Chinese fleeing sterilisation: Australia's response against a Canadian backdrop

International Journal of Refugee Law

Volumn 10, Issue 1-2, 1998, Pages 77-96

  Dauvergne, Catherine ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11544307733     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/10.1-2.77     Document Type: Article

References (88)

1. 142 ALR 331 (Coram: Brennan CJ, Dawson, McHugh, Gummow and Kirby JJ.), [Hereafter Applicant A].
2. (1995) 128 DLR (4th) 213.
3. 1951 Convention Relating to the Status of Refugees: 189 UNTS 137; 1967 Protocol Relating to the Status of Refugees: 606 UNTS 267.
4. 1951 Convention Relating to the Status of Refugees: 189 UNTS 137; 1967 Protocol Relating to the Status of Refugees: 606 UNTS 267.
5. Outline of Appellant's Submissions, High Court of Australia Registry, Sydney Office, No. S168 of 1995.
6. (1991) 947 F 2d CGO (District Court).
7. (1986) 801 F 2d 1571.
8. For a discussion of this aspect of United States refugee policy see Mark Gibney and Michael Stohl, 'Human Rights and U.S. Refugee Policy', in Gibney, M., ed., Open Borders? Closed Societies? The Ethical and Political Issues, New York: Greenwood Press, 1988.
9. Refugee Review Tribunal files nos. N94/03000 and N94/0300G, 20 May 1994, Member Janet Wood.
10. (1994) 127 ALR 283, Sackville J.
11. (1995) 57 FCR 309, Beaumont, Hill and Heercy JJ.
12. Above note 8, N94/03000 at 7-8 and N94/03006 at 7-8 (pages as per the electronic version available at http://www.austlii.edu.au/au/cases/cth/rrt).
13. Artl.A(2) of the 1951 Convention/1967 Protocol defines a refugee as any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such a fear, is unwilling to return to it.
14. Above note 8, file no. N94/03000 at 11.
15. Ibid.
16. Above note 8, file no. N94/03006 at 10.
17. Ibid., 11, and above note 13, at 12.
18. Transcript of High Court proceedings at 35-8, Court file no. S168 of 1995.
19. Another key issue addressed in each opinion was the proper interpretation of domestic legislation which incorporates the provisions of international instruments. This issue is beyond the scope of the present paper, save that the High Court interpreted the Convention according to the internationally accepted rules for treaty interpretation set out in the 1969 Vienna Convention on the Law of Treaties: 1155 UNTS 331.
20. Preamble, 1951 Convention.
21. Above note 1 at 338.
22. Ibid., 385.
23. Ibid., 394.
24. (1993) 103 DLR (4th) 1 (Supreme Court of Canada).
25. (1993) 102 DLR (4th) 214 (Federal Court of Appeal).
26. Above note 2 (SCC).
27. Above note 23 at 33-4.
28. Ibid., 34.
29. Goodwin-Gill, G.S., The Refugee in International Law, 2nd ed, 199G, Clarendon Press, Oxford, 360.
30. Above note 23 at 33.
31. Ibid.
32. The Court held that his alternative claim on the basis of political opinion could have succeeded but denied his appeal as he had not yet attempted to claim the protection of the United Kingdom, where he was also a citizen.
33. (1992) 97 DLR (4th) 729.
34. Above note 24 at 219-20. The internal citation is to Re Exe (1986) 31 DLR (4th) 1 (SCC).
35. Along with the test set out in Mailer of Acosta, Interim Decision 2986 (Board of Immigration Appeals).
36. Above note 2 at 258.
37. Ibid., 247.
38. Ibid., 248.
39. Ibid.
40. Above note 1 at 341, 359.
41. Part I, Constitution Act, 1982.
42. Above note 1 at 341.
43. Ibid., 359.
44. Although McHugh J. seemed prepared to accept this, his analysis stops short of drawing a conclusion and is to that extent incomplete.
45. In Chief Justice Brennan's words, this means that the persecution is not indiscriminate (note 1 at 338). While KirbyJ. defined the group in question in a very narrow fashion, which is unnecessary and misleading, his conclusion was based on the same instinct (and his judgment called for a measure of instinct) as that of the Chief Justice. He stated of the appellants that 'clearly they are not alone, either in their fear or in their risk of persecution'(at 394), and later that 'they would be quite visible in their village' (at 395).
46. Ibid., 362.
47. The Chan passage by Heald J.A. reads: 'This leads me to a fundamental objection to acceptance of the group of parents with more than one child \vho are faced with forced sterilization as a 'particular social group.' This group, it seems to me, is defined solely by the fact that its members face a particular form of persecutory treatment. To put it another way, the finding of membership in a particular social group is dictated by the finding of persecution. This logic completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa) and voids the enumerated grounds of content . . . While some may believe that the definition of Convention refugee should embrace all persons who have a reasonable fear of persecution, this is not the definition which Parliament has seen fit to enact. [1993] FC 677 at 692-3. This obiter dictum from a lower court decision was not directly rejected by the Supreme Court of Canada.
48. Above note I, Dawson J. at 339, Gummow J. at 376.
49. Ibid., 347.
50. This seems to be KirbyJ.'s objective in using an itemised list to describe the social group which he determined was within the ambit of the Convention's objectives, ibid., 386.
51. Ibid., 353.
52. Ibid.
53. See Maryellen Fullerton, 'A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group', 26 Cornell International Law Journal 505, (1993); Maureen Graves, 'From Definition to Exploration: Social Groups and Political Asylum Eligibility', 26 San Diego Law Review 739 (1989). The cases on this question are also amply discussed in Applicant A.
54. See Maryellen Fullerton, 'A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group', 26 Cornell International Law Journal 505, (1993); Maureen Graves, 'From Definition to Exploration: Social Groups and Political Asylum Eligibility', 26 San Diego Law Review 739 (1989). The cases on this question are also amply discussed in Applicant A.
