Giraldo v Minister for Immigration & Multicultural Affairs

the applicant's departure from colombia 41 The basis for the applicant's fourth submission, that the RRT had failed to consider whether the applicant's actions in leaving Colombia gave rise to a well-founded fear of persecution by FARC, is elusive. The applicant never suggested that FARC would or might seek to punish him for leaving the country. Mr Karp could not point to anything in the country information or other evidence that even faintly supported such a claim other than the conversations between the applicant's aunt and a telephone caller from FARC. But what was communicated to the aunt was not a threat to harm the applicant because he had left Colombia, but the renewal of the threat made earlier.

PARTICULAR SOCIAL GROUP 42 As I have noted, the applicant's submission that the RRT had failed to consider whether he had a well-founded fear of persecution by reason of his membership of a particular social group, namely his extended family, was not fully developed. As I understood the argument Mr Karp intended to make, it contained the following steps: (i) A particular family or extended family is capable of constituting a particular social group for the purposes of the Convention. (ii) A member of such a family who is at risk of persecution by reason of his or her association with another family member may have a well-founded fear of persecution for a Convention reason. (iii) The family member may have such a well-founded fear notwithstanding that · the persecutors may have more than one motive for persecuting him or her; and · the other family member could not claim to be a refugee within the meaning of the Convention. (iv) In this case, the RRT found that the motivation for the threats made against the applicant was FARC's desire to put pressure on his relatives to accede to the guerillas' demands. (v) Notwithstanding this finding, the RRT failed to consider whether the applicant's extended family (his own family and that of his parents-in-law) constituted a particular social group in Colombia and, if so, whether he feared persecution by reason of his association with other members of that family, especially his parents-in-law. (vi) This failure constituted an error of law by the RRT, being an incorrect application of the law to the facts as found by it (Migration Act, s 476(1)(e)). 43 The argument is inconsistent with Mr Karp's contention that there was no evidence to support the finding that FARC guerillas made the threats to the applicant because they wished to intimidate him and, through him, his parents-in-law. There is nothing, however, to prevent an applicant advancing mutually inconsistentarguments. 44 In my opinion, the first three steps in the argument are supported by the present state of authority in this Court, in particular by Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 (Hely J) ("Sarrazola (No 1)"), aff'd Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 ("Sarrazola (No 2)"). Sarrazola was a case similar to the present. The applicant claimed to fear harm from Colombian criminals who were responsible for the death of her brother. The brother had himself been a criminal. His former criminal associates had threatened to kill the applicant's children if she did not pay money the brother was said to owe them. 45 The RRT was prepared to assume that the applicant's family constituted a particular social group. Nonetheless, the RRT rejected the applicant's claim to a protection visa, on the ground that the harm feared by her did not arise for a Convention reason. It reached this conclusion for two reasons. First, it held that the Convention was not intended to protect family members from persecution where the family is not linked to a broader group recognised by a Convention definition. Secondly, the RRT found that the threats directed to the applicant were not motivated by a purpose or desire to harm her by reason of her relationship to her brother as such. Rather, the criminals were motivated by self-interest, a non-Convention reason. 46 On the application for review, the Minister did not attempt to support the first of the RRT's reasons for its conclusion. Hely J expressed the view that the Minister's concession was well-founded. His Honour observed that neither the text of the Convention, nor its context or purpose, requires an applicant for a protection visa to establish not only a well-founded fear of persecution by reason of membership of a family group but also that another family member is affected by conduct within the scope of the Convention. 47 Hely J then considered whether the applicant's fear of persecution was by reason of her membership of a particular social group. His Honour expressed the opinion that the principal authorities ("Applicant A" v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 255; Chan Yee Kin v Minister; Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458; Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (unreported, Full Federal Court, 10 December 1998) seemed to favour the conclusion that a family is capable of forming a particular social group. He continued (at [36]): "In view of the preceding discussion, and in the absence of decisive authority to the contrary, in my opinion, a family can constitute a particular social group within the meaning of Article 1A(2) of the Refugees Convention. A family is cognisable as a group in society such that its members share something which unites them and sets them apart from the general community. Membership of a family is a characteristic which distinguishes members of that family from society at large. In other words, family members possess a common unifying element which binds them together as a particular social group." 