Sarrazola v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1998-08-05|Before: Merkel J, Hill J, Hely J

REASONS FOR JUDGMENT 1 The only issue on this application is whether, on the facts found by the Refugee Review Tribunal ("RRT"), the applicant has brought herself within the description of a refugee under the Refugees Convention as amended by the Refugees Protocol, referred to in s 36(2) of the Migration Act 1958. 2 Article 1A(2) of the Refugees Convention defines "refugee" as: "any person who…owing to a 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." 3 The amended application raised other issues, but they were not pursued at the hearing. Both before RRT, and in this Court, the matter was approached upon the basis that it was sufficient to consider the entitlement of Fenney Sofia Redondo Sarrazola to a protection visa. If she is so entitled, then the position of her husband and her children is governed by cl 866.222 of Schedule 2 of the Regulations made under the Migration Act.

RRT's FACTUAL FINDINGS 4 The applicant's factual claims were accepted by RRT. The harm feared by the applicant and her family ultimately flows from the fact that her brother, Mr Julian Redondo, owed certain underworld figures in Colombia $US40,000. In December 1994, he was deported to Colombia from the United States of America after serving five years in prison for drug offences. On his return to Colombia the applicant's brother stayed with the applicant's family on two occasions: in late December 1994 for about twelve days and in August 1995 for about one or one and a half months. Prior to December 1994, the applicant had not seen her brother since 1986. 5 In November 1995 a man came to the applicant's house, asked the applicant if she was her brother's sister, and enquired about her brother's whereabouts because (he said) the brother owed $US40,000. The man indicated that people were looking for the applicant's brother in several cities, and when they found him, they would kill him. 6 In December 1995 the brother was killed, reputedly by assassins riding on a motorbike. At her brother's funeral the applicant observed that his eyes had been removed. RRT noted that this was presumably done for the corneas of the eyes which are apparently valuable in the context of illegal organ trading. 7 In January 1996 a stranger came to the applicant's house, stated that he was from the group responsible for her brother's death, and stated that: "…as his relatives they were now responsible for the money her brother had owed them. The man demanded that they sell their house in order to pay him and threatened to kill their children if they did not comply." 8 The applicant and her husband decided that the best option was to leave Colombia. They obtained Australian visas in late January 1996 but were unable to leave immediately because, amongst other things, they had insufficient funds for the family to travel together. 9 In late February 1996, the stranger revisited the applicant's home and repeated his demands and threats. 10 In March 1996 the applicant's husband left Colombia for Australia and the applicant remained with her children in Colombia under the pretence that her husband was absent on a trip. The applicant and her husband also listed their house for sale to "gain time", though they did not intend on selling. It was at about this time that the applicant went to the Prosecutor's Office to inform the local authorities of her predicament. Her complaint was passed onto the police and the police requested that she attend the local police station in order to make a statement. Afraid that she may be under surveillance, the applicant agreed to meet a police officer at a nominated café. The police officer did not attend the arranged meeting. 11 In May 1996 a different stranger attended upon the applicant and demanded that she pay her brother's debt by the end of the relevant week. By this time the applicant had organised a bank loan to finance the passage of her children and herself to Australia. She left one and a half million pesos of this money at the place where the second stranger had instructed her to leave money for collection. 12 On 27 May 1996 the applicant attended the Prosecutor's Office to tell the local authorities that they "were good for nothing". She was informed that little or nothing could be done by the authorities and that people in her situation should "just disappear and resolve the problem for themselves". 13 On 28 May 1996 the applicant and her children left Colombia for Australia. 14 Since that time the applicant's brother-in-law has also fled to Australia. He was threatened by two armed men in his workplace in Colombia. The men demanded to know the whereabouts of the applicant and her family. In addition, after the applicant's departure from Colombia, two consecutive inhabitants of the applicant's former home have vacated her house because of threatening visits from strangers inquiring about the applicant and her family. The latter of these two evacuees was a family. The father in this family wrote to the applicant on 1 October 1997 expressing fears for his own safety, because he had previously assisted the applicant in relation to her house, and urged the applicant's family not to return to Colombia. 15 RRT found that the applicant and the members of her family face "a real and significant chance of harm (and possibly death) on return to Colombia". RRT also found that "there can be little confidence that the Colombian authorities will be able to provide effective protection against the feared harm from criminals."

