GROUNDS OF REVIEW - ERROR OF LAW
21 The first ground of review advanced by the Minister relied upon section 476(1)(e) of the Act which provides for review on the ground:
"(e) that the decision 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 person who made the decision, whether or not the error appears on the record of the decision;"
22 Mr Tracey QC, who appeared as counsel for the Minister, submitted that in order to find that the respondent was entitled to a protection visa the Tribunal was obliged to make a finding that the persecution which the respondent feared was "by reason" of her membership of the particular social group. He contended that the Tribunal had failed to make such a finding. He further contended that the failure to make such a finding was an error of law within s 476 (1)(e) of the Act.
23 There is room for debate whether a failure to make a necessary finding is an error of law within the meaning of s 476(1)(e) of the Act. Such failure is perhaps more likely to constitute a breach a of s 430 of the Act. In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 a majority of four judges of a five judge bench determined that breach of s 430 was a failure to observe a procedure required by the Act and hence a ground of review under s 476(1)(a). In the present application the Minister did not rely on s 476(1)(a). To have done so would have been inconsistent with the argument, now rejected by the Full Court, that a breach of s 430 does not give rise to a ground of review under s 476(1)(a). It may, however, still be the case that there is some overlap between the grounds of review sufficient to allow that a failure to make a necessary finding amounts to an error of law within s 476(1)(e) of the Act. In view of the conclusion I have reached on the first ground of this application it is unnecessary for me to resolve that question.
24 A fair view of the Tribunal's decision discloses that the Tribunal did determine that the persecution feared by the respondent was for the reason that she belonged to the particular social group of young Somali woman.
25 The first thing to notice is that the Tribunal was plainly aware of the need to establish the causal connection between the feared persecution and membership of the particular social group. It referred to that necessity several times in its decision as follows:
· Early in the decision the Tribunal set out the law applicable to the case. It described the causation issue as follows:
"… the reason for the persecution must be found in the singling out of one or more of the Convention reasons - race, religion, nationality, membership of a particular social group or political opinion. The phrase 'for reasons of' serves to identify the motivation for the infliction of the persecution."
· The Tribunal referred to the Islam decision and set out the passage reproduced in par 13 of these reasons which included the underlined sentence which specifically stipulates the need for the causal connection between the persecution and membership of a particular group.
· In dealing with the two Convention grounds, the Tribunal dealt with the causation question in the opening paragraph referred to in paragraph 15 of these reasons. That paragraph included the underlined sentence "Past or particularly potential persecution must be 'for reasons of'".
· The very basis of rejection of the Murusade clan membership ground was that the feared persecution would not be "for reasons of" the respondent's membership of her father's clan. This is stated by the Tribunal in the underlined sentence set out in par 16 of these reasons.
26 The Tribunal concluded the discussion concerning the alleged persecution by reason of membership of a particular social group by stating that "… it is satisfied that there are sufficient indicators to permit a finding that a young Somali woman is a member of such a group and that a young Somali woman without male protection is at great risk of harm amounting to persecution." While this finding does not expressly state that the risk of persecution was by reason of membership of the group of young Somali woman, that is the clear meaning of the finding in the context of the decision as a whole. The first ground for review is not made out.
GROUNDS OF REVIEW - NO EVIDENCE
27 The remaining two grounds of review relied on s 476(1)(g) of the Act which provides for review on the ground:
"(g) that there was no evidence or other material to justify the making of the decision."
28 This ground is governed by s 476(4)(a) which provides:
"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;"
The existence of a particular social group
29 Counsel for the Minister did not contend that young Somali women could not constitute a particular social group. Thus, he did not seek to challenge the correctness of the decision in Islam. Rather, the Minister contended that the evidence available to the Tribunal in this case did not include any evidence that young Somali woman did constitute a particular social group.
30 It will be recalled that the Tribunal found that:
"… Somali society is constructed along the two lines of males and females. Their roles and status are not interchangeable. There are expectations as to their behaviour and to the particular positions they may occupy in the society. They are defined into womanness by law and custom as well as by sex. This is not a society in which women are first of all citizens and then, secondarily, women."
