APPLICANT A & ANOTHER v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOTHER

Judges: Brennan CJ
Dawson
McHugh
Gummow

Kirby

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 by:
Kirby J

This appeal concerns a claim by the appellants, nationals of the People's Republic of China ("the PRC"), that they are entitled to remain in Australia because they are persons in respect of whom Australia has protection obligations. The obligations are said to arise under the Refugees Convention ^[F196] , now to be read with the Protocol Relating to the Status of Refugees 1973 ^[F197] . Australia is a party to each of these international instruments ^[F198] . By its relevant domestic law ^[F199] it has afforded enforceable rights of protection to certain non-citizens who enter or remain in Australia and claim such protection ^[F200] .

The appellants, husband and wife, made their claims relying upon the definition of "refugee" in Art 1A(2) of the Convention. They asserted, relevantly, that each of them had a "well-founded fear of being persecuted for reasons of ... membership of a particular social group". The "group" specified by them will be elaborated. Essentially, it was persons like themselves who were liable, in the PRC, to the application of the "one child policy", if necessary by sterilisation or abortion enforced or condoned by the authorities of the PRC.

On 31 January 1994 the Minister for Immigration and Ethnic Affairs ("the Minister"), by his delegate, refused the appellants' application for refugee status. The appellants applied for review of the decision by the Refugee Review Tribunal ("the Tribunal"). The Tribunal concluded ^[F201] that each of the appellants fell within the definition of "refugee" and was entitled to a redetermination of their entitlement to the appropriate visas by the primary decision maker ^[F202] .

The Minister applied to the Federal Court of Australia for judicial review of the Tribunal's decision upon the ground that the Tribunal had committed errors of law in concluding that the appellants were refugees ^[F203] . In the Federal Court, Sackville J rejected the Minister's arguments that the appellants did not face "persecution" in the Convention sense if they were returned to China or that any such persecution was not for a reason provided in the Convention. He thus dismissed the application ^[F204] .

On the Minister's appeal to the Full Court of the Federal Court, that Court (Beaumont, Hill and Heerey JJ) upheld the Minister's appeal. It ordered that the decisions of the Tribunal be set aside and the decisions of the Minister's delegate be affirmed ^[F205] .

By special leave, the appellants have now appealed to this Court seeking to restore the decision of the Tribunal, affirmed by Sackville J.

Factual findings

There were no relevant factual disputes. The Minister was content to prosecute his construction of the law within the findings of fact made by the Tribunal.

The first appellant, described as "A" ("the husband"), was born in 1967 in the village of Bang Hu in the Chinese Province of Guangdong. That village is about 25 kilometres from Guangzhou City. The second appellant, described as "B" ("the wife"), was born in a suburb of that city, also in 1967. The couple were married in January 1993. After the marriage the wife moved to Bang Hu.

The husband gave evidence that they left the PRC by sea in late 1993 at a time when the wife was eight months pregnant. Soon after their arrival in Australia their child was born. He said that he left the PRC because he feared sterilisation under the "one child policy". He understood that policy as requiring that Chinese couples were permitted to have only one child of their union. He gave evidence of seeing Family Planning Police come to a neighbour's home in his village and forcibly attempt to take a male neighbour away for sterilisation. He said that such raids were part of the normal activities of such officials. Almost every affected family had a member who had been forced to undergo sterilisation. The husband and the wife had been obliged to obtain a permit for the wife to have a baby in hospital. This amounted to a form of registration which, he believed, would inevitably be followed by his sterilisation a few months later. Whatever the position elsewhere in the PRC, the husband insisted that, in his village, unconsensual abortion and sterilisation were the primary sanctions to enforce the "one child policy". The local authorities sought to reduce infringements of that policy by an organised programme of sterilisation after a couple achieved one surviving birth.

The Tribunal accepted the husband as a "forthright and consistent" witness. It accepted that it was not possible for him and the wife to have a second child unless the family ran away. Although "more flexible arrangements" were available elsewhere, including in their province and in urban centres, within the isolated village in which they lived much greater powers were enjoyed by the family planning officials. The case was conducted on the footing that, for the couple to run away, would mean loss of household registration. This would present difficulties in their obtaining employment because relocation without a permit was illegal ^[F206] . The Tribunal also accepted that the husband objected very strongly to sterilisation and feared its physical and mental consequences upon him. It concluded that forcible sterilisation was carried out in the village and that, accordingly, as already the father of one child, there was a real chance ^[F207] of the husband's being forcibly sterilised if he returned to the village. It determined that his fear was objectively well founded and amounted to a fear of "persecution" for reasons of his membership of a "particular social group".

The Tribunal also found that the wife objected very strongly to, and feared, forced sterilisation of herself or her husband. It made parallel findings in her case resulting in the conclusion that she too was entitled to protection as a "refugee".