RRT's REASONS FOR DECISION 16 Whilst accepting the applicant's factual claims, RRT determined that the applicant, and her family, are not refugees within the meaning of Article 1A(2) of the Refugees Convention for two reasons. 17 First, at Decision and Reasons for Decision ("DRD") p 12, RRT said: "Although it is well recognised that members of a particular family are capable of constituting a particular social group, the case law tends to support the conclusion that the Convention was not intended to protect family members from persecution where the family is not linked to a broader group recognised by the Convention definition, the motivation for the harm feared is essentially a personal matter and the main target of the persecution falls outside the scope of the Convention. This view accords with commonsense. It would make a nonsense of the Convention if in such circumstances an applicant were to be found to be a refugee notwithstanding that the harm feared by the main target (in this instance, her brother) fell outside its scope." 18 Second, and also at DRD p 12, RRT said: "In any event, the Tribunal is not satisfied that in this case the financial demands and accompanying threats directed against the applicant can be said to be motivated by a purpose or desire to harm the applicant by reason of her family membership or relationship to her brother as such. Rather, the criminals' concerns were motivated by self-interest to recover the money they believe was owing to them by the applicant's deceased brother from the obvious target of opportunity, a sister (and her husband) who owned a house. The Tribunal is satisfied that had the deceased brother had a business partner with assets, and a sister with no assets, the criminals would have pursued the business partner and given no further thought to the applicant." 19 On this basis RRT concluded that "the Tribunal is…not satisfied that the harm feared by the applicant and her husband on return to Colombia arises (even in part) for a Convention reason." [DRD p13]

First Reason 20 RRT did not express a conclusion, one way or other, whether or not the applicant's family, (as to which, see later) constituted a particular social group. Rather, RRT assumed that this may be so. But, as I understand it, RRT is asserting in the passage quoted in paragraph 17 above that it is not sufficient for an applicant to establish a fear of persecution by reason of membership of a family group, unless one of the members of the family is affected by conduct which is otherwise within the scope of the Convention. RRT cited the decisions of Dawson J in "Applicant A" v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 as authority for this proposition: "…both his Honour's judgments suggest that family membership will only bring a person within the scope of the Convention if there is some further element such as a political profile which is attributed to the family." [DRD p11] 21 The five Convention grounds in the definition of "refugee" in Article 1A(2) of the Refugees Convention are listed disjunctively. This is indicative of an intention to give independent operation to each ground, although in specific cases they may overlap. Neither the decision of Dawson J in Chan Yee Kin nor his Honour's judgment in "Applicant A" establish a legal requirement that membership of a particular social group, being a family, cannot ground a refugee claim in isolation from other Convention grounds. Nor is there anything in the case law cited to me which would support such a contention. It follows that RRT fell into error by misinterpreting the law on this point. 22 Nor is it obvious to me why it would make a nonsense of the Refugees Convention to treat its operation as attracted even though fear of persecution by the brother, were he alive, would be outside its scope. Neither the text of the Refugees Convention, nor its context, object or purpose supports such an approach. There is no reason in principle why the actions of an individual cannot act as a catalyst to bring the wrath of potential persecutors down upon a race, members of a religion, or members of a particular social group. 23 Neither the text of the Convention, nor the context object or purpose of the treaty supports the approach adopted by RRT in relation to its first reason. Indeed I did not understand counsel for the respondent to support that approach. Rather, she approached the matter on the basis that RRT's errors in this respect were immaterial, because RRT did not base its ultimate decision on this point. 24 I agree with this submission. The ground upon which RRT made its determination was that the applicant's well-founded fear of being persecuted is not for reasons of membership of a particular social group. 25 The powers of the Court under s 481 of the Migration Act are discretionary. If the actual decision of RRT is sustainable on a self-contained ground, an error of law made in relation to an alternative ground would not ordinarily provide a sufficient basis for intervention by the Court.

