International Refugee Law Hong Kong University Dr Penelope Mathew

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International Refugee LawHong Kong UniversityDr
Penelope Mathew

• Session 3 The definition of a refugee the
  Convention grounds of persecution

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Definition

• A refugee is someone with a well-founded fear
  of being persecuted for reasons of race,
  religion, nationality, membership of a particular
  social group or political opinion

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Causal connection

• Michigan guidelines
• Key question is why is the applicant in this
  predicament? (why are you in this mess?) Is what
  is happening to them related to one of the
  grounds?

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Hathaway, The causal nexus in international
refugee law 23 MichJIntl L 207-9

• the required causal nexus may be established
  by evidence of the reason for the threat or
  infliction of harm, for the withholding of state
  protection, or simply for the predicament faced
  (whether intentional or not). A Convention ground
  need not be the sole, or even the dominant cause
  of the risk of being persecuted, but it must be a
  contributing cause to the risk.

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Contrast with approach based solely on motivation

• conscientious objector to military service?
• other general policies that violate human rights
  but only impact on those who insist on exercising
  their rights?
• some of the stolen generations in Australia?
• Domestic violence? What is the motivation of the
  non-state agent? What is the motivation of the
  State? What is the impact on women?

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Michigan guidelines on nexus to a Convention
ground

• 8 The causal link between the applicants
  predicament and a Convention ground will be
  revealed by evidence of the reasons which led
  either to the infliction or threat of a relevant
  harm, or which cause the applicants country of
  origin to withhold effective protection in the
  face of a privately inflicted risk. Attribution
  of the Convention ground to the applicant by the
  state or non-governmental agent of persecution is
  sufficient to establish the required causal
  connection.

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Michigan guidelines

• 9 A causal link may be established whether or
  not there is evidence of particularized enmity,
  malignity or animus on the part of the person or
  group responsible for infliction or threat of a
  relevant harm, or on the part of a State which
  withholds its protection from persons at risk of
  relevant privately inflicted harm.

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Michigan guidelines

• 10 The causal link may also be established in
  the absence of any evidence of intention to harm
  or to withhold protection, so long as it is
  established that the Convention ground
  contributes to the applicants exposure to the
  risk of being persecuted.

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Michigan guidelines

• 13 In view of the unique objects and purposes
  of refugee status determination, and taking
  account of the practical challenges of refugee
  status determination, the Convention ground need
  not be shown to be the sole, or even the
  dominant, cause of the risk of being persecuted.
  It need only be a contributing factor to the risk
  of being persecuted. If, however, the Convention
  ground is remote to the point of irrelevance,
  refugee status need not be recognized.

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Grounds explained

• Race and religion self-evident?
• Nationality refers to citizenship OR to ethnic
  background
• Political Opinion well accepted that may be
  imputed (any of the grounds may be imputed?)
• Most controversial is membership of a particular
  social group

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Membership of a particular social group

• What do you think is the ordinary meaning of
  the words membership in a particular social
  group? What light is shed on the meaning of the
  words by their context for example, the other
  Convention grounds? What of the reference to
  human rights in the preamble of the Convention?

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2 approaches

• ejusdem generis or protected characteristics
• social perception (but note High Court says
  what is required is a cognizable group, not
  necessarily perceived as such by society)

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Protected characteristics explained

• Uses ejusdem generis the other Convention
  grounds are either immutable characteristics (eg
  race) or a characteristic fundamental to
  personality that should not be changed (eg
  religion). Use either of these to spot a PSG.

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Applicant S

• First, the group must be identifiable by a
  characteristic or attribute common to all members
  of the group. Secondly, the characteristic or
  attribute common to all members of the group
  cannot be the shared fear of persecution.
  Thirdly, the possession of that characteristic or
  attribute must distinguish the group from society
  at large. Borrowing the language of Dawson J in
  Applicant A, a group that fulfils the first two
  propositions, but not the third, is merely a
  "social group" and not a "particular social
  group". As this Court has repeatedly emphasised,
  identifying accurately the "particular social
  group" alleged is vital for the accurate
  application of the applicable law to the case in
  hand.

