Applicant A & anor v Minister for Immigration & Ethnic Affairs & anor
(1997) 190 CLR 225(Judgment by: Gummow J)
APPLICANT A & ANOTHER v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOTHER
Court:
Judges:
Brennan CJ
Dawson
McHugh
GummowKirby
Subject References:
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.
Legislative References:
Migration Act 1958 (Cth) - ss 4(1); ss 22AA; ss 54B
Migration (1993) Regulations (Cth) - reg 2A.5
Other References:
Convention Relating to the Status of Refugees, Art 1
Vienna Convention on the Law of Treaties, Arts 31, 32
Judgment date: 24 FEBRUARY 1997
Judgment by:
Gummow J
This litigation has centred upon the question whether the appellants, citizens of the People's Republic of China ("the PRC"), answer the description of persons who, "owing to well-founded fear of being persecuted for reasons of ... membership of a particular social group", are outside the PRC, the country of their origin, and unable or unwilling to avail themselves of the protection of the PRC. The appellants' case has been that they fear forcible sterilisation in implementation of population control measures adopted in the Guangdong Province of the PRC.
The facts and the Regulations
The first and second appellants are respectively husband and wife. They were born in 1967 in Guangdong Province and married there in January 1993. They arrived in Australia by boat on 5 December 1993. On the next day the second appellant gave birth to their child. Upon arrival, they were detained under the powers conferred by s 54B of the Migration Act 1958 (Cth) ("the Act") as persons reasonably supposed by an authorised officer to be persons who would, on entry to Australia, become illegal entrants. Section 14(1) provided that, on entering Australia, a person who was not an Australian citizen became an illegal entrant unless that person was the holder of a valid entry permit or the entry was authorised by an entry visa to which s 17 applied [F132] .
Each appellant became an "unprocessed person" within the meaning of s 54B and as such was taken not to have entered Australia (s 54B(2)). If refused an entry permit, an unprocessed person became a "prohibited person" (s 54D) and, as such, had to be removed from Australia as soon as practicable and until that event was to be kept in custody as directed by an authorised officer (s 54F) [F133] .
These provisions controlled the entry into Australia of the appellants as persons who are not Australian citizens. They are laws with respect to aliens within the meaning of s 51(xix) of the Constitution [F134] .
At the relevant time, s 22AA of the Act stated:
"If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee."
This has been repealed [F135] , together with other provisions referred to above, but nothing for present purposes turns upon this. In s 22AA the term "may" was used to confer power, not to give a discretion upon fulfilment of the condition that the Minister have the necessary satisfaction [F136] .
Section 181 confers a general regulation-making power and such regulations may prescribe procedures for the making and consideration of applications for determinations under s 22AA (s 22AB). On 14 December 1993 the appellants lodged such applications. By dint of reg 2A.5 of the Migration (1993) Regulations (Cth) ("the Regulations") [F137] , the applications for determination of refugee status were deemed also to be applications in each case for the grant of a Domestic Protection (Temporary) Visa (before entry) and a Domestic Protection (Temporary) Entry Permit (before entry).
The applications were refused by a delegate of the first respondent ("the Minister") by decision given on 31 January 1994 and matters were taken to the Refugee Review Tribunal ("the RRT") [F138] . The RRT proceeded on the footing that there were before it applications for review of the decisions refusing, in each case, a determination of refugee status and the grant of the visa and entry permit. On 20 May 1994, the RRT made findings of primary facts, and set aside the decision of the delegate. The RRT substituted a decision that the applications for the grant of the visa and entry permit be remitted with a direction that the applicants were refugees in the statutory sense.
The appeal is brought to this Court from the Full Court of the Federal Court of Australia (Beaumont, Hill and Heerey JJ) [F139] which allowed an appeal by the Minister against orders of Sackville J [F140] . His Honour dismissed an application by the Minister for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") in respect of decisions of the RRT. The Minister had contended that the RRT had committed errors of law in determining that the applicants were refugees. Sackville J rejected these submissions.
