Dimopoulos, Penny --- "Membership Of A Particular Social Group: An Appropriate Basis For Eligibility For Refugee Status?" [2002] DeakinLawRw 18; (2002) 7(2) Deakin Law Review 367

Membership Of A Particular Social Group: An Appropriate Basis For Eligibility For Refugee Status?

Penny Dimopoulos*

I INTRODUCTION

The legal definition of a refugee is contained in Article 1A(2) of the Convention Relating to the Status of Refugees (the Convention). Article 1A(2) of the Convention provides, inter alia, that:

For the purposes of the present Convention, the term 'refugee' shall apply to 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...to avail himself of the protection of that country [emphasis added].

A The grounds

Under the Convention, a person is granted refugee status only if his or her well-founded fear of persecution is based on one or a combination of the five specified grounds.[1] There has been considerable analysis of the grounds, in particular the meaning of particular social group (PSG).

B Membership of a Particular Social Group

This is the most difficult and controversial ground in the Convention. Thomas Musgrave refers to it as a `somewhat amorphous category'.[2] The ambiguity of the term PSG has resulted in many variations in its interpretation, as noted by McHugh J in Applicant A & Anor v MIEA & Anor:

Courts and jurists have taken widely differing views as to what constitutes ‘membership of a particular social group’ for the purposes of the Convention....In the result, courts and tribunals...have given many decisions which cannot be reconciled with each other, having regard to their material facts.[3]

Worldwide, there have been narrow, wide and 'middle’ interpretations of this ground. To assist them in determining the meaning of PSG, courts often refer to the aims of the Convention and the intentions of its drafters. This paper will explore these matters as well as addressing the more complex issue of what the Convention’s aims ought to be. Interpreting PSG requires a careful balance to be struck between the (often conflicting) aims underlying the Convention and the concerns of States. In this paper, an attempt is made to strike this balance.

C Outline of Paper

The key proposition being argued in this paper is that the ground ‘particular social group’ fails to address refugee realities. For this reason, it is an unsuitable element in the Convention definition of a refugee. There is no reason why a person who belongs to a particular social group should be granted refugee status at the expense of another person who is starving or in need of shelter. Refugee places are not finite, hence it is essential that they are received by the people who need them most. PSG is an imprecise term; hence the way it should be interpreted remains unclear. In this paper, PSG is examined in light of the Convention’s aims, history and preparatory documents. In section 3, some examples of different interpretations of PSG are explored, followed by a summary of some key concerns that have influenced States when considering the meaning of this term. Section 4 suggests some matters that ought to be addressed in order to achieve a better interpretation of PSG, and section 5 presents two possible alternatives to the current definition.

II HISTORY AND AIMS OF THE CONVENTION

Given that the meaning of PSG is unclear, a logical point at which to start ascertaining the meaning of this ground is to examine the aims of the Convention. The Convention’s underlying themes and aims can be determined by reference to its text, preparatory documents and history. Although the Convention is generally described as having humanitarian aims at its core, it is important to appreciate that these aims are competing with other concerns. As noted by Gummow J:

The text of the Convention manifested a compromise between various interests perceived by the contracting States[4]

The interests of States are now discussed in the context of exploring the history and main interpretations of the Convention and PSG.

A History of Convention

The history of the Convention gives an insight into States interests at the time of drafting. Some of these remain relevant today.

Prior to the early twentieth century, States were under no obligation to assist refugees.[5] Between 1919-1939, numerous violent conflicts and political problems in Europe and the Middle East led to the displacement of large numbers of people.[6] This enormous exodus clashed with the desire of States to control the immigrants entering their borders and led the international community to respond to the refugee crisis. The League of Nations did so[7] by formulating agreements to provide for refugee protection. These instruments were ad hoc in nature, in that they related to specific refugee situations. There was neither a general definition of refugee status, nor any standardised measure of international protection for refugees during this period.[8]

After WWII, masses of people uprooted and it was decided that an instrument with a broader approach would more effectively address emerging refugee problems. Thus, the Convention relating to the Status of Refugees was adopted by a special United Nations Conference[9] on 28 July 1951, and entered into force on 21 April 1954. It was drafted between 1948 and 1951 by a combination of United Nations organs, ad hoc committees and a conference of plenipotentiaries.[10] The Convention purported to provide a general refugee definition[11] which set out the criteria necessary to qualify for refugee status, and in addition provided a guarantee of non-refoulement, whereby refugees could not be returned to their country of origin if doing so would subject them to persecution.

