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[1999] FCA 87
Federal Court of Australia
1999-02-12
Gummow J, Mason CJ, Moore J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application by Georgette Ibrahim Faddoul ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 27 May 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). 2 The applicant is a citizen of Lebanon who arrived in Australia on 7 January 1997. On 25 March 1997 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 24 February 1997 the application was refused by a delegate of the Minister. Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides: … the term "refugee" shall apply to any person who; … (2) 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 or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it. 3 The essence of the case of the applicant before the Tribunal was that she is a divorced woman who has been exposed to domestic violence and, if she were to return to Lebanon, would be subjected to persecution. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and a consideration by Australian courts of what is comprehended by the definition of refugee. The Tribunal then discussed the notion of "persecution" and referred to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225 and MIEA v Guo (1997) 191 CLR 559. Reference was also made to the judgment of the Full Court of this Court in Ram v MIEA (1995) 57 FCR 565. 4 In relation to the meaning of "persecution" in the Convention the Tribunal said: Second, an applicant must fear persecution. In Applicant A, Gummow J at 375 referred to the primary meaning of the term "persecution" in ordinary usage; "The action of persecuting or pursuing with enmity or malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it; … Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage. (Chan at 388) Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. The persecution must have an official quality, in the sense that it is official or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. (Emphasis added) 5 The Tribunal went on to note that the persecution had to be for a reason identified in the Convention and that the applicant's fear of persecution must be a well founded one. 6 The Tribunal considered the circumstances of the applicant in a section headed "Claims and Evidence". The Tribunal first noted that the applicant's claims were set out in written submissions to the Department, in an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on 24 March 1998. The Tribunal then set out what emerged from that material which can be briefly summarized. 7 Before arriving in Australia the applicant had lived in Paris for eight years. She had been born in Tripoli but as a young child had moved with her parents to the Ivory Coast in West Africa. Her father's business in that country was prosperous and her parents remained there while she was educated in boarding schools in Lebanon and Switzerland. She married when she was 17 while she was in Lebanon for Christmas. She settled with her husband in a small village near Beirut and they had three daughters. During the years of their marriage the applicant was beaten continuously and abused by her husband. Eight years ago the applicant contacted her mother who, in due course, financed tickets for herself and three daughters to escape Lebanon to France. The applicant's husband believed this was being done to keep the children safe from the war in Lebanon and would be temporary. The applicant had entered her marriage with considerable property from her parents. However her husband had taken a gun to her head forcing her to sign papers which assigned this property to him. He had taken all her personal valuables, including gems and jewellery given to her by her mother. After the applicant and her children had been in France for two years, her husband arrived and took the three daughters back to Lebanon. The applicant refused to go with him. The applicant continued to live in France until she came to Australia to stay with her mother. Proceedings to divorce her husband were finalized in September 1996. Further proceedings have been instituted by the applicant in Lebanon to force her husband to return the property he took from her by force. 8 The Tribunal then noted that the applicant claimed she feared returning to Lebanon for two reasons. The first was that there would be severe violent reprisals against her by her husband and family because she had left him, divorced him and was bringing legal proceedings against him. The second was that in Lebanon rights are determined by males and a woman who is alone has no social rights. Part of her claim was that Lebanese society will attack her and she will be labelled a whore and treated to ostracism and abuse. This will be in a context in which she has no family, no property and no support system. 9 The Tribunal considered the applicant's evidence and claims in a section in its reasons titled "Findings and Reasons". The Tribunal first addressed the applicant's fears of violence from her ex-husband and other members of his family. The Tribunal appears to have accepted that the applicant held such fears but said they were not for a Convention reason. The Tribunal also appears to have accepted that the applicant could be treated as a member of a particular social group and a number of groups were identified. They were divorced women in Lebanon, divorced women who have lived overseas and returned to Lebanon, women in Lebanon who do not have male relatives or divorced Christian women in Lebanon without male relatives. The Tribunal accepted that these may constitute a particular social group for the purposes of the application of the Convention. The correctness of this approach was not put in issue in these proceedings. However the Tribunal did not accept that the applicant held a well founded fear of persecution for reasons of her membership of any of these groups. It said that any harm threatened to the applicant by her ex-husband or members of his family was for personal reasons. 