Sarrazola v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-08-23|Before: Hely J, Madgwick J

REASONS FOR JUDGMENT HIS HONOUR: 1 The applicants are a family comprising a wife, husband and two children, nationals of Colombia. The applicant husband arrived in Australia on 15 March 1996 and the applicant wife (for convenience usually referred to hereafter as "the applicant") and children arrived on 31 May 1996.

Procedural history 2 On 13 June 1996, the applicants lodged an application for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 28 June 1997, a delegate of the respondent Minister refused their application and the Refugee Review Tribunal, differently constituted, affirmed the delegate's decision on 22 September 1998. It will be convenient to refer to those proceedings as "RRT1". The applicant sought review of the Tribunal's decision by this Court and on 17 February 1999 in Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 (hereafter referred to as "Sarrazola No 1"), Hely J set aside the decision and remitted the matter to the Tribunal to be determined according to law. The Full Court of the Federal Court dismissed an appeal from Hely J on 6 October 1999: see Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 (hereafter referred to as "Sarrazola No 2"). The

matter again came before the Tribunal, differently constituted, pursuant to the order of the Court. The Tribunal again found against the applicants ("RRT2").

The nature of the claims 3 Article 1A(2) of the Convention relating to the Status of Refugees ("the Convention") relevantly 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; ..." 4 The facts were not materially different from those considered by Hely J and the Full Court. The following summary of the applicant's claims is drawn with scant amendment from RRT2's reasons. 5 The claims made related primarily to the applicant wife. The applicants had lived and worked in Pereira, a large Colombian city. 6 In December 1994, the applicant wife's brother, Julian Redondo, was deported to Colombia from the United States of America after serving five years in prison for drug offences. On his return, he stayed with the applicant's family on two occasions; in late December 1994 for about twelve days and in August 1995 for several weeks. In November 1995 a man came to the applicant's house, asked the applicant if she was Julian Redondo's 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. 7 In December 1995, the applicant's brother was killed. 8 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 (emphasis supplied) 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. 9 The applicant and her husband decided to leave Colombia. They obtained Australian visas in late January 1996 but for various reasons, including insufficient funds, they were unable to leave immediately. In late February 1996, the stranger revisited the applicant's home and repeated his demands and threats. 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 to sell. 10 At about this time the applicant went to the Prosecutor's Office and informed them of her situation. Her complaint was passed on to 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 cafeteria. Due to other matters which had arisen, 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 week. By this time, the applicant had secured a bank loan to pay for the trip 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 the authorities could do little or nothing 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 After her departure from Colombia the applicant's brother-in-law, Carlos, fled to Australia. Two armed men threatened him in his workplace in Colombia. The men demanded to know the whereabouts of the applicant and her family. The managing agent for the applicant's house had ceased to act in this capacity because of threats she received from strangers inquiring about the applicant and her family and the "owners of the house". A family, who were tenants in the applicant's house, left the house because of threatening visits from strangers inquiring about the applicant and her family. The applicant was informed in writing of these events by a friend who had also expressed concerns for his 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 In addition, since her departure from Colombia, the applicant feared harm arising out of her pursuit of legal proceedings in this Court, because her name was mentioned in connection with publicity surrounding these proceedings. Apparently, there was a radio broadcast in Colombia giving some details about her case. Consequently, the men who threatened her now know that she is not in Colombia and that she is in Australia. The applicant claims that she fears that this broadcast may incite further hostility towards her by those she fears in Colombia. 16 Although the applicant did not actually know it to be true that her brother owed criminal figures money, her evidence has always been to the effect that this was so. Indeed her adviser's submission assumes the debt and the identity of the creditors. In essence, the applicant's case is that she, her husband and her children, fear harm because her brother owed criminal figures in Colombia $US40,000. 17 The issue in the case was whether the harm the applicant feared was persecution for a Convention reason. 18 The applicant's adviser submitted to RRT2, that the harm she feared was owing to her membership of a particular social group constituted by her family. This family was defined in two ways, firstly, as being the applicant and her immediate family comprising her husband, their children and the deceased brother; secondly, as the "the family of the Redondos" comprising the applicant and her deceased brother.

