute a social group within the definition of 'refugee'. Sanchez-Trujillo ...is a decision to the contrary, but I find the four tests there propounded too narrow; they impose a straitjacket into an essentially fluid international scene.

The word 'particular' does not narrow the scope or meaning of the expression 'particular social group'. Rather it indicates that there must be an identifiable social group to which one can point and say that there is a particular social group.

The interpretation of the expression 'particular social group' calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons. Social groups may have interests in common as diverse as education, morality and sexual preference. Examples include the nobility, land owners, lawyers, novelists, farmers, members of a linguistic or other minority, even members of some associations, clubs or societies. The Handbook provides some assistance because it states that a social group 'normally comprises persons of similar background, habits or social status'. This emphasises the need for some common or binding element of persons to constitute them as a recognisable or cognisable group. The social group referred to in the Convention and Protocol is intended to encompass groups of people who share common social characteristics and might be the target of persecution but who do not fit into classifications of race, religion or political opinion.

In my opinion for a person to be a member of a 'particular social group' within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognisable or cognisable group within a society that shares some interest or experience in common. I do not think it wise, necessary or desirable to further define the expression. It must be borne in mind, however, that the question is whether a person's well-founded fear of persecution is for reasons of membership of a particular social group. The membership of the group is the touchstone of the test of refugee status."

1. The examples given by Lockhart J clearly show that individuals may be members of a social group, even though they have no associational interest. Homosexuals may all have a characteristic in common (that is, their sexual preference or, perhaps, conduct related to their sexual preference), but all homosexuals in a particular country or region could hardly be regarded as having an associational interest, in the sense of a close affiliation with each other. Landowners might have a characteristic in common (ownership of a certain amount or kind of property), but they may have no other shared characteristic, let alone any associational interest that unites or binds them. (For further criticism of the test in Sanchez-Trujillo v Immigration and Naturalization Service, see T. D. 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.)

2. Lockhart J was clearly also at pains to avoid saying more than that an applicant must show that he or she is identified with a recognisable or cognisable group within society that shares some interest or experience in common. His Honour emphasised the flexibility of the expression "particular social group" and the evident purpose of the Convention to protect groups or sections of society that are persecuted, but not necessarily for any of the four specific reasons nominated in the Convention. Lockhart J's reasoning accepts, in my view, that a group may become "cognisable" as a social group at least in part by reason of the response of the society at large to individuals who share interests or experiences in common. Matter of Acosta
   

3. It is worthwhile noting that some of the examples of possible groups given by Lockhart J appear to be drawn from a decision of the United States Board of Immigration Appeals, referred to in his Honour's judgment: Matter of Acosta, Interim Decision 2986, March 1, 1985. (An extract from the judgment appears in Hathaway, op.cit., at 160. See also Attorney-General of Canada v Ward (1993) 103 DLR (4th) 1, at 31-32.) In Acosta, the Board denied refugee status to a citizen of El Salvador who based his claimed fear of persecution upon his membership of a co-operative organisation of taxi drivers, said to be targeted by anti-government guerillas. The Board interpreted
   

"the phrase 'persecution on account of membership of a particular social group' to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or conscience. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution...".

1. Dr Hathaway accepts the approach taken in Matter of Acosta. He summarises the formulation as follows (The Law of Refugee Status, at 161):
   

"This formulation includes within the notion of social group

(1) groups defined by an innate, unalterable characteristic;

(2) groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change; and (3) existing groups defined by volition, so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it. Excluded, therefore, are groups defined by a characteristic which is changeable or from which dissociation is possible, so long as neither option requires renunciation of basic human rights."

1. Dr Hathaway also accepts (at 162-163) that this approach supports the granting of refugee status to gender-based groups. Thus he approves of a Canadian decision granting refugee status to a Turkish widow who lacked the protection of a male relative and who suffered repeated harassment. The "particular social group" in that case comprised "single women living in a Moslem country without the protection of a male relative". Such a group would not of course be united by any associational interest, although its members would share characteristics in common. These characteristics were accorded significance by the responses of the society of which the women formed part.

