FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Chen Shi Hai

[1999] FCA 381

IMMIGRATION – refugees – membership of a particular social group – Peoples Republic of China – marriage and family planning laws – applicant an illegitimate third child – finding of facts amounting to persecution – whether persecution by reason of membership of particular social group – whether sufficient causal connection between persecution and such alleged membership – whether impermissible recourse to such persecution required before particular social group could be identified.

Migration Act 1958 (Cth), s. 29

Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 referred to

Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 437 approved

Amanyar v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 194 referred to

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 followed

Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 referred to

March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 applied

Rohner v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, 24 August 1998, No 1006 of 1998) referred to

Environmental Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1998] 2 WLR 350 applied

Cheung v Minister of Employment and Immigration (1993) 102 DLR (4^th)) 214 not followed

“Applicant A” v Minister for Immigration and Ethnic Affairs 142 ALR 331 applied

Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 applied

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

v CHEN SHI HAI (AN INFANT) BY HIS NEXT FRIEND CHEN REN BING

WAG 78 of 1998

O’LOUGHLIN, CARR J & R D NICHOLSON JJ

13 APRIL 1999

PERTH

On appeal from a single Judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.         The appellant have leave to amend his notice of appeal by adding thereto [as ground 2(h)], ground 2(i) contained in his Minute of Amended Notice of Appeal filed on 19 February 1999.

2.         The appeal be allowed.

3.         The orders made on 5 June 1998 at first instance be set aside.

4.         The decision of the Refugee Review Tribunal of 3 September 1997 be restored and affirmed.

5.         The respondent pay the appellant’s costs of the appeal and at first instance.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a single Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

O'Loughlin and Carr JJ:

Introduction

1                     This is an appeal from the decision of a judge of this Court who, on 5 June 1998, made an order of review remitting to the Refugee Review Tribunal the respondent’s application for a protection visa.  His Honour ordered that the application be dealt with on the basis that the respondent was entitled to refugee status. 

Factual Background

2                     The following factual background is taken verbatim from the reasons for judgment of the learned trial judge:

Chen Ren Bing and Tang de Ting (the applicant’s parents) are Chinese nationals from Guangxi Province.  In July 1989 at the ages of twenty and nineteen respectively they applied for, but were denied, permission to marry as they were below the marriageable ages of twenty five for men and twenty three for women.  They lived as man and wife nevertheless and on 10 May 1990 had their first child, a son Chen Shi Qing.  Their second child, a daughter, Chen San San, was born on 12 February 1992.  Neither of these births was authorised under Chinese law.

In November 1994 the applicant’s parents left China illegally with their son.  Their daughter remained in China.  They arrived in Australia’s northern waters in November 1994 on a boat called “Cockatoo”.  They were detained with other Chinese from the boat at Port Hedland. 

On 18 December 1994 a charter flight was arranged by the Department to take sixty seven of the arrivals back to China.  The Chinese authorities had agreed to accept their return.  In the meantime however, the applicant’s parents had asked to be treated as refugees and applied for protection visas.  They did not therefore return to China with their compatriots at that time. 

Their applications for visas were refused and applications for review of the refusals were dismissed by the Refugee Review Tribunal on 4 April 1995.  Those decisions are not under challenge here.

There followed a lengthy delay in arrangements for their return to the Peoples Republic of China.  The Tribunal in the decision now under challenge, thought it a reasonable inference from the material before it “that there must have been some reluctance and possibly even a refusal by the PRC Government to allow the family to return to their country”.

On 11 July 1996, the couple gave birth to a child at the Immigration Detention Centre at Port Hedland.  That child is Chen Shi Hai, the applicant in these proceedings.

On 20 February 1997 the applicant’s father lodged an incomplete application on his behalf for a protection visa.  This was treated as an application received on 23 May 1997.  On 24 June 1997, a delegate of the Minister refused the application noting that:

      “No claims, information, submissions or evidence has been received to date establishing or indicating that the applicant has claims under the Refugee Convention.”

On 27 June 1997 an application for review of the decision by the Refugee Review Tribunal was lodged on behalf of the applicant by an organisation called the “Independent Council for Refugee Advocacy”.

On 24 July a detailed submission was lodged in support of the application for review.  On 3 September 1997 the Tribunal affirmed the decision not to grant a visa.” 

The Proceedings Before the Tribunal

3                     The question which the Tribunal had to decide was whether the applicant fell within the definition of a refugee and, in particular, within the relevant part of Article 1 of the Refugees Convention which defines a refugee as any person who:

“…owing to 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 ...”.