31 The source for these conclusions was a previous decision of the Tribunal constituted by the same member.
32 The decision was identified earlier in the reasons of the Tribunal presently under consideration as case V98/09367. In that case, which was decided in November 1998 and concerned the fear of persecution by a 19 year old female citizen of Somalia, the Tribunal said:
"The Tribunal is satisfied that even outside of the context of civil war in Somalia, it could be properly held that young women there may form a particular social group. There were and are expectations as to their demeanour and limitations on their freedom of movement and choice; they were and are defined by law and custom into a particular position in law, politics and society. Women as a group have been and remain outside the political process. According to the United States Department of State Country Reports on Human Rights Practices for 1996, 'No women hold prominent public positions and few participated in regional reconciliation efforts … Women suffered disproportionately heavily in the civil war and the strife that has followed … (p. 253)"
33 The Minister did not suggest that there was anything illegitimate in the Tribunal relying upon a previous decision concerning the same subject matter. Nor did the Minister contend that if there was evidence of discrimination against women, the existence of discrimination could not constitute women a particular social group. This approach was consistent with Islam in which Lord Hoffmann said at 651-2:
"In my opinion, the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect.
…
To what social group, if any, did the appellants belong? To identify a social group, one must first identify the society of which it forms a part. In this case, the society is plainly that of Pakistan. Within the society, it seems to me that women form a social group of the kind contemplated by the Convention. Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect."
34 Rather, the Minister contended that it was not clear what previous decisions had been relied upon. In my view the prior reference to decision V98/09367 provided the link to the previous decisions later referred to by the Tribunal. It is not clear why the Tribunal referred to prior decisions when only one was identified. However, nothing turns on this because the one decision relied upon did conclude that Somali woman constituted a particular social group.
35 The Minister submitted that the previous decision was not applicable because it concerned different facts. This submission is not made out because the finding in question related to a common issue, namely, whether Somali woman constituted a particular social group. Whether the particular woman applicant had a well founded fear of persecution was a separate question which depended on the circumstances of her case. But this was not the issue on which the Tribunal drew from its previous decision.
36 Mr Tracey also suggested that there was a confusion in the decision of the Tribunal as to the precise designation of the particular social group referred to, and that confusion pointed to the absence of evidence of the existence of a particular social group. In particular, Mr Tracey referred to the concluding statement that the Tribunal was satisfied "that there are sufficient indicators to permit a finding that a young Somali woman is a member of such a group and that a young Somali woman without male protection is at great risk of harm amounting to persecution."
37 This submission seems to misunderstand the process undertaken by the Tribunal. The cases have made clear that a particular social group is not defined by reference to the fear to persecution itself: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 263, Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at par 13, Islam 639-640. As a result the Tribunal correctly determined the existence of the particular social group first and then separately considered the nature of the persecution feared.
38 The particular social group found by the Tribunal was young Somali women. It was in assessing the likelihood of harm that the Tribunal looked to the absence of male protection. The absence of male protection was not an element which the Tribunal saw as defining the particular social group. The absence of male protection was a factor the Tribunal used as part of the measure of the degree of risk faced by this member of the group. Thus, this ground of challenge also fails.
Causal link
39 The Minister finally contended that there was no evidence that young Somali women were persecuted because they were women. Mr Tracey, contended that even if young Somali women were a particular social group, and the evidence established that women in Somalia were subject to rape there was no evidence of the necessary link between the feared persecution and belonging to the particular social group. He suggested that a possible explanation for the prevalence of rape was the breakdown of law and order in Somali society.
40 Ms Mortimer who appeared as counsel for the respondent submitted that rape is by definition an act taken against a female by reason of her gender. That does not mean that rape may not be for reasons other than gender as well. Ms Mortimer argued that once the Tribunal found that persecution which the respondent feared was the danger of rape it followed that the persecution feared was by reason of being female.
