Case: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387
Outcome: discussed
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 (" Applicant S "), the High Court held that a young Afghan man who had a well-founded fear of being forcibly conscripted to fight for the Taliban could fall within the definition of a refugee. It was not necessary that society perceive young able-bodied men as comprising a particular social group in order to conclude that they were a particular social group within the definition of a refugee. It is sufficient if they are cognisable within the community as a particular social group. Such conclusions are clearly objective, although, that is not to say that subjective perceptions within the community may not be relevant. Gleeson CJ, Gummow and Kirby JJ said (at 400-401 [36]): "Therefore, the determination of whether a group falls within the definition of 'particular social group' in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A , a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. As this Court has repeatedly emphasised, identifying accurately the 'particular social group' alleged is vital for the accurate application of the applicable law to the case in hand." (Citations omitted.) The Court rejected a submission that there can only be persecution if enmity or malignity is present (at 401 [38]). The Court also addressed a submission that there was no persecution where the foreseeable risk of harm arose from the application of a law of general application. Gleeson CJ, Gummow and Kirby JJ said (at 402-403 [42]-[44]): "A law of general application is capable of being implemented or enforced in a discriminatory manner. The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A . His Honour said that the question of whether the discriminatory 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]'. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen . As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court's decision in Israelian . Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective. In Applicant A , McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. (Citations omitted.)