10 The Tribunal then considered whether the applicant would be persecuted by Lebanese society in general because she belonged to a particular social group. The Tribunal rejected this contention. Explaining its reasons for doing so, the Tribunal said: It was put to the applicant at the hearing that there were many women in Lebanon who are divorced. She agreed that there were some women in Lebanon who are divorced but that a Lebanese woman who is divorced is ashamed to show herself in society, that she will be treated as if she was a prostitute, particularly as she has lived outside Lebanon without a husband for a number of years, that neither the police nor the church can protect her, and that she will therefore be subject to abuse, the chance of rape or sexual assault, physical harm, and will not have any protection as she has no male relatives. 11 The Tribunal then indicated that it accepted the views expressed in a US Department of State Lebanon Country Report on Human Rights Practices for 1996 as they related to domestic violence. That was a document that had been included in the applicant's submissions to the Tribunal. That report dealt with the incidence of rape and spousal abuse of women in Lebanon. The Tribunal also referred to two cables of the Australian Department of Foreign Affairs and Trade ("DFAT"), one dated 29 August 1994 and the other 1 August 1995. The latter noted that separated or divorced Christian women tend to suffer from reduced social status and that single women in Lebanon can be harassed, though rarely to the point of physical abuse. The Tribunal then said: In summary the Tribunal accepts that there is a level of discrimination and harassment of women in Lebanon which is extremely unfortunate and which is higher than most developed countries. This discrimination extends to some legal rights which are less than those of males, and to a relatively high degree of domestic violence, which is not pursued as actively as it might be by the authorities. However such violence is against the penal code and the government does take steps to prevent it. The Tribunal does accept that a single or divorced female might be seen as being in a position of lower social status and that she may attract comments and derision if she has also spent some years out of the country as a single female. However the treatment which she may validly fear is not persecution within the meaning of the Convention. I have considered all the evidence which the applicant has put before the Tribunal, including the lengthy written submissions. I am unable to see the relevance of the practice of selecting a few past cases of this Tribunal which are put forward on behalf of the applicant, and will not reply by referring to many past RRT cases which would be unhelpful to her cause if there were any weight given to previous cases of the Tribunal. It will suffice to say that there is no place in this jurisdiction for any weight of precedent of past Tribunal cases, and I have not taken into account the reasoning of any past cases. In summary the Tribunal finds that any fears which the applicant may hold of being persecuted by the general population on her return to Lebanon are not well founded, although unfortunately the prospect of her suffering treatment which may amount to discrimination is possible, and she may lose some degree of social standing because she is a woman who is divorced and who has lived outside her country for some years. There are degrees of discrimination for various reasons in all countries and all of them are unfortunate. However this does not bring them within the scope of the Convention which was designed to afford protection to refugees who fear persecution for one of the reasons set out in the Convention. In all the circumstances the Tribunal finds that any fears the applicant holds in relation to future treatment by her husband and his family are not for any Convention reason. The Tribunal also holds that the applicant does not hold a well founded fear of persecution by the general population of Lebanon for reasons of her membership of any social group or any other Convention reason. (Emphasis added) 12 Counsel for the applicant developed a number of submissions in support of the contention that the decision of the Tribunal should be set aside. They may conveniently be summarized: 1. The Tribunal misunderstood what was comprehended by the notion of persecution having regard to its findings concerning the treatment that might be meted out to the applicant by Lebanese society generally were she to return. Persecution can include conduct in disregard of human dignity and reference was made to Chan (supra) at 430 and Applicant A (supra). This ground of review was said to arise under s 476(1)(e) of the Migration Act 1958 ("the Act"). 2. The Tribunal failed to pay regard to other decisions of the Tribunal concerning women in Lebanon. This relevance was not as precedents, as decisions of courts might be treated, but rather as evidence of commonality of experience of women in Lebanon. Reference was made to the judgment of Sheppard J in Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 and the judgment of Wilcox J in Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455. The notion of communality of experience is found in the judgment of the Supreme Court of Canada in Ward (1993) 103 DLR (4th) 1 at 23. It was also contended that the Tribunal failed to take into account a DFAT cable dated 30 August 1995, referred to in another Tribunal decision, said to be supportive of the applicant's case. This ground was said to arise under s 476(1)(a) of the Act having regard to the provisions of s 420 of the Act. 3. The finding of the Tribunal that domestic violence is against the penal code and the government takes steps to prevent it was