48 Hely J found that in the circumstances of the case before him the "family" was to be identified by reference to the perceptions of the persecutors. Accordingly, the family constituted the applicant, her husband and two children and the applicant's deceased brother. His Honour noted that the RRT, in effect, had found that part of the reason for the applicant's well-founded fear of persecution was her familial tie with her brother. Since family membership did not have to be the sole reason for a well-founded fear of persecution, it followed that the RRT had erred in law in deciding that her fear of persecution was not for reason of family membership without at least considering the extent to which family membership was a factor in the risk of persecution. 49 On appeal, the Minister relied on two contentions. First it was said that the identification of the motivation of the prosecutors was entirely a matter of fact to be determined by the RRT. Secondly, while the Minister accepted that it was possible for a family to constitute a particular social group, he submitted that Hely J should not have found that the particular family identified in this case answered that description. 50 The Full Court held, in Sarrazola (No 2) (at 521-522), that the RRT had erred by failing to recognise that a person may be motivated to persecute another for more than one reason. Thus the RRT's conclusion as to the criminals' motivation could not be regarded as an unassailable factual finding. 51 The Full Court also agreed with Hely J that the RRT had erred in acting on the basis that the Convention is not intended to protect family members from persecution unless the family is linked to a broader group recognised by the Convention definition. The Full Court considered that there is nothing absurd in the proposition that the family members of a person who is the main target of persecutors can be found to be refugees even though the "target person" cannot. Their Honours declined to follow the approach taken by the English Court of Appeal in Martinez v Secretary of State for the Home Department [1997] Imm AR 227, a case where family members feared persecution because one of their number refused to join the mafia. In Martinez, Thorpe LJ held (at 229) that where the "root of the threat" is a particular family member, rather than the family "any Convention foundation for the claim must be ancillary to and dependent in that of the person threatened." The Court in Sarrazola (No 2) considered that this approach was not consistent with the Australian authorities. 52 In C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366, the female applicant (S), a Colombian citizen, claimed to fear retribution at the hands of the "Cali cartel" by reason of her husband's activities in reporting criminal behaviour. Wilcox J referred to the judgments at first instance and on appeal in Sarrazola. His Honour considered that Hely J's observation, that family members possess a common unifying element which binds them together as a particular social group, was "plainly correct". Wilcox J continued as follows (at 377-378): "That which binds together the members of a family is not the suffering of persecution but a relationship of blood and marriage; membership of a family is something that exists independently of any persecution the members may suffer. Moreover, in almost every society, familial links are recognised and families are identifiable. Unless one subscribes to the view, taken in Applicant A only by McHugh J, that the term 'a particular social group' was 'probably intended to cover only a relatively large group of people', there is no reason to exclude its application to a family. Such an application is surely well within the spirit of the Convention. Family members may be targeted for persecution simply because of that membership, and not because of their own actions…. It follows I conclude the Tribunal member erred in holding in this case that 'family membership will only be relevant for the purposes of the Convention where there is a link to a broader relevant group'. There apparently being no question but that S, her children and C's mother were within a particular social group that might properly be described as C's family, the critical question for the Tribunal was whether the persecution they feared arose out of their membership of that group. The Tribunal failed to consider that issue." 53 For the sake of completeness, I note that in Sarrazola v Minister for Immigration and Multicultural Affairs (No 3) [2000] FCA 919, Madgwick J set aside the decision of the RRT made after the proceedings had been remitted in accordance with the orders of Hely J that had been affirmed by the Full Court. The RRT found that, on the evidence, the applicant and her family (however perceived) had not been perceived as a cognisable group in Colombia. Madgwick J considered that the RRT had fallen into error in reaching that conclusion. His Honour also held that the RRT had erred in finding that the threatened persecution was for reasons unconnected with the family status of the applicant. His Honour followed the reasoning in the earlier cases, although he also addressed other issues. As Sarrazola (No 3) is subject to appeal, I say no more about it. 54 The Full Court in Sarrazola (No 2) pointed out (at 523) that, where an applicant for a protection visa based his or her claim on a fear of persecution by reason of membership of a particular social group, the first task of the decision-maker is to identify the relevant group. Whether the particular social group exists is to be ascertained in conformity with the authorities, the effect of which was summarised by the Full Court in Minister for Immigration and Multicultural Affairs v Zamora, at 464: "To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community." The next step for the decision-maker is to consider whether the applicant's well-founded fear of persecution (assuming such fear is established) is for reason of his or her membership of that particular social group: Sarrazola (No 2), at 523. 