CATCHWORDS IMMIGRATION - Refugee status - claim to "membership of a particular social group" - Convention Relating to the Status of Refugees - Protocol Relating to the Status of Refugees - applicant hepatitis B sufferer - whether member of a "particular social group" as a result of PRC's Law on Maternal Infant Health Care - whether hepatitis B sufferers a "cognisable group" - whether member of a social group because of what one is or what one does - whether a member of a statistical group - whether group too arbitrary, flexible. ADMINISTRATIVE LAW - application to review decision of the Refugee Review Tribunal that the applicant not be granted a protection visa. Migration Act 1958 (Cth) s 5(9), s 26B Migration Reform Act (No 184 of 1992) s 10, s 39 Convention Relating to the Status of Refugees (1951) Protocol Relating to the Status of Refugees (1967) Universal Declaration of Human Rights, Article 16 International Covenant on Civil and Political Rights, Article 23 "Law on Maternal, Infant Health Care, Aims to Improve the Quality of Births", BBC Monitoring Service, 3 November 1994. Hathaway, JC; The Law on Refugee Status (1991) United Nations High Commissioner for Refugees; Handbook on Procedures and Criteria for Determining Refugee Status (1979) Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 130 ALR 314 Matter of Acosta, Interim Decision 2986, March 1, 1985 Sanchez-Trujillo v I.N.S. 801 F. 2d 1571 (9th Cir. 1986) Re Attorney-General of Canada v Ward (1993) 103 DLR (4th) 1 Minister for Immigration and Ethnic Affairs v Respondent A and Ors (1995) 130 ALR 48 Helvering v Gregory 69 F. 2d. 809 LO, FU SHUANG v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS No WAG 144 of 1994 Tamberlin J Sydney 13 December 1995 IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIAN DISTRICT REGISTRY ) No. WAG 144/94 GENERAL DIVISION ) BETWEEN: LO, FU SHUANG Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: TAMBERLIN J PLACE: PERTH DATED: 13 DECEMBER 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the respondent's costs of this application. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 144 of 1994 GENERAL DIVISION ) BETWEEN: LO, FU SHUANG Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: TAMBERLIN J PLACE: PERTH DATED: 13 DECEMBER 1995 REASONS FOR JUDGMENT This is an application to review the decision of the Refugee Review Tribunal ("RRT"), of 5 December 1994, that the applicant not be granted a protection visa. The only ground on which the application is made, is that the RRT erred in law in holding that persons who have the hepatitis B infection or are hepatitis B carriers ("hepatitis B sufferers") are not members of a particular social group. The applicant says that the RRT ought to have found that hepatitis B sufferers are members of a particular social group within the meaning of the 1951 Convention Relating to the Status of Refugees ("the Convention") as amended by the 1967 Protocol Relating to the Status of Refugees ("the Protocol"), as they are a recognisable social group having characteristics which they are unable to change. Background The applicant is a national of the Peoples Republic of China ("PRC") who arrived in Australia by boat on 23 August 1992. On arrival he was taken from the boat and placed in custody as an "unprocessed person". He was not granted an entry permit and was taken not to have entered Australia. He remains in custody. The applicant was born in Nanning, Guangxi Province in 1962. The applicant claimed that he is a "refugee" on two bases. First, on the ground of his membership of a particular social group, that group being persons who are hepatitis B sufferers in China. Second, on the ground of his political opinion by virtue of his illegal departure and associated factors. The present appeal only relates to the first basis, namely membership of a particular social group. The second ground is not pressed before this Court. The applicant says that he is a hepatitis B sufferer and as such will subject to persecution by the PRC authorities should he return to China. He stated before the RRT, as at the date of the hearing, that the PRC Government, had prepared a bill on eugenics which mandated sterilisation, a ban on marriage or celibacy for people with contagious diseases such as hepatitis B. Medical advice received by the RRT following the hearing confirmed that the applicant was a hepatitis B sufferer and there is no dispute as to this. The applicant stated that he may be forced to undergo sterilisation on account of his disease and that this would amount to persecutory treatment. He also stated that should he not be permitted to marry such action would breach his human rights, in particular, the right to marry and found a family as provided for under Article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights. He further stated that the fact of being a hepatitis B sufferer will be noted on his personal file. Should he defy the ban on celibacy and father a child out of wedlock, the PRC family planning authorities would act to require the child to be aborted. It is also likely, he says, that in order to prevent future births the authorities would require the applicant to be sterilised. The PRC Law In making its decision the RRT had before it an extract from the BBC Monitoring Service, dated 3 November 1994, entitled "Law on Maternal, Infant Health Care, Aims to Improve the Quality of Births". This document contained an unofficial text of the Law of the Peoples Republic of China on Maternal and Infant Health Care (adopted at the tenth meeting of the 8th National People's Congress Standing Committee on 27 October 1994). The accuracy of this version of the law is