not a finding open on the evidence. This was a ground of the type referred to in s 476(1)(g) of the Act. 4. The Tribunal failed to make findings in relation to the applicant's evidence and, in particular, her evidence that there was a chance of her being raped or sexually assaulted were she to return to Lebanon and that she would not be afforded state protection. This was based on s 476(1)(a) and s 420 of the Act. 5. The Tribunal failed to properly apply the definition of refugee in so far as that definition speaks of persecution "for reasons of" the social group of which the applicant was a member namely, women in Lebanon seeking to assert legal rights to property who had no protection from male relatives. This was said to be a ground identified in s 476(1)(e) of the Act. 13 The response of counsel for the Minister was as follows: 1. Counsel for the applicant had misconstrued the scope of persecution. In any event whether particular conduct might constitute persecution involves question of fact and degree and is a matter for the Tribunal and not the Court. Reference was made to the judgment of Hill J in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 271. 2. Whatever evidentiary value earlier decisions of the Tribunal may have had, they were plainly considered by the Tribunal. It said that it had consideredall the evidence and the correctness of that statement should be accepted. To the extent that a complaint had been made that a particular DFAT Cable (30 August 1995) had not been expressly dealt with by the Tribunal did not mean that it had not been considered. It was a cable that had been referred to by the delegate of the Minister and the Tribunal made it clear that it had considered the material that had been considered by the delegate. 3. There was material before the Tribunal concerning the government's enforcement of the penal code and the prevention of domestic violence. Reference was made to the discussion of this question by the delegate of the Minister in its record of decision. The Tribunal would have had regard to that material. Counsel made the additional point that even if there was no evidence sustaining the Tribunal's conclusion, the complaint made by the applicant fell outside the ground identified in s 476(1)(g) having regard to subs (4) of that section. 4. The evidence of the applicant concerning the chances of her being raped or sexually assaulted was taken into account by the Tribunal and was reflected in the passage of the Tribunal's reasons earlier set out commencing with the word "In summary the Tribunal accepts …" which has been set out earlier in this judgment. 5. The Tribunal did not misconceive what is comprehended by the notion of "for reasons of" in the definition of refugee. It quite properly viewed any harm that the applicant might experience as a result of her pursuit of claims to property were a result of her personal position and not because of membership of a particular social group. Reference was made to the judgment of Sackville J in Basa v Minister for Immigration and Multicultural Affairs, unreported, 17 July 1998.
The challenge to the finding concerning the penal code and the prevention of domestic violence 14 It is convenient to consider first the challenge to the Tribunal's decision concerning its finding about state protection. It is a finding that has a material bearing on other issues raised on behalf of the applicant. In a passage quoted earlier, the Tribunal found that domestic violence is against the penal code of Lebanon and the government takes steps to prevent it. This statement followed an observation by the Tribunal that in Lebanon there was discrimination against women which included women being afforded fewer legal rights than men and involved the existence of a relatively high degree of domestic violence against women. In the context of describing this discrimination the Tribunal noted that "it is not pursued as actively as it might be by the authorities". What is being referred to by "it" at the beginning of this clause is not entirely clear. It may be a reference to the discrimination against women, the imbalance of legal rights or the high degree of domestic violence. It is probably the first but, if so, includes the high incidence of domestic violence. The critical sentence which is the focus of criticism by counsel for the applicant and which contains the reference to the penal code speaks of the government taking steps "to prevent it". This, in context, is a reference to the prevention of domestic violence. Thus the Tribunal was saying that the government takes steps to prevent domestic violence but was saying this after it had acknowledged that the government was not doing as much as, in the Tribunal's view, it should be doing in relation to discrimination against women and high levels of domestic violence. 15 The challenge to the finding that domestic violence is against the penal code and the government takes steps to prevent it has to be considered in the context of the ambit of the ground of review established by s 476(1)(g) read with s 476(4). They provide: 476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 16 A finding of the type comprehended by s 476(4)(a) is one which is a precondition in law to the making of the decision: see Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, or there was at least a clear legislative intent that the making of the decision depends on a particular matter being established: see Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414. The impugned finding is not of that character. 