Before this Court, it was conceded for the Minister that forced sterilisation could amount to "persecution" within the Convention. It was also accepted that it constituted heinous mistreatment of the persons involved and a brutal form of enforcement of a government policy of birth control which would not be acceptable in Australia. Although it was not conceded that the particular strategy of enforcement, found to occur in the appellants' village, was condoned, as such, by the Central Government of the PRC, it was accepted that it did not amount to "rogue action", ie the isolated conduct of particular officials pursuing an idiosyncratic strategy of their own. The policy arose under a national law of general application throughout China ^[F208] . It had the tacit acceptance of the government which either could not, or did not, do anything to prevent it occurring ^[F209] . The finding that the appellants had a well-founded fear of compulsory sterilisation if they returned to China was accepted. In this way, some of the earlier disputes canvassed in the Federal Court were cut away. They can be ignored in this appeal.

Decision of the Federal Court

Sackville J addressed most of his attention to an analysis of the meaning of the Convention categories for protection which the appellants had invoked. It is pertinent to set out, in the form applicable at the relevant time, following the deletions effected by the later Protocol, the applicable definition of "refugee" now in dispute:

"[A]ny 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." (emphasis added)

To assist in ascertaining the meaning of the foregoing definition, and its operation upon the facts as found, Sackville J had regard to the Handbook on Procedures and Criteria for Determining Refugee Status (1979) ^[F210] . He examined the comparatively few cases of Australian judicial authority dealing with the definition ^[F211] . Because the Convention is one of international obligation, of obvious importance to other refugee- receiving countries, Sackville J then turned to judicial authority in the United States ^[F212] and Canada ^[F213] . He noted the opinions of various scholars expert in international refugee law, many of whom were the subject of reference in this Court's opinion in Chan v. Minister for Immigration and Ethnic Affairs ^[F214] . He then proceeded to his conclusion ^[F215] :

"[I]t was clearly open to the tribunal to find that government policy in China had identified as a social group those who have one child and do not accept the limitations placed on them. ... It was also open to the tribunal to find ... that "the one child policy" was enforced against those who infringed the policy by means of compulsory sterilisation and abortion.

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.

...

[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."

Sackville J entertained no doubt that forced sterilisation would be a clear violation of the "fundamental human rights" of the appellants, such that they did not have a genuine choice whether or not to remain members of the "social group" in question. They could not resign from the "group". This point was made to distinguish the case from those in which a person was liable, upon return to the country of origin, to punishment by reason of breach of the law, whether criminal or otherwise, designed to uphold local mores . In this, Sackville J drew on the observations of the Federal Court of Appeal in Canada in Cheung v. Canada (Minister of Employment and Immigration) ^[F216] that the "social group" in question was united "by a purpose ... fundamental to their human dignity" and to "women's reproductive liberty" as a "basic right". Faced with a threatened violation of such "fundamental human rights", it was unpersuasive to say that the husband and wife could "choose" to forsake a characteristic which united them to the other members of the "social group". They could not. They should not be required to do so.

In the appeal, the Full Court of the Federal Court likewise reviewed the series of cases which preceded the decision of Sackville J, as well as the decision at first instance in Ram v. Minister for Immigration and Ethnic Affairs ^[F217] . That decision has since been affirmed by the Full Federal Court with a further exposition of that Court's consideration of the definition of "refugee" ^[F218] .

The Full Court similarly referred to United States and Canadian authority. But the Court concluded ^[F219] :

"Forcible sterilisation could constitute persecution. But the respondents' fear of that persecution is not for reason of membership of a particular social group.

...

While [China's] law would be considered by Australians to be abhorrent and contrary to internationally accepted standards of human rights, the law would be one regulating the conduct of individuals. To apply the reasoning of Morato, ^[F220] such a law would be dealing with what people did , not with what they are . The only difference is that such a law would be one operating on individuals to prevent future acts (conception and birth) rather than to punish past acts. Such a law would not create or define a particular social group constituted by those who are affected by it, any more than would laws imposing tax or prescribing punishment for tax evaders."

Approach to the appeal

Before turning to the meaning which I would give to the relevant definition of "refugee", and its application to the facts found, it is helpful to state a number of propositions which affect my approach to the problem before the Court:

1.

Although the definition of "refugee" in the Convention (as amended by the Protocol) is incorporated as part of Australia's domestic law, and to that extent the task of the Court is one of statutory construction, it is desirable (so far as possible), and quite possibly necessary, that this Court should adopt a definition which pays appropriate regard to the fact that the definition of "refugee" originates in an international treaty. The Court should thus interpret the words in the context in which, and for the purposes for which, they were devised. Clearly, they are intended to have application to a variety of countries and situations and for the indefinite future. This operation is given emphasis by the deletion, by the Protocol, of the original limitation which was included in the definition, confining its application to the results of "events occurring before 1 January 1951" ^[F221] .

2.

