Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: discussed
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 (" Applicant A "), a husband and wife, who were nationals of China, arrived in Australia and shortly thereafter the wife gave birth to a son. They claimed refugee status by virtue of the fact that they were the parents of one child and did not accept China's one child policy, which included, if necessary, enforcement by sterilisation. They claimed that they had a well-founded fear of persecution if returned to China. By a majority of 3:2, the High Court decided that they were not entitled to refugee status. Dawson J said that a particular social group for the purposes of the definition of refugee could not be defined by the persecution the members of the group feared. His Honour considered the meaning of the term "particular social group" and said (at 241): "A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society." (Citation omitted.) His Honour considered the relationship between the concept of a particular social group and a policy applied generally and said (at 243): "Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms. The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy. For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention." McHugh J discussed the concept of persecution and the circumstances in which conduct or action under a general law or a law of general application may constitute persecution. His Honour said (at 258-259): "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race. However, where a racial, religious, national group or the holder of a particular political opinion is the 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. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional 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." (Citations omitted.) His Honour made the point (at 264) that, although persecutory conduct cannot define a social group, conduct of the persecutors may over time (perhaps over a short period of time) create a particular social group. Gummow J's reasons were to the same effect as those of McHugh J. His Honour said (at 286): "With McHugh J, I conclude that the RRT made a finding that the relevant group comprised 'those who, having only one child, either do not accept the limitations placed 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 were, at best, merely a group for demographic purposes." In 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.) 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.