Applicant A & anor v Minister for Immigration & Ethnic Affairs & anor
(1997) 190 CLR 225(Judgment by: McHugh J)
APPLICANT A & ANOTHER v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOTHER
Court:
Judges:
Brennan CJ
Dawson
McHughGummow
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 date: 24 FEBRUARY 1997
Judgment by:
McHugh J
The question in this appeal is whether the appellants are persons who, "owing to well-founded fear of being persecuted for reasons of ... membership of a particular social group", are outside the country of their origin and are unable or unwilling to avail themselves of the protection of the country of their origin. If they are, they are refugees within the meaning of s 4 of the Migration Act 1958 (Cth) ("the Act") and entitled to have their applications for visas and entry permits into Australia considered on that basis. In my opinion, however, they have not established any facts from which it could be concluded that they are "refugees" within the meaning of the Act.
The appellants' personal history
The appellants are husband and wife. They are nationals of the People's Republic of China ("PRC"). Until late in 1993, they lived in Bang Hu, an isolated village some 25 kilometres from Guangzhou City. On 5 December 1993, they arrived in Australia by boat but were detained under s 54B of the Act as persons reasonably supposed to be illegal entrants. Subsequently, they lodged applications with the Department of Immigration and Ethnic Affairs for recognition as refugees. Those applications were deemed to be applications for relevant entry permits and visas [F60] .
The statutory framework
Section 22AA of the Act provided:
"If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee." [F61]
Pursuant to this section, the appellants lodged applications for refugee status. Regulation 2A.5 of the Regulations, made pursuant to s 181 of the Act, deemed an application for refugee status to be an application for relevant visas and entry permits [F62] .
Section 4(1) of the Act defines the term "refugee" as having the same meaning as it has in Art 1 of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention"), as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). Article 1A(2) of the Convention relevantly defines a "refugee" as:
" any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". (my emphasis)
The procedural history
The appellants' applications under s 22AA were refused by a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister"), the first respondent. That decision was reversed by the Refugee Review Tribunal ("the Tribunal"), the second respondent, which held that they were refugees within the meaning of s 4(1) of the Act. The Tribunal ordered the Minister to re-determine the appellants' applications for visas and entry permits. In the Federal Court, Sackville J held that the Tribunal had made no error of law in making its decision. The Full Court of the Federal Court unanimously reversed the decision of Sackville J and affirmed the decision of the Minister's delegate. Pursuant to the grant of special leave, the appellants now appeal to this Court.
The findings of the Tribunal
The Tribunal found the appellants had left the PRC because they feared sterilisation under the "One Child Policy", a government policy that insisted that Chinese families have only one child. The female appellant gave birth to a son on the day after the appellants arrived in Australia. The son was the first child of the marriage. The Tribunal found that there was "evidence that coercive measures are used [in the implementation of the PRC's family planning policy] and that these coercive measures range from forms of civil discrimination to fines and to forced contraception, sterilisation and abortion". The Tribunal found that such actions amounted to persecution for a Convention reason. In its findings concerning the husband, the Tribunal said:
"The Tribunal finds that the criteria laid down for defining a particular social group in the Morato [F63] case permit the recognition of 'those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised' as such. The group exists by virtue of government policy and government action and is thereby cognisable. The persecution feared is precisely because the Applicant is defined into the group by government policy."
The Tribunal found that the husband's fear of persecution was "well founded" and that he was a refugee.
The Tribunal made similar findings in respect of the wife and declared her to be a refugee.
Interpretative principles
The term "refugee" in s 4 of the Act has the same meaning that it has in the Convention and the Protocol. In Australia, treaties are interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties ("the Vienna Convention") [F64] . Article 31 of the Vienna Convention, referred to in this Court as the "leading general rule of interpretation of treaties" [F65] , is relevant. It provides:
" Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
- (a)
- any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
- (b)
- any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
- (a)
- any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
- (b)
- any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
- (c)
- any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended."
The first paragraph of the article contains three separate but related principles. First, an interpretation must be in good faith, which flows directly from the rule pacta sunt servanda [F66] . Second, the ordinary meaning of the words of the treaty are presumed to be the authentic representation of the parties' intentions. This principle has been described as the "very essence" of a textual approach to treaty interpretation [F67] . Third, the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose [F68] .
