A v Minister for Immigration & Multicultural Affairs

A v Minister for Immigration & Multicultural Affairs - [1997] HCA 4 - HCA 1997 case summary — Zoe

[319]

Whilst by international law it is permissible to apply a principle of construction known in the common law as the ejusdem generis rule, and whilst it is therefore appropriate to give meaning to the reference to "membership of a particular social group" in the context of the other specific grounds of persecution catalogued in the definition, care must always be observed in the application of that canon of construction for reasons often mentioned [233] . In the particular case of the Convention definition of "refugee" it is difficult to find a genus which links the categories of persecution unless it be persecution itself. Yet this conclusion, together with the obeisance usually given to the need to offer a wide and flexible interpretation, and to avoid a narrow one, has led some commentators to view "membership of a particular social group" as a "safety-net". They suggest that it is a category designed to embrace a very wide range of other grounds of persecution not specified in the particular reasons mentioned [234] . The difficulty with this view has been identified in texts [235] and judicial decisions [236] . Had it been intended that persecution for any reason would satisfy the definition of "persecution" in the definition of a "refugee", it would have been simple for the drafters of the Convention to have deleted altogether the particular categories of persecution. They would have been superfluous [237] . The drafters could have relied on nothing more than proof of persecution itself, for whatever reason. This would have been a viable, even arguably desirable, approach given the variety of irrational causes that can give rise to large-scale persecution. However, it is not the approach which the Convention took. Compliant to the requirements of the Vienna Convention as to the interpretation of treaties, the duty of a court applying a treaty provision is to give meaning to the definition, keeping in mind the specificity of the grounds of persecution which alone qualify a putative "refugee" to protection under the Convention. Further emphasis is given to this point by the use of the phrase "for reasons of". Whilst other reasons may contribute to the "well-founded fear" [238] , proof of one or more of the specified reasons is a pre-condition to attracting the Convention.

[322]

Compton, Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar, Washington Law Review, vol 62 (1987) 913, at p 915 . 2. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407. 3. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 566. 4. cf R v Home-Secretary; Ex parte Sivakumaran [1988] AC 958; Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421. 5. Helton, Persecution on Account of Membership in a Social Group As a Basis for Refugee Status, Columbia Human Rights Law Review, vol 15 (1983) 39, at p 51 citing Powell J in Blue Chip Stamps v Manor Drug Stores (1975) 421 US 723 at 756. 6. Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568. 7. Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 416. 8. Hathaway, The Law of Refugee Status (1991), p 43. 9. Acts Interpretation Act 1901 Cth, s 15AB(2)(d) read with the Vienna Convention on the Law of Treaties. 10. Vienna Convention on the Law of Treaties, adopted 22 May 1969 - UN doc A/ Conf 39/27. 11. eg, Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 356. 12. eg, Fothergill v Monarch Airlines Ltd [1981] AC 251 at 281-282, 293. 13. See discussion in Matter of Acosta (Interim Decision 2986, Department of Justice, Board of Immigration Appeals, 1 March 1985); cf Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94. 14. Helton Persecution on Account of Membership in a Social Group As a Basis for Refugee Status, Columbia Human Rights Law Review, vol 15 (1983) 39, at pp 49-50 . 15. Hathaway, The Law of Refugee Status (1991), pp 159-160. 16. See, eg, Matter of Acosta (Interim Decision 2986, Department of Justice, Board of Immigration Appeals, 1 March 1985) at 37-39; Sanchez-Trujillo v Immigration and Naturalization Service (1986) 801 F 2d 1571 at 1576. 17. Attorney-General (Canada) v Ward [1993] 2 SCR 689 at 728-733; (1993) 103 DLR (4th) 1 at 26-29. 18. cf Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 at 299. 19. Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569. 20. Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 567. 21. Attorney-General (Canada) v Ward [1993] 2 SCR 689 at 733; (1993) 103 DLR (4th) 1 at 29.

