16 Mr Lindsay submitted that this was entrenched discrimination directed at the child, although it was true that in addition to that there were penalties imposed upon the parents. He submitted that the Tribunal erred because it considered that there was only indirect discrimination against the child. He contended that the Tribunal also erred in finding that because the discrimination was directed against the parents it did not come within the scope of the connecting link "for reasons of" which coupled the fear of persecution with membership of a particular social group. The respondent accepted, on the authorities, that the relevant causal test was not just a "but for" connection. But, as Jahazi's case demonstrated, the persecution need not be the sole cause. The fact that membership of a particular social group was a contributing cause to a well-founded fear of persecution, so it was submitted, still brought the respondent within the Convention. As Mr Lindsay put it, "it is because he is a black child that he suffers this discrimination". Mr Lindsay relied heavily on the fact that in this matter it was the child who was the applicant. When (in the course of argument) the proposition was put to him that the respondent's parents' decision to have a third child in Australia was the operative cause of the discrimination which he would suffer in China, he responded that "… in the end the sins of the parents ought not to be visited on the child".
17 On the question of the relief granted, Mr Lindsay sought to distinguish Guo on the basis that the orders of the Full Court of this Court in that case went further than stating that there was an entitlement to refugee status. Furthermore there had been no findings of fact by the Tribunal in Guo to the effect that the applicant had a well-founded fear of persecution for a Convention reason. What the primary judge had done in this matter was to order the Tribunal to apply the relevant law to the facts as found in such a way as to find that the respondent was within the definition of refugee.
Our Reasoning on the Appeal
18 We agree, respectfully, with French J's rejection of a narrow or constricting view of what constitutes sufficient motivation connecting persecution to the relevant attribute. In particular, we agree with his Honour's view that:
"Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects."
19 We agree also with the view expressed by his Honour in Jahazi (and expressly relied upon by him in this matter) in the last sentence of the passage which we have set out at paragraph 11 above. That is, that:
"The question whether a particular causal connection between persecution and membership of a group attracts Convention protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention."
20 The situation, as we see it, is that the PRC has for some time had a series of laws of general application in furtherance of its policy of population control. The One Child Policy is reflected in the Guangxi Zhuang Family Planning Regulations, extracts from which are sets out above. Another manifestation of population control policy is the denial of benefits to children born out of wedlock. The evident purpose of that policy can be seen as an endeavour to prevent the demands of China's population from outstripping its resources. Contrary to those laws of general application, the respondent's parents have:
. despite being then ineligible for marriage under the relevant laws, lived as husband and wife;
. again contrary to the PRC laws, have had two children in China; and
. some four years later, in Australia, have chosen to bring another child (the respondent) into the world.
21 In terms of the "but for" test of causation, it can be seen that but for the fact that the respondent is a "black child" he would not face persecution. Similarly but for his parents' decision, with full knowledge of all the circumstances, to bring him into the world he would not face persecution. As Mason CJ pointed out in March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 516-517 the "but for" test when applied as an exclusive criterion of causation, "… yields unacceptable results … which must be tempered by the making of value judgments and the infusion of policy considerations". In the context of the Convention the respondent (as a child) has the benefit, as French J held, of deriving a well-founded fear of persecution by that fear being held for him by his parents. In like vein, we consider that the predicament in which he finds himself must be assessed in the light of choices made by his parents. In our opinion, in terms of causation, the respondent does not face persecution "by reason of" being a member of the social group of "black children". He faces such persecution by reason of his parents' conduct (as Chinese nationals) in contravening the relevant laws of China. Those laws fasten on that very conduct of causing a second or, in this case, a third child to be born. Their conduct is the relevant cause of the respondent's sad predicament. But it is no different to the predicament of any other Chinese child, not being a legitimate first-born, whose parents are unable to provide for him or her. Similarly, in Rohner v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 24 August 1998, No 1006 of 1998) a Full Court of this Court found that the reason for the less favourable treatment of the homosexual couple in that case was their relationship, "the result of their decision as to their sexual practice". Accordingly, although the effect of the relevant regulation (Reg 1.15A of the Migration Regulations which included in the definition of "spouse" that the relevant two persons be of opposite sexes) was to discriminate, such discrimination was not because of the applicant's sex. It was because of the nature of the applicants' relationship and the sexes of their partner. The regulation was valid, notwithstanding ss 5(1) and 26(1) of the Sex Discrimination Act 1984 (Cth).