Canadian Authorities
54. In Morato Lockhart J referred to the decision of the Federal Court of Appeal in Attorney General of Canada v Ward (1990) 67 DLR (4th) 1. After Morato was decided, the Supreme Court of Canada heard and determined an appeal from the Federal Court of Appeal: Re Attorney-General of Canada and Ward (1993) 103 DLR (4th) 1. In the intervening period, the Federal Court of Appeal also decided a case raising issues very similar, if not identical, to those in the present proceedings: Cheung v Minister of Employment and Immigration (1993) 102 DLR (4th) 214. I turn to the latter case first, since it was decided shortly before Re Attorney-General of Canada and Ward.

1. Cheung v Minister of Employment and Immigration In Cheung, the appellant had fled China in order to avoid being sterilised for violating the single child policy. She had given birth to two children in China, avoiding a compulsory abortion on the second occasion by moving temporarily from her residence in Guangzhou to her in-laws' house in another district. There was no dispute that she would be compulsorily sterilised if she returned to China. The refugee appeals board held that China's one child policy was a law of general application, the objective of which was not persecution but general population control. Thus the threat of sterilisation simply followed from the implementation of a law of general application and the applicant was not a refugee.

2. In allowing the appeal, Linden JA, for the Court, stated that the board had misconstrued the law by focussing on the general aim of the law, rather than on examining the methods used to enforce the policy (at 218). The board had required a persecutory intent, but the authorities made it clear that a persecutory effect sufficed.

3. Linden JA addressed specifically the question of whether women who have more than one child and are faced with forced sterilisation constitute a "social group" for the purpose of the Convention. He answered the question in the affirmative (at 219-220):
   

"These people comprise a group sharing similar social status and hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a women's reproductive liberty is a basic right "ranking high in our scale of values".

1. Linden JA went on to hold, in addition, that the appellant had a well-founded fear of persecution based on her membership of the group. Forced sterilisation of women was a fundamental violation of human rights. It was, in the view of the Court, both intrusive and brutal, notwithstanding that it was sanctioned by law in China. It followed that the appellant had established that she had a well-founded fear of persecution by reason of membership of a particular social group.

2. It is clear from Cheung that the Federal Court of Appeal did not consider that an associational interest was required to constitute a particular social group. The members of the group had characteristics in common and "shared" a similar "social status", although the judgment does not explain in detail what created that social status. However, it is clear enough that the Court attributed the "social status" in part to the policies and practices of government. The judgment also accepted that a "particular social group" could be defined by reference to sanctions or consequences faced by members of the asserted group - that is, the risk of forced sterilisation. The judgment did not specifically address an argument that to do so might be circular, having regard to the separate requirement in the Convention that there be a well-founded fear of persecution. However, the Court specifically distinguished between the need to define a particular social group, and the need to find that the applicant had a well founded fear of persecution in the Convention sense. In my view, it clearly saw no circularity in deciding that the particular sanctions or consequences faced by members of the group could form part of the definition of the social group and could also establish the basis for a well-founded fear of persecution by one member of the group.

Re Attorney-General of Canada and Ward
60. In Re Attorney-General of Canada and Ward, the appellant was a former member of a para-military terrorist organisation in Northern Ireland, known as the INLA. Because he deliberately allowed hostages to escape, he was sentenced to death by what was described as an INLA kangaroo court. He escaped from the INLA, sought police protection and later was sentenced to imprisonment in Britain. The police subsequently assisted him in travelling to Canada on an Irish passport, where he sought refugee status. His claim was based on a fear of persecution because of his membership of a particular social group, namely the INLA.

1. La Forest J, delivering the judgment of the Supreme Court of Canada, addressed a number of issues. One was whether, if the appellant had a well-founded fear of persecution, it was by reason of his membership of a particular social group - that is, the INLA. The observations of the Court on this issue were obiter dicta, since the Court held that the appellant was or at least might be entitled to rely on the ground of a fear of persecution for reasons of political opinion. It is, however, helpful to consider the analysis of the Court.