Although formulated in abstract terms, the Convention, and the national legislation based on it, concerns "human fate". "While the differences in some of the tests ... may be semantic only, it is clearly important that a determination of refugee status be made by the application of a test that is readily capable of comprehension and application. A plethora of tests, indeed what may amount to the same test though expressed in a variety of ways, can only lead to uncertainty and, all too likely, confusion in an area where the future of individuals is at stake" ^[F222] . Thus, the provision of simple rules for application to the large number of persons who invoke the definition of "refugee" is a desirable objective of the courts, including this Court.

3.

The time for the determination of whether a person who has sought recognition as a "refugee" is so entitled is the time when that determination is made in response to the claim ^[F223] . The applicant must show a mixture of genuine fear (subjective) which is founded on a real chance (objective) that he or she would be persecuted for one of the stipulated reasons if returned to the country of nationality ^[F224] .

4.

The starting point for determining the meaning and operation, in the facts found, of "membership ... of a particular social group" is an analysis of the words of that phrase. It is, after all, an ordinary expression of common use ^[F225] . The words used are clearly very broad. This is doubtless deliberate. They derive from the varieties of "despotism, fanaticism, cruelty and intolerance" which cannot be foreseen in all their awful manifestations with complete assurance ^[F226] . This is why Australian courts have resisted attempts to paraphrase or redefine the broad language of the Convention definition. They have expressed the view that it is preferable to approach its application without an attempt to define exhaustively what is meant by "a particular social group" ^[F227] .

5.

Because the Convention is universal, it does not speak only of the grounds of persecution that have been most familiar to Western countries, ie those that have derived their culture and history from Europe. For such countries, in the past, race, religion, minority nationality and political opinions have been the main grounds for persecution. But in other societies, and in modern times, different cultural norms and social imperatives may give rise to different sources of persecution. The Convention is intended to operate in the context of the problems of refugee displacement which have been such a significant feature of the world, particularly since the events which propelled the international community (including Australia) into the Second World War. It would be an error to construe the definition so as to ignore the changing circumstances of the world in which the Convention now operates. Thus, it was agreed for the Minister that, appearing as it does in a treaty of general application, the phrase "a particular social group" could not be confined to those groups which were in the minds of the drafters of the Convention in 1951. For example, at that time persons having a well-founded fear of persecution for reasons of their sexual orientation would in many, perhaps most, countries (including Australia) have been identified as criminals. They would have been punished for their conduct, even in private and involving only consensual adults, because it was contrary to their nation's laws. Nowadays, a different content and application of the phrase affords the protection of the Convention deriving from a larger understanding of the "persecution" and the identity of the "particular social group" in question ^[F228] . The concept is not a static one. Nor is it one fixed by historical appreciation.

6.

In construing domestic law which, in turn, adopts a provision of an international treaty, it is permissible to have regard to the history of the treaty provisions and such matters as would be available for the construction of the treaty itself ^[F229] . The Vienna Convention on the Law of Treaties is designed to codify and express certain rules of customary international law for the interpretation of treaties ^[F230] . The Convention has been called in aid by this Court ^[F231] as by other courts of high authority ^[F232] . Section 3 of the Convention is titled "Interpretation of treaties". By Art 31 it is provided (sub- art 1) that a treaty "shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". By Art 32 recourse may be had to supplementary means of interpretation. These include "the preparatory work of the treaty and the circumstances of its conclusion" but only "in order to confirm the meaning resulting from the application of article 31" or to determine the meaning where, applying that Article, the interpretation is "ambiguous or obscure" or "leads to a result which is manifestly absurd or unreasonable". This rule, which is not dissimilar to that now applicable to the construction of federal legislation in Australia, was invoked by the parties to take the Court to the travaux preparatoires explaining how the definition of "refugee" in the Convention came to include the reference to "membership of a particular social group".

7.

Whilst by international law it is permissible to apply a principle of construction known in the common law as the ejusdem generis rule, and whilst it is therefore appropriate to give meaning to the reference to "membership of a particular social group" in the context of the other specific grounds of persecution catalogued in the definition, care must always be observed in the application of that canon of construction for reasons often mentioned ^[F233] . In the particular case of the Convention definition of "refugee" it is difficult to find a genus which links the categories of persecution unless it be persecution itself. Yet this conclusion, together with the obeisance usually given to the need to offer a wide and flexible interpretation, and to avoid a narrow one, has led some commentators to view "membership of a particular social group" as a "safety- net". They suggest that it is a category designed to embrace a very wide range of other grounds of persecution not specified in the particular reasons mentioned ^[F234] . The difficulty with this view has been identified in texts ^[F235] and judicial decisions ^[F236] . Had it been intended that persecution for any reason would satisfy the definition of "persecution" in the definition of a "refugee", it would have been simple for the drafters of the Convention to have deleted altogether the particular categories of persecution. They would have been superfluous ^[F237] . The drafters could have relied on nothing more than proof of persecution itself, for whatever reason. This would have been a viable, even arguably desirable, approach given the variety of irrational causes that can give rise to large-scale persecution. However, it is not the approach which the Convention took. Compliant to the requirements of the Vienna Convention as to the interpretation of treaties, the duty of a court applying a treaty provision is to give meaning to the definition, keeping in mind the specificity of the grounds of persecution which alone qualify a putative "refugee" to protection under the Convention. Further emphasis is given to this point by the use of the phrase "for reasons of". Whilst other reasons may contribute to the "well-founded fear" ^[F238] , proof of one or more of the specified reasons is a pre-condition to attracting the Convention.