17 The applicant submitted that the Tribunal was required by law to reach a decision as to whether the applicant was a refugee. Plainly that is, as a gloss on s 36 of the Act, correct. The applicant went on to submit that the Tribunal could only make this finding if it was established that there was an absence of state protection for the applicant in Lebanon. This submission obscures, in my opinion, what was the relevant finding. For the purposes of s 476(4)(a) the relevant decision was that the applicant was not a person to whom Australia had protection obligations under the Convention. The Tribunal was not impliedly required by the Act to reach that decision only if it was established that there was an absence of state protection. A range of other matters could have and indeed did enable the Tribunal to reach the decision it did even if absence of state protection was established. That is, the existence of state protection was not a critical matter that must have been found by the Tribunal to have existed (and a finding required by the Act to be made) before it decided the applicant was not a refugee. 18 Paragraph 476(4)(b) requires proof that the fact does not exist. The applicant has not demonstrated that domestic violence is not against the penal code or is against it and is not prevented and, implicitly, the penal code is not enforced. The applicant submitted that the country data contained in various RRT decisions concerning women in Lebanon and information contained in DFAT cables show positively that state protection of the type found by the Tribunal does not exist. Plainly a distinction has to be drawn between what the cables themselves say and what other members of the Tribunal have concluded about the matters to which they relate having regard to their contents. A DFAT Cable of 30 August 1995 establishes, when read with an earlier cable of 1 August 1995, that at the highest for the applicant, while assault is against the penal code, the authorities may often pursue only half heartedly complaints of assault occurring in a domestic context and the police are slow to take action unless the evidence of violence is overwhelming. There is also a tendency to place domestic matters in the hands of confessional courts which can be less than sympathetic in matters of domestic violence. While this material tends to show that the position may be more complex than as stated by the Tribunal, it does not demonstrate the facts found by the Tribunal, relevantly that the government takes steps to prevent domestic violence and that the penal code is enforced, do not exist. The applicant has failed to make out a ground based on s 476(1)(g).
Misunderstanding about what is comprehended by the notion of persecution 19 Whether the treatment of women in a given country might constitute persecution of the type contemplated by the Convention, particularly in relation to domestic violence, is an issue of some complexity see: M Crock, Immigration & Refugee Law in Australia pp 148 - 151; J Connors, "Legal Aspects of Women as a Particular Social Group", International Journal of Refugee Law, Special Issue Autumn 1997, pp 114 - 128; "Gender-Related Persecution: An Analysis of Recent Trends", International Journal of Refugee Law, Special Issue Autumn 1997 pp 79 - 113. However in the present case the approach of the Tribunal to the circumstances of the applicant, having regard to the findings of fact made by the Tribunal, is not attended by reviewable legal error. Towards the beginning of its reasons the Tribunal indicated what it understood by the notion of persecution and its discussion of this issue is, in my opinion, unexceptionable. The Tribunal made an assessment whether the treatment to which the applicant might be exposed as a divorced woman in Lebanon would involve persecution. Implicit in its approach was that it might be but its assessment led to a conclusion that it would not. There will be instances where the result of such an assessment will depend on evaluation and judgment. This matter was discussed by Hill J in Prahastono (supra). His Honour said (at 268) in relation to whether discrimination in employment experienced by the applicant was persecution: In my view, there is nothing in the texts or cases which support the universal proposition that discrimination in employment must be persecution. No case has attempted an all-inclusive definition of "persecution" and that certainly is not a task which I wish to undertake in the present case. I am prepared to accept that the UNHCR Handbook is correct in the following passage upon which the applicant relies. But nothing in that Handbook permits me to reach a conclusion other than that the question whether discrimination becomes persecution involves an issue of fact and degree, and that this is an issue for the decision-maker and not for the court. In my view, it was open for the Tribunal to find there to be no persecution in the present case. 20 His Honour then set out an extract from the Handbook discussing what might constitute persecution which included the observation that whether threats, other than threats to life or freedom, or other prejudicial actions would amount to persecution will depend on the circumstances of each case. The role of the Court and the Tribunal were adverted to again by his Honour at 271: The final error alleged was that it was not open to the Tribunal to hold that the discrimination, harassment or ostracism experienced by the applicant amounted to persecution. As I have already noted, where there is a matter of fact and degree involved, as there almost invariably will be when the question arises whether particular conduct amounts to persecution, the Tribunal will be the final arbiter. 21 This approach to the respective roles of the Court and the Tribunal has been adopted in Ye Hong v Minister for Immigration and Multicultural Affairs [1998] FCA 1356, unreported; Kadiroglu v Minister for Immigration and Multicultural Affairs [1998] FCA 1656. 22 In the present case the assessment made by the Tribunal, as the final arbiter, of whether conduct to which the applicant might be exposed amounted to persecution does not, in my opinion, disclose a mistaken understanding of what is comprehended by persecution. This ground of appeal is not made out.