22 In terms of the policy reflected by the Convention, we do not think that it was part of that policy to enable parents, who have been held not to be refugees, to confer refugee status on their children by bringing those children into the world in circumstances where that very procreation is contrary to the policy of laws of general application in their country of origin. The policy of the Convention is to require a great deal of international altruism and benevolence on the part of a receiving State, but unless a common sense line is drawn to distinguish between those who are real refugees from those who are not, then there will be a real risk that genuine refugees will be penalized. The risk, as we see it, could well arise from a perception on the part of receiving States that, without such a distinction, they were being imposed upon unduly. The purpose and scope of the Convention is to protect genuine refugees - always applying the most liberal of assessments. Once one appreciates that purpose and scope, one can give a common sense answer to the question of causation in the present matter - to adapt the language of Lord Hoffman, in a different context, in Environmental Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 350 at 358.
23 Mr Lindsay submitted that because of the "ongoing nature of the persecution" under the PRC laws, they could not be characterised as being laws to advance the goal of population control. The laws were, so he submitted, so disproportionate to the end sought that they could not be saved under the "law of general application" argument. He relied upon the principle explained in Cheung v Minister of Employment and Immigration (1993) 102 DLR (4th)) 214 at 221. Mr Lindsay submitted that the "law of general application" argument was not an absolute one, referring to McHugh J's use of the word "ordinarily" in Applicant A at 354. We think that the answer to that submission is that there was no evidence before the Tribunal, and certainly no finding, that the relevant PRC laws were not designed to protect or promote the general welfare of the PRC and its citizens.
24 Accepting the Tribunal's finding that China's one-child policy and its policy in relation to children born out of wedlock are persecutory laws, they are nevertheless, laws of general application to the general population. Putting to one side any question of retrospectivity, in their origins they had no application to any specific person or group of persons; they did not, at the time of their introduction, attack any person who could be said to be a member of a particular social group; nor did they say that a future identifiable social group would be the subject of some measure of discriminatory conduct that would amount to persecution. Rather, the laws extended to the general population in terms that any member who failed to adhere to the laws would suffer. Punishments would include fines and deprivation of benefits that were otherwise available to the general population. In the first place those punishments were directed to the parents who, by their conduct in conceiving, knowingly breach the law. Secondly, however, the parents' conduct was visited on the child; the child is also victimised by having to forego various benefits that would have been available to it. But the child's suffering has been primarily caused by the parents' conduct. In our opinion, the decision of the High Court in Applicant A is authority for the proposition that the parents of this appellant are not to be regarded as refugees - they are not to be regarded as being in fear of persecution for reasons of membership of a particular social group. In the case of Applicant A, the High Court by a majority (Dawson, McHugh and Gummow JJ) concluded that a husband and wife - Chinese Nationals - fearful of sterilisation under the "one child policy" if they were returned to China, were not refugees. In that case the High Court went so far as to hold that the appellants could not be regarded as belonging to a "particular social group", a finding that would appear to put in doubt the finding by the Tribunal in the present case that the appellant was a member of the "black children" social group. As we have mentioned, the appellant did not, initially, challenge that finding. On 19 February 1999 the appellant filed a document which was headed "Minute of Amended Notice of Appeal". The appellant sought to amend his notice of appeal by adding two further grounds of appeal. The first [proposed ground 2(h)] was that his Honour failed to hold that on the evidence before the Tribunal it was not open to it to find that "black children" were "a particular social group". The second [proposed ground 2(i)] was that his Honour erred in failing to hold that if "black children" were a "particular social group", they were so defined by reference to the persecutory conduct liable to be suffered by their members and that, by reason of the decision in Applicant A, they could not be a particular social group for the purposes of the Refugees Convention. The appellant took this course because, after the hearing had been concluded, on 21 December 1998 the Court wrote to the parties indicating that it had identified three additional issues and inviting further written submissions on those issues. The first two of those issues are reflected in the proposed additional grounds of appeal. The third issue was whether the absence of fear in the parents meant that a child cannot succeed in a claim for refugee status. We have examined the supplementary submissions filed on behalf of the appellant and the respondent respectively. They included submissions on whether the appellant should have leave to amend his notice of appeal by adding proposed grounds 2(h) and (i). Applying the principles explained in Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 416, 428, we think that leave should be granted to the appellant to add proposed ground 2(i), but not proposed ground 2(h) to his notice of appeal. Proposed ground 2(h) does not raise simply a pure question of law. At least potentially, there may well have been evidence which was before the Tribunal but which was not put before the primary judge on the question sought to be raised by proposed ground 2(h). That might have been because such evidence was not relevant to the issues raised in the application for review. However, proposed ground 2(i) raises a pure question of law, as the respondent acknowledged in paragraph 5 of its further submissions filed on 5 March 1999. Neither party having suggested that there was a need to amend the application, the respondent was unable to point to any prejudice by such amendment in the sense of having been prevented from addressing further evidence. Both parties have made submissions in relation to proposed ground 2(i). Furthermore, we think that there is merit in that ground. For those reasons we would exercise our discretion to allow the amendment to the extent indicated above.
