No DG12 of 1994
IN THE FEDERAL COURT OF AUSTRALIA
DARWIN DISTRICT REGISTRY
LONG GUAN JUAN & OTHERS
MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
M.W.GERKENS & J. VRAKNAS
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION INTERVENING BY LEAVE
The Human Rights and Equal Opportunity Commission ("the Commission") was established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). On 28 February 1995, His Honour Justice O'Loughlin directed that leave be granted to the Commission, pursuant to s.11(1)(o) of the HREOC Act, to file and serve written submissions in these matters limited to the issues that are by virtue of the terms of the respective applications relevant to the matters that are still to be determined.
2. SUMMARY OF ARGUMENT
The Commission's essential submissions are the following:
2.1 The issue of protection visas pursuant to s.36 of the Migration Act 1958 (Cth) hinges upon the Refugee Convention. In turn the Refugee Convention requires an application of the rights protected by various international human rights instruments.
2.2 The "one child policy" presently in place in China does not on its face condone forced abortion or sterilisation.
2.3 However, the implementation of the Policy in a particular case may involve forced abortion or sterilisation, in contravention of international human rights principles. Such contravention may also amount to "persecution" within the meaning of Article 1 of the Refugee Convention.
2.4 Persecution may arise out of the implementation of the one-child policy by reason of:
- a person's particular social group or religion, or
- in some circumstances, by reason of a person's political beliefs.
2.5 Whether the definition of "refugee" is limited to a consideration of prospective persecution or not, the mere fact that substantial persecution has occurred in the past is likely to be very relevant and probative to the question of whether a person has a "well-founded fear of persecution".
2.6 The motive of the persecutor cannot be conclusively determinative of the question as to whether there has been persecution within the meaning of the Refugee Convention.
Each of these submissions are separately addressed in detail in the following written submissions.
3. THE RELATIONSHIP BETWEEN THE MIGRATION ACT 1958 (Cth), THE REFUGEE CONVENTION AND INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
3.1 Australia acceded to the Refugee Convention on 21 January 1954 and to the Refugee Protocol on 13 December 1973 . The term "refugee" is defined in Article 1 of the Refugee Convention as being 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; 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 fear, is unwilling to return to it."
3.2 Section 36 of the Migration Act 1958 (Cth) makes specific reference to the Refugee Convention and Protocol in determining the criteria for the grant of a protection visa:
"36 (1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."
3.3 In addition, Schedule 2, Part 817.12 of the Migration (1993) Regulations specifies that the purpose of a Class 817 (Protection Permanent) Visa and Entry Permit is, inter alia, to provide for permanent residence in Australia by
"certain persons in Australia determined to be refugees..."
3.4 The reference to the Refugee Convention and Protocol in the Migration Act and Regulations does not import these international instruments in to Australian municipal law. However, it is clear that these instruments are the primary source in determining the grant of a protection visa under the Migration Act and Regulations. In Premalal -v- Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117 at p.139, His Honour Justice Einfeld considered that
"although in Australia there is no express enactment of the definition of refugee, and the Convention and Protocol is not part of Australian municipal law: Gunaleela -v- Minister for Immigration and Ethnic Affairs (1987) 14 FCR 591 at 596, it is clear that the Convention definition has been used by successive Australian Governments for many years. The definition appears on the application form for refugee status. Furthermore, since at least 1977 there has been a declared policy to use the definition as well as to extend it to 'people in refugee-type situations who do not fall strictly within the UNHCR mandate or within Convention definitions': Ministerial Statement of Refugee Policy and Mechanisms, Parliamentary Debates, House of Representatives (Hansard), 24 May, 1977." 