Commentators differ as to the correct interpretation of Art 31. Differences of opinion exist as to the circumstances in which the "context ... object and purpose" of the treaty may be used to supplement the "ordinary meaning" of the treaty. Inherent in this debate is the question of whether the textual interpretation of the words, embodied in the phrase "ordinary meaning", should be afforded interpretative precedence. Some commentators have argued that the literal meaning has no precedence and that the object of the treaty must always be taken into account [F69] ; some have argued that the two general levels of inquiry embodied in par 1 of Art 31 have a single combined operation [F70] ; and some have argued that words and phrases of a treaty are in the first instance to be construed according to their plain and natural meaning and that it is only when the result of such an inquiry is doubtful that one should look to a treaty's context, object and purpose [F71] .
Australian decisions provide no clear answer as to whether Art 31 requires or merely allows recourse to the context, object and purpose of a treaty in interpreting one of its terms. It is clear that such recourse is, in some circumstances, permissible. On numerous occasions, Australian courts have sought to discern the purpose of a treaty so as to construe a treaty term [F72] . What is not clear from the decided cases, however, are the circumstances which require or allow recourse to the context, object and purpose of a treaty. Nor have those cases clarified the nature of the relationship between the context, object and purpose of a treaty and the "ordinary" textual analysis of one of its provisions.
However, in my view, the opinion of Zekia J in the European Court of Human Rights in Golder v. United Kingdom [F73] states the correct approach for interpreting Art 31. Zekia J stressed that a holistic approach was required by Art 31 of the Vienna Convention. Having considered the text of Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention"), and having described the textual analysis as "'the primary source of ... interpretation'" [F74] , he said [F75] :
"I pass now to the contextual aspect of Article 6(1). ... [T]he examination of this aspect is bound to overlap with considerations appertaining to the object and purpose of a treaty. There is no doubt, however, that interpretation is a single combined operation which takes into account all relevant facts as a whole." (emphasis in original)
Later, having considered the context, object and purpose of the European Convention, he concluded [F76] :
"I have already endeavoured to touch the main elements of interpretation in some order. When all elements are put together and considered compositively, to my mind the combined effect lends greater force to the correctness of the opinion submitted."
Thus, Zekia J emphasised an ordered yet holistic approach. Primacy is to be given to the written text of the Convention but the context, object and purpose of the treaty must also be considered. Similar sentiments were expressed by Murphy J in The Commonwealth v. Tasmania (The Tasmanian Dam Case) [F77] where, in reference to the UNESCO Convention for the Protection of the World Cultural and National Heritage, his Honour said:
"The Convention should be interpreted giving primacy to the ordinary meaning of its terms in their context and in the light of its object and purpose (Art 31(1), Vienna Convention on the Law of Treaties)".
In my opinion, the approaches of Zekia J and Murphy J are correct and should be followed in this country. First, as Brownlie points out [F78] , Art 31 is headed in the singular: "General rule of interpretation". This use of the singular indicates that Art 31 is to be interpreted in a holistic manner. As the International Law Commission, whose draft articles on the law of treaties exactly mirrored Art 31 of the Vienna Convention [F79] , commented [F80] :
"The Commission, by heading the article 'General rule of interpretation' in the singular ... intended to indicate that the application of the means of interpretation in the article would be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation. ... [T]he Commission desired to emphasize that the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule."
Second, taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on the "four corners of the actual text" in discerning the meaning of that text [F81] . The text of the treaty, being the starting point in any investigation as to the meaning of the text, necessarily has primacy in the interpretation process. As the International Law Commission has noted [F82] :
"The article ... is based on the view that the text must be presumed to be the authentic expression of the intentions of the parties; and that, in consequence, the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties." [F83]
The need to give the text primacy in interpretation is accentuated by the tendency of multilateral instruments to be the result of various compromises by various States or groups of States. If the subjective intentions of their representatives were the criterion, the interpretation of many international instruments might be impossible.
Third, the mandatory requirement that courts look to the context, object and purpose of treaty provisions as well as the text is consistent with the general principle that international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation [F84] .