8.

The requirement to show that the persecution in question is "for reasons of" one of the specified grounds has led to the argument that this postulates an assumption that the ground pre- existed the manifestation of the persecution. In the case of a "particular social group", the argument runs, the definition of the group, and membership of it, must therefore have pre-existed the persecution. The persecution could not itself define the "particular social group". This point will need to be considered. But in considering it, it is useful to remember, as Burchett J commented in Ram ^[F239] , that self-identity as a member of a particular group cannot be a universal prerequisite. Thus, many German citizens of Jewish ethnicity did not, in the 1930s, identify themselves as "Jews". They conceived of themselves as Germans. Yet this did not prevent their being members "of a particular social group" and persecuted for that reason (as well as for reasons of race and religion).

9.

Whilst the search for a uniform and, if possible, consistent and international approach to the meaning of a part of the definition of "refugee" in the Convention is desirable, so that it is helpful to have regard to United States, Canadian and other foreign authority on the point, care must be observed in the use of such authority. Sometimes it can only really be understood in the context of the background of constitutional rights and statutory provisions which affect the courts and tribunals involved and the approaches which they take ^[F240] . A municipal court, giving meaning to the Convention, will be well advised to draw upon the international jurisprudence which has collected around a crucial provision, such as the definition of "refugee" here in question. It may take into account the defence of relevant human rights and the avoidance of discrimination which lie at the heart of the international effort to protect refugees, including by the Convention ^[F241] . But where legal rights are claimed, a court cannot give effect to sympathy for or against the predicament of those who assert "refugee" status. It must simply perform the functions familiar to it. By reference to the language of the law in question, it will decide whether the facts proved attract, or fail to attract, the application of that language.

Matters not in issue

It is now appropriate to list a number of considerations, given voice during argument, or sub silentio , which are not, in my opinion, relevant to the determination of this appeal:

1.

The appeal is not about "fundamental human rights" as such, although clearly, upon one view, they are affected. The appellants seek no more than the enforcement of Australia's domestic law. That law affords them certain rights if they can establish that they are "refugees" within the Convention definition. That definition is, in turn, to be understood as written against the background of international human rights law, including as reflected or expressed in the Universal Declaration of Human Rights ^[F242] and the International Covenant on Civil and Political Rights ^[F243] . But the law actually invoked is that of an Australian statute.

2.

Whether the law and policy of the PRC on family planning and population limitation are wise, just and conformable to fundamental human rights are not matters upon which this Court has jurisdiction to pass. The enormous problem of global population growth is well known. It is most acute in China which has a fifth of the world's population. China's population is said to be 1.25 billion people ^[F244] . Human rights arguments addressed to the rights of future generations of all people living on this planet, have been, and are, mounted to defend the "margin of appreciation" enjoyed by the government of a country, such as China, entitling it to adopt effective measures to limit the growth of its population, with inevitable consequences for the rights of individuals of reproductive age. This Court is not involved in a judgment on these questions.

3.

Nor is the appeal concerned with differences between the policies of the Central Government of the PRC and the suggested over- enthusiasm of local government officials in villages such as that of the appellants. This is because of the way in which the case has been litigated and because of the concessions properly made by the Minister. Although the Central Government may not affirmatively support forced sterilisation and abortion as means of upholding the "one child policy" there can be little doubt that such strategies are tacitly accepted. Certainly, according to the findings made, they are not effectively stopped and punished. In that sense, they are condoned by, and may be attributed to, the Central Government of the PRC. They are relevant to the circumstances which the appellants would have to face were they to be returned to China.

4.

The mere fact that, potentially, very large numbers of persons might qualify for refugee status in Australia if the appeal to this Court were upheld and the primary decision confirmed, is not, of itself, sufficient to show that decision was wrong. The history of refugee movements in the period out of which the Convention arose, is one involving very large numbers of persons indeed. More than 40 million refugees were said to have been displaced by the events surrounding the Second World War. The number of Jewish refugees in Central Europe alone, for example, would have comprised millions. The fact that, potentially, millions of people of reproductive age in China are affected by the "one child policy" is not, of itself, sufficient to render the definition inapplicable to them, if otherwise it applies by the language and imputed purpose of the Convention. Its application, in the proved circumstances, has been upheld in Canada in Cheung v. Canada (Minister of Employment and Immigration) ^[F245] . It was not suggested that this has resulted in an intolerable flow of refugees of this category into Canada or that the decision had caused the breakdown of the operation of Canada's Immigration Act (1985). Membership of the "particular social group", even if proved, is insufficient, under the definition, to attract refugee status without more. The definition is hedged about with other limiting pre-conditions. There must be a "well-founded fear" of persecution. This must be "for reasons of" membership of the group. The person affected must get himself or herself to another country, with all the practical, legal and administrative difficulties which this presents. That person must then run the gauntlet of litigation which may be as prolonged and testing as the present. Upholding the appellants' claims to "refugee" status (resting as they do very much upon the particular evidence of peremptory enforcement of sterilisation in their village which occasioned the well-founded fear of compulsory sterilisation found in their favour) does not necessarily demonstrate that other applicants, deriving from other parts of the PRC, would similarly succeed. The appellants clearly proved persecutory behaviour which gave rise, in their case, to their well-founded fear. Other applicants, relying upon different facts, might not be so successful.