not in dispute although an official copy of the text was only available later. The relevant provisions are as follows: "Article 8 A premarital medical checkup should include examinations for the following diseases: (1) serious hereditary diseases; (2) legal contagious diseases; (3) relevant mental disorders. After the premarital medical checkup, the medical and health care organ should issue a certificate on the premarital medical checkup. Article 9 When either one of a couple preparing for marriage is found to be in the infective stage of a legal contagious disease or at the pathogenic stage of a relevant mental disorder during the premarital medical checkup, the doctor should offer medical opinions and the couple should postpone their marriage. Article 10 When either one of a couples is diagnosed to have a serious hereditary disease, which is medically deemed unsuitable for reproduction, the doctor should explain the situation and offer medical opinions to the couple. The couple may marry if they agree to take long lasting contraceptive measures or give up child bearing by undergoing ligation; this does not apply to those whose marriage is prohibited by articles in the "Marriage Law of the Peoples Republic of China". Article 38 Definitions of Terms used in this Law: "Legal contagious diseases" refers to AIDS, gonorrhoea, syphilis, leprosy and other contagious diseases medically deemed as having impacts on marriage and reproduction, which are stipulated in the Marriage and Reproduction, which are stipulated in the "Law of the People's Republic of China on Prevention of Contagious Diseases." Article 39 This law will come into force on 6 June 1995. It was common ground that hepatitis B is a contagious disease within Article 38. History The application for refugee status was originally made on 6 September 1992 and was refused on 30 September 1992. An application for review to the Refugee Status Review Committee was made on 7 October 1992 and rejected on 16 June 1993. A review against this decision was instituted in the Federal Court and this was pending on 1 November 1993. The applicant's refugee status application which had not been "finally determined", within the meaning of s 5(9) of the Migration Act (1958) ("the Act"), attracted s 39 of the Migration Reform Act, No 184 of 1992 ("Migration Reform Act"). This Act came into operation on 1 November 1993 for present purposes and s 39 converted the application into an application for a "protection visa". This class of visa was created by s 10 of the Migration Reform Act which inserted division 2, subdivision A, into the Act. The provisions thus inserted included s 26B of the Act which provides for protection visas. There is no dispute on this history and it is therefore not necessary to set out the above provisions. The decision of the RRT (constituted by Kay Ransome) was given on 5 December 1994 together with reasons. The RRT found that as the applicant was not a person to whom Australia has protection obligations under the Convention, a protection visa could not be granted. The relevant definition of "refugee" is that contained in the Convention and Protocol. That definition is contained in Article 1 of the Convention which, as amended by the Protocol, defines a refugee as any person who: "... 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." (Emphasis added). Reasoning of Tribunal After referring to the Convention definition, the decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and The Law of Refugee Status, JC Hathaway (1991), at 104-105, the RRT looked at the question whether hepatitis B sufferers are a particular social group in terms of the Convention. There is then a discussion of material before the RRT in these terms: "China has some 4.2 million children disabled by congenital illness ("Quality not Quantity", Bulletin, 29 November 1994). The Law is aimed at reducing the number of seriously sick and disabled babies in China and to prevent the transmission of genetic illnesses. Such illnesses are defined in article 38 of the Law as those that "may totally or partially deprive the victim of the ability to live independently, that are highly possible to recur in generations to come and that are medically considered inappropriate for reproduction" ("New mainland law will ban sex tests on foetuses"), South China Morning Post, 19-20 November 1994). Early reports concerning the Law indicated that it "mandates sterilisation, abortions or celibacy for people with hereditary, venereal or reproductive ailments, severe psychoses or infectious diseases such as hepatitis B" (see Lincoln Kaye, "Quality Control - Eugenics bill defended against Western critics", Far Eastern Economic Review, 13 January 1994). More recent reports have stated that abortion or sterilisation would not be forced upon people suffering these ailments. Such intervention would require the consent of such persons or their guardians (see James Walsh, "Ordering up 'Better' Babies", Time, 2 May 1994; "Law aims to create 'quality' populace". South China Morning Post, 28 October 1994; "Quality not Quantity", Bulletin, 29 November 1994). Persons who have a serious congenital abnormality or infectious disease would be required to postpone marriage or take long term contraceptive measures after marriage (Kathy Wilhelm, "China Defends Law for 'Better Births'", Associated Press, 29 December 1993; Cong Gong, "Draft Aims at Better Birth and Health Care", China Daily,4 January 1994; "Law aims to create ' quality' populace", South China Morning Post, 28 October 1994). The Law requires pre-marital physical check-ups to try to determine if either partner has a severe hereditary or contagious disease