3.5 The Refugee Convention and Protocol in turn is concerned with assuring the protection of fundamental rights and freedoms contained in the other international human rights instruments. The preamble to the Refugee Convention opens in the following way:
"THE HIGH CONTRACTING PARTIES
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,
Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,"
3.6 The Charter of the United Nations had come into force on 24 October 1945 and the Universal Declaration of Human Rights ("UDHR") was adopted by the General Assembly on 10 December 1948. At the time that the Refugee Convention wasagreed upon in 1951, the UDHR was the only existing international human rights instrument. Other relevant human rights instruments which have been agreed upon since that time include:
- the International Covenant on Civil and Political Rights ("ICCPR") -ratified by Australia in 1980 , and set out in the Schedule 2 of the HREOC Act;
- the International Covenant on Economic, Social and Cultural Rights ("ICESCR") -ratified by Australia in 1975 ;
- The Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") -ratified by Australia in 1983  , and set out in the Schedule to the Sex Discrimination Act 1984 (Cth); and
- the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("the Torture Convention") -ratified by Australia on 7 September 1989, and set out in the Schedule to the Crimes (Torture) Act 1988 (Cth). 
3.7 There is a general principle in Australian law that whilst ratification of a treaty does not incorporate its provisions into Australia's municipal law, it may allow the terms of the treaty to be used by a domestic court as an aid to resolve uncertainty or ambiguity in the common law. In Mabo -v- Queensland (1992) 175 CLR 1, Justice Brennan made the following points in relation to the existence of native title in place of the formerly recognised common law doctrine of terra nullius, at p.42:
"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights bring to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands."
In Teoh -v- Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, the Full Federal Court of Australia considered whether the Convention on the Rights of the Child should have been taken into consideration by a decision-maker who refused the grant of resident status to the appellant. His Honour the Chief Justice said, at p. 414:
'Counsel for the appellant did not contend that the United Nations Convention on the Rights of the Child, to which Australia became a party in 1990, had become part of Australia's domestic law or that the decision-maker was bound to take its provisions into account when making a decision that might affect children. The Convention does however form part of the general background against which decisions affecting children are made, in that it is a statement of what the international community, including Australia, regards as appropriate behaviour by nations with respect to children within their jurisdiction. It reflects the standards to which Australia is seen by the international community to aspire as a mature and civilised nation." 
3.8 The relevance of the international human rights instruments to refugee status determinations in particular was confirmed by His Honour Justice Einfeld in Premalal-v- Minister for Immigration (1993) 41 FCR 117 at p.138 noted:
"It is...appropriate in reviewing refugee status decisions...to take into account the best available examples of objectivity in this field, namely the various international human rights principles and conventions to which Australia is a party. As far back as 1948, the High Court affirmed the principle that the judiciary should interpret legislation and policy wherever possible consistent with international conventions ratified by Australia: Chow Hung Ching -v- The King (1948) 77 CLR 449 at 477."
His Honour went on to say:
"Nowhere are considerations of international instruments of human rights more important than in the area of refugees. Australia ratified the 1951 Geneva Convention (the Convention) relating to the status of refugees and its protocol on the basis of 'the principle that human beings shall enjoy the fundamental rights and freedoms without discrimination' (Department of Foreign Affairs and Trade, Treaty Series no 5 of 1954, preamble). The content of these rights, although not only or particularly applying to refugees, is comprehensively dealt with in the International Covenant on Civil and Political Rights (ICCPR) which Australia ratified by legislation in 1981 (the Human Rights Commission Act 1981 (Cth))."
3.9 Professor James C. Hathaway in his book, The Law of Refugee Status, defines persecution as
"...the sustained or systemic violation of basic human rights demonstrative of a failing of state protection" 
However, it is apparent that not all breaches of international human rights will amount to persecution under the Refugee Convention. Professor Hathaway goes on to refer to a hierarchy of human rights set out in the international human rights instruments, the breach of some (but not all) which will amount to persecution.
