Greeting cati,
The concept of a “particular social group” in regards to the
United Nations Convention Relating to the Status of Refugees
and its 1967 Protocol, being "the least transparent" and how
it differs from the other four (race, religion, nationality,
and political opinion) is probably best summed up by an
opinion presented on the United Kingdom Parliment website.
The opinion references the Australian case of "‘Applicant A’
& Anor v Minister for Immigration and Ethnic Affairs & Anor"
as an example of why belonging to a “particular social group”
is the least transparent by virtue of it being the least easy
of the five reasons to discern and/or classify.
http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990325/islam05.htm
"But the concept of a social group is a general one ..."
"... a social group for the purposes of the Convention was
one distinguished by:"
"'an immutable characteristic . . . [a characteristic] that
either is beyond the power of an individual to change or
that is so fundamental to his identity or conscience that
it ought not to be required to be changed.'"
...
"This was true of the other four grounds enumerated in the
Convention. It is because they are either immutable or part
of an individual's fundamental right to choose for himself
that discrimination on such grounds is contrary to principles
of human rights."
...
"It follows that I cannot accept that the term "particular
social group" implies an additional element of cohesiveness,
co-operation or interdependence."
...
"Among the other four categories, "race" and "nationality" do
not imply any idea of co-operation; "religion" and "political
opinion" might, although it could be minimal. In the context
of the Convention it seems to me a contingent rather than
essential characteristic of a social group."
...
"it was said that "'particular social group' implies a
collection of people closely affiliated with each other, who
are actuated by some common impulse or interest.'"
...
"[This] has however been rejected by ... the High Court of
Australia in A. v. Minister for Immigration ..."
You should read the whole opinion for details why “particular
social group” might not only be the "least transparent" of
the five reasons, but also the most rejected reason.
A Department of the Parlimentary Library article titled
"China's One Child Policy and Refugee Status in Australia"
deals with the specific Australian case mentioned above.
http://www.aph.gov.au/library/pubs/rn/1996-97/97rn31.htm
"Article 1 of the 1951 United Nations Convention Relating
the Status of Refugees, as amended by the 1967 Protocol, is
incorporated into Australian law by the Migration Act 1958."
...
"The applicants, a husband and wife, and nationals of the
Peoples Republic of China (PRC), arrived in Australia by
boat in late 1993. Their application for refugee status was
refused by a delegate of the Minister for Immigration and
Ethnic Affairs in January 1994."
"The applicants successfully appealed the Minister's decision
in the Refugee Review Tribunal (RRT) on the grounds that they
feared persecution owing to their membership of a particular
social group. The RRT's finding was upheld by Sackville J in
the Federal Court but overturned by the Full Federal Court.
The applicants then appealed to the High Court."
"On 24 February 1997, the High Court dismissed the applicants'
appeal."
...
"Where the Court disagreed was in determining whether the
applicants belonged to a 'particular social group.'"
The High Court of Australia website has the case summary.
http://www.austlii.edu.au/au/cases/cth/high_ct/unrep303.html
"Immigration - Refugee status - Fear of persecution by forcible
sterilisation pursuant to China's "One Child Policy" - Whether
persecution feared "for reasons of ... membership of a particular
social group" - Whether legitimate to define particular social
group by reference to fear of persecution."
The People and Place website contains extracts from the case
as it specifically pertains to "social group" status.
http://elecpress.monash.edu.au/pnp/free/pnpv5n3/extract.htm
"EXTRACTS FROM THE RECENT AUSTRALIAN HIGH COURT DECISION ON
CHINA’S ONE-CHILD POLICY AND REFUGEE STATUS"
Search Strategy:
Searched Google with the keywords:
"particular social group" "united nations" australia
://www.google.com/search?q=%22particular+social+group%22+%22united+nations%22+australia
If you need any clarification, feel free to ask.
Looking Forward, denco-ga |
Request for Answer Clarification by
cati-ga
on
27 Apr 2003 04:16 PDT
This is a great answer and it really answers my question, thankyou!!!
Even though it is answered I am still being told that it needs
attention, what exactly is in need of attention? Lastly, you have
written in inverted commors, the paragraphs to ur answer, for example,
...
"Among the other four categories, "race" and "nationality" do
not imply any idea of co-operation; "religion" and "political
opinion" might, although it could be minimal. In the context
of the Convention it seems to me a contingent rather than
essential characteristic of a social group."
Does this mean that u have extracted the information from somewhere,
or is it your own words. Just so i know if i ever have to cite this
information. Thankyou again!!!!
|
Request for Answer Clarification by
cati-ga
on
27 Apr 2003 04:33 PDT
What part, section of the convention deals with the concept of a
social group for the puroses of teh convention???
|
Clarification of Answer by
denco-ga
on
27 Apr 2003 10:29 PDT
Howdy cati,
My apologies; I should have placed single quotes in the excerpts
from the United Kingdom Parliament website to indicate that those
were quotations from the original material, and not my words.
http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990325/islam05.htm
"It follows that I cannot accept that the term 'particular
social group' implies an additional element of cohesiveness,
co-operation or interdependence."
...
"Among the other four categories, 'race' and 'nationality' do
not imply any idea of co-operation; 'religion' and 'political
opinion' might, although it could be minimal. In the context
of the Convention it seems to me a contingent rather than
essential characteristic of a social group."
...
"it was said that '"particular social group" implies a collection
of people closely affiliated with each other, who are actuated
by some common impulse or interest.'"
This Chicago-Kent College of Law, llinois Institute of Technology
web page has the text of the United Nations Convention relating to
the Status of Refugees, 189 U.N.T.S. 150, and the pertinent section
is shown below.
http://pbosnia.kentlaw.edu/services/chicago/legal_aid/refugees.htm
CHAPTER I
GENERAL PROVISIONS
Article 1. - Definition of the term "refugee"
A. For the purposes of the present Convention, the term "refugee",
shall apply to any person who:
...
