Mendis v Minister for Immigration & Multicultural Affairs

REASONS OF THE TRIBUNAL 5 The Tribunal set out its findings of fact and its reasons in the following paragraphs from its written reasons for decision. "The Tribunal accepts that the applicant has told the truth in her claims. It also accepts that after her husband left she was harassed by various people and was followed by men and approached by others. The Tribunal accepts that if the applicant returns to Sri Lanka she may again be subjected to this treatment and this will be very unfortunate for her. However, although the situation is a difficult one for the applicant the Tribunal finds that her claims do not bring her situation within the ambit of the Convention. The Tribunal finds that the fears which the applicant holds on her return to Sri Lanka are of harassment by individuals. The[y] are not fears of persecution as it is defined in the Convention. Moreover the fears which the applicant holds are mistreatment because she is seen as an opportunity for the sexual gratification of various individual males. This is not for any of the reasons stated in the Convention. In summary the Tribunal finds that there is not a real chance that the applicant will be persecuted should she return to Sri Lanka. The Tribunal is not satisfied that the applicant holds a well founded fear of persecution for any Convention reason."

CONSIDERATION 6 The principal ground of review relied upon by the applicant was that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal (see s 476(1)(e) of the Act). 7 In my view, this ground of review has been made out. I have reached this view for the following reasons. 8 The Tribunal's decision appears to be based on two findings. First, that the harm which the applicant fears does not amount to persecution within the meaning of the Convention because it is harm at the hands of individuals. Secondly, that the harm that the applicant fears is not harm for a Convention reason but harm that will arise because she will be seen "as an opportunity for the sexual gratification of various individual males." 9 As to the first of the Tribunal's findings, it is regrettably common for persecution to be inflicted by individuals. It is not a necessary characteristic of persecution within the meaning of the Convention that it be State inflicted. 10 However, as McHugh J pointed out in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258:

"The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality." 11 This object may be identified, in my view, not from the use of the term "persecuted" in Article 1A(2) of the Convention, but from the reference in the article to a refugee being "unable or, owing to such fear, … unwilling to avail himself of the protection of that country" [ie his or her country of nationality]. 12 It is for the above reason that "[p]ersecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution" (see Applicant A per McHugh J at 258). 13 In concluding that the harm which the applicant fears does not amount to persecution within the meaning of the Convention because it is harm at the hands of individuals, the Tribunal failed to consider whether the State of Sri Lanka either encourages, or is, or appears to be, powerless to prevent, that harm. Had the Tribunal given consideration to that question it might have been assisted by reference to the "Guidelines on Gender Issues for Decision Makers" dated July 1996 published by the Department of Immigration and Multicultural Affairs to which I made reference in Khawar v Minister for Immigration and Multicultural Affairs [1999] FCA 1529. 14 The second of the two bases for the Tribunal's decision similarly involves an error of law. The only Convention ground which might impart relevance to the fears held by Ms Mendis is that of "membership of a particular social group". In Applicant A at 256, McHugh J said: "The phrase 'a well-founded fear of being persecuted for reasons of … membership of a particular social group' is a compound conception. It is therefore a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations. Indeed, to ignore the totality of the words that define a refugee for the purposes of the Convention and the Act would be an error of law by virtue of a failure to construe that definition as a whole." The words of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 166 ALR 641 at para 23 are to a similar effect: "It is only after the relevant particular social group, if any, has been identified that a decision maker can sensibly give consideration to the question whether the applicant has a well-founded fear of persecution for reason of his or her membership of that particular social group." (emphasis in original). 15 The Tribunal's finding that Ms Mendis would suffer harassment "because she is seen as an opportunity for the sexual gratification of various individual males" is not necessarily inconsistent with a finding that the reason why she would suffer harassment was her membership of a particular social group (see Sarrazola at paras 13-17). While the motivation behind the harassment might be sexual gratification, the reason for her being selected as the target of harassment could be her membership of a vulnerable social group. Yet the Tribunal made no finding on the issue of whether Ms Mendis was a member of a particular social group in Sri Lanka within the meaning of the Convention, and if she was, the identifying characteristics of that social group. 16 For the above reasons I conclude that the decision of the Tribunal involved errors of law being errors involving an incorrect interpretation of the criterion specified in clause 866.221 of Schedule 2 to the Migration Regulations (see also s 36(2)). 17 It was submitted on behalf of the respondent that, should I conclude that the decision of the Tribunal involved an error of law within the meaning of s 476(1)(e) of the Act, I should not remit the matter to the Tribunal. This submission was based on the contention that, on the evidence before the Tribunal, the harm feared by the applicant is insufficiently serious to amount to persecution within the meaning of the Convention. 18 I reject this submission. The transcript of Ms Mendis' evidence to the Tribunal has not been placed before me. However, I have the Tribunal's findings. The Tribunal accepted that the applicant told the truth in her claims. Ms Mendis claimed that during her husband's absence "she suffered a great deal of harassment from men who were seeking sexual favours and saw an unaccompanied woman as an easy target." The Tribunal explicitly found that Ms Mendis "was harassed by various people and was followed by men and approached by others," and that if she returns to Sri Lanka she "may again be subjected to this treatment and that this will be very unfortunate for her." 19 The term "harassment" is apt to cover conduct of varying degrees of seriousness. I understand the Tribunal to have intended the term to embrace conduct which is offensive and perhaps threatening but not amounting to physical assault (or, more accurately, battery). I do not consider that offensive and threatening conduct, whether sexual or not, is incapable of amounting to persecution within the meaning of the Convention. Whether it will amount to persecution in any particular case will depend on all of the circumstances of the case. The cultural context in which the conduct is experienced may prove to be a relevant circumstance. Nor do I conclude that for a woman to be "followed by men and approached by others" is necessarily incapable of amounting to persecution within the meaning of the Convention. Depending on the circumstances of the particular case, such conduct might be highly frightening and capable of constituting intimidation and duress.

CONCLUSION 20 The decision of the Tribunal will be set aside, and the matter referred to the Tribunal for further consideration. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Dated: 18 February 2000 Counsel for the Applicant: Mr I. McCluskey

Solicitor for the Respondent: Australian Government Solicitor