Case: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293
Outcome: discussed
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 (" Chen "), the High Court held that an applicant born in breach of China's one child policy who contended that he was a member of a social group called "black children", and who contended that he would suffer legal, social and economic disadvantages if returned to China, could form part of a particular social group for the purposes of the definition of a refugee. Gleeson CJ, Gaudron, Gummow and Hayne JJ delivered joint reasons ("joint reasons") and their Honours made the point (at 301 [19]) that the fact that there is said to be a law 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. As to the latter question, their Honours said in the joint reasons: "The question whether 'black children' can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A . That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China's 'one-child policy'. In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind. To put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear. And so much was recognised by the Tribunal in its finding that a 'child is a "black child" irrespective of what persecution may or may not befall him or her'." In 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.) The Court concluded that, by the application of the correct principles, the Tribunal correctly would have concluded the Taliban was not pursuing a "legitimate national objective" spoken of in Chen because, by international standards, the Taliban was a ruthless and despotic political body, founded on extremist religious tenets, and this affected the legitimacy of the object of protecting the nation. In any event, even if the object was a legitimate national objective, it was not appropriate and adapted (in the sense of being proportionate) in the means used to achieve that objective because the policy of conscription was implemented in a random and arbitrary manner (see at 404 [47]-[49]). As far as the question of whether the parents' claim was foreclosed by a finding that any harm resulted from no more than the application of laws of general application, his Honour referred to evidence that the one child laws did operate or impact in a discriminatory way on certain groups, and that, on a remitter, the Tribunal would be required to consider whether there was a real chance of that occurring in relation to the applicant parents. Independently of that point, the Tribunal would be required to consider whether China's general family planning laws were appropriately adapted to meet the varying situations of parents who have more than one child. After quoting a passage from the reasons of Gleeson CJ, Gummow and Kirby JJ in Applicant S , Merkel J said (at 347 [41]): "The RRT did not enquire whether the harm feared by the applicant parents was appropriate and adapted to achieving the legitimate object of population control. That issue is to be determined by reference to 'the standards of civil societies which seek to meet the calls of common humanity': see Chen at CLR 303; ALR 560 ; ALD 328 [29]. As was explained in Chen , visiting the 'sins' (if they be that) of the parents on the child can be persecutory of the child. Similarly, there are many instances where the view may be taken that the birth of a second child may not have come about as a result of any 'sin' on the part of the mother. The birth of twins, or a child born as a result of a rape, or even failed contraception, are examples. A law of general application mandating the imposition of severe penalties on the mother irrespective of her personal circumstances may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object." In the ordinary case, the Tribunal must consider the applicant's case by reference to the particular social group articulated by him or her. The Tribunal had failed to decide the first question; it, in fact, had decided another question. Accordingly, it had failed to exercise jurisdiction. (See also at 1101; 407 [89] per Kirby J; at 1102; 408 [95] per Hayne J; Gleeson CJ dissented, but on the ground that, in fact, the Tribunal had not misunderstood the applicant's case.) Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group. The relevant part of the definition of refugee consists of a number of elements and, although they each form part of a compound conception (see Applicant A at 242 per Dawson J; at 256 per McHugh J; Chen at 299 per Gleeson CJ, Gaudron, Gummow and Hayne JJ), failure to comply with one is sufficient to defeat the claim. If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail: Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 ; (2001) 206 CLR 323 at 354-355 [93] - [97] per McHugh, Gummow and Hayne JJ.