N94/06026 [1995] RRTA 1758 (31 July 1995)

The Applicant sought protection as a refugee by applications lodged with the Department of Immigration and Ethnic Affairs (the Department) on 18 May 1992. The decisions were made on 18 December 1992. The Applicant was notified by letter of the same date and applied for review of the decisions on 21 January 1993.

Section 414 of the Act provides that if a valid application is made under s.412 of the Act for review of an RRT-reviewable decision the Tribunal must review the decision. The decisions under review satisfy the definition of "RRT-reviewable decision" contained in s.411(1)(a) and (b) of the Act.

Section 413 of the Act provides that an application made before 1 July 1993 for review of an RRT-reviewable decision is taken to be a valid application made under s.412 of the Act if, in effect, a final review decision had not been made at that date, and the application was made in accordance with any relevant regulations in force at the time it was made.

The Tribunal is satisfied that the application for review has been validly made, and that the Tribunal has jurisdiction to review the decisions.

On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees: see s.36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose. Section 39 of the MRA provides, in effect, that refugee related applications not finally determined before that date are to be dealt with as if they were applications for a protection visa. Accordingly, for the purposes of this review the Tribunal regards the Applicant's primary applications as applications for a protection visa.

The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations (the Regulations): see s.31(3) of the Act and r.2.03 of the Regulations.

It is a criterion for the grant of a protection visa that at the time of application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the family unit of a person who is also an applicant and has made such claims: cl. 866.211 of Schedule 2 of the Regulations.

It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl.866.221 of Schedule 2 of the Regulations.

The remaining criteria for the grant of a protection visa are, generally speaking, that the applicant has undergone certain medical examinations and that the grant of the visa is in the public and the national interest: cl. 866.22 of Schedule 2 of the Regulations.

"Refugees Convention" is defined by cl. 866.111 of Schedule 2 of the Regulations to mean 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 a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined.

Insofar as relevant to the present matter, Article 1A(2) of the Convention as amended 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, is unable or, owing to such fear, is unwilling to return to it."

This definition of a refugee contains various elements.

Firstly, the definition includes only those persons who are outside their country of nationality or, where the applicant is a stateless person, country of former habitual residence.

Secondly, an applicant must have a "well-founded fear" of being persecuted. The term "well-founded fear" was the subject of comment in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989-1990) 169 CLR 379 (Chan's case). The Court in Chan's case held that a fear of persecution is well-founded if there "is a real chance that the refugee will be persecuted if he returns to his country of nationality" (at 389 and supported at 398, 407 and 429). It was observed that the expression "'a real chance' ... clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ..." (at 389) and though it "does not weigh the prospects of persecution ... it discounts what is remote or insubstantial" (at 407). Therefore, a real chance of persecution may exist notwithstanding that there is less than a 50 per cent chance of persecution occurring (at 397).

Whether an applicant has a well-founded fear must be determined upon the facts as they exist at the date when a determination is required. However, the circumstances in which an applicant has left his or her country of nationality remain relevant and these are ordinarily the starting point in ascertaining the applicant's present status (see Chan's case at 386-387, 399, 405-406).

Thirdly, an applicant must have a well-founded fear of "persecution". The term "persecution" is not defined by the Convention, but not every form of harm will constitute persecution for Convention purposes. The Court in Chan's case spoke of "some serious punishment or penalty or some significant detriment or disadvantage" if the applicant returns to his or her country of nationality (at 388). Likewise, it stated that the "notion of persecution involves selective harassment" whether "directed against a person as an individual" or "because he or she is a member of a group which is the subject of systematic harassment", although the applicant need not be the victim of a series of acts since a single act of oppression may suffice (at 429-430). The harm threatened may be less than a loss of life or liberty and includes, in appropriate cases, measures "'in disregard' of human dignity"(at 430) or serious violations of core or fundamental human rights. Indeed Hathaway defines persecution "as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection": see Hathaway, The Law of Refugee Status (Butterworths Canada Ltd, 1991), pp.104-105.

Therefore, a question often arises as to whether financial grievance or economic hardship constitutes the breach of a basic human right. However, as Hathaway points out, "socio-economic human rights are abrogated only where a state either neglects their realization in the face of adequate resources, or implements them in a discriminatory way ...": see Hathaway, supra, p.119. The basic values contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force on 3 January 1976, does not create obligations that States are required to fulfil immediately and therefore persons whose sole reason for migration is to achieve a better economic standard of living are generally excluded from refugee protection under the Convention: see Hathaway, (supra), pp.116ff.