5.

The "particular social group" upon which the appellants relied was not that comprised by all persons in China subject to the "one child policy". As ultimately expressed in these proceedings, it was much narrower. It was constituted by persons who:

(i)

were in the reproductive age group;

(ii)

were a couple and had given birth to a surviving child;

(iii)

desired to have another child;

(iv)

were fertile and therefore likely, unless prevented, to have another child or children;

(v)

were members of the Han majority ethnic group and thus not entitled, on grounds of ethnicity or any other ground, to exception from the general policy;

(vi)

could not, under the law in force in their particular prefecture have a second child without official permission; and

(vii)

were liable, in the evidence, to be subjected to unconsensual sterilisation or enforced abortion to prevent the realisation of their desire for another child or more children.

Although there was no association, society or club to represent the interests of that social group as defined, in the prefecture of the PRC in which the appellants lived, this is hardly surprising given the nature of the society described in the evidence. However, according to that evidence, other persons of reproductive age were in a position identical to the appellants. Their argument was that this was sufficient to constitute the pre-existing "particular social group", membership of which was the source of the reasons for the persecutory conduct. It led to their well-founded fear that such persecution would follow in their case if they were returned to China.

The Minister denied that there was any such "particular social group" or that "membership" of any such "group" was the reason for the well-founded fear on the part of the appellants. According to the Minister, that fear derived from the individual characteristics of the appellants and the application to them of the domestic law of the PRC. It was not the consequence of what they were but what they did , contrary to that law. It therefore fell outside the limited and defined "reasons" for persecution which alone gave rise to the enforceable rights under the Convention, as applied by Australian law.

Origins of the "social group" category

Enough has now been said to indicate the nature of the controversy before the Court. It derives from the ambiguity of the reference to membership of "a particular social group" in the Convention definition. It is therefore legitimate (if not essential), both by Australian and international law, to have regard to the travaux preparatoires which record the history of the development of the Convention and the discussion of its text as it was being refined ^[F246] .

The Refugee Convention was developed after the Genocide Convention, another result of the post-War resolve to respond to the human sufferings then fresh in memory. But the Genocide Convention had been criticised as being unduly narrow in its language ^[F247] . As the Refugee Convention was being prepared, there was a stated intention to avoid the mistakes revealed by the earlier experience.

Even before the Second World War a definition of the term "refugee" had been developed to deal with the problem of refugees from Germany. This was adopted by the Inter-Governmental Committee on Refugees formed in 1938. It defined refugees as those who "must emigrate on account of their political opinions, religious beliefs or racial origin" ^[F248] . The 1951 Convention built upon this definition. But, naturally enough, it responded to the political restructuring of Europe which had occurred after 1945. Until amended by the Protocol, it was necessary for the refugee to establish that the "well- founded fear" relied upon had resulted from events occurring before 1 January 1951. Further, contracting states could, at their option, limit their obligations to those refugees who were fleeing conflicts in Europe ^[F249] .

For a time, the last-mentioned limitation appeared to threaten the success of the draft, until it was made optional. What then happened is described by Compton ^[F250] :

"Into this atmosphere, the Swedish delegation introduced the notion of social group-based persecution to add a further dimension to the definition of 'refugee'. The Swedish representative maintained that such cases existed and that the Convention should mention them explicitly. The conference records contain no discussion from other delegations that might further illuminate the meaning of 'particular social group', but the lack of comment indicates that this new category presented little controversy.

...

Sweden's position in the geographic limitation debate demonstrates that the term 'social group' was meant to have a broad application ... If the Swedes' notion of social group persecution was not changed by limiting the Convention to refugees from Europe, then the examples they had in mind of this type of persecution must have come from European events before 1951. Otherwise, if the social groups they sought to protect had been outside of Europe, the Swedes undoubtedly would have opposed the geographic limitation. The most well-known examples of social group-based persecution at this time occurred in Eastern Europe following the rise of the Communist regimes. Subsequent cases from European courts of nations party to the Convention have recognized, for example, the 'capitalist class' and 'independent businessmen' and their families as valid social groups in granting refugee status to persons fleeing Eastern Europe. Examples such as these are probably what the Swedes had in mind."