4                     The Tribunal noted that the respondent claimed entitlement to refugee status as one who had “a well-founded fear of being persecuted” by reason of his membership of a particular social group, identified as being “black children”.  The Tribunal held that the term “black child” had a well-understood Chinese equivalent (“hei haizi”) which was widely recognised both within and outside China.  The Tribunal described “black children” as a group which “shares the characteristic of having been born outside officially approved parameters, a characteristic not shared by the general population.”  The Tribunal also found that:  

·          the respondent was a “black child” not merely because he was born outside the parameters of China’s “One Child Policy”, but also and perhaps primarily because he was born of an unauthorised marriage and accordingly was illegitimate;

·          by virtue of his status as a “black child”, the respondent was a member of a particular social group for the purposes of the Refugees Convention;

·          it would be obvious to the Chinese authorities upon the Chen family’s return that they have more than one child;

·          it was likely that the family situation would be regarded extremely seriously and that the penalties imposed on the respondent and on his parents would be at the heavier end of the scale;

·          the respondent would, if returned to China, be denied access to subsidised food, health and education and all other welfare benefits for many years, probably beyond the time when he turned seven.  Due to the financial predicament of his parents, this would mean that the respondent would be denied access to food, education and health care beyond the very basic level and would also probably face social discrimination, some prejudice and ostracism;

·          in the future the respondent would probably be severely disadvantaged in terms of being able to find employment and so to support himself economically, to maintain adequate health and nutrition and to function as a normal member of Chinese society; and

·          the actions which would be taken against the respondent by the Chinese would in total amount to persecution.

5                     The Tribunal then considered whether the likely persecution of the applicant could be said to be “for reasons of” his being a “black child”.  The Tribunal referred to dicta in four cases, namely: Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317; Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 437 at 443; Amanyar v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 194 at 208 and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 341, 354 and 375.  The Tribunal distilled from these dicta the proposition that for persecution to be “for reasons” of membership of a particular social group it had to be motivated by or involve some element of “enmity and malignity” towards, in this case, the respondent.  The Tribunal (at p 22 of its reasons) observed:

“It cannot be said with any plausibility that the unfortunate consequences which may well befall Chen Shi Hai upon return to the PRC would result from any malignity, enmity or other adverse intention towards him on the part of the authorities there.  The evidence all suggests that the authorities intend to penalize those who have children outside the approved guidelines, i.e. the parents, not the children themselves.  Even in that case, their actions are arguably aimed at achieving the goal of a national population policy directed at what is a very real concern at the possible adverse effects of a burgeoning population, and any adverse motivation towards those who breach the policy may be a secondary phenomenon, if it exists at all.  However, I do not need to express a concluded view on this point.  It is enough to point out that while the actions of the Chinese authorities may well have the effect of producing long-term consequences for Chen Shi Hai serious enough to be considered persecution, that will not, on any evidence known to me, be the motivation of those authorities.

Another point that tells against Chen Shi Hai’s case is that the disadvantages which will probably accrue to him will not, in my view, result primarily from the direct action of the authorities, but will be an indirect consequence of the financial situation of his parents.”

Reasons of the Primary Judge

6                     At p 11 his Honour said:

“The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of relevant Convention attributes on the part of the person or group persecuted.  But although the words “enmity” and “malignity” appear in the dictionary definitions of persecution and in some of the passages in the judgment, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group.  Motivation connecting persecution to the relevant attribute is sufficient.  Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects.  There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept.  The attribution of subjectively flavoured states such as “enmity” and “malignity” to governments and institutions risks a fictitious personification of the abstract and the impersonal.”

His Honour concluded as follows:

In the light of these findings and their evidentiary setting, in my opinion, the Tribunal was in error in failing to conclude that the necessary connection between the persecution and the child’s membership of a particular social group was made out.  It may be that the persecution so found is collateral to or supportive of a policy directed to penalising parents in support of a general population control policy.  That does not prevent its dual characterisation as a policy which penalises parents by penalising their children or penalises children by penalising their parents. 

And although the Tribunal said towards the end of its reasons that the disadvantages accruing to the applicant would “not result primarily from the direct action of the authorities but will be an indirect consequence of the financial situation of his parents” this as a broad conclusion cannot detract from the findings of fact made in the earlier part of its reasons to which I have referred.  It is indeed somewhat difficult to reconcile the findings in this regard, especially having regard to the conclusion that the applicant faces persecution on his return to China and that official disadvantages imposed by the authorities will not cease even after he turns seven.”

The Appellant’s Contentions

7                     The appellant contended that the learned primary judge had made two errors of law.  The first was to find that the Tribunal had erred in law in holding that the respondent was not a refugee because he did not face persecution by reason of his membership of a particular social group.  The second error was said to be his Honour’s decision to remit the matter to the Tribunal with a direction that the respondent was entitled to refugee status. 

