Applicant A & anor v Minister for Immigration & Ethnic Affairs & anor

(1997) 190 CLR 225

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(Judgment by: Brennan CJ)

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

Court:

Judges:
Brennan CJDawson
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

Hearing date: 6 MARCH 1996
Judgment date: 24 FEBRUARY 1997

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Judgment by:
Brennan CJ

I have had the opportunity of reading in draft the judgment of McHugh J. I gratefully adopt what his Honour has written relating to the facts giving rise to this appeal and the statutory framework in which the proceedings were taken in the Refugee Review Tribunal and the Federal Court. The question for present determination is, as his Honour states it, whether the appellants are refugees within the meaning of that term in s 4(1) of the Migration Act 1958 (Cth) ("the Act") and entitled to have their applications for visas and entry permits considered on that basis.

The term "refugee" is defined by s 4(1) of the Act ^[F1] to have the same meaning as it has in Art 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") or in that Article as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). I respectfully agree with the principles stated by McHugh J which govern the interpretation of a treaty or a treaty provision enacted in or as part of a domestic statute. But I would add the following comment.

If a statute transposes the text of a treaty or a provision of a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty ^[F2] . To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way ^[F3] .

In interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretative rules. The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.

In the present case, I would interpret the definition of "refugee" in Art 1A(2) of the Convention as amended by the Protocol in the light of the object and purpose appearing in the preamble and the operative text and by reference to the history of the negotiation of the Convention. This leads me to a conclusion different from that at which McHugh J arrives. The points of departure will appear from the reasons which follow.

The first two considerations recited in the preamble contain an indication of the Convention's purpose. They read:

"CONSIDERING that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, CONSIDERING that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms".

By invoking "the principle that human beings shall enjoy fundamental rights and freedoms without discrimination" and by speaking of the United Nations' "profound concern for refugees" and its endeavour "to assure refugees the widest possible exercise of these fundamental rights and freedoms", the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms. As it is sadly notorious that, in many parts of the world, governments authorise or are unable or unwilling to prevent persecution, the fourth paragraph of the preamble recognises "that the grant of asylum may place unduly heavy burdens on certain countries". The Convention places on Contracting States a number of obligations the observance of which would afford a refugee who finds himself or herself in the territory of a Contracting State a substantial measure of protection of the refugee's fundamental rights and freedoms.

The protection of fundamental rights and freedoms is an object of the Convention and that object is reflected in the definition of the term "refugee" in Art 1(A)(2) as amended.

The relevant part of Art 1(A)(2) reads as follows:

"... the term 'refugee' shall apply to any person who:

...

(2) Owing to a 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."

When a person has a well-founded fear of persecution, the enjoyment by that person of his or her fundamental rights and freedoms is denied. Forced sterilisation has been seen as a denial of a person's fundamental rights and freedoms ^[F4] . It offends the fundamental human right to the security of the person ^[F5] and it destroys, of course, a person's reproductive capacity ^[F6] . It has not been argued that, if the other elements of the definition are satisfied, forced sterilisation does not satisfy the element of persecution. The Tribunal found that each appellant had a well-founded fear of forced sterilisation.

However, the object and purpose of the Convention is not simply the protection of those who suffer a denial of enjoyment of their fundamental rights and freedoms; they must suffer that denial by prescribed kinds of persecution, that is, persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion".

The feared "persecution" of which Art 1(A)(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to "the country of his nationality" for protection of his fundamental rights and freedoms but, if "a well-founded fear of being persecuted" makes a person "unwilling to avail himself of the protection of [the country of his nationality]", that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent. Then, Art 1C(5) provides that a refugee can no longer "continue to refuse to avail himself of the protection of the country of his nationality" if "the circumstances in connexion with which he has been recognized as a refugee have ceased to exist". As the justification for the refugee's not availing himself of the protection of that country is the existence of the relevant "circumstances", those circumstances must have been such that the country of the refugee's nationality was unable or unwilling to prevent their occurrence. Thus the definition of "refugee" must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality ^[F7] .