RRT2's factual findings 19 Based on all the material before her, RRT2 found that the applicant's brother owed an amount of money to men who were involved in criminal activities and that when the applicant's brother was unable to repay the debt these men were responsible for his death. In the absence of her brother, she was then seen as responsible for the debt. Her evidence was to the effect that these men expected her to meet the debt and that this was where "the pressure was coming from". 20 Other people including non-family members were threatened by these men (the agents of harm) including the applicant's brother-in-law (Carlos), the rental agent (Dr Amparo) who arranged the lease of the applicant's home and the tenants who rented it. They were threatened and harassed to reveal the whereabouts of the applicant and her immediate family. 21 The applicant's evidence was to the effect that those who threatened her last displayed interest in her whereabouts in 1997 when inquiries were made of the tenants occupying her house. "For present purposes", RRT2 accepted that there was more than a remote possibility that the agents of harm could regain their interest in her at any time, and that the threats the applicant had experienced and the harm she feared in the future if the threats were carried out were serious harm which might be capable of amounting to persecution.

RRT2's approach 22 RRT2 considered the matter at length. The Tribunal Member found that the applicant's family, however defined, did not constitute a particular social group. Further, if that view should be mistaken, the persecution was not for reasons of membership of such a social group. The Tribunal Member summed the matter up: "I am not satisfied on the evidence before me that the Applicant's family is a particular social group in the relevant sense or that even if it is, that the harm feared is directed for reasons of membership or indeed directed for any other Convention reason. Accordingly, I am not satisfied that the Applicant's fear of harm is owing to a Convention reason. As this is an essential element of the Convention definition of a refugee, I am not satisfied that the Applicant is a refugee. … No specific Convention claims were made by or on behalf of the Applicant's husband and children, beyond the matters already considered. There is therefore no basis on which the Tribunal can be satisfied that they are refugees. The fate oftheir application therefore depends on the outcome of the Applicant's application. As the Tribunal has found that the Applicant does not satisfy the criteria for a protection visa, it follows that her husband and children cannot be granted a protection visa."

The family as a "particular social group" 23 RRT2's crucial reasoning appears from the following extracts from the reasons for decision: "A particular social group must be shown to have some characteristic other than persecution or the fear of persecution that unites the collection of individuals, that sets the group apart from the rest of the community, and a recognition within the society that the collection of individuals is a group that is set apart from the rest of the community. A family can constitute a particular social group for Convention purposes, however whether it does so will depend on the circumstances and in particular, on whether its members are recognised within their society as a group that is set apart from the rest of the community. That is to say, there must be some level of notoriety, or a public perception that they are a particular social group: see for example Applicant A at 264, 269. What level of notoriety or public perception is required so that a group can be said to be a particular social group within a particular society will depend on the circumstances. … In the circumstances of this case the persecutors are a small group of individual criminals to whom money is owed. … I am not satisfied … that any more than a single item was broadcast… [The applicant] did not claim, and her evidence did not suggest, that as a result of the broadcast she now feared other people beyond this certain group of individual criminals. I find that the brief single broadcast described did not and does not give rise to a sufficient level of notoriety, or a public perception that the applicant's family is a particular social group in Colombia. In the circumstances of this case there is nothing before me which suggests that the Applicant's family - defined as the Applicant and her deceased brother, or the Applicant, her deceased brother, her husband and their children or indeed any other configuration of the family - is perceived as a cognisable group within her society. The only people she fears, and the only people to whom she or her family are of any interest, are a certain group of individual criminals who told her that her brother owed them money. There is nothing in the evidence before me which would support a finding that the Redondo family or the Applicant and her immediate family, were or are recognised by Colombian society as a social group which is set apart from the rest of the community. The extent to which it could be said that the Applicant's family was recognised in Colombia is that it was the relationship to her brother which a certain group of individual criminals (the agents of harm), and recognised by those individuals alone, which made her a suitable target from whom they could recover a debt owing to them. I find that the Applicant's family is cognisable only to this group of individual criminals. I find that the Applicant's family has not gained any level of public perception in Colombian society that it is a particular social group. I find it is not recognised as a group that is set apart from the rest of the community within Colombia.