The new category was included by resolution of the preparatory committee by 14 votes in favour to none against, with 8 abstentions ^[F251] . Clearly enough, the category was intended to broaden the previous definition and practice ^[F252] .

The meaning of the Convention is not, any more than an Act of Parliament, confined to what its drafters, subjectively, had in mind at the time of its making ^[F253] . Nevertheless, some guidance as to its purpose can be found in the way the relevant phrase was added and the object then stated for it. The mere fact that "groups", as wide and diverse as "capitalists and independent businessmen", were nominated as justifications for the added criterion, demonstrates that a relationship in the nature of a voluntary association, society or club was not considered to be a necessary factor for the existence of such a "group" ^[F254] . United States authority suggesting the contrary ^[F255] should not be followed. Indeed, the Minister did not support such authority, conceding, properly, that such associational membership was neither necessary nor sufficient to establish the existence of the requisite "group". It is now well established, in virtually all discussion of the Convention definition, that it is not necessary for the individual applicant to have been a member of a concerted body or association affirming group identity. In some cases, such as homosexuals in certain countries, such a requirement could be extremely perilous to the members of the group and self-defeating ^[F256] .

Not a great deal of guidance is therefore afforded by resort to the travaux. But they do make it clear that the purpose was to expand the other heads of persecution which, of their nature, are more specific ^[F257] . A degree of flexibility was envisaged by the failure to be more precise about the kinds of "social groups" covered. The requirement of particularity clearly emphasises the distinction being drawn between a particular social group and a crowd or section of the population lacking sufficient common identifiers or experience ^[F258] . This concept is reinforced by the word "group" itself. Whilst not limited to members of an association, it does import the notion that those who constitute the "group" must be recognisable. They must be definable by reference to common pre- existing features. Yet they need not be known as members of the group, even to each other, because the very persecution which helps to define or reinforce the "group" may, in some cases, make such identification dangerous ^[F259] .

In 1979, the United Nations' High Commissioner for Refugees published the Handbook on Procedures and Criteria for Determining Refugee Status ^[F260] used by Sackville J ("the Handbook"). Its purpose was to assist parties to the Convention and Protocol in determining claims to refugee status. It drew on the experience of the High Commissioner's office as well as the practices of contracting states after the Convention came into force in 1954. The Handbook is frequently cited in refugee decisions in the United States. Upon the precise issue in hand, it has been criticised as unhelpful ^[F261] . It may be used in Australia to assist in the interpretation of the Convention ^[F262] so long as it does not purport to usurp the function of the court or tribunal in giving meaning to the words of the Convention definition ^[F263] .

Regarding the phrase "particular social group", the Handbook says:

"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, ie 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."

As revealed in the evidence, the policies of the government of the PRC concerning the "one child" family limitation are promoted both by inducements and rewards and by more drastic means such as compulsory sterilisation and abortion. Clearly enough, such policies would be seriously impeded if a sufficient number of persons in the suggested "group" resisted the imposition of that policy. The very existence of a "group" of persons, inclined to oppose, evade and flee the imposition of such a policy, would suggest a strain upon the loyalty of group members to the government of the PRC. It would postulate the potential willingness of such group members to resist the imposition of that country's law and policies. The actual loyalty of such a "group" to the government might be different from the government's perception of that loyalty ^[F264] . A potential danger of the group lies in the perceived risk of alienation from the government which, in turn, could give rise to a governmental response and to a well- founded fear of persecution.

Decisions of national courts

A large number of municipal decisions, in courts and tribunals of states party to the Convention, were placed before the Court or referred to in the course of argument. Doubtless, each of these cases depended on its own facts. There are dangers in attaching too much importance to the identification of particular groups, membership of which has been the subject of successful or unsuccessful claims to refugee status. However, a glance at the enormous variety of the groups relied upon helps to bear out the comment that the phrase "particular social group" is a specially flexible one. It is impossible to delimit it by a precise definition.

Thus, the following categories have been upheld as particular social groups, the membership of which gave rise to a well- founded fear of persecution: members of the nobility of a former Eastern European kingdom ^[F265] ; members of the landed gentry in pre-communist Romania ^[F266] ; farmers in areas of military operations in El Salvador ^[F267] ; a former funeral director and his wife engaged in the private sector in pre-communist Poland ^[F268] ; a woman from Trinidad subject to spousal abuse over 15 years ^[F269] ; homosexual and bisexual men and women in countries where their sexual conduct, even with adults and in private, is illegal ^[F270] ; dispossessed landlords who have abandoned their claim to property after revolution, but are still subject to stigma ^[F271] ; unmarried women in a Moslem country without the protection of a male relative living in that country ^[F272] ; members of the Tamil minority fleeing from Sri Lanka ^[F273] ; young males who have evaded or deserted from compulsory military service in countries engaged in active military operations condemned by the international community ^[F274] ; members of stigmatised professional groups and trade unions ^[F275] ; soldiers of the army of the former regime in South Vietnam ^[F276] ; Roman Catholics and ethnic Chinese fleeing from Vietnam ^[F277] ; and Freemasons escaping from Cuba ^[F278] .