Despite its universal overtones, the 1951 Convention was limited by the fact that it protected mainly Europeans fleeing after the War,[12] and by the dateline contained within the definition. These restrictions were removed and the definition was expanded (formally, though not substantively), by the 1967 Protocol Relating to the Status of Refugees.[13] Accession to the Protocol enabled States to apply the substantive provisions of the Convention to refugees as defined by the Convention, but without the dateline and geographic limitations. Hence, the Convention now applies to all persons who are refugees because of events occurring at any time, not merely pre-1951 events in Europe. The Protocol is an independent instrument from the Convention, and accession to it is not limited to State parties to the Convention. Denmark was the first State to ratify the Convention (in 1952) and since then, 140 States have acceded to it.[14]

The history of the Convention shows that to a significant extent, it was entered into to serve Western political and economic needs.[15] This is a point emphasised by Hathaway:

The two main characteristics of the Convention refugee definition are its strategic conceptualisation and its Eurocentric focus. The strategic dimension of the definition comes from successful efforts of Western States to give priority in protection matters to persons whose flight was motivated by pro-Western political values. As anxious as the Soviets had been to exclude political émigrés from the scope of the Convention for fear of exposing their weak flank, so the more numerous and more powerful Western States were preoccupied to maximise the international visibility of that migration. In the result, it was agreed to restrict the scope of protection in much the same way as had been done in the post- World War II refugee instruments: only persons who feared ‘persecution’ because of their civil or political status would fall within the international protection mandate. This apparently neutral formulation facilitated the condemnation of Soviet bloc politics through international law in two ways. First, the persecution standard was a known quantity, having already been employed to embrace Soviet bloc dissidents in the immediate post-war years. Second, the precise formulation of the persecution standard of the persecution meant that refugee law could not readily be turned to the political advantage of the Soviet bloc. The refugee definition was carefully phrased to include only persons who have been disenfranchised by their state on the basis of race, religion, nationality, membership of a particular social group, or political opinion, matters in regard to which eastern bloc practice has historically been problematic. Western vulnerability in the area of respect for human rights, in contrast, centres more on the guarantee of socio-economic human rights, than on respect for civil and political rights. Unlike the victims of civil and political oppression, however, persons denied even such basic rights as food health care or deduction are excluded from the international refugee regime (unless that deprivation stems from civil or political status). By mandating protection for those whose (Western inspired) socio-economic rights are at risk, the Convention adopted an incomplete and politically partisan human rights rationale. ... In addition to their desire for the refugee Convention to serve strategic political objectives, the majority of the States that drafted the Convention sought to create a rights-regime conducive to the redistribution of the post-war refugee burden from European shoulders. [16]

Although cold war politics do not head the list of concerns shared by States today, the fact that they have significantly influenced the Convention is relevant. The definition of 'refugee' is a product of these concerns and is limited by them. This limitation must be acknowledged with respect to all aspects of the definition, including particular social group.

B History of PSG

This ground was introduced into the Convention with little explanation by the Swedish delegate as a last minute amendment:

Experience has shown that certain refugees had been persecuted because they belonged to particular social groups...Such cases existed, and it would be as well to mention the them explicitly.[17]

Thus, effectively it was a throw away line that does not make it clear who the intended beneficiaries of this provision were.[18] The preparatory documents offer little assistance in ascertaining what the drafters’ intentions were in introducing this ground. Comments by legal experts and cases concerning PSG also reflect a lack of consensus regarding this issue, and the related issue of what the ground ought to mean. This has led to widely different views about the framers intentions and the scope and meaning of PSG. Below are examples of narrow, wide and ‘middle’ interpretations of this ground.

III INTERPRETATIONS OF PSG

A Narrow interpretation

Some argue that this ground should be seen as `clarifying certain elements in the more traditional grounds for persecution (i.e. race, religion, nationality and political opinion)'.[19] This was the Canadian approach for some years and under it, the notion of membership of a particular social group became largely superfluous.[20]

B Wide interpretation

The alternative view is that `particular social group' is an essentially all-embracing ‘safety net'.[21] Arthur Helton argues that `the intent of the Refugee Convention was not to address prior persecution of social groups, but rather to save individuals from further injustice. The ‘social groups’ category was meant to be a catch-all which could include all the bases for and types of persecution which an imaginative despot might conjure up'.[22]

Helton's `catch -all' view has been applied in some Canadian case law. For example, in Richard Cid Requena Cruz, Vidal J stated that:

The Board is of the opinion that the ground ‘membership of a particular social group’ is a ground which must be given a broad and liberal interpretation in order to protect groups or individuals who do not necessarily have political, religious or racial ties at the root of their fear of persecution. Otherwise this ground of ‘social group’ would be of very little value.[23] This ‘broad and liberal’ view was endorsed in Ward where PSG was defined as simply a group of persons ‘associated, allied combined’ and ‘united in a stable association with common purposes’.[24]

Helton's view is rejected by Hathaway who argues that the drafters aim was to establish a demarcation between those whose fear was attributable to civil or political status (refugees) and those whose concern to flee was prompted by other concerns (not refugees). Moreover, their purpose was anything but the creation of a regime to address new, future injustices, as Helton suggests.[25] Hathaway goes on to say that this kind of ‘broad and liberal’ interpretation of the ground has gone too far, to the point of disregarding this fourth element of the definition.[26]

C Australia- wide interpretation

Australian courts have adopted a wide interpretation of PSG. According to Lockhart J in Morato v MILGEA:

The interpretation of ‘particular social group’ calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of society that is not necessarily persecuted for racial, religious, national or political reasons.[27]

In their more open-ended interpretation of PSG, Australian courts have stated that what distinguishes a particular social group from other individuals and groups is a `common binding attribute other than persecution, and a societal perception that the particular social group is a group that stands apart from broader society'.[28] Depending on the facts of the case and the country in question Australian courts have stated that women,[29] a family,[30] occupational groups,[31] conscientious objectors,[32] people suffering illness,[33] homosexuals[34] and people possessing or lacking wealth[35] constitute a particular social group.