8                     The appellant did not (initially) seek to challenge the Tribunal’s findings that the respondent was a member of a particular social group.  He sought to do so after the appeal had been heard, in the circumstances described later in these reasons.  The appellant conceded that the respondent faced a real chance of persecution in the Peoples Republic of China (“the PRC”).  The appellant submitted that a person will not be a refugee merely because he faces persecution and is a member of a particular social group.  The two factual findings made by the Tribunal in favour of the respondent did not, so it was put, establish necessarily that he was a refugee.  The Tribunal had found that the infliction of harm on the respondent was not the motivation of the Chinese authorities.  It thus followed “inexorably” that the infliction of harm could not be motivated by the respondent’s membership of the particular group of “black children”.  The appellant submitted that it was necessary to establish a causal link between actual or perceived membership of a particular social group and the fear of persecution.  That causal link would be forged, so it was contended, if it could be shown that the prospective persecutor is motivated to act against the alleged refugee because the refugee is a member or a perceived member of the particular social group.  However, the appellant argued that the causal link will not be forged if the motivation is to enforce laws of general application, nor will it be established by reliance on the severity of the penalty which attaches to breaches of such laws.  By laws of general application the appellant referred to laws which were not directed specifically at a person by reference to that person’s membership of a particular social group.  The appellant relied heavily on a passage from the reasons for judgment of Burchett J in Ram at 317:

“If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possess, the application of the Convention is not attracted, so far as it depends upon “membership of a particular social group”.  The link between the key word “persecuted” and the phrase descriptive of the position of the refugee, membership of a particular social group, is provided by the words “for reasons of”--- The membership of the social group must provide the reason.  There is thus a common thread which links the expressions “persecuted”, “for reasons of” and “membership of a particular social group”.  That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase “for reasons of”, and fastens upon the victim’s membership of a particular social group.  He is persecuted because he belongs to that group.”

9                     We interpolate to note that immediately before this passage, Burchett J said:

“In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind.  That concept flows through the separate elements of the definition.  The well-founded fear of which it speaks is a fear of being “persecuted”.  Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for everything perceived about them or attributed to them by their persecutors.”

10                  As Mr R R S Tracey QC, senior counsel for the appellant pointed out, the passage in Ram (upon which the appellant relied) was specifically approved by some members of the majority of the High Court in Applicant A, namely Dawson J at 340:

“The words “for reasons of” require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared because of the person’s membership or perceived membership of the particular social group.”

And at p 342:

“It is not an accurate response to say that the government itself perceives such persons [parents of one child not accepting government policies] to be a group and persecutes individuals because they belong to it.  Rather, the persecution is carried out in the enforcement of a policy which applies generally.  The persecution feared by the appellants is as 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.”

11                  The appellant also relied on a passage in the reasons for judgment of French J in Jahazi at 299:

“The motivation of the persecution of members of a particular social group which will attract Convention protection is membership of that group.  The membership of the group must provide the reasons for the persecution.  A person must have a well-founded fear of persecution because he belongs to the relevant group [citing Ram].  This is not, in my opinion, to exclude the possibility that the occasion for persecution is something other than membership of the group.  For example, an individual might commit a minor offence which is harshly punished because he is a member of a particular social group.  To require that a feared persecution arises solely for a Convention reason would be to narrow the scope of the protection artificially.  It would be an inadequate response to the possible varieties of and excuses for the oppression of target groups within a repressive society.

…

But a bare causal connection is not, in my opinion, sufficient to attract Convention protection.  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.”

12                  The appellant also relied upon the following passage from the reasons for judgment of Hill J in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 269:

“There can also be no doubt that, in resolving the question whether a person is entitled to refugee status, it will be relevant to consider the motivation of the persecutor and the effect of the conduct complained of on the mind of the person claiming refugee status.  This is because the applicant for refugee status must show that the acts claimed to constitute persecution were carried out for a Convention reason and because he or she must show a “well-founded fear” of persecution, that is to say that the acts of persecution relied upon from the past must engender fear on the part of the persecuted.  Although the subjective purpose of the persecutor may be a necessary concomitant to convert discriminatory behaviour into persecution, I do not think that the same can be said of the effect which the discrimination has upon the claimant.”

13                  The appellant further submitted that there may also need to be an element of enmity malignity or ill-will directed towards the victim by the persecutor by reason of the victim’s membership of the particular social group, relying on passages from the reasons for judgment of Jenkinson J in Amanyar at 206, 208.  Mr Tracey submitted that the Tribunal had not confined itself to matters of enmity and malignity and that it was open to the Tribunal to conclude, as it did, that there was no evidence that the action which was anticipated as constituting persecution against the respondent would be motivated by a desire to persecute him by reason of his membership of the social group comprising black children.  The Tribunal’s conclusion against the respondent was not on the basis that the burden of persecution was found to fall wholly on his parents and not on him (as the respondent submitted).  It was clear, so the appellant submitted, that there was some speculation on that matter, but the Tribunal expressly declined to express a concluded view on that point.  The Tribunal had, so it was put, focussed on the child and made findings of fact in relation to the child.