41 The reasons of the Tribunal do not clearly deal with the link between the fear of rape and membership of the particular social group of young Somali women. However, in defining the persecution feared the Tribunal, as to rape , said:
"It is an act especially targeted against women (although the number of male-to-male rapes may well be under-reported). It is less a random act of war in that it requires a certain deliberate intention on the part of the perpetrator and therefore if differs from the violence inflicted, say, by the shelling of an area or injury or death by a stray bullet."
This passage suggest that the Tribunal saw the linkage in the circumstances of the case as following almost without question.
42 The argument raised by the Minister calls for an analysis of what is required to prove the existence of the causal link between the persecution feared and membership of the particular social group. The approach of the Tribunal is consistent with the recent High Court decision in Chen. That case concerned the entitlement of a young Chinese child to a protection visa. The child was born to unmarried parents who already had two children. The child was thus a member of a particular social group, namely, black children, that is to say children born outside the guidelines stipulated by the Government of China. The child would suffer persecution by being denied access to food, education and health care beyond the very basic level, and would probably face social discrimination and some prejudice and ostracism. The question was whether the persecution was by reason of membership of a particular social group or, as held by the Tribunal and a majority of the Full Court of the Federal Court, by reason of the conduct of the parents in contravening Chinese law. The High Court held the former and the majority (Gleeson CJ, Gaudron, Gummow, Hayne JJ) said at par 25 and 32:
"[25] As was pointed out in Applicant A, not every form of discriminatory or persecutory behaviour is covered by the Convention definition of 'refugee'. It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether the conduct amounts to persecution.
…
[32] Once it is accepted that 'black children' are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that the treatment is for a reason other than his being a 'black child'. As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute."
[footnote omitted]
43 Kirby J, who concurred in the result, addressed the same issue in pars 70-71 thus:
"[70] In the instant proceedings, the tribunal found all the necessary ingredients for the Convention definition in favour of the appellant except the causative element. This was the consideration which classified the persecution awaiting him on his return to the PRC as being 'for reasons of' membership of a 'particular social group', which it accepted, namely, "black children'. Instead, the tribunal concluded that the judicial authorities in this court in Applicant A, and in the Federal Court, necessitated a different conclusion. In part, this result followed because the tribunal diverted itself into the notions of 'enmity and malignity' just mentioned. But, in part, it also ensued because the tribunal thought itself obliged to classify the 'reasons' for the persecution which it found by ascribing them solely to the breach by the parents of laws and programs of general application in the PRC designed to uphold that country's population control policy. This approach found favour with the majority of the Full Court which reversed the primary judge's order. In my opinion the tribunal and the majority of the Full Court erred in law. The primary judge was correct on this point. His order should not have been disturbed.
[71] Once discrimination and persecution against the appellant, a child, were found (as the evidence accepted by the tribunal amply justified) the classification of the persecution in this case as being 'for reasons of' membership of a 'particular social group' followed quite readily. It is true that the object of the population control policy of the PRC was addressed solely to the parents. But it was equally true that one way of reinforcing that policy, as found by the tribunal, was by actions and deprivations addressed to the children of such parents."
[footnote omitted]
44 The approach of the High Court in Chen to the causation issue reveals that often the determination that conduct amounts to persecution cannot be divorced from the inquiry whether the conduct was undertaken for a Convention reason. The conclusion that conduct is persecutory will in those cases carry with it as a matter of "common sense" or will "readily" lead to the conclusion that the conduct was done for a Convention reason. In the present case the Tribunal seems to have adopted such an approach.
45 In any event, in this case, there was clear evidence upon which the Tribunal was entitled to rely that as a young Somali woman the respondent had a well founded fear of rape. There was also evidence upon which the Tribunal was entitled to rely that women were singled out as targets of sexual violence. There was reference to the fact that the same danger of sexual violence did not apply to males. The evidence cited by the Tribunal that "women are systematically discriminated against" alone, or, at least, together with the nature of rape as a gender-based persecution, provided the basis upon which the Tribunal was entitled to find that the respondent had a well founded fear of rape for the reason that she was a young Somali woman. Thus, the third ground of review is not made out.