D United States - a middle approach

In the United States, a middle position was adopted in Acosta,[36] which neither interprets membership of a particular social group as redundant, or all-inclusive.[37] In Acosta, the court interpreted membership of a particular social group to mean (1) groups defined by an innate, unalterable characteristic; (2) groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change; and (3) existing groups defined by volition, so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it. Excluded, therefore, are groups defined by a characteristic which is changeable or from which dissociation is possible, so long as neither option requires renunciation of basic human rights.[38]

The narrow, wide and middle views outlined above, as well as the historical account of the Convention, reveal some factors that have influenced States in their interpretations of PSG. We have seen that the framers' intentions and cold-war politics have shaped interpretations. In addition, the above extracts illustrate that States desire a degree of flexibility in the refugee definition. In conflict with this is a desire to incorporate limits in the definition in order to protect national sovereignty and wish to import precision into the definition. The concerns regarding flexibility and limits remain important to States and are elaborated on below.

E Key Concerns of States: flexibility and limits

1 A need for flexibility in the definition of PSG.

It is unclear from the Convention’s text and historical documents whether the framers of the Convention intended PSG to cover groups coming into existence after 1951. Courts have generally stated that it should, in order to allow the ground to evolve to cover future refugees.

As noted by Lord Hoffman in R v Immigration Appeal Tribunal, Ex parte Shah:

...the concept of a social group is a general one that cannot be confined to those social groups which the framers of the Convention may have had in mind. In choosing to use the general tern ‘particular social group’ rather than the enumeration of specific social groups, the framers of the Convention were, in my opinion, intending to include whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention.[39]

2 A need for limits in the definition of PSG

Despite an acceptance that PSG should cover future groups not contemplated at the time of drafting, there is evidence that the drafters were concerned about placing limits on the definition of PSG, by defining State obligations with some precision, or at least avoiding unlimited obligations.[40] For example, according to the Chinese representative, Mr Cha:

The different categories of refugees to which the proposed convention should apply must be clearly indicated; it would be difficult for the Governments to ratify a convention which otherwise would amount to a kind of document signed in blank to which could be subsequently extended new categories of beneficiaries without number.[41]

The US representative, Mr Henkin, expressed a similar view:

The obligation of signatory States must be accurately defined and that could not be done unless the categories to benefit were fixed at a given date. The States concerned could subsequently extend the scope of their obligations, but they could not undertake unlimited obligations in advance.[42]

It has been argued that the words 'membership', 'particular' and 'social' act as qualifiers to limit the meaning of this ground. In Sanchez-Trujillo, it was stated that the use of these qualifiers indicates that the drafters envisaged that a PSG would normally encompass certain groups within society rather than every broadly defined segment or demographic division of that society.[43]

Like the drafters, the main reasons why States wish to impose limits on this ground are to avoid unlimited obligations towards refugees and to protect domestic interests. This is reflected by the following statement by Hill J in MIMA v Khawar:

...the tension between the humanitarian purpose of international intervention to protect those in need of assistance and the legitimate domestic desires of States to limit migration must, to some extent, operate as a restriction on the ability of the courts to widen unduly the scope of the [refugee] definition.[44]

Dawson J makes an analogous comment:

...despite the reference in the Convention to the concern that persons enjoy the 'widest possible exercise of ... fundamental rights and freedoms', there are limits on the extent to which the Convention attempts to translate that concern into practical reality. In that respect, the Convention, like many international and municipal instruments, does not necessarily pursue its primary purpose at all costs. The purpose of that instrument may instead be pursued in a limited way, reflecting the accommodation of differing viewpoints, the desire for limited achievement of objectives, or the constraints imposed on limited resources. ... It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them.[45]

Thus, a desire to protect future refugees and PSG exists, though not without restrictions. This is so even in Australia where PSG has been interpreted relatively widely. From the above extracts, it is clear that national sovereignty is valued very highly by States. It is something they zealously guard and will probably continue to do so. The next part of the paper examines more closely the issues concerning national sovereignty and its conflict with the humanitarian aims of the Convention.

F States concerns to protect national sovereignty and limit migration

Perhaps the key manifestation of national sovereignty is the capacity to control entry of people who cross national borders. Sovereign nations steadfastly believe that they have a right to determine who can enter their borders. This is an unquestioned aspect of sovereignty - both at the international and domestic law level. Refugee law provides an exception to national sovereignty by allowing the rights of a person (refugee) to trump the capacity of a nation to exclude people from its borders. A broad interpretation of the Convention grounds, including PSG, would contribute to a liberalisation of the international people movement, thereby eroding an important aspect of the concept of sovereignty. This would ultimately diminish the relevance of the concept of a nation state. The concept of breaking down national borders is not a new one. There are certainly many appealing aspects to it. It would enhance the liberty of all people and lead to a more just distribution of resources: not only of food, medicine and clothing, but also education and employment. However, it is not something that is likely to occur in the near future. Given that nations will continue to place strict controls on who enters their borders and only grant asylum to a finite number of people, it is important that that they do so on a rational and coherent basis. Thus, there are two important threshold assumptions made in this article.