14                  Turning to the second alleged error of law (the particular order made by the primary judge) Mr Tracey submitted that such an order was contrary to the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 582.  In that case the High Court allowed an appeal from a judgment of the Full Court which included a declaration that both applicants for refugee status were refugees and were entitled to the appropriate entry visas.  The High Court held that a declaration, even if drawn in specific terms, should not have been made, because the rights of the appellants to the issue of visas would only arise upon satisfaction of statutory conditions including the determination by the Minister under s 22AA of the Migration Act or by the Tribunal under s 166BC.  In those circumstances, the High Court ruled that the appropriate course would have been for the Full Court to return the matter to the Tribunal for determination in accordance with law.  The appellant contended that in the present matter, even if the primary judge had not erred in setting aside the Tribunal’s determination, he erred in making an order in the terms referred to above.  The appellant submitted that as the Tribunal had found that it was not satisfied that the apprehended persecution would be by reason of the respondent being a “black child”, it would not only be contrary to law but also artificial to send the matter back to the Tribunal and order it to be satisfied about something which it had expressly found it was not satisfied about.

Respondent’s Contentions

15                  Mr R E Lindsay, counsel for the respondent, contended that the Tribunal having made “very clear and definitive” findings that

      .     if the respondent returned to China he would face denial of access to subsidised food, health and education and all other welfare benefits for many years; and

      .     that action would in total amount to persecution;

erred in law by holding that such discrimination would be really a direct consequence of the impoverishment of his parents, and that the measures were directed against the parents and not the child.  Mr Lindsay referred to the evidence of social discrimination and stigmatisation of illegitimate children in China.  He took us to the Family Planning Regulations for the Guangxi Zhuang Autonomous Region (being the region from which the respondent’s family originated).  Articles 25 and 31 of those regulations provided:

“Article 25

The only child holding an Only Child Preferential Card shall be given priority when applying for a place in a nursery, kindergarten or school, or consulting a doctor, or applying for a job, or receiving assignments, or in the allocation of his/her family’s housing or when buying a housing unit in a city or town, or applying for a subsistence loan on a rural area.

Article 31

…

Any child born beyond the planned limit shall not be entitled to any benefits including nursery subsidy, family comprehensive medical care, or medical care covered by any labour insurance, until the age of seven.”

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 (4^th)) 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” 2^nd 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.

Associate:

Dated:              13 April 1999

REASONS FOR JUDGMENT

30                  R D NICHOLSON:  I have the advantage of reading in draft the reasons of O’Loughlin and Carr JJ.  I rely on those reasons for the statement of relevant facts and law save as it is necessary to refer to matters in these reasons.

Whether “persecution” requires animus

31                  The first ground of appeal contends the primary judge erred in finding the Refugee Review Tribunal (“the Tribunal”) had in turn erred when it found the respondent was not a refugee because he did not face persecution by reason of his membership of a particular social group.  The Tribunal so concluded because it considered the reasons of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317 required evidence of malignity, enmity or other adverse intention towards the respondent on the part of authorities of the Peoples Republic of China (“PRC”).  The primary judge discounted the requirement for any element of personal animus directed at its objects and found there was “persecution in the Convention sense”.  The principal matter argued on the hearing of the appeal was whether the Tribunal was in error in its understanding of the concept of “persecution”.

32                  The word “persecution” is defined by The Oxford English Dictionary (2^nd edn) 1989, vol II, p 592, relevantly, as

“The action of persecuting or pursuing with enmity and malignity; esp. the infliction of death, torture or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; the fact of being persecuted; an instance of this.”

Likewise the verb “persecute” is defined (at p 591) in that dictionary as, relevantly:

“To pursue with malignancy or enmity and injurious actions; esp. to oppress with pains and penalties for the holding of a belief or opinion held to injurious or heretical”

33                  The notions of malignancy and enmity are not carried forward into the new Shorter Oxford English Dictionary (Clarendon Press 1993) where at p 2169 the verb “persecute” is relevantly defined as “(seek out and) subject to hostility or ill treatment, esp. on the grounds of political, religious, or other beliefs regarded as unacceptable; oppress”.  At p 2010 the verb “oppress” is defined generally as “put down suppress; subdue, overwhelm; check put an end to” and as “subdue or keep in subservience by cruel or unjust exercise of authority or power; govern or treat harshly; tyrannize”.  The Macquarie Dictionary (Macquarie University, 1991) at p 1321 defines the verb “persecute” as “to pursue with harassing or oppressive treatments; harass persistently” and, relevantly, “to oppress with injury or punishment for adherence to principles or religious faith”.