Is the applicant's well-founded fear of being persecuted for reasons of membership of a particular social group? 26 Again, RRT assumed, rather than expressly decided, that the relevant family can constitute a particular social group. I use the term "relevant family" to defer for later discussion the composition of that family. 27 In Minister for Immigration & Multicultural Affairs v Zamora (unreported, Full Federal Court, 5 August 1998) the Full Court said: "... 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 a 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."

Does the relevant family constitute "a particular social group"? 28 There are conflicting authorities as to whether a family can constitute a particular social group within the meaning of the Refugees Convention. In "Applicant A" Dawson J held (at 241): "I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group." 29 His Honour made a similar observation in Chan Yee Kin at 396: "…it would have been sufficient to constitute a Convention reason that the appellant was a member of a particular social group, namely, his family, irrespective of his personal political opinions." 30 In "Applicant A" Brennan CJ held (at 234): "There is nothing in the term 'a particular social group' which limits the criteria for selecting such a group nor anything in the travaux préparatoires which suggests that any limitation was intended…By the ordinary meaning of the words used, a 'particular group' is a group identifiable by any characteristic common to the members of the group and a 'social group' is a group the members of which possess some characteristic which distinguishes them from society at large. The characteristic may consist in any attribute, including attributes of non-criminal conduct or family life, which distinguish the members of the group from society at large." [emphasis added] 31 It should be noted that whilst Brennan CJ formed part of the minority in "Applicant A", the question of whether a family can constitute "a particular social group" was not directly in issue in "Applicant A" and was not a point on which the majority made a positive finding. 32 In contrast to the above, McHugh J in "Applicant A" held (at 266): "…'a particular social group' was probably intended to cover only a relatively large group of people. The concepts of race, religion and nationality imply groups of hundreds of thousands, in some cases millions of people. It is unlikely that, in adding 'a particular social group' to the Convention categories, the makers of the Convention had in mind comparatively small groups of people such as members of a club or association. The Convention was not designed to provide havens for individual persecutions. It seems unlikely therefore that, having turned their back on individual persecution, the makers of the Convention intended the phrase 'a particular social group' to be confined to small groups of individuals 'closely affiliated with each other'…". Interestingly, when recounting the drafting history of the Refugees Convention, McHugh J observed (at 265): "It seems likely that the category of 'particular social group' was at least intended to cover those groups persecuted because of 'the restructuring' of society then being undertaken in the socialist States [pre 1950] and the special attention reserved for landowners, capitalist class members, independent business people, the middle class and their families." [emphasis added] This highlighted reference most probably refers to middle class families as a sizeable, generic group only. However, it is suggestive of family being a defining feature of a particular social group in some circumstances. 33 In Guo Wei Zhi v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court, 10 December 1998) the Full Federal Court did not doubt that a family can be a particular social group within the meaning of Article 1A(2) of the Refugees Convention. Indeed, it is arguable that the Full Federal Court in Guo Wei Zhi proceeded upon the basis that a family can constitute a particular social group. Emmett J said at p 2: "... if the harm feared by the appellant was for reason of membership of his brother's family, there may be a basis for affording him refugee status in Australia." 34 In sum, it would seem that the authorities are inconclusive. However, if anything, they would seem to favour acknowledgment, as opposed to denial, of the family as "a particular social group". 35 Of course, recourse to the text of Article 1A(2) is paramount, though, in view of the fact that the Article is a provision of an international convention, that text must be construed in light of the objects and purposes of the Refugees Convention. Having made this observation, the wording of Article 1A(2) provides no real guidance as to what constitutes "a particular social group". Nor does there appear to be any materials which elucidate the objects and purposes of the Refugees Convention so as to indicate the parameters of "a particular social group". 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.