The first is that nations will continue to exist and tightly control people movement across their borders. The history of human civilisation shows that this assumption has a solid platform. The second assumption is that nations have limited sympathy for those in need - were it otherwise, a strong case could be mounted for an expansive refugee definition. As is noted by Sarah Collinson:

Two linked assumptions appear to underlie almost all current debates on the issue of migration and refugee flows in Western Europe. First, there is the assumption that immigration poses a threat... Second, it is assumed that Western Europe lacks the capacity to cope with any further immigration, whether it be in demographic, economic, social or political terms.[46]

She further adds that, `the international community ... is not infinitely generous. An obligation .... to protect refugees, and the needs of refugees themselves, will in practice always be balanced against the political and economic interests and concerns of potential asylum States'.[47] Amnesty International has expressed concerns that the focus of the EU's asylum policy is overwhelmingly on how to keep [refugees] out, rather than how to effectively protect people fleeing from war, civil upheaval and grave human rights abuses'.[48] Similarly, Niraj Nathwani States that `refugee law is in crisis precisely because altruism has reached its limits. ... We need to face the fact of donor fatigue'.[49] The international community's finite level of preparedness to absorb refugees is supported by refugee numbers, which show a remarkable level of consistency over the past decade or so. Figures from the United States Committee for Refugees show that the number of refugees and asylum seekers from 1992 to 2001 is as follows: 1992: 17,600,000; 1993: 16,300,000; 1994: 16,300,00; 1995: 15,300,000; 1996: 14,500,000; 1997: 13,600,000; 1998: 13,500,00; 1999: 14,100,000; 2000: 14,500,000: 2001: 14,900,000.[50]

As the world's collective sympathy gland is unlikely to grow in the coming years, the decision of who qualifies for asylum is critical - in effect each person who is accorded refugee status potentially deprives another more needy person of asylum. Any proposed change to the definition itself or interpretation of it should be consistent not only with the Convention's founders' goal to safeguard important human rights, but also their concern to respect State sovereignty.[51]

IV PSG: A BETTER APPROACH

The fact that PSG is vague and ‘amorphous’ means that decisions courts make about it are inconsistent, discretionary and arbitrary. This is undesirable in any event, however, it is highly unsatisfactory in an area as important as refugee law, which aims to assist some of the world's most desperate people. Inconsistencies in the interpretation of PSG are widespread.

The only way to remedy this problem and achieve consistency is by reaching some agreement about the meaning of PSG. This requires us to first decide which of the Convention's aims are worth upholding, which should be rejected, which State concerns should be addressed in the definition, and what else is necessary in order for the definition to meet the needs of refugees today. These matters are discussed in the next part of the paper. It should be noted that if it proves impossible to interpret PSG in a way that takes the following four considerations into account, then the only alternative option would be to alter the definition of refugee under the Convention. This possibility is examined in section 5.

A What the interpretation of PSG should do - Four Things

1 Uphold humanitarian aims

The humanitarian objectives of the Convention are of great importance. Refugee law is the only area of international law where the needs of the individual trump the needs of sovereign States. However, pragmatically, once countries ratify the Convention they do not repudiate it and most nations do in fact provide long-term asylum to refugees. Thus the Convention is essential because it is the one universal, humanitarian treaty that offers some guarantee that the fundamental rights of refugees as human beings will be safeguarded. According to Hathaway, the Convention definition of refugee is of singular importance because it has been subscribed to by more than one hundred nations in the only refugee accords of global scope. Many nations have also chosen to import this standard into their domestic legislation as the basis upon which asylum and other protection decisions are made.[52]

2 Impose limits

From a compassionate, human rights based perspective the Convention's humanitarian aims are all that matter, and a wide, flexible definition of refugee would support this view. However, it is impossible to interpret the definition in an unlimited manner that ignores the extent to which States wish to protect the national sovereignty and domestic concerns. Unfortunately, the world has sympathy for only a finite number of refugees; hence the interpretation adopted must respect certain limits.

3 Be precise - but at the same time be flexible

It is worth considering the possible benefits of a more precise definition of PSG as suggested by the US and Chinese representatives during the Convention's drafting. As noted by American jurist Lon Fuller, if laws are to guide and govern human conduct, there are numerous minimum requirements to be observed. One of these is that laws must be promulgated in a manner that is clear, so that it is apparent from reading the laws what one must do.[53] Quite simply `people can't follow the rules if they don't know what they are'.[54] It is unclear what the rules are regarding the PSG ground of the Convention. For this reason, it may be necessary to make the definition more ‘fixed’, however not so much so that it is rendered useless in meeting the needs of future refugees. Hence, along with precision there must be a degree of flexibility. This is essential, given that views are not constant, but rather are evolving with respect to the nature and scope of human rights, the line between matters of private and public concern, and the related roles, responsibilities and expectations of State authorities.[55] Reconciling the aims of flexibility and exactness may not be easy, however, it is the only way to ensure consistent, non-arbitrary decision-making. The ultimate beneficiaries of this will be refugees.

4 Provide protection to those who need it most

Most importantly, the interpretation of PSG should provide protection to the people who need it most. This draws us to a fundamental problem concerning the Convention. The fact that the definition of refugee was largely influenced by the cold war concerns imposes limitations on its effectiveness in protecting the people most in need of refugee status. This was so at the time of drafting, and remains so today.[56] Membership of a PSG is simply an inappropriate foundation upon which refugee status should be based.[57] Thus, no matter how broadly it is interpreted, it fails to provide protection to the people who need it most. It is to this issue that this paper now turns.