Fourth, international treaties often fail to exhibit the precision of domestic legislation. This is the sometimes necessary price paid for multinational political comity [F85] . The lack of precision in treaties confirms the need to adopt interpretative principles, like those pronounced by Zekia J, which are founded on the view that treaties "cannot be expected to be applied with taut logical precision" [F86] .
Accordingly, in my opinion, Art 31 of the Vienna Convention requires the courts of this country when faced with a question of treaty interpretation to examine both the "ordinary meaning" and the "context ... object and purpose" of a treaty.
The meaning of "membership of a particular social group" must be construed in the light of the definition of "refugee" taken as a whole
For the purpose of this appeal, the definitional phrase that the Court is required to construe is neither "membership of a particular social group" nor the more limited phrase "particular social group". The real question, dictated by s 4(1) of the Act, is to ascertain whether the Tribunal erred in law in finding that the appellants are persons:
"who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [are] outside the country of [their] nationality and [are] unable or, owing to such fear, [are] unwilling to avail [themselves] of the protection of that country".
The first respondent has conceded that sterilisation could be the basis of a well-founded fear of persecution by the appellants. But that does not mean that the words "well-founded fear of being persecuted" should be ignored when construing that part of the phrase which is in dispute. The phrase "a well founded fear of being persecuted for reasons of ... membership of a particular social group" is a compound conception. It is therefore a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations. Indeed, to ignore the totality of the words that define a refugee for the purposes of the Convention and the Act would be an error of law by virtue of a failure to construe the definition as a whole.
Where the claim is one of a "well-founded fear of being persecuted for reasons of ... membership of a particular social group", the interaction between the concepts of "persecuted", "for reasons of" and "membership of a particular social group" is particularly important. Defining the group widely increases the difficulty of proving that a particular act is persecution "for reasons of ... membership" of that group. Thus, if the social group in the present case is defined to mean parents with one child, any involuntary sterilisation of the appellants (which is the relevant persecutory act) would not be "for reasons of ... membership" of that group because, even on the most favourable view of the appellants' case, it would be the particular refusal of the appellants to undergo voluntary sterilisation or to comply with government policy - not their membership of the group of parents with one child - that would lead to action against them. As the Tribunal acknowledged, those who complied with the government's policy - whatever their own wishes about having more than one child - were rewarded, not punished. Persons with one child, therefore, are not indiscriminately sterilised for the reason that they have one child. Involuntary sterilisation is neither the policy of the government nor the usual effect of its one child policy. According to the evidence before the Tribunal, involuntary sterilisation occurs mainly in rural areas and is the result of the attitudes of over zealous local officials. It would seem that most Chinese parents are not involuntarily sterilised even when they breach the policy. To succeed in this case, the appellants need to prove membership of a group other than the group of Chinese parents with one child.
Paradoxically, defining the group narrowly may take it outside the concept of "a particular social group" and increase the difficulty of proving that the act relied on is persecution "for reasons of ... membership " of the group. If the definition of a group has to be hedged with qualifications to relate it an alleged persecutory act, the proper conclusion may be that the reason for the act was not membership of the group but the conduct of the individual. Prisoners, for example, are arguably a particular social group. If they are routinely beaten because they are prisoners, they may well qualify for refugee status. But narrow the group to prisoners who refuse to obey prison regulations and the case for an applicant becomes so much harder of proof. The applicant will have difficulty in proving the existence of "a particular social group" and in proving that the persecution (bashings) are "for reasons of ... membership" of that group rather than for his or her refusal to obey the regulations.
When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.
Persecution
Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.
Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution [F87] . Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race [F88] .
However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny [F89] . In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.
In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime.
The meaning of membership of a particular social group
Courts and jurists have taken widely differing views as to what constitutes "membership of a particular social group" for the purposes of the Convention. This is not surprising. The phrase is indeterminate and lacks a detailed legislative history and debate. Not only is it impossible to define the phrase exhaustively, it is pointless to attempt to do so.