55. See Maryellen Fullerton, 'A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group', 26 Cornell International Law Journal 505, (1993); Maureen Graves, 'From Definition to Exploration: Social Groups and Political Asylum Eligibility', 26 San Diego Law Review 739 (1989). The cases on this question are also amply discussed in Applicant A.
56. Above note 1, 337-8 per Brennan C.J.
57. Ibid., 91 per Kirby J.
58. Audrey Macklin, 'Canada (Attorny-General) v Ward: A Review Essay', 6 IJRL 362, 377 (1994). Though the RRT is of course a part of the construction of a group within Australian society identified as refugees.
59. The former view is taken by McHugh J. at 355 and the latter by Dawson J. at 341 and Gummow J. at 375. None of the judges expresses the also arguable view that religion and political opinion share the common element of personal conviction which human rights dictate an individual ought not be compelled to change.
60. Goodwin-Gill, above note 28, 365.
61. Above note 1, 6.
62. Ibid., 77.
63. Migration Act 1958, as amended.
64. Above note 23, 33.
65. (1986), 31 DLR (4th) 1 (SCC).
66. Above note 24, 220.
67. Above note 2, 242.
68. RSC 1985 c. 1-2, s.3(f).
69. Above note I. Brennan C.J. at 336 (implicitly), Dawson J. at 341, McHugh J. at 360, KirbyJ. at 391. GummowJ. did comment specifically on the requirement of voluntary association. However, he approved the US authorities, including Sanchez-Trujillo v Immigration and Naturalization Service, above note 25 (Court of Appeals, 9th Circuit) in which associational membership was a key holding (at 372). As Brennan C J.'s analysis takes a very different approach from that of his colleagues, he did not explicitly address some points relevant to the definition of particular social group. That certain conclusions appear to be implied from his reasoning can be seen from the following paragraph: 'There is nothing in the term "a particular social group" which limits the criteria for selecting such a group nor anything in the travaux préparatoires which suggests that any limitation was intended. There is no reason to treat "a particular social group" as necessarily exhibiting an inherent characteristic such as an ethnic or national identity or an ideological characteristic such as adherence to a particular religion or the holding of a particular political opinion. By the ordinary meaning of the words used, a "particular group" is a group identifiable by any characteristic common to the members of the group and a "social group" is a group the members of which possess some characteristic which distinguishes them from society at large. The characteristic may consist in any attribute, including attributes of non-criminal conduct or family life, which distinguish the members of the group from society at large. The persons possessing any such characteristic form a particular social group. If membership of a particular social group, however constituted, attracts persecution, e enjoyment by the members of that group of their fundamental rights and freedoms is denied, and the denial is prima facie discriminatory. In the definition of "refugee", should the term "a particular social group" be given some meaning more restricted than its words would ordinarily bear?' Ibid., 335, (footnotes omitted).
70. Ibid. Brennan C.J. at 337 (implicitly), Damson J. at 341, McHugh J. at 361, Kirby J. at 378. Gummow J. is silent on this point. Some question remains, however, as to whether a very small group could constitute a particular social group as McHugh J. specifically holds that it could not (at 360). This, in combination with Gummow J.'s silence on the point and Chief Justice Brennan's broad but non-specific treatment of group size may leave some limited scope for arguing that small groups such as families, who have been recognised as eligible for protection on the basis of group membership in the United States (Sanchez-Trujillo v Immigration and Naturalization Service, above note 6), would be excluded in Australia.
71. Dawson J. at 341, McHugh J. at 359, KirbyJ. at 394.
72. DawsonJ. at 342, McHugh J. at 355-56, Gummow J. at 375 (by approving references to US jurisprudence), Kirby J. at 394. Brennan C.J. explicitly states that the ground is a 'safety-net' (at 336) to the extent that it provides protection to 'groups that would not be identified by any of the other grounds of discrimination.'
73. (1995) 57 FCR 565.
74. Ibid., 569.
75. Ibid.
76. (1992) 39 FCR 401.
77. Ibid, per Black C.J. at 406 (French J. concurring) and per Lockhart J. at 417.
78. Chief Justice Black stated: 'at the very least, a particular social group connotes a cognisable group in society, and cognisable to the extent that there may be a well-founded fear of persecution by reason of membership of such a group': ibid., 406. Lockhart J. stated, 'the expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons': ibid., 416.
79. Although KirbyJ. criticises one aspect, above note 1 at 393.
80. Ibid., 335.
81. Ibid., 342.
82. Goodwin-Gill, above note 29, 76-7.
83. Above note 1, 342, 374.
84. Ibid., 354.
85. Korematsu v US (1944) 323 US 214.
86. One exception is McHugh J.'s suggestion that homosexuals could constitute a particular social group in some circumstances (at 360).
87. It may still be arguable in Australia that PRC nationals fleeing sterilisation can claim protection on the ground of political opinion. The only judge who mentioned this ground in the case, Kirby J., did not need to consider it as he would have allowed the appeal on the basis of well-founded fear of persecution for reasons of membership of a particular social group. As the Refugee Review Tribunal held that this ground could not succeed there was no record below which the High Court could have considered on this point. This argument would be supported by a developed body of feminist theory supporting the proposition that reproductive decisions have political import and are within the realm of state concern. As the High Court did have the opportunity, albeit slim, to take up this argument in this case, however, there is little reason for optimism about its potential success.
88. Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177 (SCC).