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UNHCR advocates use of both approaches

• 11 The protected characteristics approach may
  be understood to identify a set of groups that
  constitute the core of the social perception
  analysis. Accordingly, it is appropriate to
  adopt a single standard that incorporates both
  dominant approaches
• a particular social group is a group of persons
  who share a common characteristic other than
  their risk of being persecuted, or who are
  perceived as a group by society. The
  characteristic will often be one which is innate,
  unchangeable, or which is otherwise fundamental
  to identity, conscience or the exercise of ones
  human rights.

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UNHCR

• 13 If a claimant alleges a social group that is
  based on a characteristic determined to be
  neither unalterable or fundamental, further
  analysis should be undertaken to determine
  whether the group is nonetheless perceived as a
  cognizable group in that society. So, for
  example, if it were determined that owning a shop
  or participating in a certain occupation in a
  particular society is neither unchangeable nor a
  fundamental aspect of human identity, a
  shopkeeper or members of a particular profession
  might nonetheless constitute a particular social
  group if in the society they are recognized as a
  group which sets them apart.

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Some examples

• Are the following PSGs? Justify using one of the
  2 accepted tests.
• Women
• Gay men/lesbians
• family
• Taxi drivers
• Sex workers
• Criminals
• Dissidents

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Objections and other criteria

• Should the size of the group matter?
• Should the group be cohesive?

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Grounds not mutually exclusive

• 4 the Convention grounds are not mutually
  exclusive. An applicant may be eligible for
  refugee status under more than one of the grounds
  identified in Article 1A(2). For example, a
  claimant may allege that she is at risk of
  persecution because of her refusal to wear
  traditional clothing. Depending on the
  particular circumstances of the society, she may
  be able to establish a claim based on political
  opinion (if her conduct is viewed by the State as
  a political statement that it seeks to suppress),
  religion (if her conduct is based on a religious
  conviction opposed by the State) or membership in
  a particular social group.

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One child policy cases

• Do you think that such persons may claim they
  fear persecution for reasons of membership in a
  particular social group? What difficulties beset
  this argument?

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One child policy cases

• Why does China have the one child policy? Does
  it matter if the policy is not intended to
  discriminate? Could its impact be felt only by a
  certain group of people? How do you define that
  group is it a particular social group?

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One child policy cases

• Is there a protected characteristic that
  defines this group? Do they share, for example,
  the common desire to exercise a particular human
  right and would this suffice to define a
  particular social group? What right would it be,
  and what of the fact that all people the entire
  Chinese population have the same right? Is it
  permissible to think about why the government
  feels it necessary to outlaw a particular human
  right? Does that narrow down the group of
  people upon whom the policy impacts? Is this
  impermissibly circular?

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One child policy cases

• Are people opposed to or acting contrary to the
  one child policy perceived as a social group? -
  by whom? society in general? government? Is it
  permissible to think about why the government
  feels it necessary to outlaw a particular human
  right? Does that narrow down the group of
  people upon whom the policy impacts? Is this
  circular?

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Exercise at p 4 handout

• Would you use the ground of particular social
  group in this case? What would the particular
  social group be?
• Racists and their families or families of
  racists? White South Africans?
• What test are you using? protected
  characteristics? What is the protected
  characteristic? Would you use the social
  perception test?
• Note the interrelationship between race and
  social group here as potential grounds.

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Castellano-Chacon v INS

• the term cannot be without some outer limit,
  outside of which tattooed youth surely falls. As
  a category, tattooed youth do not share an innate
  characteristic, nor a past experience, other than
  having received a tattoo. Furthermore, the
  concept of a refugee simply cannot guarantee an
  individual the right to have a tattoo. Tattooed
  youth is overbroad and cannot be seen as
  constituting a collection of people closely
  affiliated with each other, who share a "common,
  immutable characteristic."

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Chacon (cont)

• Do you agree with this finding? Why/not? Is
  the case about the right to have a tattoo?
  Does it depend on whether or not the tattoo is
  removable? What test do you find useful here
  the protected characteristics approach or the
  social perception test?