55 The applicant did not suggest to the RRT that he feared persecution for reason of membership of a particular social group. Nonetheless, in my view, subject to questions I shall address later, the RRT erred in failing to address whether the applicant could make out such a case. 56 Mr Karp identified the family group in the present case as comprising the applicant, his immediate family, his parents-in-law (the father-in-law having died) and his wife's siblings. It is ultimately a question of fact for the RRT to determine whether such a family group could be said to exist, conformably with the principles summarised in Zamora. There was, however, some material before the RRT that would have allowed it to make such a finding. For example, the RRT found that the motivation for FARC making threats to the applicant was to put pressure on his parents-in-law to accede to the guerillas' demands about the use of the land. This suggests that FARC may have regarded the extended family (as defined by Mr Karp) as a group set apart from the rest of the community. Of course, the characteristic uniting a group said to constitute a "particular social group" cannot simply be a fear of persecution: Applicant "A" v Minister, at 242, per Dawson J; at 263, per McHugh J. But the material before the RRT concerning the relationship among family members was consistent with the extended family having characteristics, other than the fear of persecution, uniting its members. Of course, the signifigance of that material is a matter for the RRT and it is inappropriate for me to pre-empt any finding the RRT might make on this question. 57 There was also material before the RRT suggesting that the applicant's fear of persecution was by reason of his membership of the extended family. Indeed, the RRT specifically found that FARC threatened the applicant with the forcible recruitment of his daughter in order to induce the applicant's parents-in-law to accede to FARC's offer. While it would be a matter for the RRT to make the relevant findings of fact, it would seem to be open to the RRT to conclude that at least one of the reasons for the applicant's fear of persecution was his membership of the extended family: that is, he and his immediate family were targeted for threats because of their association with the parents-in-law whose land FARC wanted to control. 58 As I understood Mr Markus, he did not dispute that the effect of the authorities is as I have described, although he left open the possibility that the Full Court might take a different view, perhaps on the appeal in Sarrazola (No 3). He submitted, however, that the proceedings should not be remitted to the RRT, for two reasons: · first, the RRT could not be said to have erred, given that the applicant did not make an express claim before it to fear persecution for reasons of membership of a particular social group; · secondly, it was implicit in the RRT's reasons that there was no basis for any continuing fear of persecution on the applicant's part, because it had found that the FARC had succeeded in its objective of controlling the use made of the farm occupied by the parents-in-law. 59 I do not think that the first ground relied on by Mr Markus is a basis for denying relief to the applicant. In Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, at 50, I said this: "The general principle is that a tribunal is not obliged to make out an applicant's case. However, there are circumstances where the tribunal may be obliged to undertake further factual inquiries, even though the applicant has not specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 (FC) at 49-50. It seems to me that, where an unrepresented applicant presents evidence to the RRT which, if accepted, is capable of making out the applicant's claim that he or she satisfies the Convention on a particular basis, the RRT may be required to consider the issue. Particularly is this so where the RRT accepts the substance of the applicant's account. I agree with the comments recently made by Branson J in Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, No 134 of 1998, 26 October 1998), at 2: 'The respondent contends that the applicant did not articulate before the RRT a conscientious objection to military training and service. It is true that he did not expressly do so, and a decision-maker is not obliged to make a case for an applicant (Luu v Renevier). However, in my view, in appropriate cases, a decision-maker such as the RRT may be required to give consideration to whether evidence in fact given by an applicant might support an application on a basis not articulated by an applicant. This will more likely be found to be the case where an applicant is unrepresented, as the present applicant was before the RRT'." See also Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, at 63, per Merkel J; Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, at 388, per Merkel J. 60 In this case, the RRT not only accepted the applicant's account of events, but found that the motivation for the threats made to the applicant was not that expressed by the FARC guerillas but something different, namely to force his parents-in-law to yield to the guerillas' demands. The motivation found by the RRT strongly suggests that FARC's threats had been directed to the applicant because of his association with his parents-in-law. As I have noted, the applicant was unrepresented before the RRT. In these circumstances, I do not think it is an answer to the applicant's contentions in this Court that he failed specifically to direct the RRT's attention to the fact that its own findings raised the issue of whether he had a well-founded fear of persecution by reason of his membership of a particular social group. 