or mental disorder (Cai Hong, "NPC law to protect mother and infants", China Daily, 22 October 1994). Hepatitis is endemic in parts of China (see Kathy Wiljhelm, "China Defends Law for 'Better Births", Associated Press, 29 December 1993). The Tribunal notes statements made by one of the drafters of the Law that the intention in the case of persons with "reversible ailments like hepatitis" is to encourage them to cure the sickness first (see James Walsh, "Ordering up 'Better' Babies, Time, 2 May 1994). Indeed, it would seem that nine out of ten people who catch hepatitis B recover from it completely, but the other one in ten becomes a chronic carrier of the disease and may be able to pass it on to the others for the rest of their lives (Charles B Clayman, Encyclopaedia of Medicine, Random House, 1989; Warwick Cater and Jan Bowen, The Macquarie Home Guide to Health and Medicine, the Macquarie Library, 1991). According to the same sources, many persons who have hepatitis B may have no symptoms at all and thus the disease may go undetected." Reference was then made to the decision of the Full Federal Court in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 404 and 406 per Black CJ, and at 416 per Lockhart J. In the light of the principles there set out, the RRT saw the issue as whether it could be said that hepatitis B sufferers were a "cognisable group" in Chinese society. The RRT considered that such persons were a "statistical group" in that they represented a certain proportion of the Chinese population. However, the RRT perceived no defining characteristic, other than the fact of having the disease, which differentiated hepatitis B sufferers from others in society. There were not necessarily any visible outward signs of the disease and many of those afflicted might not even know they have the disease. The applicant was not aware until recently of his carrier status. There was no evidence before the RRT that hepatitis B sufferers had a particular place in Chinese society. It was said they might come from many walks of life and interact with society in many ways. The only thing they have in common is that they have a certain disease. The view was therefore taken that it could not be said that a group of people who have acquired the disease, without anything more, constituted a group of people who share a common social characteristic such as would make them members of a particular social class. The decision adverts to the proposition that over time a group of people might become a cognisable group in society by virtue of common activity and that persecution might contribute to the development of a social group. However, to say that hepatitis B sufferers may develop that status at some future point of time was said to be mere speculation on future events which could depend on a large number of variable factors, not least of which was how the new legislation was implemented in practice. As at the date of the decision, all that could be said was that the PRC Government had introduced legislation aimed at preventing the transmission through birth of certain diseases. It could not be said that the group existed independently of the persecution of which is complained. Accordingly, the RRT did not consider that hepatitis B sufferers were a particular social group within the meaning of the convention and therefore the claim on that basis must fail. It was considered not necessary to address the issue whether the treatment, which the applicant might receive, would amount to persecution. Principles In approaching the present question, the Court is not considering the expression "membership of a particular social group" in a vacuum. The language calls for interpretation according to the context in which it occurs. There is no point in an examination of the phrase by reference to a wide range of hypothetical examples many of which may be totally divorced from the context of the particular international covenants and obligations which apply in respect of affording protection to refugees. Accordingly, it is important to consider the expression having regard to the other terms and elements set out in the Convention definition. Cf the observations of Burchett J in Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 130 ALR 314 at 317-318 where his Honour refers to the need to examine the whole of the definition of "refugee" and not to concentrate on discrete parts of the definition divorced from the totality of the language used. As Learned Hand CJ said in Helvering v Gregory (1934) 69 F.(2d) 809 at 810-811, with respect to the task of interpretation: "... the meaning of a sentence may be more than that of separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create." The surrounding associated language refers to persecution on account of "race, religion, nationality ... or political opinion" One conclusion to be derived from such an approach is that the definition was not intended to cover all persons who may be the target of persecution or of harmful treatment, for whatever reasons, attracted purely on an individual basis. Something more is called for. For example, all persons in China who weigh more than 50 kilograms would not be a relevant grouping in the context of the Convention but it may be a useful grouping for statistical purposes. The words "by reason of membership" show that there must be something inherent in the grouping which is the reason for the persecution. That characteristic must be found in the group, not in the persecution or government policy alone. A helpful approach is to be found in the decision of the United States Board of Immigration Appeals in Matter of Acosta Interim Decision 1986, (March 