The Full Court held that the primary judge had erred in law in determining that the RRT had committed no reviewable error in giving the direction to the effect that the appellants be determined under s 22AA as being refugees. It also held that it had not been shown that forced sterilisation formed part of the law or formal government policy in the PRC. Rather, forced sterilisation was carried out at the instigation of over-zealous local officials. The Full Court further determined that, even if the appellants could have shown that there was a law of this nature of general application in the PRC, they would not have been able to establish that persons facing that fate, such as themselves, had a well-founded fear of persecution for reason of membership of a particular social group. The case thus turned upon the meaning given "refugee" as it appears in s 22AA of the Act by the definition in s 4(1).
The term "refugee"
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") 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"). It will be noted that the reference is to Art 1 as a whole, not to any one section thereof.
Australia acceded to the Convention on 22 January 1954 with effect on 22 April 1954 [F141] . It was the sixth state to ratify or accede to the Convention [F142] . Australia acceded to the Protocol on 13 December 1973, with effect on that date [F143] . It will be apparent that whilst the Act picks up the definition of "refugee" from the Convention and the Protocol, it does so for the purposes of the taking of steps by the Executive, in particular the grant of an entry permit, which will qualify the obligation otherwise imposed by s 54F upon the Executive. This obligation was promptly to remove the appellants from Australia as "prohibited persons" who, being "unprocessed persons" to whom an entry permit has not been granted, were taken not to have entered Australia (s 54B) and who would otherwise, on entry to Australia, have become illegal entrants (s 14).
As was said by a former United Nations High Commissioner for Refugees [F144] , whilst to speak of refugees is to speak of asylum, an inviolable place where a person pursued takes refuge, the term "asylum" does not appear in the text of the Convention or the Protocol. Rather, as the title of the Convention suggests, it is concerned with the status and civil rights to be afforded to refugees within member states. It is with this in mind that one should read the reference in the Preamble to the Convention to the affirmation by the Charter of the United Nations and the Universal Declaration of Human Rights of "the principle that human beings shall enjoy fundamental rights and freedoms without discrimination".
The predominant view (including that of the Supreme Court of the United States in Sale v. Haitian Centers Council [F145] and the House of Lords in T v. Home Secretary [F146] ) is that decisions to admit persons as refugees to the territory of member states are left to those states. In the preparation of the Convention only a limited consensus was reached and expressed in Recommendation D in the Final Act, namely that "Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement" [F147] .
Hence the recent statement by Lord Mustill [F148] :
"[A]lthough it is easy to assume that the appellant invokes a 'right of asylum', no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries."
The Convention resolves in a limited fashion the tension between humanitarian concerns for the individual and that aspect of state sovereignty which is concerned with exclusion of entry by non- citizens, "[e]very society [possessing] the undoubted right to determine who shall compose its members" [F149] . After referring to the definition of "refugee" in the Convention and Protocol and to certain other provisions of the Convention [F150] , Lord Goff of Chieveley and Lord Hoffmann recently stated [F151] :
"Refugee status is thus far from being an international passport which entitles the bearer to demand entry without let or hindrance into the territory of any contracting state. It is always a status relative to a particular country or countries."
In similar vein, one commentator has observed of the Convention [F152] :
"Its framers sought to guard the sovereign right to determine who should be allowed to enter a State's territory and the instrument was designed to deal with refugees already in third States' territories as a result of World War II and its aftermath. The Convention only obliges State parties to guarantee non- refoulement or non return to the place of persecution. It does not guarantee asylum in the sense of permanent residence or full membership of the community, nor does it guarantee admission to potential countries of asylum. Rather, the Convention establishes a regime of temporary or interim protection."
However, as will be apparent from the above outline of the applicable provisions of the Act, Australia, like the United States, the United Kingdom, Canada and New Zealand [F153] , applies the definition of "refugee" from the Convention and the Protocol as a criterion in its municipal law for the admission of those seeking asylum within its territory.
This appeal illustrates difficulties which arise from the employment, in the ascertainment of rights and liabilities under particular Australian legislation, of criteria designed for an international instrument with related but distinct purposes [F154] . The text of the international instrument may lack precision and clarity and may have been expressed in attractive but loose terms with a view to attracting the maximum number of ratifications. The terms of the criteria therein, as is the case here, may be difficult of comprehension and application in domestic law [F155] . Moreover, their application in domestic law falls to administrators whose decisions, under the Australian structure of government, are, in the absence of an excess of constitutional authority [F156] , subject to curial involvement only by the limited processes of judicial review.