Secondly, the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination ("race, religion, nationality, membership of a particular social group or political opinion") mentioned in Art 1(A)(2). The persecution must be "for reasons of" one of those categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non- discriminatory denial of fundamental rights and freedoms. The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee". But the categories of discrimination mentioned in the definition are very broadly stated, especially the category of "membership of a particular social group".

The discriminatory bases of feared persecution prescribed by Art 1(A)(2) were settled at the Conference of Plenipotentiaries held at Geneva from 2 to 25 July 1951. The inclusion of the basis "particular social group" is attributable to an intervention by the representative of Sweden, Mr Petren, who noted ^[F8] that -

"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."

Neither the Swedish proposal ^[F9] nor any reported discussion illuminates the intended scope of the term "a particular social group". Later in the Conference, when a draft of what became Art 33 was under consideration, the Swedish representative procured, without substantial discussion, the insertion of the same term in the draft of that Article ^[F10] . The term "a particular social group" was added in order to make express provision covering the persecution of a group that might not fall within any of the other bases of persecution, even though the other categories ("race, religion, nationality ... or political opinion") might have identified the persons subject to persecution for any of those reasons as a "social group". Clearly, the term "a particular social group" is not confined to the groups constituted by the other categories of reference.

There is nothing in the term "a particular social group" which limits the criteria for selecting such a group nor anything in the travaux preparatoires which suggests that any limitation was intended. There is no reason to treat "a particular social group" as necessarily exhibiting an inherent characteristic such as an ethnic or national identity or an ideological characteristic such as adherence to a particular religion or the holding of a particular political opinion. By the ordinary meaning of the words used, a "particular group" is a group identifiable by any characteristic common to the members of the group and a "social group" is a group the members of which possess some characteristic which distinguishes them from society at large. The characteristic may consist in any attribute, including attributes of non-criminal conduct or family life, which distinguish the members of the group from society at large. The persons possessing any such characteristic form a particular social group ^[F11] . If membership of a social group, however constituted, attracts persecution, the enjoyment by the members of that group of their fundamental rights and freedoms is denied, and the denial is prima facie discriminatory. In the definition of "refugee", should the term "a particular social group" be given some meaning more restricted than its words would ordinarily bear?

The leading concept in the definition of the term "refugee" is the "fear of being persecuted" for a discriminatory reason ^[F12] . If a putative refugee's enjoyment of his or her fundamental rights and freedoms is denied by a well- founded fear of persecution for a reason that distinguishes the victims as a group from society at large, it would be contrary to "the principle that human beings shall enjoy fundamental rights and freedoms without discrimination". It would therefore be contrary to the object and purpose of the Convention to exclude that putative refugee from the protection which the Convention requires the Contracting Parties to accord. I see no warrant for reading down the categories of discrimination by postulating some a priori factor that restricts the denotation of the phrase "a particular social group", ignoring the actual reason for the feared persecution.

This is a view which commands some, but not universal, support ^[F13] . Perhaps the most cogent argument against this view was stated by La Forest J, speaking for the Court in Canada (Attorney-General) v. Ward ^[F14] . His Lordship rejected a wide interpretation of the term "a particular social group" which would effectively make it a "safety net to prevent any possible gap in the other four categories" ^[F15] of discrimination. He said ^[F16] :

"Although the delegates inserted the social group category in order to cover any possible lacuna left by the other four groups, this does not necessarily lead to the conclusion that any association bound by some common thread is included. If this were the case, the enumeration of these bases would have been superfluous; the definition of 'refugee' could have been limited to individuals who have a well-founded fear of persecution without more."