1, 1985) extracted in Hathaway (supra) at 160: " ... we interpret the phrase "persecution on account of membership in a particular social group" to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one, such as sex, colour, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case by case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or conscience. Only when this is the case, does the mere fact of group membership become something comparable to the other four grounds of persecution...." At 161 of his text Hathaway says: "By basing the definition ... on application of the ejusdem generis principle, we respect both the specific situation known to the drafters - concern for the plight of persons whose social origins put them at comparable risk to those in the other enumerated categories - and the more general commitment to grounding refugee claims in civil or political status. Beyond that, the linkage between this standard and fundamental norms of human rights correlates well with the human rights-based definition of "persecution". Most important, the standard is sufficiently open-ended to allow for evolution in much the same way as has occurred with the other four grounds, but not so vague as to admit persons without a serious basis for claim to international protection. As observed in the American decision of Sanchez Trujillo v INS. [801 F. 2d 1571 (9th Cir. 1986)] .... the term does not encompass every broadly defined segment of a population, even if a certain demographic division does have some statistical relevance". Rather, a "particular social group" must be definable by reference to shared characteristic of its members which "is fundamental to their identity"." Morato's case (supra) was concerned with a group said to be comprised of persons who had changed their position and had given evidence for the prosecution. In the decision they are referred to as "persons who have turned Queen's evidence." At 404-405, Black CJ considered that a particular social group should not be defined by reference to the sole criterion that its members are all those who have done an act of a particular character, although this could in some circumstances, together with other factors, point to the existence of a particular social group. His Honour considered that membership of a particular social group was concerned with what one is rather than what one does or has done. See 404-405. His Honour said at 406: "At the very least, a particular social group connotes a cognisable group in a society, and cognisable to the extent that there may be a well founded fear of persecution by reason of membership of such a group. .... It may be, for example, that over a period of time and in particular circumstances, individuals who engage in similar actions can become a cognisable social group. The actions may, for example, bear upon an individual's identity to such an extent that they define the place in society of that individual and other individuals who engage in similar actions. ... Persecution may be part of that interaction and may contribute to the development of the social group. Thus similar actions engaged in by people may be a factor to be considered when examining whether a particular social group in fact exists or whether a person is a member of such a group." Lockhart J at 414, referred to the Handbook on Procedures and Criteria for Determining Refugee Status (1979), issued by the United Nations High Commissioner for Refugees, to assist member states to carry out the obligations under the Protocol ("The Handbook"). This Handbook is, of course, only a broad guide but its contents are relevant matter for the Court to take into account. The description in the Handbook is: "77. A "particular social group" normally comprises persons of similar background, habits or social status. A claim to fear of prosecution under this heading may frequently overlap with the claim to fear of persecution on other grounds, ie race, religion or nationality. 79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be sufficient ground to fear persecution." (Emphasis added) At 416 his Honour said: "The interpretation of the expression "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. Social groups may have interests in common as diverse as education, morality and sexual preference. Examples include the nobility, land owners, lawyers, novelists, farmers, members of a linguistic or other minority, even members of some associations, clubs or societies. The Handbook ... emphasises the need for some common or binding element of persons to constitute them as a recognisable or cognisable group. 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. I do not think it is wise, necessary or desirable to further define the expression. It must be borne in mind, however, that the question is whether a person's well founded fear of persecution is for reasons of membership of a particular social group. The membership of the group is the touchstone of the test of Refugee Status." Turning to the particular case before him, his Honour concluded: "Applying this test to the facts of the present case I am in agreement with the conclusion of the primary judge that the applicant's well-founded fear of prosecution is due, not to membership of any particular social group, but because as an individual he has "informed on" a member of the Diaz family, apparently with powerful connections in Bolivia. The evidence does not support any finding that there is a recognisable or cognisable group of people who are informers or who have turned Queen's evidence. All that one can say is that there are many people throughout the world who have been police informers or have