25 It seems to us with respect, that the decision in Applicant A should be applied to the circumstances of the present appeal such that there should be a positive decision that the respondent is not entitled to refugee status. This conclusion is based in part on the Tribunal's findings but in particular on the decision of the majority in Applicant A. It would, in our opinion, be incongruous for our law to hold that Chinese parents are not to be regarded as refugees because of their fear of "the one child policy" but that their children can be so regarded - the more so when that child has been born in Australia at a time when its parents are unlawfully in this country. In short, we see no reason why the decision and reasoning of the High Court in Applicant A should not be applied with equal force and effect to the child of such parents who have been denied refugee status.
26 The unfortunate position in which the respondent and other children like him in China find themselves, is not due to their being persecuted for reasons of membership of a particular social group. The very constitution of the alleged group arises from "the officially approved parameters", which include both the one child policy and the policy that children should only be born in wedlock. The Tribunal so understood this when it described a "black child" as meaning "… a child born otherwise than in accordance with applicable marriage and family planning laws of the PRC" (see page 6 of the Tribunal's reasons). As we have said, the laws which implement that policy are laws of general application. One part of those laws defines a category of persons, being children, who at some later time, through no fault of their own, may be caused to fall into the category so defined. In this case, the respondent falls within that category for the two reasons explained earlier. That category of persons includes parents who break those laws, and their children. They are the group who are to be persecuted. Another part of those laws works persecution against the parents and the children alike. Other parts of those laws reward parents who comply, see for example Articles 22 to 24 of the Family Planning Regulations for the Guanxi Zhuang Autonomous Region. But in our view, the principles explained in Applicant A preclude the identification of a relevant social group for Convention purposes, by recourse to the very laws and policies, being laws and policies directed to the whole population, which create the category of persons concerned. It is true, as the Tribunal noted at page 9 of its reasons, that children who are illegitimate or who are not the first child of their parents face prejudice from what the Tribunal described as "the wider Chinese population". However, this case was not fought on the basis that such unofficial prejudice amounted to persecution. The case was fought squarely on the official consequences which the applicant and his parents would face if returned to China. It is not fear of being persecuted by way of social prejudice upon which the respondent relies in this matter. The Convention definition of "refugee" must be read as requiring the relevant persecution to be because a person is a member of the particular social group: see Ram at 317. As Brennan CJ (in dissent) pointed out in Applicant A at 235, protection under the Convention is limited to victims of persecution that is officially practised or tolerated.
27 There remains one further matter which, in our opinion, proffers some support for the view that we have taken: the appellant is a child who, because of his tender years, would have no knowledge of, or comprehension of "the one child policy". This did not stop the learned judge in the Court below from holding that such a person could have the necessary subjective fear by virtue of the subjective fear of one or other of his parents. This is a very obvious attitude to adopt; to limit oneself to the fears of the individual child would otherwise deny children of tenders years the benefits of the Convention: see the remarks of Guy S Goodwin-Gill in his work "The Refugee in International Law" 2nd Ed p 357:
"If the head of the family is recognised as a refugee then, all things being equal, the dependants are normally granted refugee status according to the principle of family unity: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1978) paras 181.8, 184"
28 However, in this particular case, both parents sought, but were refused, refugee status. Hence, it must follow as a matter of logic, that if the parents cannot claim refugee status, then their child (who, in this particular case, is dependent upon their fears for his status) cannot succeed in a claim for refugee status.
29 Having regard to the conclusions that we have reached, there does not seem to us to be a need to return this matter to the Tribunal. We would allow the appeal and order that the decision of the Tribunal be restored.
I certify the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin and the Honourable Justice Carr