34                  Derivatively from the Oxford English Dictionary definition, the notions of enmity or malignity have been referred to in some judgments as an element in persecution under the Convention:  Darmouni v Minister for Immigration Local Government and Ethnic Affairs (1989) 87 ALR 97 at 101 per French J; Amanyar at 208 per Jenkinson J.  However, as French J recognised in Darmouni at 102, the Full Court in Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263 at 281 cited with approval a passage from the judgment of the Privy Council in Molefi v Principal Legal Adviser [1971] AC 182 at 196 to the effect that the words in the definition of the term “refugee” must be applied with commonsense and do not call for a legalistic or philosophical examination.

35                  The concept of persecution has been considered by the High Court in Chan and in Applicant A.  In Chan Mason CJ (at 388) accepted that “some forms selective or discriminatory treatment by a State of its citizens do not amount to persecution”.  He thought it obvious that “harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason”.  Dawson J (at 399-400) said there was a general acceptance that a threat to life or freedom for a Convention reason amounts to persecution.  He found it unnecessary to consider what actions beyond that amounted to persecution.

36                  McHugh J (at 429-430) said:  “The notion of persecution involves selective harassment” and “as long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of class, he or she is ‘being persecuted’ for the purposes of the Convention”.  He said it was not necessary that the conduct should be directed against a person as an individual – it could be directed because of membership of a group which is the subject of systematic harassment.  Nor was it necessary that the individual should be the victim of a series of acts or that the threat be the product of a policy of the government of the person’s country of nationality – it could result from failure or inability to protect a person.  Nor did he consider the harm threatened need be that of loss of life or liberty.  Other forms of harm could constitute persecution.  In Chan the Court decided that an applicant for the status for refugee would satisfy the requirements if it was shown there was a genuine fear founded on “a real chance” that he or she would be persecuted for one of the Convention reasons if returned to the country of nationality.

37                  In Applicant A Brennan CJ said (at 233) said the “feared persecution” exhibited certain qualities, namely those which relate to the source of the persecution being in the country of nationality and the discriminatory character of it.  This second characteristic, flowing from the requirement that persecution must be “for reason of” one of the Convention categories, excluded “indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution” per Brennan CJ at 233 and cf Gummow J at 285.  Dawson J (at 242) in deciding (as did the majority) that the characteristic or element which unites a particular social group cannot be a common fear of persecution, said the contrary approach would ignore what Burchett J said in Ram at 568 (in the first passage identified below).  McHugh J (at 259) said:

“… 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.”

At the same time McHugh J distinguished conduct appropriate and adapted to achieving some legitimate object of the country of the refugee as not falling within the concept of persecution.  He added that “in cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws” (at 259).  At 284 Gummow J agreed with the formulation by Burchett J in Ram at 568 (in the second passage identified below).    Kirby J (at 293) in addressing the phrase “membership … of a particular social group” referred to the resistance by Australian courts of attempts to paraphrase or re-define the broad language of the Convention definition, also relying on the passage in Ram.

38                  The relevant portion of what was said by Burchett J in Ram at 568 reads:

“In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind.  That concept flows through the separate elements of the definition.  The well‑founded fear of which it speaks is a fear of “being persecuted”.  Persecution involves the infliction of harm, but it implies something more:  an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  Not every isolated act of harm to a person is an act of persecution.  (“the second passage”).  Consistently with the use of the word ‘persecuted’, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is ‘membership of a particular social group’.  If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’.  The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ – the membership of the social group must provide the reason.  There is thus a common thread which links the expressions ‘persecuted’, ‘for reasons of’, and ‘membership of a particular social group’.  That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group.  He is persecuted because he belongs to that group.”  (“the first passage”).

In addition to the consideration by members of the High Court of that passage in Ram, it has been referred to in the judgments of other judges of the Court.  In Jahazi at 299 French J said:

“The motivation of the persecution of members of a particular social group which will attract Convention protection is membership of that group.  The membership of the group must provide the reason for the persecution.  A person must have a well-founded fear of persecution because he belongs to the relevant group:  Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, per Burchett J, O’Loughlin J agreeing.  This is not, in my opinion, to exclude the possibility that the occasion for persecution is something other than membership of the group.  For example, an individual might commit a minor offence which is harshly punished because he is a member of a particular social group.  To require that a feared persecution arises solely for a Convention reason would be to narrow the scope of the protection artificially.  It would be an inadequate response to the possible varieties of an excuses for the oppression of target groups within a repressive society.”