turned Queen's evidence ... But there is nothing in the present case to suggest that there is an identifiable group, either in Bolivia or elsewhere, which has a common experience or characteristic which they share together of police informers or persons who have turned Queen's evidence." In Sanchez - Trujillo v I.N.S. (1986) 801 F 2d 1571 (9th Cir. 1986) The United States Court of Appeal examined the question of what is a particular social group. At 1576 the Court said: "Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group." One example given by the Court was the immediate members of a family. This was contrasted with an example of what it described as a statistical group of "males taller than 6 feet" who, the Court said, would not qualify for asylum. In that case the question was whether a class of "young urban working- class Salvadoran males of military age, who had not joined the armed forces, and had not expressed overt support for the Salvadoran Government," comprised a particular social group. The Court considered that this grouping was closer to a statistical category, such as males taller than 6 feet, and was not within the definition. In Re Attorney General of Canada v Ward (1993) 103 DLR (4th) 1 at 25-26, the Supreme Court of Canada referred to and considered some possible approaches to the determination of whether there is a particular social group. These approaches were: (1) A very wide definition ... pursuant to which the class serves as a safety net to prevent any possible gap in the other four categories. (2) A narrower definition that confines its scope by means of some appropriate limiting mechanism, recognising that this class is not meant to encompass all groups; and (3) An even narrower definition, paralleling that formulated by the majority of the Federal Court of Appeal, that responds to concerns about morality and criminality by excluding terrorists, criminals and the like". (Emphasis added) The Court rejected the first or "safety net" approach as being too wide. It preferred the second approach which emphasised the international community's commitment to the assurance of basic human rights without discrimination as the underlying principle. The Court did not consider it appropriate to apply any blanket exclusion required under the third principle. In considering the second (preferred) approach the Court said at 33: "The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The test proposed in Mayers, (supra), Cheung, (supra), and Matter of Acosta, (supra), provide a good working rule to achieve this result. They identify three possible categories: (1) groups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person." The most recent relevant Australian decision is that of the Full Federal Court is Minister for Immigration and Ethnic Affairs v Respondent A and Ors (1995) 130 ALR 48. That case raised the question whether people with one child, who wish to have another child who are susceptible to forcible sterilisation under Chinese law, constitute members of a particular social group. The Full Court held that they did not. After reviewing relevant Australian and North American decisions, the Court concluded: ".... even if the respondents were able to show that there was a law of general application in China that parents of one child must be sterilised, and forcibly if necessary, persons facing that fate would not be members of a particular social group. While such a law would be considered by Australians to be ... contrary to internationally accepted standards of human rights the law would be one regulating the conduct of individuals. To apply the reasoning of Morato, such a law would be dealing with what people did, not with what they are. The only difference is that such a law would be one operating on individuals to prevent future acts (conception and birth) rather than to punish past acts. Such a law would not create or define a particular social group constituted by those who are affected by it, any more than would laws imposing tax or prescribing punishment for tax evaders. ... The respondents are not facing persecution by reason of membership of any social group having a recognisable existence separate from the persecutory acts complained of." at 61-62. It is to be noted that special leave has been granted to appeal to the High Court from this decision. Present Case The "good working rule" set out in Ward's case represents in my view, an approach which is both useful and appropriate in the determination of the question presently before me. In the final analysis it is the language of the Convention and Protocol which is determinative. However, the formulation in Ward's case does represent a useful pointer when applying that language to the facts. In the present case, the sole characteristic for composition of the group resides in the accidental circumstance that the applicant is a member of the Chinese community who has contracted hepatitis B. That infection occurs throughout China and in some areas it is endemic. It has afflicted and will strike at all sectors of society without selectivity as to age, sex, occupation, colour, religion, morality, social rank, residential area, wealth, background or education. Many sufferers will not even be aware of their infection or membership of the group until specific diagnosis is made. In many cases diagnosis may never occur or not occur for some lengthy period. Those afflicted are said to be members of a particular class just because they have a particular malady. In my view, the fortuitous circumstance of a common illness does not make those persons afflicted, members of a particular social group for the purposes of the Convention