Applicant A and Applicant B v Min for Immigration & Ethnic Affairs & Anor S85/1995 [1995] HCATrans 388 (23 November 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S85 of 1995

B e t w e e n -

"APPLICANT A" and "APPLICANT B"

Applicants

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

JANET WOOD, MEMBER, THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

DAWSON J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 NOVEMBER 1995, AT 10.22 AM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the applicant, together with my learned friend, MR G.P. CRADDOCK. (instructed by T. Murphy, General Manager, Legal Services, Legal Aid Commission of New South Wales)

MR J. BASTEN, QC: I appear for the first respondent, if the Court pleases. (instructed by the Australian Government Solicitor)

DAWSON J: Mr Game, we thought we might hear from Mr Basten first, in this matter.

MR GAME: If the Court pleases.

MR BASTEN:. Your Honours, the issue which is identified in the terms that we have suggested in the outline of argument is one which is in terms reflective, I think, of the issue defined at page 124 in the judgment of the Full Court. The issue is really this: if one looks at the definition of a particular social group for the purpose of the convention, one needs to identify a group which would reasonably fall within that categorisation. The difficulty which the tribunal faced was that, if one takes the first or the second parts of that definition alone, one has a large percentage of the population of China, no doubt, as the tribunal accepted, and the difficulty is to say that hundreds of millions of people would be a sufficiently precisely defined cognisable group to be a particular social group even if they could, in other terms, be described as a group.

What the tribunal then did was to introduce the third element of the susceptibility to forcible sterilisation. Because this question of forcible sterilisation arose only in relation, as the evidence showed, to rural and remote areas, that no doubt limited the class of people who might be subject to forcible sterilisation to manageable proportions in terms of the convention concept. The difficulty in adopting that last step though, in my submission, is that it renders nugatory the requirement of the convention not merely that the person be subject to a well-founded fear of persecution, but that it be by reason of membership of the group. In other words, as I think I say in the written submission, or we said in that submission, there is a conflation of the two elements of the convention definition.

McHUGH J: But that may be, but why cannot a class-based persecution, when carried out by a government, both define and persecute a particular social group, because without the government action the group would not be a social group in the sense that is recognised by society at large?

MR BASTEN: Well, that may well be so, as a matter of principle, your Honour. The question is really how one applies that principle in the present case.

DAWSON J: There is no immediate answer, is there? What I am getting at is the question is an important one and the answer to it is not apparent immediately.

MR BASTEN: Your Honour, the application of the convention is undoubtedly a matter of public importance. I have got nothing to say against that. All that I would say is that the application will vary according to the precise circumstances of the case presented. We now have three decisions of the Full Federal Court. All of them apply the principles in unanimous terms and there is no suggestion, as I understand it, that there is any difficulty in formulating the general principles. What we would really say is that the application of those principles in individual cases may well give rise to difficult questions. In this case, there does not seem to be a difficulty.

DAWSON J: What is the general principle in this case?

MR BASTEN: I am not sure that there is a general principle, your Honour, in this case. The general principle is that one needs to identify, firstly, a particular social group and then see if, as a question of fact, the treatment of that group is by that reason.

DAWSON J: The general question is how do you apply the particular provision in this case? What does it mean or, if you like, how do you define a social group?

MR BASTEN: Yes. It may be that one can give some guidance in relation to principles but we would say in this case what the Full Court has said is basically that you cannot define - it is a negative decision, if you like - a social group in terms which require the element of persecution to be introduced in order to give that level of particularity.

McHUGH J: But may not there be another approach to the question of public importance in this case? There may be cases, and this may well be one, where the results of applying a principle affects so many people that the results of the application of the principle is, itself, or are themselves, questions of public importance. There must be many thousands of people who will be affected by this decision and affected in a way that, on one view, it infringes basic human rights. That being so, why is it not an important question for this Court to decide?

MR BASTEN: In the sense that, indeed, there may be many hundreds of millions of people in China who lose an opportunity for convention protection if the decision is correct, all that I really think I was arguing was that the decision is correct on its - - -

TOOHEY J: Your argument, I take it, is that it is so patently correct that it does not warrant a grant of special leave.

MR BASTEN: Yes.

TOOHEY J: But the question of principle seems to lie on what the Full Court said on page 141, Mr Basten, at about line 20, when the court says:

To apply the reasoning of Morato, such a law -

being a law in this case relating to children -

would be dealing with what people did, not with what they are.

That would seem to be an arguable proposition.

MR BASTEN: I take what your Honour is saying. The difficulty in relation to applying the Morato terminology more generally perhaps illustrates the difficulty in giving special leave in this case. Morato was the case of a Crown informer and clearly, in that case, one could say there was no particular social group of such people because of the way in which the group had to be constituted. I do not think that in those terms that necessarily is the defining passage in relation to this particular group, although it is one way of putting it, but the Full Court puts it in various ways, including the passage at the bottom of that page at lines 50 to 52. These are summary conclusions at the end of the judgment.

DAWSON J: But it is not really a question of what people do or did. It is a question of what people can do without being punished, is it not?

MR BASTEN: That may be so. I think that distinction was actually made by their Honours. They talk about the fact that this particular issue deals with future acts rather than past acts, as in Morato. That distinction from Morato's Case was acknowledged in the judgment of the Full Court, but I do not have any difficulty in principle with saying that that discussion has some impact on this case. Really, what I think the Minister's case is that one will get different formulations of the way in which one determines that a particular group does not fall within the convention definition, depending on the circumstances. We say that in this case, there is no reasonable doubt attending the conclusion. Those are my submissions.

DAWSON J: Thank you, Mr Basten. I should have mentioned that there is a certificate from the Deputy Registrar that Janet Wood, Member, constituting The Refugee Review Tribunal, the second respondent in this matter, submits to the decision of the Court save as to costs.

There will be a grant of special leave in this matter.

AT 10.31 AM THE MATTER WAS CONCLUDED