Article 1 of the Convention
The English text of Art 1 of the Convention is headed "Definition of the Term 'Refugee'" and is subdivided into ss A-F. Attention usually is directed to par (2) of s A but it is the whole of ss A-F which comprise the definition which is adopted in s 4(1) of the Act. Section A states:
"For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
- (1)
- Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this Section;
- (2)
- As 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, is unwilling to return to it.
In the case of a person who has more than one nationality, the term 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
The passages I have emphasised were omitted by Art 1(2) of the Protocol. They had referred, at election of Contracting States, to events occurring before 1 January 1951 "in Europe" or "in Europe or elsewhere". Australia had declared for the narrower formula when it acceded to the Convention [F157] but the Protocol gave general effect to the wider formulation.
Section C provides that the Convention shall cease to apply to any person otherwise falling under the terms of s A if one or more of six listed circumstances apply. These include re-availing by that person of the protection of the country of nationality, the re-acquisition of a lost nationality, the acquisition of a new nationality with enjoyment of the protection of the country concerned, and voluntary re- establishment in the country the person left or outside which the person had remained owing to a fear of persecution. Section F states:
"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
- (a)
- he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
- (b)
- he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
- (c)
- he has been guilty of acts contrary to the purposes and principles of the United Nations."
The definition of "refugee" in Art 1 is significant for the operative provisions of the Convention which follow and impose obligations upon the state parties with respect to the status of refugees. Those obligations are detailed in particular in Chap 2 (Arts 12-16, headed "Juridical Status"), Chap 3 (Arts 17-19, headed "Gainful Employment"), Chap 4 (Arts 20-24, headed "Welfare"), and Chap 5 (Arts 25-34, headed "Administrative Measures" and dealing with such matters as the issue of identity papers and travel documents).
In the manner I have indicated, the operation of s 22AA of the Act and of the Regulations upon the position of the appellants turns upon the phrase in par (2) of s A "owing to well-founded fear of being persecuted for reasons of ... membership of a particular social group ... 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". Particular difficulty attends the phrase "membership of a particular social group".
It has been suggested in the United States [F158] that the terms of Art 1 of the Convention and Protocol are such that any attempt to discern specificity may not be a "reasonable enterprise", and that the application of the criteria therein is left to decision-makers on the basis that they will recognise persecuted social groups when they see them [F159] . Such propositions appear to abandon the quest for standards by which administrative decisions may determine the fate of individuals and in respect of the application of which there is judicial review for error of law [F160] .
It is necessary to begin with the construction of the definition as it appears in the Convention and Protocol. Regard primarily is to be had to the ordinary meaning of the terms used therein, albeit in their context and in the light of the object and purpose of the Convention. Recourse may also be had to the preparatory work for the treaty and the circumstances of its conclusion, whether to confirm the meaning derived by the above means or to determine a meaning so as to avoid obscurity, ambiguity or manifestly absurd or unreasonable results [F161] . However, as McHugh J demonstrates by the analysis of the subject in his reasons for judgment, with which I agree, it is important to appreciate the primacy to be given to the text of the treaty.
A perusal of the text of Art 1 discloses the following. First, whilst as a matter of ordinary usage, a refugee might be one whose flight has been from invasion, earthquake, flood, famine or pestilence, the definition is not concerned with such persons. Accordingly, care is needed in resolving any apparent obscurity in the text of the definition by seeing the definition as reflecting, in a broad sense, humanitarian concerns for displaced persons. Secondly, the better view is that the definition reflects particular developments since the end of World War I. It has been said [F162] :
"During a period of more than four centuries prior to 1920, there was little concern to delimit the scope of the refugee definition. Groups of refugees tended to be relatively small and many of them chose to migrate to the Americas and other newly- discovered lands. Moreover, the reign of liberalism with its individualistic orientation and respect for self-determination led most European powers to permit essentially uncontrolled and unrestricted immigration."