[327]

The mere fact that, potentially, very large numbers 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 language and imputed purpose of the Convention. Its application, in the proved circumstances, has been upheld in Canada in Cheung v Canada [243] . It was not suggested that this has resulted in an intolerable flow of refugees of this category into Canada or that the decision had caused the breakdown of the operation of Canada's Immigration Act 1985. Membership of the "particular social group", even if proved, is insufficient, under the definition, to attract refugee status without more. The definition is hedged about with other limiting pre-conditions. There must be a "well-founded fear" of persecution. This must be "for reasons of" membership of the group. The person affected must get himself or herself to another country, with all the practical, legal and administrative difficulties which this presents. That person must then run the gauntlet of litigation which may be as prolonged and testing as the present. Upholding the appellants' claims to "refugee" status (resting as they do very much upon the particular evidence of peremptory enforcement of sterilisation in their village which occasioned the well-founded fear of compulsory sterilisation found in their favour) does not necessarily demonstrate that other applicants, deriving from other parts of the PRC, would similarly succeed. The appellants clearly proved persecutory behaviour which gave rise, in their case, to their well-founded fear. Other applicants, relying upon different facts, might not be so successful.

[354]

Grahl-Madsen, The Status of Refugees in International Law (1966) at p 219 ; Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 515 . 2. Judgment of the Saarland Administrative Court of 10 December 1982, No 10 K 115/80, cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 532 . 3. CRDD T89-02579, 8 December 1989, Federal Court of Appeal of Canada, cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 539 . 4. Judgment of the Gelsenkirchen Administrative Court, 29 March 1995, No 17 K 10.343/83, cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at pp 531-532 . 5. Minister of Employment and Immigration v Marcel Mayers (A-544-92, 5 November 1992, Federal Court of Appeal of Canada), cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 537 but criticised at p 539 ; Godfrey, Defining the Social Group in Asylum Proceedings: The Expansion of the Social Group to Include a Broader Class of Refugees, Journal of Law and Policy, vol 3 (1994) 257. 6. eg, Judgment of the Wiesbaden Administrative Court, 26 April 1983, No IV/I E O6244/81, cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 534 (Iran); Re GJ (Refugee Status Appeals Authority (NZ), Refugee Appeal No 1312/93; 30 August 1995). 7. Hathaway, The Law of Refugee Status (1991), p 166. 8. Re Incirciyan (United States Immigration Appeal Board decision, M87-1541X, 10 August 1987) cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 520 . 9. IRB Decision M89-01213, June 1989, cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 539 . 10. CRDD T89-03954, 16 March 1990, Federal Court of Appeal of Canada, cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 539 . 11. Helton, Persecution on Account of Membership in a Social Group As a Basis for Refugee Status, Columbia Human Rights Law Review, vol 15 (1983) 39, at p 50 . 12. Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at pp 526-527 . 13. Helton, Persecution on Account of Membership in a Social Group As a Basis for Refugee Status, Columbia Human Rights Law Review, vol 15 (1983) 39, at p 50 . 14. CRDD T89-03344, 5 February 1990 (Federal Court of Appeal of Canada), cited in Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, Cornell International Law Journal, vol 26 (1993) 505, at p 539 .

[362]

[A] particular social group means (1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity, or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it. This test was approved by La Forest J, writing for the Supreme Court of Canada in Attorney-General (Canada) v Ward [10] . His Lordship refined the "possible categories" emerging from the application of the "particular social group" criterion to three, after taking into account "the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative" [11] . The three categories which La Forest J discerned were [12] : (1) [G]roups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person. 1. (1992) 97 DLR (4th) 729. 2. Mayers (1992) 97 DLR (4th) 729 at 737. 3. [1993] 2 SCR 689 at 739; (1993) 103 DLR (4th) 1 at 33. 4. Ward [1993] 2 SCR 689 at 739; (1993) 103 DLR (4th) 1 at 33. 5. Ward [1993] 2 SCR 689 at 739-741; (1993) 103 DLR (4th) 1 at 33-34.

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