B Who is most in need of refugee protection?

Surprisingly, there has been minimal discussion of this issue. Courts and jurists have been content to accept that the current refugee definition adequately protects refugees, and most of the debates regarding the definition concern the framers’ intentions and the scope, rather than the substance, of the grounds.

1 Time for a change

It is time to stop focussing on the framers' aims and meaning of the grounds, and to shift the analysis to what the convention should be trying to achieve. Such a shift is necessary because:

The Convention currently gives protection to people who fit within PSG or the other four Convention grounds. Unfortunately, these are not the people who most need refugee protection.

2 What is so special about belonging to a PSG?

What is so special about belonging to a group that ought to stimulate the international community's sympathy gland? The only way to treat people equally in this respect is not to focus on the reason for the persecution, but the extent of the need for asylum. The only universal criteria for sympathy and compassion are need and pain. Thus, it follows that State assistance and protection should be accorded to those most bereft of the resources and opportunities that are a pre-condition to human survival and flourishing. This raises difficult questions about the hierarchy of human needs and wants. It is suggested that the most important needs are food, shelter, security of person and liberty. People who are denied these should be refugees - irrespective of the reason for the deprivation.

One of the fashionable reform proposals in refugee literature at present is that women should be recognised as a particular social group.[58] This is true, and in fact doubly so: men should be too. The effect of this is that being a member of the human species is the sole criterion that marks one out as being worthy of compassion. The reason for one's pain and destitution is not cardinal - pain and destitution suffice. The focus then turns on the notion of persecution: in particular, what sort of deprivation is significant enough to warrant international assistance.

3 Hierarchy of Human Interests - Life and Liberty as Fundamental

In terms of the exact changes that are appropriate, a Convention based on the concept of need would focus on the conditions that are necessary for human subsistence. At the core there is little scope for debate here - it is a matter of science, not sociology. Humans need food, water and shelter and clothing to survive. All other interests are contingent on the availability of these basic goods. Displaced persons who lack any of these goods to a point where it threatens their survival should be accorded refugee status. These interests aside, there are also other interests which seem to be a pre-condition for human existence. They consist of security of person (in the context of physical autonomy) and freedom from arbitrary deprivations of liberty. Access to education, minimum standards of health care and property rights would seem to be on the next level. Other rights then follow, such as the right to one's political opinion, privacy and so on.

At what point the refugee line should be drawn is unclear. The principle determinant in this regard is the willingness of the international community to absorb needy foreigners. The greater the preparedness, the higher point at which the line should be drawn. However, as was discussed earlier, the desire to help comes in finite doses. It is therefore important to properly target those who are assisted - every spot taken by a refugee is one less that is available. While an expansive refugee definition may seem to be the most humanitarian position to take, ultimately it may be the least desirable. Such a definition could lead to a situation of people dying of starvation, so that others can enjoy a university education or express their political views. Given that a choice must be made, it would be preferable to feed the hungry each time.

This would mean limiting assistance to people whose lives are in peril as a result of lack of food, water or shelter or who have a real fear of having their physical integrity or liberty violated. This effectively means that the principal right recognised in the proposed definition is the right to life. Logically, the right to life is the most basic and fundamental of all human rights - non-observance of it would render all other human rights devoid of meaning.[59] Every society has some prohibition against taking life,[60] and ‘the intentional taking of human life is ... the offence which society condemns most strongly’.[61] The only concession to be made to confine assistance to threats to life is to recognise the importance of personal liberty, which while not as fundamental to the right to life, is essential for human beings to attain any semblance of fulfilment. The importance of liberty to the human species is reflected by the fact that deprivation of it constitutes the gravest form of punishment that is inflicted by Western Cultures against wrongdoers (apart from many parts of the United States where capital punishment is still sanctioned).

PSG, along with the other Convention grounds, does not come close to identifying the minimum conditions necessary for human subsistence. It is regrettable that all that is important in a person's life can turn on the interpretation of a throw away line, such as `particular social group'. Further, it is most curious that an individual's eligibility for refugee status should be contingent upon such a fickle and irrelevant consideration as whether there are a sufficient number of other similarly placed people being mistreated. When it comes to being eligible for compassion, there is nothing special about belonging to a group. If anything, the converse is true - (social) isolation can of itself be a cause of distress.

This highlights a more pervasive and fundamental problem with the Convention. Not only is it not based on a needs criterion, but it is not based on any overarching principle at all. There is no underlying rationale which unifies the grounds and elevates them to greater importance than other human concerns. As a result - blind allegiance to the Convention aside - a causal connection between persecution and a convention ground does not provide a normative reason for compliance with the Convention. Absent an explanation for why the Convention grounds are more important than other human interests, the Convention definition of `refugee' is arbitrary and ultimately discriminatory - it gives a preference to those falling within the grounds on the basis of an irrelevant difference.[62] In light of universal principles governing the commitment to all humankind why should any State be concerned about the complying with the Convention? The answer is that from the normative perspective (that is, international law obligations aside), relatively speaking it should care very little - sending money to the starving in Africa would be a far better use of resources. It is not surprising then, that Goodwin-Gill has noted that given the narrow framework of the Convention, which was not intended to provide for universally refugee solutions, it `is remarkable ... that the 1951 Convention still attracts both ratifications and support among States from all regions'.[63]