The international instruments identified in par (1) of s A of the Convention attempted to deal with particular hardships consequent upon the collapse of the Russian and Ottoman Empires, and the advent of the Bolshevik and later the National Socialist regimes. These regimes took measures to render stateless sections of their citizenry, including persons abroad. The process became known as "Denationalization" [F163] . Nationals whilst abroad were treated by customary international law as remaining under the supremacy of their home state and in various municipal legal systems matters of personal status were governed by the law of nationality. The stateless refugee thus was left in particularly difficult circumstances.
The Arrangements of 12 May 1926 and 30 June 1928 [F164] , referred to in par (1) of s A, proceeded upon the adoption at the Conference regarding Russian and Armenian Refugee Questions convened at Geneva in 1926, of a definition of "refugee". In the case of Russians this was:
"any person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the Union of Socialist Soviet Republics and who has not acquired another nationality" [F165] .
The Convention of 10 February 1938 concerning the Status of Refugees coming from Germany [F166] included within the definition of "refugees coming from Germany" the following:
"Persons possessing or having possessed German nationality and not possessing any other nationality who are proved not to enjoy, in law or in fact , the protection of the German Government" (emphasis added).
Refugees might suffer hardships in their country of refuge even without loss of their nationality of origin. They might have been denied in fact if not law (as the 1938 Convention postulated) the protection of the law of their country of nationality or be unwilling for good reason to avail themselves of that protection. The international instruments identified above were designed to protect these and stateless individuals until a new nationality had been acquired, and to do so by providing a substitute at least as to some aspects of civil status. Group rather than individual characteristics determined membership of the class of refugees.
However, it was not until after World War II and the adoption of the Constitution of the International Refugee Organization [F167] ("the IRO") that there was included as a "valid objection" to the return of specified categories of persons to their country of origin:
"persecution, or fear, based on reasonable grounds of persecution because of race, religion, nationality or political opinions, provided these opinions are not in conflict with the principles of the United Nations, as laid down in the Preamble of the Charter of the United Nations" [F168] .
There is general agreement among commentators [F169] that at the Conference of Plenipotentiaries at Geneva which led to the adoption of the Convention there was some discussion favouring the inclusion of a wider definition of "refugee" than that which appeared from the Constitution of the IRO. The Swedish representative introduced an amendment to include what is now the "social group" category because "experience had shown that certain refugees had been persecuted because they belonged to particular social groups"; this phrase was selected rather than, for example, "ethnic group", "cultural group" or "minority group" [F170] .
United States and Canadian decisions
The Court was taken to decisions of the United States federal courts and of the Supreme Court of Canada where, in the context of the domestic federal legislation of those countries, consideration has been given to the phrase in the Convention definition "owing to well- founded fear of being persecuted for reasons of ... membership of a particular social group". In Sanchez-Trujillo v. Immigation and Naturalization Service [F171] , the Court of Appeals for the Ninth Circuit distinguished a "particular social group" from a "mere demographic division of the population" saying [F172] :
"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."
It is apparent that the Court took demography in its meaning [F173] of that branch of anthropology which deals with the life-conditions of communities of people, as shown by statistics of births, deaths, diseases and the like.
In Gomez v. Immigration and Naturalization Service , the Court of Appeals for the Second Circuit, after referring to Sanchez-Trujillo , added [F174] :
"Like the traits which distinguish the other four enumerated categories - race, religion, nationality and political opinion - the attributes of a particular social group must be recognizable and discrete. Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group." [F175]
The facts in Yang v. Carroll [F176] bear some comparison with those in the present case. After the birth of their second child, the petitioner had been fined by local family planning officials in the PRC and his wife had been involuntarily sterilised. The petitioner's argument was that he faced persecution as a member of a social group "consisting of PRC families having more than one child" and the existence of the second child was a "condition" beyond the power of the petitioner to change. However, the District Court determined [F177] :
"On 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."
The Court pointed out that different population control policies were in effect in different regions of the PRC and that the Government of the PRC imposed different population control policies on different ethnic groups in the country. The result was that couples in the PRC who have more than one child were not a homogeneous or discrete group. Moreover, it was said that "accepting petitioner's interpretation of 'social group' would require courts to become involved in foreign and social policy debates that are properly the province of the political branches of government" [F178] .