"First in the hierarchy are those rights which were stated in the Universal Declaration, translated into immediately binding form in the ICCPR [Art.2(1)-(2)], and from which no derogation whatsoever is permitted, even in times of compelling national emergency [Art.4(1)-(2)]. These include [inter alia] freedom from arbitrary deprivation of life [Art.6], protection against torture or cruel, inhuman or degrading punishment or treatment [Art.7]...and freedom of thought, conscience, and religion [Art. 18]. The failure to ensure these rights under any circumstances is thus appropriately considered to be tantamount to persecution.
"Second are those rights enunciated in the UDHR and concretized in binding and enforceable form in the ICCPR, but from which states may derogate during a 'public emergency which threatens the life of the nation and the existence of which is officially proclaimed' .These include [inter alia]...the protection of personal and family privacy and integrity [Arts 17 and 23]... The failure to ensure any of these rights will generally constitute a violation of the state's basic duty of protection, unless it is demonstrated that the government's derogation was strictly required by the exigencies of a real emergency situation, was not inconsistent with other aspects of international law, and was not applied in a discriminatory way...
"Third are those rights contained in the UDHR and carried forward in the International Covenant on Economic, Social, and Cultural Rights. In contrast to the ICCPR, the ICESCR does not impose absolute and immediately binding standards of attainment, but rather requires states to take steps to the maximum of their available resources to progressively realize rights [Art.2(l)] in a non-discriminatory way [Art.2(2)] The basic rights protected are [inter alia] the right to work [Art.6]...entitlement to...basic education [Arts.l3-l4]; protection of the family, particularly children and mothers [Art.lO]... While the standard of protection is less absolute than that which applies to the first two categories of rights, a state is in breach of its basic obligations where it either ignores these interests notwithstanding the fiscal ability to respond, or where it excludes a minority of its population from their enjoyment.
"Fourth, a few of the rights recognized in the Universal Declaration were not codified in either of the binding covenants on human rights, and may thus be outside the scope of a state's basic duty of protection. The right to own and be free of arbitrary deprivation of property and the right to be protected against unemployment are examples of rights which are included in this group, and which will not ordinarily suffice in and of themselves as the foundation of a claim for a failure of state protection." 
3.10 In summary, therefore, the Commission submits that the international human rights instruments to which Australia is a party will be relevant to the interpretation of whether a person is a refugee and therefore entitled to a protection visa under the Migration Act 1958.
4. THE "ONE-CHILD" POLICY AND ITS IMPLEMENTATION IN CHINA
4.1 The Commission is aware that detailed factual submissions about China's one-child policy were made by the applicants during the refugee determination process, and will also be raised before the Court in these proceedings. The Commission submits that the following conclusions of the New Zealand Refugee Status Appeals Authority in the decision of Re ZWD (Unreported Refugee Appeal No.3/91) p.38, are probative and relevant:
1. State practice in controlling the size and composition of their population in many instances extends to policies intended to limit population growth.
2. China's population control policy is one of the most stringent of its kind and the policy is enforced by intrusion into matters of family, privacy and individual choice.
3. Coerced abortions and sterilisation are not part of the official policy.
4. However, compulsion to submit to abortion or sterilization does continue.
5. The Government of China does not condone forced abortion and sterilization. At most, government officials continue to insist that family planning targets be met, thus perpetuating the system in which coerced abortions and sterilizations will occur. The state must be regarded as responsible for these acts.
6. Disciplinary measures for failing to comply with the one-child policy can be extreme, ranging from stiff fines to loss of jobs.
7. Family planning policies are applied without discrimination to the majority Han population. "
5. DOES THE IMPLEMENTATION OF THE ONE-CHILD POLICY LEAD TO PERSECUTION UNDER THE REFUGEE CONVENTION AND PROTOCOL?
5.1 Using the principles set out above in paragraphs 3.1-3.8 and the "hierarchy of rights" test proposed by Professor Hathaway in paragraph 3.9, the Commission submits that the international instruments set out below are relevant in any consideration of the issues raised in the present case regarding the implementation of China's one-child policy.