Erroneous consideration of "for reasons of" 23 As just noted the issue of whether the treatment of women might constitute persecution is a important and complex issue. One present source of uncertainty is precisely what is comprehended by the notion of "for reasons of" in the Convention as it might relate to women if they are exposed to a risk of domestic violence. One approach to the issue is to view that risk as one deriving not from membership of a particular social group, one characteristic of which is that the members are women, but rather from the circumstances personal to the woman and the relationship in which the violence would occur. Another is to take a broader view and approach the issue on the footing that even if the violence might arise in the context of a particular personal relationship, it occurs against a backdrop of the woman concerned being provided only limited or no state protection. However even on this broader view issues still remain about whether a relevant social group can be identified which has a common characteristic other than a risk of persecution deriving from the past exposure to or future risk of domestic violence. 24 In the present case these issues do not need, in my opinion, to be addressed. That is because the Tribunal made findings about the extent and nature of the risk of harm that the applicant would face were she to return to Lebanon. They are not findings that, in the circumstances of this case, can be put to one side. Thus even if the treatment to which the applicant might be exposed is by reason of her membership of one of the social groups identified by the Tribunal, the protection of the Convention is not attracted because the Tribunal concluded that treatment does not amount to persecution.
Failure to pay regard to both other decisions of the Tribunal concerning women in Lebanon and the DFAT cable of 30 August 1995 25 The applicant sought to refer the Tribunal to a number of other decisions of the Tribunal (differently constituted) concerning the position of women in Lebanon. The Tribunal in this matter appears to have understood that the applicant was relying on them as a precedent of sorts and rejected them on that basis. It was entitled to do so. It is now said they constituted evidence of the commonality of experience of women in Lebanon and should have been taken into account for that purpose. I fail to see why. They would provide either the recitation of evidence and findings concerning the particular circumstances of a very limited number of individuals which is likely to be irrelevant or would contain references to material by way of general commentary which would be otherwise available to the Tribunal. 26 As to the cable of 30 August 1995 it was not referred to expressly by the Tribunal in its reasons for decision though it was relied on by the applicant in the present case and referred to in written submissions to the Tribunal. However the Tribunal did say it had considered the evidence put by the applicant and its lengthy written submissions. I discern no reason to doubt that statement. The failure to refer to the cable expressly does not found a ground of judicial review: see Paramasivan v Minister for Immigration and Ethnic Affairs, [1998] FCA 874.
The failure of the Tribunal to deal expressly with the applicant's evidence particularly concerning her chances of being raped or sexually assaulted. 27 I have been provided with a copy of the transcript of the evidence of the applicant before the Tribunal and there is no express reference in that evidence to a fear of the applicant of being raped or sexually assaulted though she does say she fears being treated as a prostitute were she to return to Lebanon. However I will assume that the evidence is to be taken as constituting an expression of a fear on the applicant's part of being raped or sexually assaulted. 28 The Tribunal said it considered all the evidence and there is no basis for doubting it did. Moreover the Tribunal said it accepted the 1996 US Department of State Report on Human Rights Practices which reported on the increased incidence of reports of rape in the press. The Tribunal also quoted with approval a DFAT cable of 29 August 1994 which stated that the attention given to unaccompanied single women rarely reaches the stage of physical abuse. The Tribunal is entitled to reject an applicant's account of circumstances in his or her country of nationality or habitual residence in preference to information provided by a State party to the Convention: see e.g. Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1239. Similarly the Tribunal can prefer information provided by a State party to an account of an applicant where the information provided by the State is either entirely consistent or partially consistent with an account given by an applicant. It was unnecessary, in my opinion, for the Tribunal to deal expressly and specifically with the evidence of the applicant concerning what might happen to her, given its general acceptance, based on both domestic and international reports of the position of single women in Lebanon and divorced women in particular. 29 I dismiss the application with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate: Dated: 12 February 1999 Counsel for the Applicant: S Ahmad
Solicitor for the Respondent: Australian Government Solicitor
Faddoul
Minister for Immigration & Multicultural Affairs
(1997) 77 FCR 260
(1989) 169 CLR 379
(1997) 190 CLR 225
(1997) 191 CLR 559
(1995) 57 FCR 565
(1988) 91 ALR 586
(1993) 117 ALR 455
(1986) 13 FCR 511
(1986) 12 FCR 414