I am not satisfied on the evidence before me that the Applicant's family is a particular social group in the relevant sense." (Emphasis added) 24 The clearest statement, and an authoritative one, of what is involved in the notion of a "particular social group" was made in Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458. In that case, a Full Court of this court said at 464: "…Applicant A's case is authority for the following propositions. 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; … 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." 25 In Sarrazola No 2, the Full Court evidently proceeded on the view that a family could constitute a particular social group. RRT1 had expressed the view that the Convention was not intended to protect family members from persecution where the family is not linked to a broader social group recognised by the Convention definition, suggesting in effect that it would be absurd if the family members of a person who was the main target of persecutors could be found to be refugees although the principal target could not. Hely J had dealt with the matter thus: "Neither the text of the Convention, nor the context object or purpose of the treaty supports the approach adopted by [RRT1]" 26 The Full Court (at [27]-[28]) agreed with Hely J, rejecting the view taken by RRT1 and rejecting too the similar approach of the English Court of Appeal in Martinez v Secretary of State for the Home Department [1997] Imm AR 227. The Full Court also said: "In the context of family members being persecuted for reason of one family member having refused to join the mafia (the factual circumstances considered in Martinez), the first question for an Australian decision-maker would be whether, independently of the persecution being experienced by the family members, the family was recognised within society as a group, or as part of a group, set apart from the rest of society. It may be that such a case might be found in a society in which the recruitment activities of the mafia were publicly known, and in which the retaliatory actions of the mafia against persons who rebuffed invitations to join it were so notorious, that the families of those persons had become recognised in the society as together constituting a particular social group (see the hypothetical consideration by McHugh J in Applicant A at 264 of persecuted "left- handed men")." 27 The context for these remarks was the Full Court's concern to expose the error of approach in Martinez, as this extract shows, and its concern also to stress the prime importance of the identification of the relevant social group. At [21] and [31] the Court said "Where an applicant for a protection visa bases his or her claim on a fear of persecution for reason of membership of the relevant social group the first issue to be determined by an Australian decision-maker is that of the identification of the relevant social group. … As the discussion above indicates, the way in which a social group is defined can be of crucial importance, not only to the issue of whether it is a particular social group within the meaning of Article 1A of the Convention, but also to the issue of whether the feared persecution is persecution motivated for reason of the applicant's membership of the particular social group." 28 Hely J had reviewed the then existing authorities on whether a family can constitute a particular social group (Dawson J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 241 and in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 396, Brennan CJ in Applicant A at 234, McHugh J at 266 (cf 265), and a Full Court of this Court in Guo Wei Zhi v Minister for Immigration & Multicultural Affairs [1998] FCA 1576)and considered that they were inconclusive. His Honour concluded: "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." It seems to me that this approach is entirely unexceptionable. 29 After Sarrazola No 2, Wilcox J considered the matter in C and S v Minister for Immigration and Multicultural Affairs [1999] FCA 1430, the case of a Colombian family, where a mafia were pursuing the husband and father. His Honour said: "It was unnecessary for the Full Court in Sarrazolato deal with the correctness of the statements of Hely J that "[m]embership of a family is a characteristic which distinguishes members of that family from society at large. … family members possess a common unifying element which binds them together as a particular social group". However, it seems to me the statements are plainly correct. That which binds together the members of a family is not the suffering of persecution but a relationship of blood and marriage; membership of a family is something that exists independently of any persecution the members may suffer. Moreover, in almost every society, familial links are recognised and families are identifiable. Unless one subscribes to the view, taken in Applicant A only by McHugh J, that the term "a particular social group" was "probably intended to cover only a relatively large group of people", there is no reason to exclude its application to a family. Such an application is surely well within the spirit of the Convention. Family members may be targeted for persecution simply because of that membership, and not because of their own actions. I respectfully agree with the passage in the reasons of Hely J in Sarrazola quoted in para 31 above. … The Tribunal failed to consider that issue." 30 In my respectful opinion, what Wilcox J said is correct as a matter of principle; it is a logical development of what Hely J said in Sarrazola No 1, and is in no degree inconsistent with what the Full Court said in Sarrazola No 2. 31 I would add the following considerations. The postulation by RRT1 and in Martinez of "absurdity" if a member of the family of a person first harmed should fall within the purview of the Convention although that person might not, with respect overlooks what is regrettably a matter of common experience. The sorts of irrational, discriminatory prejudices that result in persecution of social groups (including ethnic, religious and racial groups) not infrequently begin with antipathy towards one member of the group for non-group reasons. It then becomes transmuted into antipathy towards group members for their group affiliation or identification. An example will I hope make this clear. A is deeply humiliated by B, A then being unaware that B is, say, Jewish or homosexual; A thereupon threatens B; for that or some other reason B leaves the scene; A soon after discovers B's group identity and, rankling, comes to hate and persecute other members of the group for reasons of such membership. The only absurdity is that variants of this scenario are depressingly common. As Hely J put it at [22], "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." 32 Secondly, it is not to be forgotten that there is, as Burchett J said in Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565, a "unity of concept" in the Convention test of whether a person is a refugee, nor that the Convention has limited protective purposes and that these do not include the protection of people from terror directed against them for purely personal reasons. As Lord Hope of Craighead put it in R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 WLR 1015 at 1037: "The first preamble to the Convention explains that one of its purposes was to give effect to the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This principle was affirmed in the Charter of the United Nations and in the Universal Declaration of Human Rights approved by the General Assembly of the United Nations on 10 December 1948. If one is looking for a genus, in order to apply the eiusdem generis rule of construction to the phrase "particular social group," it is to be found in the fact that the other Convention reasons are all grounds on which a person may be discriminated against by society." 33 Nevertheless, these considerations provide no obstacle to viewing the usual family as a "particular social group". The Universal Declaration of Human Rights ("UDHR") itself recognises the family as the "natural and fundamental group unit of society [which] is entitled to protection by society and the State": Art 16(3) and proclaims that "Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as … birth or other status": Art 2. It is a commonplace that society may discriminate against a person because of his or her family membership (that is, an aspect of his or her "birth or … status"). Families of criminals for example often suffer in this way. It is reasonable to say that the inclusion of the reference to "birth or other status" in the UDHR was some recognition of this kind (among other kinds) of discriminatory tendency. Thus, protection of the family and its proneness to discrimination were among the concerns of the States that made the UDHR. Those States also made the Convention and, by reciting in the preambles to it their reliance on the UDHR, indicated their intention to connect the notion of