5.2 The International Covenant on Civil and Political Rights:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
5.3 The International Covenant on Economic, Social and Cultural Rights:
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education enables all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
5.4 The Convention on the Elimination of All Forms of Discrimination Against Women:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
5.5 The Torture Convention:
1. For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, for any reason based of discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity...
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
5.6 There are also two international declarations and resolutions which are of relevance to the human rights in particular relating to the rights of women and the family set out in the above instruments.
5.7 The Proclamation of Teheran was made by the International Conference on Human Rights at Teheran on 13 May 1968. The Governments of 84 States were represented at the Conference.
Paragraph 16 of the Proclamation provides:
16. The protection of the family and of the child remains the concern of the international community. Parents have a basic human right to determine freely and responsibly the number and the spacing of their children.
5.8 The International Conference on Population and Development was held in Cairo from 5-13 September 1994. It was attended by 180 countries. At the conclusion of the Conference, a Programme of Action, in which".. .Australia played an active, constructive and innovative part" , was adopted. Chapter VII of the Programme of Action, section A, "Reproductive rights and reproductive health", noted as follows:
"Basis for action
7.2... .Reproductive health...implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so.
7.3....reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.
7.5. The objectives are:
(b) To enable and support responsible voluntary decisions about child-bearing and methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law and to have the information, education and means to do so;"
Section B, "Family planning", noted:
"Basis for action
7.12. The aim of family-planning programmes must be to enable couples and individuals to decide freely and responsibly the number and spacing of their children and to have the information and means to do so and to ensure informed choices and make available a full range of safe and effective methods... The principle of informed free choice is essential to the long- term success of family programmes. Any form of coercion has no part to play.
7.14. The objectives are:
(a) To help couples and individuals meet their reproductive goals in a framework that promotes optimum health, responsibility and family well-being, and respects the dignity of all persons and their right to choose the number, spacing and timing of the birth of their children."
7.24. Governments should take appropriate steps to help women avoid abortion, which in no case should be promoted as a method of family planning, and in all cases provide for the humane treatment and counselling of women who have had recourse to abortion."
5.9 The Minister for Immigration and Ethnic Affairs has recently confirmed the importance to Australia of the matters raised at the Cairo Conference. At a seminar on "Refugees, International Asylum and China's One-Child Policy held at the Australian National University, Canberra, on 4 February 1995, Mr Des Storer, First Assistant Secretary, Policy and Programme Development, presented a paper on behalf of the Minister, which contained the following points :
"Population is no longer considered a problem which can be tackled in isolation from social and economic conditions. Effective national and international population policies are required to protect the very life of our planet. At the same time there is a need to ensure that these policies are tempered with safeguards for the human rights of those subjected to these policies. "
"The Program of Action enshrines the principles of freedom of choice an non-coercion in family planning. Some countries sought to limit the obligations under the Program of Action by seeking to place religious, ethical and cultural considerations on the same plane as national sovereignty and universally recognised international human rights. The Australian delegation, which Senator Bolkus headed, worked hard to preserve the balance between these considerations to ensure that human rights were not compromised. "
"At the Cairo Conference Senator Bolkus expressed support for the family planning programs to be entirely non-coercive in nature. He stated:
'This cannot be emphasised too strongly as people must be free to decide the number and spacing of their children."
5.10 Summary of human rights protected by the above instruments
The following table summarises the human rights which in this submission are relevant to a consideration of persecution under China's one-child policy.
- Right to freedom from
MENTAL & MORAL
- Right to thought, conscience
- Right to privacy
Arts 18& 27
RIGHTS OF THE
- Right to marry &
found a family
- Protection of
|RIGHT TO WORK
|RIGHT TO EDUCATION
6. THE GROUNDS OF PERSECUTION
6.1 The definition of "refugee" under Article 1 of the Refugee Convention provides that one of the elements a person seeking to be recognised as a refugee must show is that he or she faces persecution
"...for reasons of race, religion, nationality, membership of a particular social group or political opinion..."