Fourthly, the applicant must have a well-founded fear of persecution or be at risk of serious harm for a Convention reason, viz. for reasons of "race, religion, nationality, membership of a particular social group or political opinion". If the harm suffered is solely related to some other reason, such as economic conditions, Convention protection is not available.

The phrase, "particular social group", in the fourth Convention reason, means "a recognisable or cognisable group within a society that shares some interest or experience in common" (see Morato v. Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401 at 416), such as "the nobility, land owners, lawyers, novelists, farmers, members of a linguistic or other minority, even members of some associations, clubs or societies" (ibid). However, to establish persecution for reason of membership of a particular social group, it must be shown "that persecution is feared for reasons of membership of that group" (at 405, see also 416). "The social group referred to in the Convention and Protocol is intended to encompass groups of people who share common social characteristics and might be the target of persecution but who do not fit into classifications of race, religion or political opinion" (at 416).

The Applicant is a 42 year old Brasilian who came to Australia in 1990. He attended a hearing and gave evidence. The Tribunal had before it numerous newspaper reports and articles which provided relevant information.

The Applicant claims that he is a homosexual male and that, as such, he is a member of a particular social group that stands a real chance of persecution in Brasil. The Tribunal does not doubt that the Applicant is a homosexual.

I turn first to the concept of a particular social group as it applies to homosexuals.

Writers and courts have examined the question whether the sexual orientation or preferences of individuals enables them to be classified as a member of a 'particular social group' for the purposes of article 1A(2) of the Convention. Hathaway refers to homosexual and bisexual people as a 'group defined by a fundamental, immutable characteristic'. He says:

'Homosexual and bisexual women and men constitute a second group defined by a fundamental, immutable characteristic. The Federal Administrative Court of Germany addressed the potential for homosexuality to define a 'particular social group' in a 1986 decision involving the alleged persecution of an Iranian male by reason of his homosexual orientation. Noting the persecution of homosexuals in the Nazi concentration camps, the Court recognised the viability of considering sexual orientation as the basis for a claim to refugee status, assuming it to be an irreversible personal characteristic.' (at 163)

The German case to which Hathaway refers makes the point that homosexuality was an attribute which could be a ground for asylum if it were an irreversible personal characteristic. (Verwaltungsgerichth of Hessen 21/8/86 Ref.10 OE 69/83, summarised at Cases & Comments IJRL Vol. 1, No. 1, 1989, pp.110-111)

Although the notion that refugee status might be granted on the basis of sexual orientation probably would not have occurred to the drafters of the Convention in the late 1940's, the document does not explicitly exclude persons on the ground of their sexual preference. ( See A. Hendriks & W. Ruygrok, "Strangers" in the Netherlands: Dutch Policy toward Gay and Lesbian Aliens in The Third Pink Book A. Hendriks, R. Tielman & E. van der Veen (eds.) Prometheus Books Buffalo 1993 at p.116). Moreover, the Convention is a beneficial human rights instrument that;

'should be interpreted and applied liberally and also adapted to the changed circumstances which differ considerably from those existing when the Convention was originally adopted...' (per Committee on Population and Refugees of the Council of Europe, cited in Hathaway op cit at p. 104, citing J. Thomas in A. Woods, ed., 'Refugees: A New Dimension in International Human Rights', (1976) 70 ASILP 58 at 69).

The Federal Court in Canada has noted both the relative immutability of sexual orientation and the stigmatisation throughout history of those who depart from accepted sexual norms (Veysey v. Commissioner of the Correctional Service of Canada 44 CRR 364 (FTD)). These factors assisted that Court to hold that sexual orientation was a (non-enumerated) ground of equality under the Canadian Charter of Rights and Freedoms (the Canadian Charter). Sexual orientation was considered analogous to the grounds enumerated in the Canadian Charter such as race, national origin and colour. The enumerated grounds in the Canadian Charter mirror those listed in article 1A(2) of the Convention.

In 1993, the Supreme Court of Canada considered the definition of a particular social group within the meaning of the Convention and drew a distinction between 'that which one is and that which one does.' (Ward v. The Attorney General 30 June 1993 as summarised and discussed in E. Vagelos "The Social Group That Dare Not Speak Its Name: Should Homosexuals Constitute A Particular Social Group for Purposes of Obtaining Refugee Status? Comment On Re: Inaudi " in Fordham ILJ Vol. 17 No. 1 1993 p.229 at p. 238 ff.) The Court held that persons persecuted on the basis of sexual orientation are one of a number of groups defined by an innate characteristic and as such constitute a particular social group.