On the other hand, claims have been rejected where based on membership of the following groups: the "capitalist class" in a former East European country ^[F279] ; an Indian woman who had married out of her caste ^[F280] ; members of a recreational club ^[F281] ; a person accused of corruption in Ghana ^[F282] ; a person who had been a member of an Irish terrorist group and was suspected, in Ireland, of permitting hostages to escape ^[F283] ; a Bolivian migrant drug offender fearful of punishment as a drug informant if he were returned to Bolivia ^[F284] ; a member of the wealthy Sikh community returning to the Punjab with money which would be subject to the risk of robbery and extortion ^[F285] ; an Iranian seaman imprisoned in Australia for importation of illegal drugs liable to further heavy punishment if returned to Iran ^[F286] ; and a stepson of a Columbian storekeeper whose shop was blown up by a drugs cartel when he refused to trade for them ^[F287] .

In an attempt to provide guidance to courts and administrators applying the Convention definition of refugee, appellate courts in the United States and Canada have offered tests to be applied to the facts found.

The Court of Appeals for the Ninth Circuit in the United States in Sanchez-Trujillo v. Immigration and Naturalization Service ^[F288] had before it a claim by young male petitioners who asserted that they were suspected by the Government of El Salvador of being involved with urban guerillas because they had declined or failed to join the armed forces and, instead, had fled to the United States. Their claim to refugee status was refused at first instance. The Court of Appeals applied a four-part test to evaluate the "social group" claim. This was, first, the "cognizability" of the group; secondly, proof that the petitioners were members of that group; thirdly, proof that the group was the target of persecution on account of its characteristics as a group; and fourthly, proof of "special circumstances" warranting the grant of asylum on the basis of social group membership alone.

With respect, I consider that these criteria or guidelines, however well intended, constitute an impermissible substitution for the words of the Convention. The test propounded unduly restricts the application of the Convention construed according to its terms. Membership of a voluntary association is not required by the language of the Convention. It is contradicted by the very sources of persecution which may make such association perilous or even impossible ^[F289] . There is no mention whatever in the Convention of "special circumstances".

In Canada, a different four-part test was adopted in the Federal Court of Appeal in Mayers v. Canada (Minister of Employment and Immigration) ^[F290] . As expressed by Mahoney JA ^[F291] :

"[A] particular social group means (1) a natural or non- natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity, or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it."

This test was approved by La Forest J, writing for the Supreme Court of Canada in Canada (Attorney-General) v. Ward ^[F292] . His Lordship refined the "possible categories" emerging from the application of the "particular social group" criterion to three, after taking into account "the general underlying themes of the defence of human rights and anti- discrimination that form the basis for the international refugee protection initiative" ^[F293] . The three categories which La Forest J discerned were ^[F294] :

"(1) [G]roups defined by an innate or unchangeable characteristic;

(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3) groups associated by a former voluntary status, unalterable due to its historical permanence.

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti- discrimination influences, in that one's past is an immutable part of the person."

Still other attempts have been made to differentiate those who are, and are not, entitled to rely on the "particular social group" category by reference to a supposed distinction between what people are and what they have done ^[F295] . Such distinctions are artificial. What people have done contributes to making them who they are . In respect of group identity, what people do reinforces the existence and special features of the group. Oppressors typically target what people do, for what they think or feel, or believe (although clearly relevant to their group status and consequent susceptibility to persecution) is not so easily identified by the agents of the state.

The categories mentioned in the Canadian and United States decisions, whilst valiant efforts to offer clarity to the application of an inherently unclear concept, do not, in my view, accurately categorise, or exhaustively define, the "particular social groups", membership of which may attract the Convention definition. The Canadian approach has been described as "delphic", with language "so opaque, and the procedural posture ... so convoluted, that it is difficult to predict what effect [it] will have on the development of the social group concept in Canadian jurisprudence" ^[F296] .

In the result, I agree with the opinion of Professor Fullerton citing the conclusions of Graves ^[F297] . Some of the groups to which the definition applies are voluntary; others are not. Some are cohesive; others are not. Some are homogeneous; others are not. Some involve immutable characteristics; others do not. Some involve characteristics central to the members' identities; others do not. Professor Graves urges that courts and agencies should turn away from attempts to formulate abstract definitions. Instead, they should recognise "particular social groups" on a case by case basis ^[F298] . This approach conforms to the refusal of German courts to attempt a definition, or exhaustive description, of the category of "particular social groups" ^[F299] . It accepts that an element of intuition on the part of decision-makers is inescapable, based on the assumption that they will recognise persecuted social groups of particularity when they see them ^[F300] . Whilst this is not an entirely satisfactory conclusion, it is preferable to an attempt by courts unduly to narrow the operation of the Convention or to impose upon its deliberately broad and ambulatory language categories which are by no means exhaustive of the actual words used. The development and expression of such categories, at least in the first instance, is the province of administrators and review tribunals with experience of refugee claims. It is not the task of appellate courts to whom these cases are but occasional visitors.