If it is accepted that need and pain ought to form the basis upon which refugee status should be granted, then membership of a particular social group is an unsuitable means of determining whether someone should be deemed a refugee. There is no automatic connection between belonging to a group and being needy enough to be entitled to refugee protection, hence this ground is essentially ineffective. This leaves us with two options. The first (ideal) option would be to remove PSG from the Convention definition, along with the other four grounds, and to formulate a more appropriate definition. The second (more realistic) option is to find the best way to interpret PSG in the current definition in order to ensure that the people granted refugee protection are the ones who most require it. These options are discussed in the following section.

V ALTERNATIVES TO PSG: TWO OPTIONS

A Option 1

The first option is to make relief of pain and suffering, as opposed to membership of a certain race or group or adherence to a certain ideological belief, the touchstone for refugee status. This would require a formal change to the definition, along the following lines:

A refugee is a person who owing to: (i) the fact that his or her life is in peril as a result of lack of food, water or shelter; or (ii) a well-founded fear of having his or her physical integrity or liberty violated; is outside the country of his or her nationality and is unable to avail himself or herself of the relevant resources or protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or unwilling to return to it.

Given the slow pace at which consensus is reached at the international level and the lack of appetite expressed by most States for absorbing needy foreigners[64] a change along such lines is not likely to occur in the foreseeable future. Attempts to paraphrase or redefine the language of the Convention have been resisted in deference to 'the varieties of despotism, fanaticism, cruelty and intolerance which cannot be foreseen in all their awful manifestations with complete assurance'.[65] With respect to PSG, Kirby J has noted:

...the phrase ‘particular social group’... is impossible to delimit...by a precise definition...[C]ourts and agencies should turn away from attempting to formulate abstract definitions. Instead, they should recognise `particular social groups’ on a case by case basis...This approach...accepts that an element of intuition on the part of decision makers, is inescapable, based on the assumption that they will recognise persecuted social groups of particularity when they see them.[66]

To refrain from formulating a more effective definition simply because it may be difficult or complicated to do so is an unsatisfying approach. We should seek a more appropriate definition of PSG, even if this search involves a struggle. By creating a more exact definition, we can achieve a degree of consistency in the decisions made regarding refugee protection. Surely this is preferable to leaving the matter to the ‘intuition’ of decision-makers.

If a wholesale change to the Convention definition is not an option, then pursuing a ‘Plan B’ may be a possibility. In this regard, the next most desirable state of affairs is to `interpret' or apply the Convention in a manner which will enable States to assist as many needy people as is possible.

B Option 2

This involves, as far as possible, interpreting PSG in a manner which enables the world's collective compassion to be targeted more directly at those who are suffering the greatest degree of deprivation.

This could be achieved with two main interpretative shifts. The first would see the grounds interpreted as widely as possible. The amorphous ground of `particular social group' provides scope for this to occur. The widest way in which a court could approach this is by accepting that being a member of the human species is the sole criterion that marks one out as being worthy of compassion. The reason for one's pain and destitution is not cardinal - pain and destitution suffice. It is, of course, unlikely that any court would be bold enough to interpret `particular social group' in such an open-ended manner. A (less expansive) alternative could be to interpret PSG as 'any two or more persons with a shared trait or characteristic'. This would remove some ambiguity from the current definition of PSG, and would provide more breadth by negating the need for the group to be recognisable in the eyes of the rest of the community.

The other main interpretative shift that is required is to the notion of persecution. Historically, the notion of persecution has not been defined with any level of exactness.[67] As is noted by UNHCR `there is no universally accepted definition of "persecution", and various attempts to formulate such a definition have met with little success'.[68] Hathaway states that `persecution may be defined as the sustained or systematic violation of basic human rights demonstrative of a failure of state protection'.[69] In Australia, persecution means serious harm. Pursuant to the recently introduced s 91R(2) of the Migration Act 1958 (Cth) the expression `serious harm' is defined (in an non-exhaustive manner) to mean a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist. This definition was in response to court judgments which significantly lowered the threshold concerning the types of harm that would qualify for refugee status. For example, it was held that discrimination in the form of restrictions to employment and educational opportunities could constitute serious harm.[70] In order to constitute serious harm it was not necessary for the applicant to be denied the opportunity of any employment; merely being denied the opportunity to work in his or her chosen field was sufficient.[71]

Unlike the Convention grounds, persecution should be interpreted narrowly. In this regard, somewhat of a paradox emerges. Ostensibly an expansive interpretation of persecution may appear to assist the refugee cause by expanding the type of harm that qualifies for assistance. Viewed narrowly this is no doubt the case - the people or persons who come within the expanded definition are granted access to the relevant nation State. However, at this point good intention and good consequences part company as a result of the finite level of assistance that the international community is willing to provide to needy foreigners. Given the scarcity value and preciousness of refugee places, the kind thing to do is not to expand the range of human interests that are recognised under the definition of refugee, in fact the opposite. The interests should be narrowed to ensure, as far as possible, that the refugee places are occupied by those in greatest need. A related point is that while an expansive definition of serious harm appears to be consistent with the humanitarian underpinnings of the Convention, it is ultimately misguided because it verges on merging refugee law and immigration law. Refugee law is not about equalising the international playing field so far as the capacity for people to flourish is concerned, it is about assisting those greatest in need.