Lockhart J in Morato v. Minister for Immigration, Local Government and Ethnic Affairs (( [1992] FCA 637; 1992) 39 FCR 401) held that for a person to be a member of a particular social group it is necessary that the person;

'...belongs to or is identified with a recognisable or cognisable group within a society that shares some interest or experience in common.' (at 416)

The Tribunal finds that the Applicant, by reason of his homosexuality, is a member of a particular social group.

There is evidence before the Tribunal that in the mid-1980s Brasil was distinguished by a tolerant attitude towards those who were non-heterosexual. A study of male homosexuality in Brasil, Guatemala, the Philippines and the USA during that time found that;

'Brazilian tolerance for the homosexual seems to be part of larger pattern of tolerance for sexuality in general. During the four days of carnaval, Brazil is characterized by extraordinary relaxation of already permissive sexual attitudes, both toward homosexual and heterosexual behaviour.'(F.L. Whitam & R.M. Mathy: Male Homosexuality in Four Societies: Praeger Special Studies 1986 at p. 141)

'...American homosexuals were far more susceptible to police harassment and prosecution than Brazilian homosexuals, who probably enjoy more personal freedom than homosexuals in any other country in the Western hemisphere, including the United States and Canada.'(at p.76)

However, the information before the Tribunal is that things have changed since those tolerant times. The 1992 US Country Reports on Human Rights Practice notes that;

'There were allegations that the "defense of honour" is also applied to violence against and murders of homosexuals. One group, Grupo Gay da Bahia, claims that a homosexual is murdered every five days in Brazil, most often by hustlers who kill and rob their victims, and that in the few cases where charges are filed, the accused generally are acquitted or receive very light sentences. The group also claims to have documented the existence of 12 paramilitary groups dedicated to killing homosexuals and transvestites, one of which (Commando da Caca aos Gays) publicly claimed responsibility for killing and mutilating several transvestites in Rio de Janeiro.'(at 349)

The 1993 US Country Reports on Human Rights Practice notes that;

'There continue to be reports of murders of homosexuals. Sao Paolo newspapers reported that 3 transvestites were murdered on March 14; other reports claimed 17 transvestites were killed in the first three months of 1993. One military policeman was charged in the March 14 killings and was awaiting trial at year's end. Homosexual rights groups claim, however, that the vast majority of perpetrators of crimes against homosexuals go unpunished.'(at 376)

'There continued to be reports of murders of homosexuals, where the identity of the killers remains unknown. In the Porto Alegre area, such assailants murdered five transvestites, while others have been beaten and robbed. On October 8, a military police court in Sao Paolo reduced the sentence of a policeman convicted of killing a transvestite from 12 to 6 years, noting that being a transvestite was a "high risk" activity.'

The Applicant has provided the Tribunal with copies of newspaper and magazine articles from a variety of sources dating from 1989 to 1993 which show a significant increase in the intolerance of homosexuals with the result that they are beaten, robbed and killed. The information is also to the effect that there are coherent groups in Brasil dedicated to the persecution of homosexuals. As with the 'vigilantes' who murder street children, it appears that the membership of such groups is largely drawn from the police and military. The government appears to be either unable or unwilling to exercise stringent control over such groups. Given the range and variety of these reports the Tribunal finds them credible.

The decision in this matter is to be made on the situation as it exists at the moment of decision not on what occurred ten years ago.

The Tribunal finds that, at the present time, there is a real chance that a homosexual male will suffer persecution in Brasil. That persecution is in the form of physical attacks which result in injury or death. The persecution is visited on a particular social group, homosexuals. The information suggests that there is a real chance that the persecution will be at the hands of those who are the agents of the state and whom the state appears to be unwilling or unable to control.

In consequence, the Tribunal finds that the Applicant faces a real chance of persecution on Convention grounds should he return to Brasil.

As the Applicant is a refugee within the meaning of the Refugees Convention, it follows that he satisfies the criterion for the grant of a protection visa that the Applicant is a person to whom Australia has protection obligations under that Convention.

The Tribunal remits the applications for reconsideration in accordance with the direction that the Applicant must be taken to have satisfied the criterion that he is a person to whom Australia has protection obligations under the Refugees Convention.

[1]In accordance with s.431(2) of the Migration Act 1958 (Cth), (as amended), the published version of this decision does not contain any statement which may identify the Applicant or any relative or other dependant of the Applicant.