The following extracts are taken from the judgments in ‘Applicant A’ & Anor v Minister for Immigration and Ethnic Affairs & Anor, the High Court, 24 February 1997. The appellants in the case were a married couple, nationals of the People’s Republic of China, who already had one child and wished to have at least one more. They had arrived by boat in Northern Australia without visas, and said that they feared compulsory sterilisation if they were returned to China. They then requested refugee status, arguing that they faced persecution in the form of compulsory sterilisation because of their membership of a ‘particular social group’, those who already had one child and wanted more. The appellants are termed ‘Applicant A’ (the husband) and ‘Applicant B’ (the wife). See accompanying article.

The case was heard by five judges of the High Court: Sir Gerard Brennan, the chief justice, Michael Kirby, Daryl Dawson, Michael McHugh, and Bill Gummow. The judgments were split two/three: Brennan and Kirby found for the appellants while Dawson, McHugh and Gummow found for the respondents.

EXTRACTS FROM THE JUDGMENTS FOR THE APPELLANTS

Brennan

[On interpreting the Convention]

‘In interpreting a treaty.... 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...’ [p. 1]

‘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 ...’ [p. 2]

[On the definition of a ‘particular social group’]

‘... 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. ...’ [p. 8]

Kirby

[On interpreting the Convention]

‘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 ... Nowadays, a different content and application of the phrase [a particular social group] affords the protection of the Convention deriving from a larger understanding of the "persecution" and the identity of the "particular social group" in question. The concept is not a static one. Nor is it one fixed by historical appreciation.’ [pp. 81-82]

[On human rights and population policy]

‘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. ... [T]he law actually invoked is that of an Australian statute.’ [p. 85]

‘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. ... 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 had been litigated and because of the concessions properly made by the Minister...

‘4 The mere fact that, potentially, very large number 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 [p. 86] 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) [1993]. It was not suggested that this has resulted in an intolerable flow of refugees of this category into Canada....’ [p. 87]

[Later in his judgment Kirby writes:]

‘... 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" ...’ [p. 104]

[On the definition of ‘membership of a particular social group’]

‘... 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. The words used are clearly very broad. This is doubtless deliberate. ... [p. 81]

‘... 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...’ [p. 99]

‘...The categories [of social groups relevant to the Convention definition] 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...’ [p. 100]

‘In the result, I agree with the opinion of Professor Fullerton citing the conclusions of Graves. 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. This approach conforms to the refusal of German courts to attempt a definition, or exhaustive description, of the category of "particular social groups". 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. 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 [p. 101] 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. ...

‘...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 ...’ [p. 102]

EXTRACTS FROM THE JUDGMENTS FOR THE RESPONDENTS

Dawson J.

[On interpreting the Convention]

‘... [T]he fourth preamble [of the Convention] recognises that "the grant of asylum may place unduly heavy burdens on certain countries" and the need for international cooperation, whilst the fifth preamble implores all States to recognise "the social and humanitarian nature of the problem of refugees" and "do everything within their power to prevent this problem from becoming a cause of tension between States"...’ [p. 21]

‘... [D]espite the reference in the Convention to the concern that persons enjoy the "widest possible exercise of ... fundamental rights and freedoms", there are limits on the extent to which the Convention attempts to translate that concern into practical reality. In that respect, the Convention, like many international and municipal instruments, does not necessarily pursue its [p. 21] primary purpose at all costs. ... It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them. ...’ [p. 22]

[On human rights and population policy]

"...[C]ounsel for the appellants submitted that the persecution of parents with one child by forcible sterilisation involves the infringement of fundamental human rights. Two were identified in written submissions — a right of personal security and a right to have children, or of reproductive control. The right of personal security is infringed by the intrusion which is involved in the act of forcible sterilisation. The right to have children, or of reproductive control, is destroyed by the consequence of that intrusion ...