The relevant family? 37 Whether or not a family does in fact constitute a particular social group within the meaning of Article 1A(2) will depend upon the circumstances of the relevant case. In Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565 Burchett J, with whom O'Loughlin and Nicholson JJ concurred, explained the approach to be adopted when applying the concept of a refugee (as defined in Article 1A(2) of the Refugees Convention) to a given situation. His Honour emphasised (at 568) that "there is a unity of concept about the whole definition of a refugee" and that the notion of persecution implies "an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm." As Burchett J proceeded to explain (at 569), this understanding of persecution leads to a focus upon the motives and attitudes of the persecutors so that "[a] social group may be identified, in a particular case, by the perceptions of its persecutors rather than by reality." 38 I refer to the decision in Ram at this point because in the case at hand there was some uncertainty, from both sides, as to the identification or the composition of the family which is said to constitute a particular social group. In some instances the family concerned was taken to be the applicant, her husband and their two children. At other times the term "family" was used to describe the applicant and her deceased brother only; this resulted in some discussion as to whether a particular social group could have one living member. It might be thought that both the second last and the last of the Mohicans are each members of a particular social group. 39 The Full Federal Court in Ram makes it clear that the "perceptions of [the] persecutors" may identify the particular social group. In my opinion, the persecutors' perceptions do so in this case. The particular social group perceived by the persecutors in this case is a family. That family includes the applicant, her husband, their two children and the applicant's deceased brother. It most probably also extends to her brother-in-law. That the applicant's brother is no longer alive does not preclude his being part of the same family in the perception of the persecutors, or for that matter in the perception of the general community. Nor does the fact that the applicant's husband and children have no direct blood relationship with the deceased preclude the persecutors from perceiving that they are all part of the one family. 40 I do not think that this approach contravenes the principle that the characteristic which unites the group cannot merely be the common fear of persecution. As Dawson J said in "Applicant A" at p 242: "There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution." There is, however, no circularity in identifying the membership of the social group by reference to the "perceptions of its persecutors", rather than by reference to the perceptions of the victims. Indeed, at p 240 in "Applicant A" Dawson J accepted that perception could form part of the ascertainment of the relevant class. 41 In any event, whether there is a particular social group, and what its composition is, are questions of fact for RRT to determine: Jani Pepaj v Minister for Immigration & Multicultural Affairs (unreported, Merkel J, 25 November 1998). It would be open to RRT to conclude that the applicant is a member of a particular social group. It has not made any finding adverse to that position as it denied the claim to refugee status on another ground.