2. La Forest J identified the broadest approach to the meaning of "particular social group" as one interpreting the term as a safety net, inserted in the definition of "refugee" to prevent any possible gap in the other four Convention reasons for fearing persecution. On this view, the term covers "any alliance of individuals with a common objective" (at 26). In a passage cited by La Forest J, but not extracted at length in his judgment, G.S. Goodwin-Gill, The Refugee in International Law (1982) at 30-31, argues in support of that position:
   

"A fully comprehensive definition is impracticable, if not impossible, but the essential element in any description would be the factor of shared interests, values, or background - a combination of matters of choice with other matters over which members of the group have no control. In determining whether a particular group of people constitutes a 'social group' within the meaning of the Convention, attention should therefore be given to the presence of uniting factors such as ethnic, cultural, and linguistic origin; education; family background; economic activity; shared values, outlook, and aspirations. Also relevant are the attitude to the putative social group of other groups in the same society and, in particular, the treatment accorded to it by state authorities. The importance, and therefore the identity, of a social group may well be in direct proportion to the notice taken of it by others, particularly the authorities of the state. The notion of social group thus possesses an element of open-endedness which states, in their discretion, could expand in favour of a variety of different classes susceptible to persecution. Whether they would be prepared to do so is another matter, but in arguing for expansion appropriate reference could be made to the unifying factors of the group in question and to the elements of distinction which make it the object of persecution."

1. La Forest J considered that the essential theme of this broad approach was that, so long as some common thread binds the individuals together, whether on the basis of background, habits or status, the requirements of a "particular social group" were met.

2. According to La Forest J, this broad approach exaggerated the framers' intentions. The category was added to the list of Convention reasons with little discussion, but (citing the article by D. Compton, at 925-926) was probably a Cold War reaction, aimed at ensuring a haven for capitalists fleeing the persecution they encountered in Eastern Bloc countries (at 27). The concept of a particular social group had to cover at least these cases. But the international community did not intend to offer a haven for all suffering individuals, such as those experiencing economic hardship or natural disasters. Similarly, it did not intend to cover any association of people bound by a common thread.

1. In these circumstances, it was open to the Tribunal to conclude that the respondents each had a well-founded fear of persecution (as to which there was no dispute) for reasons of membership of a particular social group. The Tribunal identified the group, in the case of the first respondent, as
   

"those who, having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised".

1. In the case of the second respondent the group was identified as
   

"those who having only one child do not accept the limitations placed on them or who are susceptible to being coerced or forced into being sterilised".

1. The reason for the difference in wording is not apparent, but I do not think anything turns on this. The point the Tribunal was making was that, depending on local enforcement practices, some people with one child who wished to have another child were at risk of being subjected to forcible sterilisation.

2. Although Mr Basten submitted that the Tribunal had identified three criteria, the use of the word "or" in each of the formulations suggests that the Tribunal considered that the group could consist of persons having only one child and who do not accept the limitation imposed on them (by which I take it that the Tribunal meant those who wished to have another child). I think it was open to the Tribunal to regard that group as a cognisable social group. The Tribunal found - and Mr Basten did not challenge the finding - that China's population control policy and practice identified parents with one child as a group. This group was discouraged from having further children by a system of concessions, rewards and penalties. As the Tribunal said in its reasons in the second respondent's case, this group of parents was defined by the Chinese government itself, although not primarily by acts amounting to persecution. Furthermore, those within the group are identified as such by other Chinese citizens.

3. It was not disputed that there was also evidence to support the further finding that the one child policy identifies and defines as a group people who have one child and wish, notwithstanding the system of rewards and penalties, to have another child. As the Tribunal said, some people in China voluntarily decide to have only one child. Others do not accept the limitations imposed by official policy and wish to have further children. The latter group exists as the result of government policy (as the Tribunal found), since there is hardly any point in having a one child policy unless it identifies people wishing to have more than one child as the target for concessions, rewards or penalties. Of course the sanctions may or may not be persecutory in character. The point is that the group is defined by official policy and the manner of its administration.