I do not read any of the foregoing as requiring evidence of personal animus towards a particular applicant for refugee status.  References to “attitude” or “motivation” are not references to evidence of a subjective character directed to the particular applicant.  What is in issue is whether the conduct upon which the particular applicant relies is conduct falling within the Convention understanding of “persecution” as applied through the verb “persecuted”.  That requires evidence of the nature of the conduct.  Such evidence may itself give rise to an inference that it is carried out as expressive of an attitude or motivation to inflict harm.  Such evidence may include evidence of a subjective purpose of the perpetrator of the allegedly persecutory conduct and it may be that which converts “discriminatory behaviour into persecution”:  Prahastono at 269.  But there is no mandated requirement for such evidence as a consequence of the authorities previously referred to: what is required is proper finding of fact of whether the particular applicant for refugee status was being “persecuted” for a Convention reason and that will be reached in any of the ways the evidence in the case requires.

39                  It was these matters which I consider were recognised in the primary judge’s principal conclusion.  He did not gainsay the need for motivation connecting persecution to the relevant attribute.  What he did say was not needed was evidence of personal animus  – that is evidence of enmity and malignity on the part of the authorities in relation to the respondent.  I therefore agree with French J’s view that persecution may exist although executed with no element of personal animus directed at its objects.  Acceptance of that proposition must be subject to the qualification made by Brennan CJ in Applicant A at 233 and 236 and McHugh J at 258 that such persecution will not qualify under the Convention unless “for reason of” a Convention purpose.

40                  That French J was correct in this view and in his understanding of what had been said in the various authorities including Ram and Applicant A is supported also by the fact it would always be highly unlikely that evidence of personal animus could ever be obtained in relation to an infant applicant for refugee status born outside the country of nationality and unknown there to the authorities.

41                  There is a further reason why evidence of personal animus towards a particular applicant for refugee status cannot be a necessary prerequisite for a finding of fact that the applicant is being persecuted.  It is that it may be enough to have evidence of persecution towards the particular group of which that applicant claims to have been a member and the membership of which is relied on by him or her as the relevant Convention reason.

42                  In my view it follows the Tribunal’s primary conclusion, to the extent it was founded on a search for malignity, enmity or adverse intention as a necessary part of motivation towards the applicant, was founded on a misunderstanding of the requirements of the decided cases.

Whether conduct was “persecution”

43                  The Tribunal concluded that the actions which would be taken against the respondent by the PRC authorities would, in total, amount to persecution.  Factors which the Tribunal considered in reaching this conclusion on the evidence before it were:

(1)               The respondent would not be excluded from the Household Register for a substantial period of time because of either illegitimacy or birth outside the family planning guideline.

(2)               The respondent’s parents would be liable to pay for his education.

(3)               The respondent’s parents would be liable to pay for his medical costs.

(4)               The respondent and his mother would suffer social discrimination because of the respondent’s status as an illegitimate child.

(5)               The respondent’s parents would lose all stipends and work points.

(6)               The respondent’s parents would lose 10 per cent of their wage and would not be allocated additional housing.

(7)               The respondent’s parents would be liable for the cost of the respondent’s grain ration.

(8)               The respondent’s parents would be barred from job promotion, wage increases, production awards and entry into worker’s competitions for three years.

(9)               The respondent’s parents may be liable to fine.

(10)           The respondent as a “black child” is likely to belong to one of the poorest groups in China.

44                  The Tribunal also examined the situation in the respondent’s parent’s home province of Guangxi.   Article 31 of the Guangxi Zhuang Autonomous Region Family Planning Regulations Supplementary Provisions of August 1991 impose hardships on the mother and continue by providing that “any child born beyond the planned limit shall not be entitled to any benefits including nursery subsidy, family comprehensive medical care, or medical care covered by any labour insurance until the age of 7”.

45                  The Tribunal also accepted the parents of the respondent would be greatly disadvantaged economically upon their return to the PRC.  They would be liable to face fines for criminal extortion, illegal departure and violation of Family Planning Guidelines.

46                  Additionally, the Tribunal considered it significant the respondent was not only born outside the Family Planning Guidelines but was illegitimate and a third child.  It was possible the parents could be penalised until the child turns 14 in that situation, so that no finding could be made that the respondent’s disadvantages would cease when he turned seven.

47                  The Tribunal therefore found that the respondent, if returned to China, would face denial of access to subsidised food, health and education and all other welfare benefits for many years, probably beyond the time when he turns seven and additionally would face social discrimination and some prejudice and ostracism.  Additionally, it found the respondent will probably be severely disadvantaged, as a result of these factors, in terms of being able to find employment enough to support himself economically to maintain adequate health and nutrition and to function as a normal member of Chinese society.  The Tribunal therefore concluded:

“Taking into account that several violations of important human rights are potentially involved, that the violations would represent a systematic course of conduct persisting at least over several years, and that there would be a serious continuing perhaps life-long effect on the child, I conclude that the actions which would be taken against him by the PRC authorities would in total amount to persecution.”