Records of the Convention's preparation, which are legitimate interpretative material under Australian law [F90] , reveal that the category of "particular social group" was the last of the enumerated grounds in Art 1A(2) to be added and that it was added with the intention to broaden the reach of the other four grounds [F91] . However, nothing in the prior history or the record of the Convention supports the conclusion that the category of "particular social group" was added to provide a safety- net for all persons subject to persecution who did not fall within the other enumerated grounds. Dr Hathaway correctly notes that while "[t]he notion of social group as an all-encompassing residual category is seductive from a humanitarian perspective, since it largely eliminates the need to consider the issue of a linkage between fear of persecution and civil or political status" [F92] , it ignores the purpose of the instrument's drafters. If they had intended to provide a "catch-all which could include all the bases for and types of persecution which an imaginative despot might conjure up" [F93] , it is more likely than not that they would have amended the draft treaty by eliminating the specified grounds of persecution. Indeed, if the drafters had intended the term "a particular social group" to act as a "catch-all", it is surprising that they did not amend the Convention to provide that any person who had a well- founded fear of persecution was a refugee [F94] .
Some decisions have interpreted the definition of refugee very narrowly [F95] . In Sanchez- Trujillo v. INS [F96] , for example, the United States Court of Appeals for the Ninth Circuit, in holding that a "class of young, urban, working-class [El Salvadorian] males of military age who had maintained political neutrality" [F97] was not a "particular social group", said [F98] :
"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."
The decision, and particularly its employment of the notion of the necessity of a "voluntary associational relationship", has been criticised as an unduly narrow interpretation of the phrase [F99] .
The reasoning in Sanchez-Trujillo can be contrasted with the reasoning of MacGuigan JA in his dissenting judgment in the Canadian Federal Court of Appeal in Canada (Attorney- General) v. Ward [F100] . In Ward, the Court of Appeal had to consider whether a former member of the Irish National Liberation Army who had assisted the escape of certain hostages, whom he was guarding, was a member of a "particular social group". His Lordship rejected an approach that would have placed the ordinary meaning of the phrase in a position of interpretative primacy. He said that attempts to derive "an absolute definition in the abstract" [F101] were erroneous because they tended to eliminate the "personal element" of the definition. Instead, he preferred a definition of "membership of a particular social group" that included persons who were "united in a stable association with common purposes" [F102] , reasoning that "[i]n a world fractured by racism and religion, politics and poverty, reality is too complex to be thus limited by conceptual absolutes" [F103] . On appeal, the Supreme Court of Canada criticised MacGuigan JA's definition as an example of "a very wide definition" founded on the notion that the Convention's purpose or object in including the category of "membership of a particular social group" was an attempt to provide a safety-net for all persecuted persons who would not fall within the other four categories of persons enumerated in Art 1A(2) of that Convention [F104] .
In the result, courts and tribunals in the United States and Canada have given many decisions which cannot be reconciled with each other, having regard to their material facts. Thus, courts and tribunals in the United States have held that the following groups were not "particular social groups": a co-operative of taxi drivers in El Salvador [F105] , cheesemakers in El Salvador [F106] , family members of deserters from the Salvadorian army [F107] , women who have previously been raped and bashed by Salvadorian guerillas [F108] , urban working class males of military age [F109] , associates of Imelda Marcos in the inner circle of a social and philanthropic group in the Philippines known as the Blue Ladies [F110] , "poor Yemeni Moslems who were discriminated against because they could not avoid execution by paying 'blood money' to the victim's family" [F111] , a family in which one member had been killed and another kidnapped [F112] , Chinese citizens whose flight aboard a vessel had attracted embarrassing publicity for the PRC government [F113] and drug traffickers [F114] . In Yang v. Carroll [F115] a Federal District Court held that "[o]n the facts of this case, PRC families with more than one child are more appropriately characterized as a demographic division than as a social group".
On the other hand, the First Circuit Court of Appeals has held [F116] that a student who claimed that she was a member of three groups: (1) the Ashanti tribe; (2) professional, business and educated people; and (3) those associated with a recently overthrown government was a member of "a particular social group". The Third Circuit has also recognised the women of Iran as "a particular social group" [F117] .