A different approach has been taken in the Supreme Court of Canada. The provisions of the Charter of Rights and Freedoms appear to have influenced the reasoning of the Court. In Canada (Attorney-General) v. Ward [F179] , in which the judgment of the Court was delivered by La Forest J, reference was made to the embodiment of anti-discrimination law in Canada by s 15 of the Charter and to the decision in Andrews v. Law Society of British Columbia [F180] . There the Supreme Court had held that s 15(1) provides a guarantee of equality before and under the law, as well as equal protection and equal benefit of the law, without discrimination based on grounds analogous to those enumerated therein [F181] . It followed that a requirement of Canadian citizenship for admission to the British Columbia Bar of a British subject permanently resident in Canada violated s 15 of the Charter. In Ward , La Forest J relied upon what he identified as this "analogous grounds" approach to the application of s 15 as an aid in determining the meaning to be assigned to "particular social group" in the relevant provisions of the migration legislation which picked up Art 1 of the Convention. His Lordship enumerated three possible categories of "particular social group" [F182] :
"(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."
La Forest J continued [F183] :
"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."
The appellant in Chan v. Canada (Minister of Employment and Immigration) [F184] had violated the "one child policy" with the birth in the PRC of his second child. The majority of the Supreme Court of Canada held that, on the assumption that persons who have a well-founded fear of sterilisation for violating the PRC's "one child policy" are eligible for consideration as Convention refugees, the appellant had not satisfied the requirements for establishing a well-founded fear of persecution. His evidence with respect to his subjective fear of forced sterilisation was equivocal at best. Nor had he provided sufficient evidence that his alleged fear of forced sterilisation was objectively well founded. The minority (whose judgment was delivered by La Forest J) referred [F185] to what had been said in Ward and determined that the appellant fell within the second category. That did not require the applicant to be in voluntary association with kindred persons. The question was whether an association existed that was so fundamental to the human dignity of members thereof that they should not be required to forsake it. Here, the association existed by virtue of a common attempt made by its members "to exercise a fundamental human right", namely "the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children" [F186] .
"Membership of a particular social group"
I have referred to those aspects of the background to the adoption of the Convention which show the danger in approaching it as designed, on a broad front, to advance humanitarian concerns. Rather, the text of the Convention manifested a compromise between various interests perceived by the Contracting States. As Dawson J points out in his reasons for judgment, the demands of language and context should not be departed from by invoking the humanitarian objectives of the Convention, without an appreciation of the limits placed by the Convention upon achievement of such objectives.
The compromise between various interests is reflected in the definition of "refugee" in Art 1. This contains several limitations upon the meaning of "refugee". First, the existence of "serious reasons" for considering that a person has committed a crime or other acts referred to in s F is sufficient to take that person outside the provisions of the Convention. Secondly, a change in circumstances, as identified in s C, has the result that the Convention ceases to apply.
Moreover, par (2) of s A contains two cumulative conditions which must be satisfied for classification thereunder as a refugee. The first condition contains several elements and the second contains alternatives, one of which refers back to the first condition.
The first condition is that a person be outside the country of nationality by reason of ("owing to") a fear of persecution which is well founded both in an objective and subjective sense [F187] . This means that persons who are outside the country of nationality by reason of such causes as natural disasters, war and economic misfortune cannot answer the requirements of par (2).
The second condition is satisfied if a person who meets the first condition is unable to avail himself or herself of the protection of the country of nationality. This meets the case of those who are stateless or otherwise denied the protection of that country and they may be compared with those considered refugees under the treaties specified in par (1) of s A. Alternatively, a person who meets the requirements of the first condition will answer the second condition if, for a particular reason, that person is unwilling to avail himself or herself of the protection of the country of nationality. That reason is the well-founded fear of persecution identified in the first condition.
Thus, the notion of persecution is a necessary component of the first condition and also of one of the alternatives comprising the second condition.
In ordinary usage, the primary meaning of "persecution" is [F188] :
"The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; the fact of being persecuted; an instance of this".
Accordingly, I agree with the following formulation by Burchett J in giving the judgment of the Full Federal Court in Ram v. Minister for Immigation [F189] :
"Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution."
In par (2) of s A the notion of "fear of being persecuted" is confined by the use of the phrase "for reasons of". This serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, the holding of political opinion, or membership of a particular social group.