48                  These conclusions of the Tribunal were not challenged before the primary judge or on this appeal.

Whether “black children” a particular social group

49                  The principal ground for the application to the Tribunal and for the subsequent application to the primary judge was that the respondent was entitled to refugee status as one who had “a well-founded fear of being persecuted” by reason of his membership of a particular social group.  The particular social group was said to be “black children”.  As his claim was put to the Tribunal, it was that he is a “black child” because his parents were not properly married and he was born outside the One Child Policy Guidelines; these leading to systematic discrimination amounting to persecution upon return to the PRC which would continue throughout his life.  The Tribunal understood the term “black child” to mean a child born otherwise than in accordance with (both) applicable marriage and family planning laws of China.

50                  On the question whether “black children” formed a particular social group, the Tribunal said:

“A child is a ‘black child’ irrespective of what persecution may or may not befall him or her. If the PRC Government decided tomorrow to cease penalizing ‘black children’ and their parents, they would nevertheless remain ‘black children’.  Identification as a ‘black child’ precedes whatever persecution may follow.”

Applying Applicant A the Tribunal concluded it was clear that black children were a particular social group.  It continued:

“the existence of a socially perceived group is evident from the term ‘black children” itself.  This is not a convoluted, artificial phrase such as is often invented when it is sought somehow to bring a case within the Convention ground of particular social group.  It is a well‑known term appearing in numerous academic articles on Chinese society, and has a well-understood Chinese equivalent (“hei haizi’);  Michael Dutton.  Policing and Punishment in China, p. 218.  The evidence to be cited below (under ‘Assessment’) clearly establishes that the group ‘black children’ is widely recognized both within and outside the PRC.  Its members may be identified by means of the household registration system, and it appears that they are in practice identified by ordinary Chinese apart from that.  The group shares the characteristic of having been born outside officially approved parameters, a characteristic not shared by the general population.  The group receives markedly different treatment at the hands of the authorities, as well as facing prejudice from the wider Chinese population.  It seems reasonable to compare it, as Mr Egan did, to illegitimate children in Australia some decades ago, when they faced significant legal and social disabilities.”

The Tribunal therefore found the respondent was a member of the particular social group known as “black children”.  It subsequently said the respondent was a “black child” not only by virtue of his birth outside the One Child Policy but also as a result of his illegitimacy.

51                  This finding was unchallenged before the primary judge.  As a result of this Court inviting the parties to consider the question, the applicant seeks to add the following two grounds of appeal:

“2.(h)  His Honour erred in failing to hold that on the evidence before the Tribunal it was not open to the Tribunal to find that “black children” were “a particular social group”.

2.(i)     His Honour erred in failing to hold that, if “black children” were a “particular social group”, they were a particular social group defined by reference to the persecutory conduct liable to be suffered by their members, and pursuant to the decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 could not be a particular social group for the purposes of the Refugees Convention.”

These issues not having been enlivened before the primary judge he could not be in error in relation to them.  I assume, however, that point can be addressed by amendment of the grounds or in another way. 

52                  As to proposed ground 2(h) I would not be prepared to grant leave for the addition of this ground because the unchallenged findings of the Tribunal show the following:

(1)               “A child is a ‘black child’ irrespective of what persecution may or may not befall him or her.”

(2)               “If the PRC Government decided tomorrow to cease penalizing ‘black children’ and their parents, they would nevertheless remain ‘black children’ ”

(3)               “Identification as a ‘black child’ precedes whatever persecution may follow.”

(4)               “ The group ‘black children’ is widely recognized both within and outside the PRC.”

(5)               “Its members … are in practice identified by ordinary Chinese apart from [the household registration system]”.

(6)               “The group … [faces] prejudice from the wider Chinese population.”

(7)               “It seems reasonable to compare … illegitimate children in Australia some decades ago, when they faced significant legal and social disabilities.”

53                  On such findings the Tribunal would have been entitled to its conclusion:  cf Applicant A at 241 per Dawson J and at 266 per McHugh J.

54                  As to proposed ground 2(i), it is conceded for the respondent this raises a pure question of law.  The question is whether the Tribunal should have found “the characteristic or element which unites the group” of black children is the common fear of persecution:  cf Applicant A at 242 per Dawson J.  The “only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution”:  Applicant A at 263 per McHugh J.

55                  One important determinant of whether a group is (impermissibly) defined by reference to persecutory conduct is the nature of the law or laws from which the persecutory conduct derives.  “Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms”:  Applicant A at 243 per Dawson J.  On the face of it the laws referred to by the Tribunal are laws of general application.