VI CONCLUSION

PSG is a nebulous aspect of the legal definition of 'refugee'. There have been various interpretations of its meaning. The soundest interpretation of this ground should reflect the broad humanitarian policy behind refugee law and address human beings who most require protection. These are people who are in a situation of need and pain. The most ideal way of providing protection to such people is to change the definition of refugee in the manner suggested (in Option 1) above. Alternatively, this aim can be met by adopting a broad interpretation of PSG, and simultaneously, a narrow interpretation of persecution (Option 2). Both options impose necessary limits on the refugee definition in that they contain a greater degree of precision than does the current definition of PSG. Further, the fact they are based on an overarching principle- need and pain - means that a limit can be drawn at some point to allow for the protection of national sovereignty. Neither option prevents the definition from applying to future refugees or groups, and in this way, the need for flexibility in the definition is respected. In a world where refugee places are limited, the approach outlined in this article provide the most effective means of protecting refugees.

[1] Morato v MILGEA [1992] FCA 637; (1992) 39 FCR 401, 404.

[2] Thomas Musgrave, ‘Refugees’, Public International Law: An Australian Perspective, eds Sam Blay et al (1997) 309. For an excellent overview of this ground, see DIMIA, 'Particular Social Group: An Australian Perspective' (2002).

[3] (1997) 190 CLR 225, 266.

[4] Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225, 242.

[5] Musgrave, above n 2, 301.

[6] Ibid.

[7] UNHCR, The State Of The World's Refugees 2000: Fifty Years of Humanitarian Action (2000) 15

[8] Musgrave, above n 2, 302.

[9] Guy Goodwin-Gill, The Refugee in International Law (2nd ed, 1996) 4.

[10] James Hathaway, The Law of Refugee Status (1991) 6. Note the earlier international agreements entered into on behalf of refugees are referred to in article 1A(1) of the Convention.

[11] Ibid, 7.

[12] Goodwin-Gill, above n 9, 19. Note that the definition included an optional geographical limitation that permitted States, on ratification, to limit their obligations to refugees from `events occurring within Europe' prior to the critical date- Art 1B.

[13] Hathaway, above n 10, 10.

[14] DIMIA, above n 2, 1

[15] Hathaway, above n 10, 6.

[16] Hathaway, above n 10, 7-8.

[17] Statements of Mr Petren of Sweden, U.N. Doc. A/CONF.2/SR.3, at 14, November 19, 1951; and UN Doc. A/CONF.2/SR 19, at 14, November 26 1951.

[18] According to Richard Plender, in ‘Admission of Refugees' (1977) 15 San Diego Law Review 45, 52 this ground was intended to embrace those - particularly in Eastern Europe during the Cold War - who were persecuted because of their social origins.

[19] Guy Goodwin Gill, `Entry and Exclusion of Refugees: The Obligation of States and the Protection Function of the Office of the UNHCR' (1980) Michigan Y B Intl L Studies 291 and 297.

[20] Hathaway, above n 10,157. For a recent discussion of particular social group in Canadian jurisprudence, see Krista Daley and Ninette Kelley, `Particular Social Group: A Human Rights Based Approach in Canadian Jurisprudence' (2000) 12 International Journal of Refugee Law 148.

[21] Isi Foighel, ‘Legal Status of the Boat People' (1979) 48 Nordisk Tidsskrift for Itl. Ret. 217, 222.

[22] Arthur Helton, `Persecution on Account of Membership in a Social Group as a Basis for Refugee Status' (1983) 15 Columbia Human Rights Law Review 39. He also suggests that all groups protected under any UN human rights convention, whether defined in statistical, societal social or associational terms, should be considered within the scope of the Convention.

[23] Immigration Appeal Board Decision T83-10559, CLIC Notes 95.10, April 8, 1986 at 5.

[24] Attorney General of Canada v Patrick Francis Ward, Federal Court of Appeal Decision A-1190-88, March 5, 1990.

[25] This view concerning the drafters' intentions was reinforced by La Forest J in Canada (Attorney-General) v Ward (1993) 2 S.C.R 689, pp 43-44 who stated that the supporters of the wide definition 'exaggerate the implications of the intention of the [Convention's] framers.'

[26] Hathaway, above n 10, 159.

[27] [1992] FCA 637; (1992) 39 FCR 401, [65].

[28] DIMIA, above n 2, 69.

[29] MIMA v Khawar (2000) FCA 1130.

[30] MIMA v Sarrazola (2001) FCA 263.

[31] MIMA v Zamora [1998] FCA 913; (1998) 85 FCR 458.

[32] Mehenni v MIMA (1999) FVA 789.

[33] Lo v MIEA (1995) 61 FCR 221.

[34] MIMA v Guo Ping Gui (1999) FCA 1496.

[35] Ram v MIEA (1995) FCR 565. For further examples, see DIMIA, above n 2, 73-4.

[36] Interim Decision 2986, March 1, 1985.

[37] Hathaway, above n 10, 160

[38] Ibid.