4. It was not disputed that there was also evidence to support the further finding that the one child policy identifies and defines as a group people who have one child and wish, notwithstanding the system of rewards and penalties, to have another child.

5. If the Tribunal's reasons are to be interpreted in the way Mr Basten suggests, I think it was also open to the Tribunal to identify as a particular social group parents with one child who are susceptible to forcible sterilisation. Again, there was no dispute that the Tribunal was entitled to find that local enforcement practices, in some areas of China, included compulsory sterilisation to parents wishing to have more children. (Mr Basten did dispute whether the Tribunal had correctly directed itself to the involvement of government in the actions of local officials. I shall deal with this shortly.) I think that the fact that such practices are followed by officials in some areas without the intervention of the Chinese government (as in my view the Tribunal found), serves to define the group identified by the Tribunal as a cognisable social group in China, at least in the area in which the respondents lived. For reasons I have already explained, I do not think that there is anything circular in reasoning that permits a particular social group to be identified by official policies (whether actively pursued or merely tolerated), even if those policies are exemplified by conduct capable of being classified as persecutory. (I should add that no issue was raised as to whether the respondents might have been able to avail themselves of the protection of their home country by relocating to another region: compare Randhawa v Minister for Immigration).

6. It is perhaps arguable that the particular social group might have been defined by the Tribunal in a slightly different way. It could have been defined as comprising parents with one child, wishing to have another child, who are subjected to official incentives or sanctions designed to discourage them from acting upon their wishes. This might reflect more precisely the process of social identification of which the practice of forcible sterilisation (where it occurs) is only a part. But the fact that there may be room for debate about the precise definition of the particular social group does not detract, in my opinion, from the conclusion that the Tribunal was entitled to find that the respondent feared persecution by means of membership of a particular social group.

7. In my view, I do not think that the fact that the respondent may have had a choice - that is not to have any more children - alters the position I have described. I think that a non-associational group can be defined or identified as a particular social group by reason of government policies and practices, even though some characteristics of the group might not be "immutable" or "innate". Of course, the ability of a person to shed characteristics that define him or her as a member of the group might be very important in deciding whether that person has a well-founded fear of persecution for the purposes of the Convention. However, once it is accepted that government policy and practice can define a social group, it does not seem to me to be essential that government policies and practices define membership by reference to immutable characteristics of members.

8. If that is wrong, I do not think that a person can be regarded as having a genuine choice whether or not to be a member of a particular social group if the "choice" is dictated by the fear that his or her fundamental human rights will be violated. In the present case both respondents desired to have more children. This was a characteristic that (among other things) defined their membership of a particular social group. If they were to give up that desire, it could only be because they faced the prospect of forcible sterilisation. The Tribunal found that forced sterilisation, as an official Australian delegation had reported, was a clear violation of fundamental human rights. In these circumstances I do not think it can properly be said that the respondents had a genuine choice whether or not to remain members of the social group.

9. This conclusion reflects, in my opinion, what the Federal Court of Appeal had in mind in Cheung (at 220), when Linden JA referred to the group as united by a purpose fundamental to their human dignity and to "women's reproductive liberty" as a "basic right". It is also supported by the observation of the Supreme Court of Canada in Re Attorney-General of Canada and Ward (at 31) that Cheung (correctly) focussed the inquiry on the basic right of reproductive control. Furthermore, the criteria formulated by the Supreme Court refer to groups who voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association. Similarly, it seems to me that people within a non-associational group should not be disqualified from relying on membership of that group (if they can show persecution) because, in the face of a threatened violation of their fundamental human rights, they could "choose" to forsake a characteristic that unites them to others in the group.