The juxtaposition of words in par (2) is "for reasons of race, religion, nationality, membership of a particular social group or political opinion". Those of particular race, or nationality, or who are adherents of a particular religion might be said in each case to be members of a particular social group. Political opinions, on the other hand, may be diverse, imprecise, and even idiosyncratic. Thus a refugee may be classified as such if that person is outside the country of nationality owing to a well-founded fear of being persecuted for reasons of political opinion and, owing to such fear, may be unwilling to avail himself or herself of the protection of the country of nationality. That refugee may not be a member of any group but still fall within the definition by reason of the fear of persecution with a view to repression or extirpation of the political opinion adopted by that person.
I respectfully agree with the emphasis placed in the United States authorities to which I have referred upon the qualification of the term "group" by the words "particular" and "social", as indicating that par (2) of s A is not apt to encompass every broadly defined segment of those sharing a particular country of nationality. No doubt, with respect to what has been said in the Canadian authorities, those sharing a particular country of nationality will include many people, whether or not married couples, who wish to decide entirely of their own accord, and without governmental restraint, the number, spacing and timing of their children. Those persons, when childless or as parents of one or more children, will fall within one or more of the divisions of the population which may be made for demographic purposes. However, numerous individuals with similar characteristics or aspirations in my view do not comprise a particular social group of which they are members. I agree with the statement in Ram [F190] :
"There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is 'for reasons of ' his membership of that group."
I would assume, for the purposes of the determination of this appeal, that the PRC has a "one child policy", infringement of which attracts, as a matter of governmental decision, the sanctions feared by the appellants. I assume therefore that there exists a policy which is being implemented in a fashion which engulfs a number of persons for whom the PRC is their country of nationality. On that footing, a disparate collection of parents, and those desiring to be parents, who do not accept and have difficulties in complying with a "one child policy" are at risk of the application of a general law of conduct required by the state and, on the assumptions I have made, brutally enforced. But they are not members of a particular social group with a fear of persecution by reason of membership thereof.
Moreover, the text of the Convention as a whole, and Art 1 in particular, shows the deliberate choice not to include as "refugees" all persons who have a well-founded fear of persecution. The submissions for the appellants, in substance, seek to achieve such a result by distorting the framework of par (2) of s A of Art 1, which I sought to outline above.
There is a further fundamental objection to acceptance of couples with no children or one child and who desire two or more children, and who risk sanctions for contravening a "one child policy" of their country of nationality, as members of a "particular social group" by reason of membership of which they have a well-founded fear of persecution. This is that the form the persecution takes should not "be inserted into the definition of the social group" [F191] . The point was further explained in the judgment of Heald JA in the Canadian Federal Court of Appeal [F192] . Like the majority of the Supreme Court of Canada, on further appeal [F193] , Heald JA held that the appellant had not established that there was the necessary well- founded fear. However, his Lordship also said [F194] :
"This group, it seems to me, is defined solely by the fact that its members face a particular form of persecutory treatment. To put it another way, the finding of membership in a particular social group is dictated by the finding of persecution. This logic 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 ) and voids the enumerated grounds of content."
Reliance was properly placed upon that passage by the Full Federal Court in the present case [F195] .
The findings of fact in this case
McHugh J demonstrates in his reasons for judgment that counsel for the appellants sought to identify the "particular social group" to which they belonged in ways which did not correspond with the treatment of the matter by the RRT. With McHugh J, I conclude that the RRT made a finding that the relevant group comprised "those who, having only one child, either do not accept the limitations placed on them or who are coerced or forced into being sterilised". As to those who are so coerced or forced, the RRT erred in law by defining membership of the group by reference to acts giving rise to the well-founded fear of persecution. As to those persons having one child who "do not accept the limitations placed upon them", they were, at best, merely a group for demographic purposes.
Conclusion
The appeal to the Full Federal Court was allowed. The purport of the joint judgment was that there had been no error by the delegate in the application of s 22AA of the Act. In place of the orders of the primary judge, the Full Court ordered that the decisions of the RRT be set aside and the decision of the delegate of the Minister be affirmed.
The appeal to this Court from those orders should be dismissed with costs.