Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: considered
The Tribunal found that the restraint on proselytization was not persecutory conduct "... on the basis that the laws restricting proselytizing are laws applied across the board to all religious denominations and that the object of these laws is not the suppression of a particular religion but rather the maintaining of social order. That is the Tribunal finds on the basis of the country information set out above that the law and its enforcement is appropriate and adapted to achieving a legitimate object ...". In so holding, the Tribunal relied upon passages in the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 258 and in the joint reasons of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [45] . 57 In Applicant A , at 258, McHugh J observed that persecution relevantly involves an element of discrimination against a person because of race, religion, nationality, political opinion or membership of a social group. In the next paragraph his Honour discussed circumstances in which conduct which would be persecutory (by virtue of its being discriminatory) would not be treated as such because it was appropriate and adapted to achieving some legitimate object of the relevant society. At the top of p 259, his Honour continued: However, where a racial, religious, national group or the holder of a particular political opinion is a 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 ... . ... Only in exception 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. 58 In Applicant S395 , the High Court was considering a decision of the Tribunal which concerned homosexual men in Bangladesh. Although McHugh and Kirby JJ were, at [45], speaking of legislation penalizing homosexual conduct in that country, such legislation was not the subject of the Tribunal's decision. The Tribunal had found that homosexual men in Bangladesh constituted a particular social group under the Convention. The applicants had claimed to fear persecution because of membership of that group. However the relevant persecution was not legislative restriction upon homosexual conduct. The applicants rather feared persecution because of community hostility to homosexuality. Hence the case is not relevant to the question with which I am presently concerned. 59 In Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 , the majority of the High Court said at [19]-[21]: 19 Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group for example, "black children", as distinct from children generally cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A , the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group. 20 In Applicant A , McHugh J pointed out that "[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but] ... on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group" ... . In that context, his Honour also pointed out that "enforcement of a generally applicable criminal law does not ordinarily constitute persecution" ... . That is because enforcement of a law of that kind does not ordinarily constitute discrimination. 21. To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory ... . And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention. 60 At [24]-[29] their Honours continued: 24 As already indicated, there is a common thread linking the expressions "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee". In a sense, that is to oversimplify the position. The thread links "persecuted", "for reasons of" and the several grounds specified in the definition, namely, "race, religion, nationality, membership of a particular social group or political opinion" ... . 25 As was pointed out in Applicant A ...,not every form of discriminatory or persecutory behaviour is covered by the Convention definition of "refugee". It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct. 26 The need for different analysis depending on the reason assigned for the discriminatory conduct in question may be illustrated, in the first instance, by reference to race, religion and nationality. If persons of a particular race, religion or nationality are treated differently from other members of society, that, of itself, may justify the conclusion that they are treated differently by reason of their race, religion or nationality. That is because, ordinarily, race, religion and nationality do not provide a reason for treating people differently. 27 The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups for example, terrorist groups which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views for example, those who advocate violence or terrorism differently from other members of society. 28 As McHugh J pointed in Applicant A , the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]" ... . Moreover, it is "[o]nly in exceptional cases ... that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving [some] legitimate government object and not amount to persecution" ... . 29 Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.