N95/08658 [1996] RRTA 690 (28 March 1996)

The Applicant sought refugee status by application lodged with the Department of Immigration and Ethnic Affairs (the Department) on 10 May 1995. The decision was made on 31 July 1995. The Applicant was notified by letter of the same date and applied for review of the decision on 4 August 1995.

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 decision under review satisfies the definition of "RRT-reviewable decision" contained in s.411(1)(a) of the Act.

Section 412 of the Act provides that an application for review of an RRT-reviewable decision must be made in the approved form and within the prescribed time, and that the applicant for review must be the subject of the primary decision and must be physically present in the migration zone when the application for review was made. The "migration zone" is defined by s.5(1) of the Act to include the area consisting of the Australian States and Territories.

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

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 application as an application 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 was offered the opportunity to attend a hearing and give evidence on her own behalf. She declined the opportunity and this decision is taken on the papers as she requested.

The Applicant arrived in Australia travelling on a Brasilian passport as a Brasilian national in 1994. In support of her application for refugee status there is a letter from the Applicant's advisor in which is;

'She has never been happy in Brazil where normal people constantly fear for their well-being or lives. She has lived with the disturbing knowledge of people who have been in police custody who were ill-treated, tortured or extrajudicially executed...Brazil is a country where life is dangerous.'(Letter dated 8 May 1995 from LCJ Migration Services)

After the Applicant was interviewed by the Delegate she wrote to the Delegate and said;

'I am writing to you because I did not succeed in expressing myself clearly during our meeting. I was silent and was unable to speak to you about the matters that are important and that I would like to mention to you.' (Letter dated 3 July 1995 on LCJ Migration Services letterhead signed by the Applicant)

The letter is an account of her life in Brasil and is concerned with the poverty of her existence and the lack of hope for the future.

There is no suggestion in all of these accounts that the Applicant has been or can expect to be persecuted for her political views, her race, her religion, her nationality or because she is a member of a social group. In consequence, the Applicant cannot be said to come within the ambit of the Convention.

The Tribunal finds that the Applicant does not face a real chance of persecution on Convention grounds should she return to Brasil.

As the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention, a protection visa cannot be granted.

The Tribunal affirms the delegate's conclusions and finds that the Applicant is not entitled to a protection visa.

The Tribunal varies the delegate's decision so that the decision now has effect as a decision to refuse to grant the Applicant a protection visa.

[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. The published version of this decision was prepared under the direction of the Deputy Registrar.