6.2 It is apparent that a person could seek refugee status on the basis of more than one of the above grounds. For instance, a person who faces persecution because she refuses to wear religious attire could be facing persecution on the basis of religion and on the basis that her refusal to wear the attire is a political statement against the ruling party.
6.3 In Morato -v- Minister for Immigration for Immigration, Local Government and Ethnic Affairs ,  His Honour Justice Lockhart regarded the definition of the expression "particular social group" as requiring a wide definition:
"The expression is a flexible one intended to apply whenever persecution is directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons...In my opinion for a person to be a member of a 'particular social group' within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognisable or cognisable group within a society that shares some interest or experience in common." 
6.4 The application of the expression "particular social group" to a person who faces persecution under China's one-child policy was dealt with by His Honour Justice Sackville in the case of Minister for Immigration and Ethnic Affairs -v- A and B and Others.  Having reviewed in detail the authorities in the United States, Canada and Australia, His Honour concluded that the Refugee Review Tribunal had been entitled to find that the respondents in that case feared persecution by means of membership of a particular social group , which had been defined as
"Those who, having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised. " 
6.5 The Commission submits that Justice Sackville applied the correct principles in the above case, and that this case is authority for the proposition that the appellants in the present case would also come within the definition of "particular social group".
6.6 The Commission also submits that the appellants may also come within the definition of "religion" under Article 1 of the Convention, if it can be shown that there is a nexus between their religious beliefs and the implementation of the one- child policy.
6.7 It is noted that at p.6 of Decision No V94/02677, Member Gerkens did not accept that the abortion and later sterilisation of the applicant were for any purpose other than a desire of the local authorities to advance the objectives of the one-child policy, and therefore was not persecution for reasons of religion. The reason that Member Gerkens came to this conclusion was that
"To say that a person has been persecuted for reasons of religion is to say that the persecution was religiously motivated on the part of the persecutor. It follows that persecution for a reason unconnected with religion is not persecution for reasons of religion even if the act of persecution interferes with a religious belief of the applicant."
Member Gerkens went on to cite the observation of LaForest J in Re Attorney- General of Canada -v- Ward ,  where at p.39 it was said that
"The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution."
6.8 With respect, the Commission submits that Member Gerkens' reasoning in this instance is not correct.
6.9 In the first place, the subjective element which is an essential component of the refugee definition clearly requires that a decision-maker must direct his or her inquiry to the mind of the alleged victim. The United Nations Handbook on Procedures and Criteria for Determining Refugee Status , paragraph 40, states:
"40. An evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions. One person may have strong political or religious convictions, the disregard of which would make his life intolerable; another may have no such strong convictions."
Paragraph 42 goes on to add:
"In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there."(emphasis added)
6.10 Secondly, the whole notion of human rights and anti-discrimination law  is premised upon the notion that the discriminatory treatment of an alleged victim may be either direct or indirect, the latter depending not on the intention of the State in drawing the distinction, but on the effect on the victim: see Savitri Taylor, "The Right to Review in the Australian On-Shore Refugee Status Determination Process: Is it an Adequate Procedural Safeguard Against Refoulement?", (1994) 22 FLR p.300 at p.304 and n.21. Thus, the European Commission of Human Rights has found that the requirement for a Sikh motorcyclist to wear a crash helmet, which obliged him to remove his turban when riding his motor cycle, interfered with his freedom of religion under the equivalent provision in the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, article 9(1). In that case the overall purpose of the law was road safety, but its effect from the point of view of the alleged victim was discrimination on the basis of his religion.