[39] [1999] UKHL 20; (1999) 2 WLR 1015, 1032.

[40] DIMIA, above n 2, 68.

[41] U.N. Doc. E/AC.32/SR.5, at 2 January 30, 1950, citied in Hathaway 1991 159 fn 167.

UN Doc E/AC.32/SR.3. January 26 1950, citied in Hathaway 1991 159 fn 167.

[42] Ibid.

[43] Sanchez Trjuillo v Immigration and Naturalisation Service [1986] USCA9 2002; (1986) 801 F 2d 1571, 1576.

[44] (2000) FCA 1130 at 3.

[45] Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225, 282.

[46] Sarah Collision, Beyond Borders: Western European Migration Policy Towards the 21st Century (1993) 58.

[47] Ibid, 60.

[48] Ibid. See also Guy Goodwin-Gill, `The International Protection of Refugees: What Future?' (2000) 12 International Journal of Refugee Law 1.

[49] Niraj Nathwani, `The Purpose of Asylum' (2000) 12 International Journal of Refugee Law 354, 356.

[50] US Committee for Refugees, World Refugee Survey 2002 (Immigration and Refugee Services of America, Washington, 2002) 4.

[51] See further the comments by the Australian Minister for Immigration, Philip Ruddock, in the forward to Interpreting the Refugees Convention - an Australian Contribution (2002). See also this report at 80.

[52] Hathaway, above n 10, v.

[53] Lon Fuller, The Morality of Law (1964). See also see Joseph Raz The Authority of Law (1979) ch 11, esp 211, 214-6; John Finnis, Natural Law and Natural Rights (1980) 270-6; Jeremy Waldron, The Law (1997) Ch 3.

[54] Waldron, ibid, 49.

[55] DIMIA, above n 2, 66.

[56] Richard Plender has stated that this ground was intended to embrace those - particularly in Eastern Europe during the Cold War - who were persecuted because of their social origins.

[57] For a critique of all five of the Convention grounds see Mirko Bagaric and Penny Dimopoulos, ‘Refugee Law: Time For A Fundamental Re-Think: Need As The Criterion For Assistance’ (forthcoming, 2003).

[58] See for example, see Ninette Kelley, `The Convention Refugee Definition and Gender- Based Persecution: A Decade's Progress' (2002) 13 International Journal of Refugee Law 559.

[59] See further, Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 104; Sarah Joseph, ‘The Right to Life’ in The International Covenant on Civil and Political Rights and United Kingdom Law, eds Joseph et al (1995) 155.

[60] Peter Singer, Practical Ethics (2nd ed, 1993) 85.

[61] House of Lords, Report of the Select Committee on Medical Ethics (1994) vol. 1, 13. For further discussion regarding the foundation and scope of the right to life, see Kumar Amarasekara and Mirko Bagaric, Euthanasia, Morality and Law (2002) Ch 5.

[62] Equality and non-discrimination are synonymous. They are universal concepts. Under European Community Law the principle of equal treatment requires that like cases should not be treated differently and unlike cases must not be treated alike unless objectively justified: Case 147/79, Hoechstrass v Court of Justice ECR 3305 [1980]. In the Australian context the same definition has been adopted, see, for example, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 480). In essence, discrimination is to treat people differently when they are similar in relevant respects or to treat them similarly when they are different in relevant respects, that is to discriminate is to treat someone differently without a relevant basis for the difference.

[63] Goodwin-Gill, above n 9, 297.

[64] Amnesty International has recently described refugee protection as the `black spot' in the European Union's rights ambitions (Amnesty International EU Office, Press Release, Asylum Seekers in Europe: The Real Story Amnesty International Launches Europe-Wide Campaign, 25 September 2001: http://www.amnesty.org) and is deeply concerned that the focus of the EU's asylum policy is overwhelmingly on how to keep [refugees] out, rather than how to protect effectively people fleeing from war, civil upheaval and grave human rights abuses' (ibid). In a similar vein, Niraj Nathwani States that `refugee law is in crisis precisely because altruism has reached its limits. ... We need to face the fact of donor fatigue': Nathwani, above n 48, 356).

[65] Kirby J in Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225, citing Ram v MIEA [1995] FCA 1333; (1995) 57 FCR 565 at 568 and Morato v MILGEA [1992] FCA 637; (1992) 39 FCR 401, 416.

[66] Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225, 303-308 (Kirby J).

[67] As is noted in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, above n, 14, `there is no universally accepted definition of 'persecution', and various attempts to formulate such a definition have met with little success'.

[68] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, above n, 14,

[69] Hathaway, above n 10, 104-5.

[70] See Chan v MIEA (1989) 169 CLR 379, 4321. See further, Syan v Refugee Review Tribunal (1995) 61 FCR 284 (extortion); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Thalary v Minister for Immigration and Ethnic Affairs (1997) 73 FCR 437; 50 ALD 349; Gunaseelan v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 594 (discrimination in employment and education); Minister for Immigration and Multicultural Affairs v Gutierrez [1999] FCA 990; (1999) 92 FCR 296; 59 ALD 89 (exposure to civil litigation).

[71] See for example, Ahmadi v MIMA [2001] FCA 1070 (Unreported, Federal Court of Australia, Wilcox J, 8 August 2001).