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China's One Child Policy and Refugee Status in Australia
Max Spry
Politics and Public Administration Group
On 24 February 1997, in Applicant A v Minister for Immigration and
Ethnic Affairs, the High Court, in a 3:2 decision, dismissed the applicants'
claim for refugee status.
Following Justice's Sackville's finding in the Federal Court on 6 December
1994 that the applicants' were refugees, the use of China's One Child
Policy as a grounds for refugee status in Australia has generated significant
controversy.
This latest decision by the High Court should alleviate the concerns
of those who considered Australia might face an overwhelming number of
applications for refugee status on the basis of Sackville J's decision.
On the other hand, some have moved to criticise the High Court's decision.
For example, Senator Harradine has said that the decision sends 'a message
to Chinese women fleeing abortion...: you're not welcome, we won't protect
you.'
Background
Article 1 of the 1951 United Nations Convention Relating the Status
of Refugees, as amended by the 1967 Protocol, is incorporated
into Australian law by the Migration Act 1958. A refugee under
the Convention is a 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 fear, is unwilling
to avail himself of the protection of that country.'
The applicants, a husband and wife, and nationals of the Peoples Republic
of China (PRC), arrived in Australia by boat in late 1993. Their application
for refugee status was refused by a delegate of the Minister for Immigration
and Ethnic Affairs in January 1994.
The applicants successfully appealed the Minister's decision in the
Refugee Review Tribunal (RRT) on the grounds that they feared persecution
owing to their membership of a particular social group. The RRT's finding
was upheld by Sackville J in the Federal Court but overturned by the Full
Federal Court. The applicants then appealed to the High Court.
On 24 February 1997, the High Court dismissed the applicants' appeal.
The majority on the High Court found that the applicants were not refugees
within the relevant definition.
The Minister did not contest that forced sterilisation amounts to persecution.
Further, the Court agreed the persecution suffered had to be for one of
the reasons outlined in Article 1. Where the Court disagreed was in determining
whether the applicants belonged to a 'particular social group.'
The Facts
The applicants have one child. They argued that, if returned to the
PRC, they faced forcible sterilisation as a result of the way in which
China's 'One Child Policy' is enforced in their province. (It was accepted
by the Court that for other reasons the couple could not simply return
to another province in the PRC.)
The Law
The High Court devoted considerable attention to how provisions in international
treaties, incorporated into Australian law, should be interpreted. Chief
Justice Brennan noted that when the Commonwealth legislature transposes
the text of a treaty into an Australian Act, prima facie, that
text should be given the meaning it has in the treaty. To ascertain that
meaning, consideration must be given to the rules governing treaty interpretation.
He added that, given that treaties are signed by nations, often after
considerable negotiation and compromise, treaty provisions should not
be interpreted in a narrow or strict manner. Rather, Brennan CJ said consideration
must be given to 'both the text and the object and purpose of the treaty
in order to ascertain its true meaning.'
This led Brennan CJ to consider the negotiations leading to the Convention,
as well as its preamble, which stated its objects included, for example,
ensuring refugees enjoy to the fullest extent, their fundamental rights
and freedoms. However, his Honour continued, the Convention goes
further. It offers protection to those who suffer a denial of their fundamental
rights because of one of the reasons listed in Article 1, including, membership
of a particular social group.
The Minority
Brennan CJ and Kirby J delivered separate dissenting judgments. Brennan
CJ noted that although forced sterilisation is not practised throughout
the PRC, its practise is tolerated in the applicants' province. The applicants
do not fear indiscriminate persecution. It is, his Honour continued:
...forced sterilisation of those who, being the parents of one child,
have not voluntarily adopted one of the birth-preventing mechanisms approved
by the local officials. The characteristic of being the parent of a child
and not having voluntarily adopted an approved birth-preventing mechanism
distinguished the appellants as members of a social group that shares
that characteristic.
Kirby J accepted that the term 'particular social group' 'does not provide
a "safety-net" to cover any form of persecution.' His
Honour stated that there was no requirement for the members of the group
to associate with one another, or to know of other members in the group.
Kirby J, therefore, accepted that the applicants were members of the social
group identified by the RRT.
The Majority
Justices Dawson, McHugh and Gummow made up the majority. In separate
judgments their Honours agreed that the applicants could not demonstrate
that they feared persecution for reason of membership of a particular
social group.
Dawson J stated that members of a 'particular social group' must be
united by some common characteristic that makes them a 'cognisable group
within their society.' However, the shared characteristic cannot itself
be the fear of persecution. In this case, Dawson J continued, the group
to which the applicants belong is 'the group comprising those who fear
persecution pursuant to the one child policy.' Thus, the applicants do
not belong to a group recognised by the Convention.
Similarly, McHugh J did not accept that the fear of persecution could
itself be one of the defining elements of the social group. He, therefore,
denied the applicants were members of a social group for purposes of the
Convention.
McHugh J, did, however, leave open the possibility that, in some circumstances,
persons who oppose China's One Child Policy may be members of a social
group under the terms of the Convention. His Honour stated:
If, for example, a large number of people with one child who wished to
have another had publicly demonstrated against the government's policy,
they may have gained sufficient notoriety in China to be perceived as
a particular social group. Any involuntarily sterilisation of a member
of that group simply because he or she was a member of the group would
be persecution for reasons of membership of a particular social group
as well as persecution for 'political opinion'.
Gummow J, in agreeing with McHugh J, stated 'the RRT erred in law by
defining membership of the group by reference to acts giving rise to the
well-founded fear of persecution.'
Conclusion
This decision is important in the context of Australian refugee law.
It offers some guidance to decision makers and tribunals as to what constitutes
a social group under the Convention. The obiter comments
made by McHugh J (noted above), however, leave open the possibility of
further claims for refugee status from Chinese nationals fleeing that
country's 'One Child Policy'.
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