For reason of membership of a particular social group? 42 The following propositions are established by authority: · It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group: "Applicant A" at 240-241 per Dawson J. · The harm or threat of harm need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution: Chan Yee Kin at 430. · When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone, or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reason of his membership of that group": Ram at 569. · It is not necessary that the fear of persecution be solely attributable to membership of a relevant social group, but a decision maker can have regard to the extent to which membership of the relevant social group is a factor in the risk of persecution: Jahazi v Minister for Immigration & Ethnic Affairs (1995) 61 FCR 293 at 299-300. 43 The basis for RRT's finding that the applicant's well-founded fear of persecution was not for reason of her family membership was reproduced in its entirety at paragraph 18 above. The crux of that reasoning is as follows: "…the criminals' concerns were motivated by self-interest to recover the money they believe was owing to them by the applicant's deceased brother from the obvious target of opportunity, a sister (and her husband) who owned a house". [DRD p12] Put more succinctly, RRT found that the reason for the applicant's well-founded fear of persecution was extortion associated with the recovery of her deceased brother's debt. 44 This reason for the applicant's fear of persecution necessarily incorporates three notions: · A debt is owed to the criminals, · The debtor is the applicant's deceased brother, · The attitude of the persecutors (see paragraph 7 above) is that his relatives are now responsible for payment of the brother's debt. 45 These notions are inextricably linked. It is only when regard is had to the combination that the reason for the applicant's fear of persecution emerges. Once this is accepted, it was not open to RRT to conclude that: "the Tribunal is…not satisfied that the harm feared by the applicant and her husband on return to Colombia arises (even in part) for a Convention reason." [DRD p13, emphasis added] In effect RRT found that part of the reason for the applicant's well-founded fear of persecution was her familial tie with her brother. Then, RRT proceeded to find that the applicant's fear was not for reason of that familial tie "even in part". 46 As earlier indicated, the applicant need not demonstrate that her family membership is the sole reason for her well-founded fear of being persecuted: Jahazi. As Hill J said in Mohamed v Minister for Immigration & Multicultural Affairs (unreported, Hill J, 11 May 1998) at p 13: "... 'race, religion, nationality, membership of a particular social group or political opinion' may be but one of several reasons for persecution". 47 It follows that once RRT found that part of the reason for the applicant's well-founded fear of persecution was the fact that she was the sister of her deceased brother, RRT erred in law in deciding that the applicant's fear of persecution was not for reason of her family membership without at least considering the extent to which membership of the family is a factor in the risk of persecution. 48 It should be noted that this is not simply a case of extortion; which would not come within the terms of Article 1A(2) of the Refugees Convention. In other words, it would be inaccurate to suggest that the persecutors' motivation in this case is merely the exaction of money. Rather, the motivation of the persecutors is properly stated as recovery of the applicant's deceased brother's debt. The persecutors are not interested in extracting money per se. They seek recovery of a debt, the debtor is deceased, they fix upon the applicant for repayment and the reason for doing so is her membership of the same family as the deceased. So much is accepted by RRT. RRT's conclusion that the applicant is in fear of persecution simply because she is "an obvious target of opportunity" is contrary to the facts which RRT has found or accepted. 49 A useful contrast can be drawn between this matter and the case of Guo Wei Zhi v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court, 10 December 1998). In Guo Wei Zhi the brother of a criminal was suspected by Chinese authorities of involvement in illegal activities. He sought refugee status under Article 1A(2) of the Refugees Convention on the ground that he had a well-founded fear of persecution for reason of his membership of a particular social group. That social group was said to be his family. The issue on appeal to the Full Federal Court was whether the brother's well-founded fear of being persecuted was for reason of his blood relationship with the criminal. At p 5 of his Honour's judgment, Emmett J held: "The attention of the authorities [the persecutors] was not attracted because of the appellant's association with Guo Wei Rong [the criminal] qua brother. That attention was attracted by reason of his association with Guo Wei Rong qua criminal." 50 Accordingly, the applicant was held not to fear persecution for a Convention reason and was denied refugee status. 51 If one were to apply the terminology employed by Emmett J to the present case, the attention of the persecutors is attracted by reason of the applicant's association with the deceased qua brother. Dissimilarly to the facts of Guo Wei Zhi, the applicant has no other association with the deceased. This highlights the reason for the persecutors fastening upon the applicant: she is the sister of her indebted brother. It follows that the applicant's well-founded fear of being persecuted is for a Convention reason; namely, her family membership. 52 Finally, a brief comment is warranted regarding the following finding of RRT: "The Tribunal is satisfied that had the deceased brother had a business partner with assets, and a sister with no assets, the criminals would have pursued the business partner and given no further thought to the Applicant." [DRD p 13] 53 This statement simply says that if the facts of the case were different, the outcome would be different. It has no place in the interpretation of Article 1A(2) of the Refugees Convention in these proceedings. If it were sought to support the statement upon the basis that it is, or forms part of, an assessment of the extent to which membership of the family is a factor in the risk of persecution that endeavour would, in my opinion, fail. Causation questions involve an evaluation of the facts as found. They are not answered by reference to theoretical constructs.

54 For the reasons indicated, the application for an order of review is upheld. I order that the decision of the RRT be set aside, and that the matter be remitted to the RRT, differently constituted, for determination according to law. The respondent should pay the applicant's costs of the application. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Applicant: McDonells Solicitors

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 36(2)

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