definition. No doubt, in a loose sense, all sufferers who have been diagnosed, will have a strong common interest in the prospects of a cure or some alleviation of their suffering. They may or may not suffer in a particular way which is different from the pain experienced by other members of the community. They are not formed into separately cognisable groups because of a common or shared illness. The group may vary in size on an hourly or daily basis without any knowledge on the part of individual sufferers as to who are within the class at any one time. They therefore cannot be said to make up a recognisable discrete group within society. Clearly persons with hepatitis B constitute a statistical group, in the sense that there can be an estimate made as to the number of persons afflicted. But this does not make them members of a particular social group within the meaning of the Convention and Protocol. There is a substantial random element in any attempted grouping on the basis of illness or disease which makes it difficult to perceive sufferers as a distinct social group. There is an additional question as to the degree of specificity with which one defines the group. Possible groupings could include a spectrum varying from "the sick" through to say, sufferers from particular types or intensities of a specific disease. In the case of cancer, for example, questions could arise as to whether the class is "sick people", "those with cancer" or those with specific types of cancer such as breast or prostate cancer. In the present case one could ask whether the group is the "sick", "those with hepatitis", or "those with hepatitis A" or "B" or "C". This illustrates that there is an uncertainty, vagueness and arbitrariness about any attempted classification of hepatitis B sufferers into a group which, in my view, points to the conclusion that they are not a separate group recognisable or recognised by society. The changing patterns, flexibility in numbers, lack of awareness and the lack of any cohesion apart from the infection tends against the conclusion that hepatitis B sufferers have such an interest or bond as to comprise a particular social group for Convention purposes. As was submitted in argument, a history of continuous persecution, discrimination or marshalling of social attitudes over time against individuals may give rise to a particular social group within the definition. Historically, lepers for example, in biblical times, or members of the Untouchable class in India, constituted discrete recognisable groups in society as a result of being ostracised or treated in a discriminatory way by the rest of the community because they comprised a special group or class. This important additional element of special treatment over time which could lead to the recognition of a distinct social group are not present in the instant case, where the sole consideration is the fact that persons, said to be members of the group, suffer from hepatitis B. On the principles applied in Respondent A 's case (supra), it cannot be said that the alleged government policy or persecution in China has led to the formation of a distinctive social class. Government policy on persecution in relation to a targeted group cannot on the authority of that decision, without more, constitute that group a class. The language of the definition, particularly the words "by reason of membership" indicates that there needs to be a recognised social group prior to the persecution and that it is not the fact of persecution itself which constitutes the social group. As in Respondent A's case, the relevant law in the present case, operates on individuals to prevent future acts (marriage, conception and birth) rather than past acts. Such a law, as decided by the Court in Respondent A's case, would not create or define a particular social group constituted by those who are affected by it. On the principles set out in Ward's case (supra), it cannot be said, after taking into account the general underlying themes of the protection of human rights and anti-discrimination that form the basis of the International Protection Initiative, that the measures taken by the PRC Government are directed at a grouping intended to be protected by the Convention and Protocol. Those treaties were not designed to produce the result that persons who are persecuted on the grounds that they are infected in a particular way would come within the Convention by reason only of that sickness. There is not the required element of discrimination or the necessity for protection of human rights inherent in that sole characteristic. Hepatitis B is an illness with the potential to affect all members of society. It is not an innate or unchangeable characteristic, such as gender, language or sexual orientation. Nor is it a factor binding together a group whose members associate with each other because of their beliefs or other reasons fundamental to human dignity. Nor can those afflicted be said to members of a group associated by a former voluntary status unalterable due to its historical permanence in the sense applied in Ward's case. Accordingly, for the above reasons, I am of the view that the applicant cannot be described as a member of particular social group within the meaning of the Convention and Protocol. I therefore dismiss the application with costs. I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 13 December 1995 Counsel for Applicant: Ms V Moss Solicitor for Applicant: Legal Aid Counsel for Respondent: Dr J T Schoombee Solicitor for Respondent: Australian Government Solicitor Date of Hearing (Perth) 23 November 1995 Date Judgment Delivered (Sydney) 13 December 1995