Canadian courts and tribunals have held that former members of a paramilitary terrorist organisation were not a particular social group [F118] but that a
sports club [F119] and Trinidadian women subject to wife abuse [F120] were particular social groups. They also have divided on the question of whether Chinese groups similar to those involved in the present appeal are "a particular social group". In Cheung v. Canada (Minister of Employment and Immigration) [F121] , the Federal Court of Appeal held that they were, while in Chan v. Canada (Minister of Employment and Immigration) [F122] a differently constituted court held that they were not.
Persecution as a defining element of "a particular social group"
The concept of persecution can have no place in defining the term "a particular social group". While decisions that have sought to apply the ejusdem generis principle to discern the meaning of "particular social group" are problematic because it is difficult to identify a genus common to "race, religion, nationality ... [and] political opinion" [F123] , one factor common to these four categories is that the fact or fear of persecution plays no role in understanding their content. If the drafters did not intend persecution to be relevant in defining those four categories, it would seem likely that they did not intend persecution to play any part in defining what is a "particular social group". Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the "particular social group" ground to take on the character of a safety- net. It would impermissibly weaken, if it did not destroy, the cumulative requirements of "fear of persecution", "for reasons of" and "membership of a particular social group" in the definition of "refugee". It would also effectively make the other four grounds of persecution superfluous.
That being so, persons who seek to fall within the definition of "refugee" in Art 1A(2) of the Convention must demonstrate that the form of persecution that they fear is not a defining characteristic of the "particular social group" of which they claim membership [F124] . If it were otherwise, Art 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution. The words of Heald JA, sitting in the Canadian Federal Court of Appeal on a claim for membership of a "particular social group" because of a fear of compulsory sterilisation under the PRC's "One Child Policy", seem as applicable in Australia as they were in Canada. His Lordship said [F125] :
"This leads me to a fundamental objection to acceptance of the group of parents with more than one child who are faced with forced sterilization as a 'particular social group'. 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. ... While some may believe that the definition of Convention refugee should embrace all persons who have a reasonable fear of persecution, this is not the definition which Parliament has seen fit to enact." (emphasis in original)
Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left- handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.
The fact that the actions of the persecutors can serve to identify or even create "a particular social group" emphasises the point that the existence of such a group depends in most, perhaps all, cases on external perceptions of the group. The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in the "particular social group" category is the notion of "membership" expressly mentioned. The use of that term in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group. Those indiscriminately killed or robbed by guerillas, for example, are not a particular social group.
A group may qualify as a particular social group, however, even though the distinguishing features of the group do not have a public face. It is sufficient that the public is aware of the characteristics or attributes that, for the purposes of the Convention, unite and identify the group. In Roman times, for example, Christians were a particular social as well as religious group although they were forced to practise their religion in the catacombs. If the homosexual members of a particular society are perceived in that society to have characteristics or attributes that unite them as a group and distinguish them from society as a whole, they will qualify for refugee status. Nor is it necessary that the group should possess the attributes that they are perceived to have [F126] . Witches were a particular social group in the society of their day, notwithstanding that the attributes that identified them as a group were often based on the fantasies of others and a general community belief in witchcraft.
The drafting history of the term "particular social group" is meagre but it gives support to a wide reading of that term. The "membership of a particular social group" category was added to the draft Convention on the initiative of a Swedish delegate who said [F127] :
"experience had shown that certain refugees had been persecuted because they belonged to particular social groups. The draft Convention made no provision for such cases, and one designed to cover them should accordingly be included."
It is apparent therefore that the makers of the Convention identified "membership of a particular social group" with persecutions of particular groups which had taken place before 1950 and which were not directed at racial, religious, national or political groups. It seems likely that the category of "particular social group" was at least intended to cover those groups persecuted because of "the 'restructuring' of society then being undertaken in the socialist States and the special attention reserved for landowners, capitalist class members, independent business people, the middle class and their families" [F128] . In Bastanipour v. INS [F129] , Posner J thought that the kulaks (affluent Russian peasants) who had been persecuted by Stalin were the sort of group intended to be covered by the term "particular social group". All the foregoing groups are disparate in character. But what distinguishes their members from other persons in their country is a common attribute and a societal perception that they stand apart. Persecution, of course, reinforces the perception that they are "a particular social group" in their country. The historical background therefore supports a wide reading of the term "particular social group". So too does the humanitarian policy of the Convention which is to protect those sections of a nation who have been deprived of the de jure or de facto protection of their government.