Conclusions

No decision of an equivalent court in another country gives convincing guidance on the approach to the appellants' claim for refugee status under the Convention definition. There is no holding which should be followed by this Court, in the present appeal, in order to promote a consistent approach to claims to refugee status by Chinese nationals, out of the PRC, who prove a well-founded fear that, on their return, they may be subjected to unconsensual sterilisation or abortion to prevent further reproduction. The decisions on such claims in Canada and the United States are equivocal ^[F301] . They reflect the differences of opinion which have occurred in the Federal Court of Australia in this case and, perhaps, differences in factual findings at first instance.

The phrase "particular social group", where used in the Convention, does not provide a "general safety-net" to cover any form of persecution. But it is clearly a phrase with a wide denotation. It appears in a context which suggests that the "group" is of a kind that will be subject to the same type of persecution, leading to attempted escape and claim for refuge, as has happened in the past on grounds of race, religion, nationality and political opinion.

Can it be said that the class of person identified by the features demonstrated by the appellants represent such a "particular social group" of that character? Once it is remembered that associational membership is not essential; that precise knowledge of the identity of other members of the group is not required; and that identification as a member of the "group" is not universal, acceptance that persons such as the appellants may be members of a "particular social group" becomes much easier. In my view, there is a "particular social group" of the kind suggested, defined by the objective characteristics which exist in the case of the appellants. Such membership exposes them to the well-founded fear of persecution, including possibly by enforced sterilisation and abortion. Clearly, they are not alone, either in their fear or in their risk of persecution. A comparison of their "group" with many which have been recognised in other circumstances (set out above) as falling within the definition confirms this conclusion.

Every word of the definition is important. "Membership of a particular social group" is not alone sufficient to attract the definition to the appellants. Relevantly, such persons must show three additional matters. Two of them are accepted in this case: that the appellants have a well-founded fear of being persecuted, in the sense of being submitted to compulsory sterilisation, if they return to the PRC; and secondly that it is owing to such fear that they are unwilling to return to their country of nationality. That leaves the third, and crucial, requirement. It is contained in the words "for reasons of". They must show that the persecution they fear is "for reasons of" the established membership of the "particular social group".

Here is the ultimate dilemma of this appeal. Is the persecution of the appellants "for reasons of" their membership of the "particular social group" so defined? Or is it simply because the law of the PRC, as arbitrarily administered in their particular village, results in the likelihood that they, individually, will be sterilised against their will?

The task of the Court is one of characterising the "reasons" for the "persecution". I accept that there are arguments for both viewpoints. For the Minister it is not membership of the "group" that is critical. For the appellants the "group" defines the very persons who will be, and are, persecuted.

Once it is decided that the "particular social group" to which the appellants belong is that which is susceptible to enforced sterilisation or abortion and that this is the kind of "group" to which the Convention definition might apply, the establishment of the causal connection between the well-founded fear of persecution and membership of that group is not difficult to discern. The error in the Minister's contention lies in its emphasis upon the word "membership", as if it imported the associational connection which was certainly not intended as the history of the introduction of this category clearly demonstrates. A reflection on the "groups" set out above, membership of which has been held in the courts of this and other countries to attract the definition, negates the requirement of such an associational participation or even consciousness of such group membership.

The conduct which the appellants fear is conduct targeted at them precisely because of the characteristics which they have as members of their community. Yet it is those characteristics that constitute them as members of a "particular social group" within that community. Their vulnerability to enforced sterilisation or abortion arises precisely because they have those characteristics. As such, they would be quite visible in their village. The appellants' circumstances are readily distinguishable from those in which a national, who has broken the law, is in danger of punishment on return. Their cases bear no analogy to those of the return of a person to Ghana to face charges of corruption, or to Iran to face possible punishment for drug dealing or to Bolivia or Ireland to face possible retaliation from erstwhile compatriots. The law and policy which the appellants resist is of such a character, and so incompatible with their basic dignity and physical integrity, that they should not be forced to submit to it. Like infractions of a person's race, religion, nationality or political opinion, the impugned persecutory conduct, as found, attacks features of their very existence as human beings which are fundamental and beyond any country's legitimate law and policy. It both explains and justifies their "well-founded fear".

This conclusion supports the original determination of the Tribunal and the opinion of Sackville J confirming it. It requires correction of the orders of the Full Court of the Federal Court. Having regard to this conclusion, it is unnecessary to consider the alternative challenge to the rejection by the Tribunal of the appellants' claim that they were entitled to succeed on the basis of persecution for reasons of political opinion. However, I see no error in the Tribunal's determination in that regard.

Orders

I agree in the orders proposed by Brennan CJ.