56                  However, where the group exists as a social unit independently of or in addition to the effect of the general laws it will not be found to be a group impermissibly defined by reference to the persecution emerging from laws of general application.  Here there are the findings (1)-(7) above which show that the Tribunal considered, as a question of fact, the particular social group of black children was not impermissibly defined.

57                  There are four reasons why this appellate court should not decide the appeal on the basis of proposed ground 2(i).

58                  The first is that there are findings of fact of the Tribunal which are to the effect that the particular social group of black children exists independently of persecution uniting the group.  To say that is in error on a characterisation of the laws without reference back to the Tribunal appears to be an inappropriate step denying the Tribunal’s findings made on all the material before it.

59                  Secondly, in Applicant A at 264 McHugh J said:

“Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society.  Left-handed men are not a particular social group.  But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group.  Their persecution for being left-handed would create a public perception that they were a particular social group.  But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.”

60                  This passage does not find a parallel in the reasoning of other members of the majority in Applicant A.  It is a passage expressly relied on in the reasons of the Tribunal.  If it represents a correct view of the law it may be exactly the position in relation to black children.  It is possible the persecutory conduct towards them has created a particular social group now recognized independently of the persecutory laws.  That is one possible reconciliation of the apparent conflict between the characterisation of the persecutory laws as of general application and the findings of the Tribunal (1)-(7) above.  Whether that is or is not the case requires appropriate findings of fact.

61                  Thirdly, it is important also to have in mind that the respondent’s case is based on wider considerations than those in Applicant A.  The latter case is determinative of the issue of definition of a particular social group of persons acting contrary to the one-child policy of the PRC and defined only by that policy.  Black children are primarily (as the Tribunal found) children born outside marriage.  The Tribunal’s findings of their social recognition and likeness to illegitimate children in Australia raises considerably wider issues of fact than merit disposition of a characterisation of the laws at the level of a Full Court without the benefit of a primary judgment on the issue.

62                  Fourthly, if the issue of characterisation of the laws is to be determinative, it could also be determinative of whether the conduct constitutes persecution:  Applicant A per McHugh J at 258.  As has been said, the Tribunal’s findings of persecution remain unchallenged.

63                  I differ from O’Loughlin and Carr JJ in that I consider in these circumstances a Full Court should not adopt a determinative characterisation of the relevant laws having the effects of overriding the abovementioned findings of fact, setting aside findings of fact that a particular social group existed independently of the effect of the law and extinguishing the possibility of the application of the dicta of McHugh J at 264 of Applicant A.

64                  In my view the proper course is for the matter to be remitted to the Tribunal.  This could be achieved by leave being granted to add ground 2(i) as ground 2(h) on condition ground 2(i) recast to read as follows:

“2(i)  The Tribunal erred in failing to consider whether the character of the relevant laws of the People’s Republic of China was such that the respondent could not have a member of a particular social group of “ ‘black children’ ”.

The appeal should then be allowed on that basis.  The matter should then be remitted to the Tribunal to reconsider the question whether the respondent is a member of a particular social group in the light of the characterisation of the relevant laws by the Tribunal, the previous evidence and findings and other relevant matters including the view expressed by McHugh J at p264 of Applicant A and whether that view has application in this case.

Whether persecution “for reasons of” membership of a particular social group

65                  In their reasons O’Loughlin and Carr JJ have made reference to the decision by the respondent’s parents to bear him as a relevant consideration to the causal link between the persecutory conduct and the Convention reason.  I am unable to agree.  The Convention is to be applied to beings in existence.  The respondent is a person, albeit an infant.  The causal relationship is to be found between the persecutory conduct and the Convention reason in relation to him.  It seems to me to beg the question to say he is only subject to the persecutory conduct “by reason of” his parents having conceived him in the knowledge of the policies of  the PRC.  Furthermore, there is no evidence concerning the circumstances of his birth, including the attitude of his parents to issues such as birth control or whether his conception was a deliberate act.

Whether the absence of fear in the parents means child cannot succeed.

66                  French J held that in the case of a child a well-founded fear could be derived from the fear held for the child by his or her parents.  The appellant does not challenge that conclusion.  That approach is consistent with par 185 of the UNHCR Handbook on Procedures, Ch V1.  See Goodwin‑Gill, The Refugee and International Law (Clarendon 2^nd ed 1996) at 356‑358.

Conclusion

67                  In my opinion leave should be given to add a new ground 2(i) as ground 2(h) but in the varied form referred to in these reasons.  The appeal should be allowed on that ground.  The matter should then be remitted to the Tribunal to further consider the question of whether the respondent is a member of a particular social group.

Associate:

Dated:              13 April 1999