However, the association of the term "membership of a particular social group" with race, religion and nationality indicates that "a particular social group" was probably intended to cover only a relatively large group of people. The concepts of race, religion and nationality imply groups of hundreds of thousands, in some cases millions, of people. It is unlikely that, in adding "a particular social group" to the Convention categories, the makers of the Convention had in mind comparatively small groups of people such as members of a club or association. The Convention was not designed to provide havens for individual persecutions. It seems unlikely therefore that, having turned their back on individual persecution, the makers of the Convention intended the phrase "a particular social group" to be confined to small groups of individuals "closely affiliated with each other" as is perhaps suggested in Sanchez-Trujillo [F130] . Further support for this conclusion is given by the fourth paragraph of the Preamble to the Convention which suggests that the Convention was designed to provide refuge for mass movements of persecuted people. That paragraph declares:
"CONSIDERING that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co- operation."
It follows that, once a reasonably large group of individuals is perceived in a society as linked or unified by some common characteristic, attribute, activity, belief, interest or goal which itself does not constitute persecution and which is known in but not shared by the society as a whole, there is no textual, historical or policy reason for denying these individuals the right to be classified as "a particular social group" for Convention purposes.
The "particular social group" that the appellants rely upon is impermissibly defined by reference to persecutory conduct
The exact formulation of the "particular social group" that the appellants sought to rely upon in this Court was not always clear. Ultimately, counsel for the appellants described it as "Han people who are parents [in the PRC prefecture which includes Bang Hu], who have one child and who are in the reproductive age, who wish to have another [child], [and] who are subject to sanctions [that is, enforceable sterilisation] that are carried out by ... particular family planning police". He conceded that the "particular social group" upon which the appellants relied must include, as part of its definition, the persecutory conduct of forcible sterilisation. That being so, this proffered group is not "a particular social group" for the purpose of the Convention.
The Tribunal defined the "particular social group" differently from the way that counsel for the appellant defined it. In dealing with the husband's application, the Tribunal said that it believed "that parents of one child form a social group in China". After referring to the national policy to constrain the growth of the population and the laws and regulations which gave effect to that policy, the Tribunal said:
"For the purposes of national goals, regional and local regulations define parents of one child among other categories of people with children. Therefore, the group is defined by the government itself.
This group may be sub-divided. For the purposes of the matter before the Tribunal two sub-groups are identifiable, those who win the approval of the government by having only one child and who voluntarily choose from the selection of birth control methods placed before them by officials and those who, having only one child, either do not accept the limitations placed on them or who are coerced or forced into being sterilised by the officials of their area of local government.
The Tribunal finds that the criteria laid down for defining a particular social group in the Morato case [F131] permit the recognition of 'those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised' as such. The group exists by virtue of government policy and government action and is thereby cognisable. The persecution feared is precisely because the Applicant is defined into the group by government policy. These parents share a common social characteristic and are not set apart for another reason, such as race, religion, nationality or political opinion. Therefore the Tribunal will consider the Applicant's claims that he faces a real chance of persecution because of his membership of this particular social group."
In dealing with the wife's application, however, the Tribunal did not define the primary social group as "parents of one child". Instead, it said that it believed "that parents in the reproductive age group form a social group in China". After referring to the national policy to constrain the growth of population and the laws and regulations giving effect to that policy, the Tribunal then said:
"Therefore, the group of parents in the reproductive age group is defined by the government itself and accepted as a possible part of one's identification by China's citizens. It is not defined primarily by persecution since there are official rewards for practising birth control.
This group may be sub-divided."