6.11 Similarly, in the decision of the Federal Court of Canada in Cheung -v- Canada ,  the Court rejected the reasoning of the Refugee Appeals Board that there was no evidence of a persecutory intent on the part of the Chinese Government in the application of the one-child policy. His Honour the Chief Justice (Linden CJ) said at p.218:
"In my view, the board's ruling misconstrued the law by focusing on the general aim of the one-child policy of the government, which may well make sense for China, rather than examining the methods used to enforce that policy. In so doing, the board ignored the severity of the intrusiveness of sterilization to a person's mental and physical integrity. It also wrongly required that a persecutory intent' be present, whereas a persecutory effect suffices" (emphasis added)
6.12 The Minister for Immigration and Ethnic Affairs has recently affirmed the possibility that China's one-child policy may give rise to claims on the grounds of race, religion, or political opinion. In the seminar held at the Australian National University on 4 February 1995 (referred to above, paragraph 5.9), Mr Des Storer speaking on behalf of the Minister in relation to proposed new legislation, noted:
"...a person from a particular village or workplace who is subjected to the rogue application of a fertility control policy in a manner which amounts to persecution could still have a claim accepted under the new legislation. Nor will a person who is a member of a particular religious, political or racial group subject to the persecutory application of fertility control policies be denied consideration of their claims under this legislation."(Emphasis added) 
6.13 The Commission submits that in the present case it was open to Member Gerkens to consider whether the implementation of the one-child policy amounted to persecution in two ways:
(1) In its purpose, not necessarily because it was overtly religious in its intent, but because the implementation of the policy disregards the religious beliefs of certain members of the community. 
(2) In its effect, because it prevented certain members of the community from complying with their perceived religious obligations.
7. PAST AND FUTURE PERSECUTION
7.1 As referred to in paragraph 6.1 above, the term "refugee" is relevantly defined in Article 1 of the Refugee Convention as being 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 terminology of this definition has been taken by Member Gerkens in Decision No V94/02677 to suggest that the protective obligations under the Convention and Protocol
"are founded on prospective persecution" (p.7) 
7.2 It is the Commission's general submission that the "prospective persecution" analysis of the refugee definition as made by Member Gerkens is, with respect, too simplistic. While there is no doubt that the refugee test is a forward looking test , a "prospective persecution" approach can disguise the substantial importance and relevance of past persecution within refugee applications.
7.3 Under Member Gerkens' approach, once sterilisation has occurred, it is effectively an irrelevant consideration. Thus Member Gerkens found:
"...the virtual finality of sterilisation means that there is not a real chance of further interference with the applicant's body..." (p.7)
"Protection obligations... are founded on prospective persecution..."(p. 7)
"There is, further, no real chance that this particular kind of behaviour would be repeated as sterilisation has removed any future motivation for such behaviour"(p.8)
7.4 The Commission submits that Member Gerkens' finding that the applicant does not have a well-founded fear of sterilisation (which mayor may not be correct, depending on the facts), does not mean that the applicant does not have a well- founded fear of persecution in any form. The very fact of the sterilisation -even once it has occurred -can still be relevant to the simple and correct inquiry of whether a person presently has a well-founded fear of being persecuted in the future.
7.5 The Commission submits that -whilst it may be true that a particular form of past persecution is unlikely to be repeated in the future (for example, a 'further' sterilisation) -this does not mean that the past persecution does not of itself have continuing significance for the purpose of assessing an application for refugee status.
7.6 It is clear that evidence of severe past persecution may be used as evidence of likely future persecution. As Professor Hathaway states:
"Where evidence of past maltreatment exists...it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home. Unless there has been a major change of circumstances within that country that makes prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk."
7.7 The Commission also submits that it is not necessary that the possible future persecution be of the same sort as the past persecution, nor even that the applicant should be able to specify exactly what sort of persecution he or she is likely to suffer. This is not to confuse "prospective persecution" with "the ongoing consequences of past persecution"  ; for example:
- A person who is maimed as a result of past persecution and can no longer work would be unlikely to be able to substantiate a well- founded fear of persecution on this basis alone as the detriment (i.e. the inability to work) is 'only' a consequence of past persecution -it is not 'new' persecution. This would be a case of ongoing consequences of past persecution and would therefore not fall within the refugee definition.