Finding on Persecution
99. Mr Basten's second argument rested on the proposition that it is necessary for a finding of fear of "being persecuted", in the Convention sense, that there be some State responsibility for the acts said to constitute persecution. This argument was not based on any want of evidence to support findings made by the Tribunal. Nor was it based on any disagreement as to the principle to be applied in assessing whether there was sufficient involvement of the government to justify a conclusion that applicants had a "well-founded fear of being persecuted". Mr Basten accepted that persecution could occur, not only by the national government promoting or condoning the practices of forcible sterilisation, but by failing to prevent local authorities or officials from implementing such a practice (Ts, 37): see, for example, Re Attorney-General of Canada and Ward, at 12-20. Mr Basten's argument was that the Tribunal had made no specific finding that the fear of forcible sterilisation held by the respondents was a consequence of the involvement of the national government or at least of its failure to prevent reliance on forcible sterilisation at the local level. In this connection Mr Basten referred to a passage in both sets of reasons where the Tribunal found that

"while China's family planning program is directed to the goal of stabilising population growth, there is evidence that coercive measures are used (and) that these coercive measures range from forms of civil discrimination to fines and to forced contraception, sterilisation and abortion."

1. He submitted that this fell short of a finding that the national government had condoned or failed to prevent the forcible sterilisation the respondents feared. Mr Basten also criticised what he said was the vagueness of the reference by the Tribunal to the susceptibility of people "to being coerced or forced into being sterilised".

2. In my opinion the Tribunal's reasons read as a whole do sufficiently address the question of the responsibility of the national government for the local policy of forcible sterilisation as a sanction to enforce the one child policy. Under the heading "China's Family Planning Program" the Tribunal cited a study by a Senior Research Fellow at the Australian National University. The study described the activist role of the central government in setting population and fertility goals, and noted that sanctions were used to coerce people into limiting their families. These sanctions, according to the Tribunal, ranged from discrimination and fines to involuntary sterilisation. The Tribunal specifically noted that the author of the study had argued that the extreme measures were not condoned by the central government. The Tribunal also quoted a 1992 cable from the Department of Foreign Affairs and Trade suggesting that there had been some cases of forced sterilisation by zealous local authorities, contrary to government policy.

3. In the same section of its reasons, the Tribunal pointed out that all commentators agreed that the implementation of the national policy was in the hands of local officials. It recorded the respondents as having given evidence that, in their village, sterilisation and abortion were the "primary penalties" for infringing the policy. The Tribunal also referred to sources claiming that dispersal of power in China permitted the use of abusive and coercive methods by local officials eager to meet population targets and to avoid liability to fines for failing to do so. The Tribunal cited a 1993 newspaper report (in the Wall Street Journal) of a book which had detailed (so it appears) examples of coercion used by "China's leadership" to accomplish its population objectives, including forced abortion and sterilisation. In addition, the Tribunal quoted from a 1993 United States document, Country Reports on Human Rights Practices, reporting that Chinese officials acknowledged "privately" that there were still instances of forced sterilisations in remote areas. According to this report, the same officials, while claiming that abuses by local officials were punished, admitted that punishment was rare.

4. In context, it seems to me that the Tribunal was intending to address whether the national government had condoned or failed to prevent local "abuses" in areas such as that in which the respondents lived. The very point of referring to conflicting views on the extent to which local abuses were condoned or not prevented by national authorities was to consider whether these abuses were simply isolated occurrences, unconnected with government policy or practices, or were condoned or at least not prevented by the central government. When the Tribunal concluded that coercive measures were used, in my view it intended to say that these were associated with the national program, at least to the extent that the national government did not, or could not, prevent abuses by local officials. This is strongly reinforced by the Tribunal's finding defining the particular social group (in the case of the second respondent) as
   

"those who having only one child do not accept the limitations placed on them or who are susceptible to being coerced or forced into being sterilised."

1. It is true that this finding was made on the issue of whether the respondents belonged to a particular social group. But the Tribunal specifically stated that the group existed "by virtue of government policy and government action". Such a conclusion, expressed in relation to forced sterilisation, indicates, in my view, that the Tribunal was intending to find that local practices of forced sterilisation were sufficiently connected with the policy of the central government to answer the description of "persecution" in the Convention sense.

2. I therefore reject Mr Basten's second argument.

Conclusion
106. In my opinion, the attacks on the Tribunal's findings fail. The application should be dismissed. The applicant should pay the respondents' costs.