Although I find other parts of his Lordship's judgment compelling, with great respect I am unable to agree with this aspect. In the first place, the enumeration of the bases restricts the protection to victims of persecution that is officially practised or tolerated. Next, the enumeration of those bases restricts the protection to members of persecuted groups. But the insertion of the social group category of discrimination in both Art 1(A)(2) and Art 33 of the Convention was intended to include groups that would not be identified by any of the other categories of discrimination, whether or not the term "a particular social group" would be wide enough to encompass those other categories. Thus the inserting of the term was intended to be a "safety net" for any who fell within it. Further, the term "for reasons of" was needed to exclude persecutions that were not based on some characteristic which distinguishes the victims on racial, religious, national, social or political grounds.

In Canada (Attorney-General) v. Ward , La Forest J identified ^[F17] three possible sub- categories which he accepted as coming within the category of a particular social group:

"(1) groups defined by an innate or unchangeable characteristic;

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

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

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."

However, in Chan v. Canada , La Forest J (with the concurrence of L'Heureux-Dube and Gonthier JJ) accepted ^[F18] that persons who share a characteristic need not be associated one with another before the characteristic attracts persecution. And, for my part, I see no ground for holding that a characteristic must be "innate or unchangeable" before it can distinguish a social group. If a characteristic distinguishes a social group from society at large and attracts persecution to the members of the group that is so distinguished, I see no reason why a well-founded fear of that persecution might not support an application for refugee status. An attempt to confine the denotation of the term "a particular social group" in order to restrict the protection accorded by the Convention would be warranted if it were assumed that the Convention was intended to impose minimal obligations on the receiving State but, if the object and purpose of the Convention is the protection so far as possible of the equal enjoyment by every person of fundamental rights and freedoms, the term "a particular social group" should be given a wide interpretation. The term should be understood simply to connote a group constituted by those who share a common distinguishing characteristic which is the "reason" for persecution that is feared.

In my opinion, the appropriate way to apply the definition in the present case is to find the answer to a series of questions:

1.

Does the putative refugee fear persecution?

2.

Is the fear well-founded?

3.

Is the feared persecution practised or likely to be practised because of a characteristic of the victims that is not common to the members of the society at large?

4.

Is the persecution practised officially or is it officially tolerated or is the government of the country of the putative refugee's nationality unable to control it?

5.

Is the putative refugee unwilling to avail himself or herself of the protection of the country of his or her nationality?

6.

Is that unwillingness due to the feared persecution?

In the present case, the Refugee Review Tribunal found that the appellants were members of a particular social group. The Tribunal said of the female appellant:

"The Tribunal believes that parents in the reproductive age group form a social group in China. There is an historical beginning to the defining of this group, with the establishment of a national policy to constrain the growth of the population, a policy which, by laws and regulations, throughout the 1970's and the 1980's produced sub- categories of people such as 'people with one child', 'people with more than one child', 'the floating population who are parents', 'rural people with children', 'minority nationality couples with children' (see Feng Guoping and Hao Linna, A Summary of the Family Planning Regulations for 28 Regions in China , Department of Policy and Regulations, State Family Planning Commission, translated from Population Research, No 4, 1992, pp 28-43). 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 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. 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."

Similar findings were made in relation to the male appellant, though the Tribunal spoke of "parents of one child" rather than "parents in the reproductive age group". It is immaterial that the persecution which the appellants fear, namely, forced sterilisation, is practised locally by officials in the area of Bang Hu rather than throughout China. The practice is officially tolerated. It is not indiscriminate persecution that is feared. It is forced sterilisation of those who, being the parents of one child, have not voluntarily adopted one of the birth-preventing mechanisms approved by the local officials. The characteristic of being the parent of a child and not having voluntarily adopted an approved birth-preventing mechanism distinguishes the appellants as members of a social group that shares that characteristic ^[F19] . It is their membership of that group that makes them liable to sterilisation if they return to Bang Hu. Affirmative answers appear from the findings of the Tribunal to each of the questions above set out. It follows that, on the findings made by the Tribunal, the Tribunal was right to hold that each of the appellants was a "refugee". Sackville J was therefore correct in dismissing the order of review.

I would allow the appeal, set aside the order of the Full Court and in lieu thereof dismiss with costs the appeal from the order of Sackville J to the Full Court.