61 Nor do I think it a reason to reject the applicant's contention that the RRT inferred from the applicant's evidence that his wife's family were so intimidated by FARC (presumably because it was responsible for killing the wife's father) that they left their land. There was no occasion for the RRT, in its approach, to make any specific finding as to whether the departure of the wife's family from the farm meant that FARC had no further interest in intimidating them. Nor did it make any such finding. The RRT did not inquire, for example, whether the wife's family planned or hoped to resume occupation of the farm or whether they had other property that might attract FARC's interest. In my opinion, it reads too much into the RRT's reasons to suggest that it intended to find that the FARC had no further interest in the wife's family when the RRT did not regard that issue as relevant to its analysis. 62 There is, however, a more formidable obstacle to the applicant's success on this issue, although it was not specifically raised by Mr Markus. As I have explained, the RRT took the view that the threats made by FARC did not amount to persecution for Convention purposes because it considered that the guerillas did not intend to carry out the threats. It might be said that, even if the applicant had raised before the RRT the contention that he feared persecution by reason of his membership of a particular social group, he must still have failed in his claim to a protection visa. This would follow (so it might be argued) because, even if the applicant genuinely feared persecution by reason of his membership of a particular social group (the extended family) his fear of persecution was not well-founded since FARC did not intend to carry out its threats. On this argument, there would be no objective basis for the applicant's fear of persecution on his return to Colombia. 63 In order for an applicant to establish that a decision of the RRT "involved an error of law" (Migration Act, s 476(1)(e)), he or she must show that the error is material, in the sense that it might have affected the outcome of the proceedings. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said this (at 353): "A decision does not 'involve' an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different." His Honour went on to identify "the critical question on this aspect of the case" as "whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made." (Emphasis added.) Toohey and Gaudron JJ expressed the principle as follows (at 384): "For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred." 64 Ordinarily, the fact that the RRT has made a finding that appears to undercut an alternative basis for an applicant's claim to come within the Convention would suggest that the RRT's failure to consider that alternative claim is merely an immaterial error. That is, the factual finding would suggest that the RRT must have come to the same decision, even if it had directed its attention to the alternative basis for the applicant's claim. 65 This is not, however, necessarily the case. In particular, as Mason CJ specifically acknowledged in Bond, it may be enough to establish the materiality of an error that the RRT, had it applied the correct legal principles, might have made different findings of fact. 66 The RRT in the present case approached the fact-finding process by reference to what it understood to be the applicant's claim, namely that FARC had threatened to forcibly recruit his daughter because of his actual or imputed political opinion. The RRT's finding that the applicant was not at risk of persecution was influenced by the RRT's apparent assumption that the only possible harm to which the applicant might be exposed was the risk that FARC would forcibly recruit his daughter. The RRT did not think that there was a real chance that FARC would actually carry out that particular threat. It reached that conclusion by reference to the country information which suggested that FARC was not interested in the forcible recruitment of urban educated teenagers. The RRT did not address whether FARC might have been motivated to inflict some other kind of harm upon the applicant by reason of his membership of the extended family. It therefore did not address whether FARC might inflict some other kind of harm on the applicant should he return to Colombia. 67 Had the RRT recognised that a question arose as to whether the applicant had a well-founded fear of persecution by reason of his membership of his extended family, it may have taken a different view of the kind of harm to which the applicant was exposed. For example, in the conversation reported by the applicant's aunt, the nature of the harm threatened was not specified. As I have explained, the RRT probably thought it unnecessary to refer to the evidence of that conversation, since it interpreted the possible persecutory conduct faced by the applicant as limited to the forcible recruitment of his daughter (a threat the RRT discounted). But if the RRT had considered that the applicant was at risk of persecution by reason of his membership of the extended family, it might have taken a different view of the significance of that conversation. It might also have interpreted the earlier threats, made by FARC directly to the applicant, as not necessarily limited to the specific harm mentioned at the time. It is to be borne in mind that the RRT accepted that FARC had killed the applicant's father-in-law in order to advance its goals. Had the RRT asked itself what harm FARC might be prepared to inflict on the applicant, in order to put pressure on his parents-in-law or other members of his extended family, it may have reached a different conclusion as to whether he had a well-founded fear of persecution on his return to Colombia. 68 None of this is intended to suggest that the applicant will be able to make out the necessary ingredients of a claim to have a well-founded fear of persecution by reason of his membership of his extended family. That is a matter for the RRT to decide. In my opinion, however, the matter should be remitted to the RRT for determination in accordance with law.