‘The latter right is said to be based on the "right ... to found a family" as it appears in Art 16 of the Universal Declaration of Human Rights ("the Universal Declaration") and Art 23 of the International Covenant on Civil and Political Rights ("the ICCPR"). In truth, it involves the contention that that right extends to founding a family of unlimited size. ... Whether that accords with the intention of the Universal Declaration and the ICCPR is not clear. Accepting that proposition would mean that a one child policy enforced, for example, only by financial penalties and not by forcible sterilisation would contravene the Universal Declaration and the ICCPR. Governments faced with the dangers of enormous population expansion and limited space and resources may understandably take the view that measures are required to curb or prevent population growth to ensure that basic living standards (not to mention human rights) can be maintained. Indeed, the male appellant himself, in his evidence before the RRT, said that although he strongly objected to the government making the decision for him, he did not object to the limiting of families and believed that two children was a good number.

‘What the appellants in truth object to is not the one child policy per se, but its enforcement by officials in their area by forcible sterilisation... [p. 17]

‘... [The] persecution which they fear is serious and may infringe internationally recognised human rights. That is not the issue in this appeal. The issue is whether that persecution is for one of the five Convention reason ...’ [18]

[On the definition of a ‘particular social group’]

‘... I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group ... [p. 14]

‘However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution. There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. ... [A]llowing such a group to constitute a particular social group for the purposes of the Convention "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)" [Chan v Canada, 1993, 3 FC at 692-693]...’ [p. 15]

‘It may be observed that it is the very nature of a human right ... that it is common to all humanity. The wish of a number of persons to exercise a right which all persons share ... can hardly be enough to unite those persons into a particular social group.’ [p. 19]

McHugh

[On interpreting the Convention]

‘... The need to give the text [of a treaty] 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.’ [p. 32]

[On the definition of a ‘particular social group’]

‘... Records of the Convention’s preparation ... reveal that the category of "particular social group" was the last of the enumerated grounds ... to be added and that it was added with the intention to broaden the reach of the other four grounds. 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 ... If they [the drafters] had intended to provide [this] ... 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.’ [p. 37]

‘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 [of the same kind] principle to discern the meaning of "particular social group" are problematic because it is difficult to identify a genus [kind] common to "race, religion, nationality .... [and] political opinion", one factor common to these four categories is that the fact or fear of persecution plays no role in understanding [p. 42] 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 ...’ [p. 43]

Gummow J

[On interpreting the Convention]

‘... The Convention resolves in a limited fashion the tension between humanitarian concerns for the individual and that aspect of state sovereignty which is concerned with exclusion of entry by non-citizens...’ [p. 56]

‘... I have referred to those aspects of the background to the adoption of the Convention which show the danger in approaching it as designed, on a broad front, to advance humanitarian concerns. Rather, the text of the Convention manifested a compromise between various interests perceived by the Contracting States. ... [T]he demands of language and context should not be departed from by invoking the humanitarian objectives of the Convention, without an appreciation of the limits placed by the Convention upon the achievement of such objectives’. [p. 68]

[On the definition of a ‘particular social group’]

‘... It has been suggested in the United States [by Graves] that the terms of Art 1 [the definition of "refugee"] of the Convention and Protocol are such that any attempt to discern specificity may not be a "reasonable exercise", and that the application of the criteria therein is left to decision-makers on the basis that they will recognise persecuted social groups when they see them. Such propositions appear to abandon the quest for standards by which administrative decisions may determine the fate of individuals and in respect of the application of which there is judicial review for error of law.’ [p. 60]

‘... I conclude that the RRT made a finding that the relevant [particular social] group comprised "those who, having only one child, either do not accept the limitations on them or who are coerced or forced into being sterilised". As to those who are so coerced or forced, the RRT erred in law by defining membership of the group by reference to acts giving rise to the well-founded fear of persecution. As to those persons having one child who "do not accept the limitations placed upon them", they are, at best, merely a group for demographic purposes. ...’ [p. 72]

Reference

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