(2) As a result of events occurring before I January 1951 and owing
to 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.
Hope this clarification helps! denco-ga
|
Clarification of Answer by
denco-ga
on
27 Apr 2003 10:32 PDT
Apologies on the formatting of that last section; here it is
with better formatting.
This Chicago-Kent College of Law, llinois Institute of Technology
web page has the text of the United Nations Convention relating to
the Status of Refugees, 189 U.N.T.S. 150, and the pertinent section
is shown below.
http://pbosnia.kentlaw.edu/services/chicago/legal_aid/refugees.htm
CHAPTER I
GENERAL PROVISIONS
Article 1. - Definition of the term "refugee"
A. For the purposes of the present Convention, the term "refugee",
shall apply to any person who:
...
(2) As a result of events occurring before I January 1951 and owing
to 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.
|
Request for Answer Clarification by
cati-ga
on
28 Apr 2003 03:00 PDT
For the purposes of this question, im a little confused ---- "lesat
transparent" means the hardest of the five to see through or
ditect????
and sorry for bein a pain- but u wrote, the Uk website is the best
opinon that sum's up how "particular social group is the least
transparent".... i have looked at the websit and i can't find the part
which best sum's up what is ment in regards to transparency. Can u
please point me in the right direction, or make a summary of ot for
me. Thankyou, I will greatly appriciate this.
|
Request for Answer Clarification by
cati-ga
on
28 Apr 2003 03:02 PDT
i ment sowrie in the above clarification... Does "lesat transparent"
mean the hardest of the five to see through or ditect???? bacicially
the hardest to prove
|
Clarification of Answer by
denco-ga
on
28 Apr 2003 11:50 PDT
No problem cati,
Yes, "least transparent" means the hardest to define, or hardest to
prove. In other words, the least obvious of the five reasons.
The United Kingdom Parliament website paper, by trying to discern
what is exactly meant by a "particular social group" points out
that the reason is open to interpretation, and by virtue of that,
it not obvious at all what is meant or included by it. This is
because (at least by the reasoning presented in the paper) one's
social group can be changed by the individual, while the other
reasons are "an immutable characteristic" of the person.
The pertinent section follows:
http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990325/islam05.htm
"The notion that the Convention is concerned with discrimination on
grounds inconsistent with principles of human rights is reflected in
the influential decision of the U.S. Board of Immigration Appeals in
In re Acosta (1985) 19 I. & N. 211 where it was said that a social
group for the purposes of the Convention was one distinguished by:"
" 'an immutable characteristic . . . [a characteristic] that either
is beyond the power of an individual to change or that is so
fundamental to his identity or conscience that it ought not to be
required to be changed.' "
"This was true of the other four grounds enumerated in the Convention.
It is because they are either immutable or part of an individual's
fundamental right to choose for himself that discrimination on such
grounds is contrary to principles of human rights."
"It follows that I cannot accept that the term 'particular social
group' implies an additional element of cohesiveness, co-operation or
interdependence. The fact that members of a group may or may not have
some form of organisation or interdependence seems to me irrelevant to
the question of whether it would be contrary to principles of human
rights
to discriminate against its members. Among the other four categories,
'race' and 'nationality' do not imply any idea of co-operation;
'religion'
and 'political opinion' might, although it could be minimal. In the
context of the Convention it seems to me a contingent rather than
essential
characteristic of a social group."
The author goes on to present that the reason of "particular social
group"
as a basis for seeking refugee status has not been supported by all
courts,
including the High Court of Australia.
"In the opinion of Judge Beezer for the U.S. Court of Appeals
in Sanchez Trujillo v. Immigration and Naturalization Service
(9th Cir. 1986) 801 F.2nd 1571) it was said that 'particular
social group' implies a collection of people closely affiliated
with each other, who are actuated by some common impulse or
interest." This remark has been taken up in some (but not all)
other U.S. cases. It has however been rejected by the Supreme
Court of Canada in Attorney-General of Canada v. Ward (1993)
103 D.L.R. (4th) 1 and the High Court of Australia in A. v.
Minister for Immigration and Ethnic Affairs [1998] I.N.L.R.
1 I would reject it also."
So it follows, that if the reason of "particular social group"
was as transparent as the other four reasons, then some of the
courts and the author would not be debating its meaning.
If you need any further clarification, feel free to ask.
Looking Forward, denco-ga
|
Request for Answer Clarification by
cati-ga
on
01 May 2003 00:10 PDT
1. What exactly was the final outcome in the case A v Min. For
Immigration, after it went through all the courts jurisdictionally
possible? What made a particular social group so hard to establish in
that case?
2. I find it difficult to comprahend legal terms, could you please
tell me how china's on child policy relates to the difficulty in
proving the existance of a particular socail group? and just please
give me a little summary, on how the article Dept of the parlimertary
library article titled "china's one child policy and refugee Status in
Australia", is concearned with th fact that a patricular social group
is the least transparent of the 5 convention reasons.(the article
which is included as part of ur answer)
Thankyou soooo much!!!!!!
|
Request for Answer Clarification by
cati-ga
on
01 May 2003 00:18 PDT
even though I have already rated yoy, i want to tip you more, due to
all the clarification i have needed!!! How do I do it????
|
Clarification of Answer by
denco-ga
on
01 May 2003 12:56 PDT
Howdy cati!
Very glad to hear you are pleased with my work.
Once an answer has been rated, there isn't a way to
give a tip for that question. However, if you wish
to, you can ask another question and indicate that
it is for me, and price it as the tip amount.
Much thanks! denco-ga
|