- This situation is in contradistinction to a person who has been persecuted in the past and who therefore believes that they are likely to continue to suffer different and new persecution if they have to return e.g. fines, lack of work, different rights for their children or whatever. A person in this category may properly rely on the past persecution as a major probative factor in substantiating their claims of possible future persecution. This would not be a case of ongoing consequences of past persecution; rather, it would be a case of continuing persecution in potentially different forms.
Dated the 7th day of February 1995
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Director, Legal Services
1. P.H. Rohn, World Treatv Index Main Entry Section Part 2 1960-1980 (2nd ed 1983) III at 1394
2. In Todea -v- Minister for Immigration and Ethnic Affairs, (Unreported, Federal Court of Australia No. NG 346 of 1994,22 December 1994) His Honour Justice Sackville felt that the definition of "refugee" had been incorporated by reference into the Migration Act 1958 (Cth) -see p.11
3. O'Neill and R. Handley, Retreat From Injustice. Human Rights in Australian Law (Federation Press, 1994), p116
4. Department of Foreign Affairs and Trade ("DFAT") Treaty Series 1980, No 1, 10
5. DFAT Treaty Series, 1976 No 1, 7
6. DFAT Treaty Series 1983 No 1, 13
7. 7N. O'Neill and R. Handley, op cit, p 119. Section 4 of that Act provides that it operates in Australia's external territories and has extra-territorial operation. This is because the Government of the day considered that the laws of the States and the (internal) Territories were already adequate to fulfil Australia's international obligations under the Convention in relation to acts of torture committed in Australia -ibid
8. See also Dietrich -v- R (1992-93) 177 CLR 292 per Mason CJ and McHugh J at p.306; Chu Cheng Lim -v- Minister for Immigration. Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan Deane and Dawson JJ at p.38; and M. Kirby, "The Australian Usage of International Human Rights Norms: From Bangalore to Balliol -A view from the Antipodes" (1993) 16(2) UNSWLJ 363.
9. Butterworths Canada Ltd, Toronto: 1991, pp.l04-105
10. Ibid, pp.lO9-111
11. Richard Woolcott, Chairman of the National Committee on Population and Development established by Senator Nick Bolkus in 1993 to advise the Government on the issues, Address to the National Immigration and Population Outlook Conference in Adelaide, 22 February 1995 (Papers distributed at the Conference)
12. Notes provided by Department of Immigration and Ethnic Affairs to Refugee Council of Australia, 6 February 1995
13. (1992) 111 ALR 417
14. Ibid, p.432
15. Unreported decision No NG 327 of 1994, 6 December 1994
16. Ibid, p.50
17. Ibid, p.47. The second respondent's particular social group was worded in a slightly different manner, but His Honour did not think that anything turned upon this -at pp.47-48
18. (1993) 103 DLR (4th) 1
19. Geneva: January 1988
20. See Attorney-General of Canada -v- Ward (1993) 103 D.L.R. (4th) I, at p.30 (LaForest J): "The manner in which groups are distinguished for the purposes of discrimination law can…appropriately be imported into this area of refugee law."
21. X -v- United Kingdom (7992/77) DR 14, 234, cited in Paul Seighart, The International Law of Human Rights (Clarendon Press: 1990), p.326. The Commission ultimately found that the requirement was justified for the protection of public health.
22. (1993) 102 D.L.R. (4th) 214
23. Notes provided by Department of Immigration and Ethnic Affairs to Refugee Council of Australia, 6 February 1995
24. See Handbook on Procedures and Criteria for Determining Refugee Status, para 40 (cited above, para 6.9)
25. The same view was taken by Member Vrachnas in Decision No V94/02665, p.14
26. Hathaway, op cit, pp. 87-88
27. See decision of Member Gerkens, at p.7.
Last updated 5 September 2002.