The Tribunal then sub-divided the group in exactly the same way, using the identical language, that it had used in respect of the husband's application. One finding in the Tribunal's reasons that is unique to the wife warrants a brief comment. Towards the end of the paragraph which commences "[t]he Tribunal believes that parents in the reproductive age group form a social group in China", the Tribunal said "the group of parents in the reproductive age group is defined by the government itself and accepted as a possible part of one's identification by China's citizens " (emphasis added). Because of the significance of societal perception in defining "particular social group", this could be a finding of some significance. However, in my opinion, it does not advance the wife's case. As appears below, I do not think that the Tribunal held that "parents in the reproductive age group" was a relevant "particular social group" and it is clear that the societal perception referred to in this paragraph is limited to "parents in the reproductive age group".
Although the Tribunal held that "parents of one child form a social group in China" and that "the group of parents in the reproductive age group is defined by the government itself and accepted as a possible part of one's identification by China's citizens", the Tribunal did not, correctly in my opinion, regard either of these groups as relevantly "a particular social group" for Convention purposes. If it had, it would have erred in law because neither appellant had a well- founded fear of persecution for reasons of membership of either of these groups. It was not membership of either of these groups but the refusal or apprehended refusal to abide by the one child policy that brought about the appellants' fear of involuntary sterilisation.
While Sackville J took a contrary view, I do not think that the Tribunal made a finding that there were two particular social groups for Convention purposes: (1) those who, having only one child, do not accept the limitations placed on them; and (2) those who, having only one child, are coerced or forced into being sterilised. After the Tribunal had held in the case of the husband that "parents of one child form a social group in China" and in the case of the wife that "parents in the reproductive age group form a social group in China", the Tribunal went on to hold that each group might be sub-divided. It then said "[f]or the purposes of the matter before the Tribunal two sub-groups are identifiable". The first of them was "those who win the approval of the government by having only one child and who voluntarily choose from the selection of birth control methods placed before them by officials". The second sub-group was "those who, having only one child, either do not accept the limitations placed on them or who are coerced or forced into being sterilised". It was this sub-group which the Tribunal found satisfied the definition of particular social group as explained in Morato . The Tribunal then said that "[t]he group exists by virtue of government policy." This demonstrates to my mind that the Tribunal defined the second sub-group as the relevant "particular social group".
If, as I think is the case, the Tribunal was describing one group whose members had one of two separate attributes, it erroneously defined the second part of the group by reference to persecutory conduct. The reference to those "who are coerced or forced into being sterilised" shows that the Tribunal defined some members of the group by reference to the acts that gave rise to the well-founded fear of persecution. As a matter of law, that group could not be "a particular social group" for Convention purposes. Because the group has been erroneously defined, the Full Court was correct in setting aside the decision of the Tribunal.
If, on the other hand, the second sub-group that the Tribunal described was in substance two separate groups, namely "those who, having only one child, ... do not accept the limitations placed on them" and "those who, having only one child, ... are coerced or forced into being sterilised by the officials of their area of local government", its decision was also erroneous as a matter of law. The second separate group was, as I have said, erroneously defined as "a particular social group" by reference to persecutory conduct and there was no evidence upon which the Tribunal could find that the first separate group was a "particular social group" for Convention purposes.
There is no reason why persons "who, having only one child, ... do not accept the limitations placed on them" and who communicate that view to Chinese society could not be a "particular social group" in some situations. If, for example, a large number of people with one child who wished to have another had publicly demonstrated against the government's policy, they may have gained sufficient notoriety in China to be perceived as a particular social group. Any involuntary sterilisation of a member of the group simply because he or she was a member of the group would be persecution for reasons of membership of a particular social group as well as persecution for "political opinion". But that is not this case.
It is difficult to know exactly what the Tribunal meant when it spoke of "those who ... do not accept the limitations placed on them". In what it describes as the second sub-group, the Tribunal has contrasted these members with those "who are coerced or forced into being sterilised". If, as is probably the case, the Tribunal meant by "those who ... do not accept the limitations placed on them" those couples who believe that they should be able to have more than one child notwithstanding the government's policy, there is nothing to link the couples so as to create a perception that they constitute a particular social group. There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future; and others in the distant future. There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes. To classify such couples as "a particular social group" is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood. Indeed it is hard to see how such couples are even a group for demographic purposes.
It follows that it was not open as a matter of law for the Tribunal to conclude that the appellants had "a well-founded fear of being persecuted for reasons of ... membership of a particular social group".
Order
The appeal should be dismissed with costs.