Section 5L of the Migration Act 1958
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Particular social group”
In this article by Migration Case Law Updates staff writer Daniel Lane. As always, this article is the work of Daniel and should not be relied upon as legal advice. Please do your own research or seek legal advice.
[1]INTRODUCTION
An individual can be at risk of persecution based on their membership in a particular social group under section 5L of the Migration Act 1958.1 Accurate identification of the “particular social group” is a prerequisite for the application of section 5L and subsequently establishing whether the reasons for prosecution are well-founded. The former is premised on the Migration Act. The persecution of members of a particular social group can arise from “enmity and malignity”, or the Law of General Application adopted by a state in its realization of “legitimate national objective”.2 This paper thus seeks to affirm this position with the aid of the precedents outlined below.
Persecution for reasons of “enmity and malignity”
This form of persecution is manifest by the perception and persecutory conduct of the society towards members of a particular social group cognizable by that society as evidenced below:
- Shi Hai v Minister for Immigration and Multicultural ³
The application was made on behalf of a young child seeking asylum in Australia on grounds that the child was at risk of persecution in China for being a ‘black child’, a distinguishable social group by the Chinese nationals. The Tribunal in consideration of the perception of the Chinese society towards this particular social group, the child would be subject to discriminatory treatment back in China granted the child the asylum.
- S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002⁴
[1] S. 5L, Migration Act 1958
² Israelian (2001) 206 CLR 323 at 354-355
³ (2000) 201 CLR 293.
⁴190 CLR 225 at 264
In the two cases, both the Court and Tribunal held that in Bangladesh, the Homosexuals comprised a particular social group cognizable by the society for having a common sexual preference. As such, the police, hustlers, and other individuals in Bangladesh treated them discriminately.
Persecution through the Law of General Application.
[1]The overriding principle of the enforcement of the Law of General Application is that such law, legislation, or policy, ought to be appropriate and legitimate for the attainment of the objectives of the concerned country. However, if such law, legislation or policy, by reason of the legal, social, culture and political system of the said state, departs from the norms of a civilized society and offends the standards of common humanity fronted by the Civil Society Organizations resulting in violation of the fundamental rights of the persons belonging to a particular social group, then its application results in persecution of such persons.
- Chen Shi Hai v Minister for Immigration and Ethnic Affair5
This appeal was brought to the Refugee Review Tribunal in which two issues emerged for determination.
- Whether the Appellant, a female of Chinese descent and of childbearing age, was a member of a particular social group.
- Whether her fear of persecution was well-founded.
The Tribunal determined that the Chinese national policy enforced to control population growth among people of reproductive age led to the emergence of sub-groups of “‘people with one
5 (1997) 190 CLR 225n
child…people with more than one child…’” Much as the population control policy is not expressly persecutory, the forced sterilization of the group opposed to the procedure is discriminatory and a violation of their fundamental rights and freedoms. The Tribunal, therefore, held that the Appellants had a well-founded fear of forced sterilization by dint of their membership.
Conclusion
From the foregoing literature, it is evident that a person can be at risk of persecution by virtue of belonging to a particular social group either by the persecutory conduct of the other members of the society or by of the Law of General Application