discrimination with the kinds of discrimination denounced by the UDHR. Indeed, such was in Lord Steyn's words, a "fundamental purpose" of the Convention: Shah at 1021. 34 Lord Hoffman in the same case also referred to the first preamble at 1032 to deduce that the general intention of the Convention was anti-discriminatory. He continued: "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. The obvious examples, based on the experience of the persecutions in Europe which would have been in the minds of the delegates in 1951, were race, religion, nationality and political opinion. But the inclusion of "particular social group" recognised that there might be different criteria for discrimination, in pari materiae with discrimination on the other grounds, which would be equally offensive to principles of human rights. It is plausibly suggested that the delegates may have had in mind persecutions in Communist countries of people who were stigmatised as members of the bourgeoisie. But the concept of a social group is a general one and its meaning cannot be confined to those social groups which the framers of the Convention may have had in mind. In choosing to use the general term "particular social group" rather than an enumeration of specific social groups, the framers of the Convention were in my opinion intending to include whatever groups might be regarded as coming within the anti-discriminatory objectives of the Convention." (These remarks incidentally expose a fallacy in reading into McHugh J's well-known reference in Applicant A (at 259-260) to the history of how "particular social group" came to be in the Convention, the notion that his Honour was suggesting that now and for the future such a group should have the characteristic of large size, because the Convention's framers may have had large groups in mind. In my view, it is very unlikely that his Honour intended to be so understood). 35 It is not necessary that the whole of a society or any large part of it should so discriminate in order to be able to say, in Lord Hope's formulation, that "society" may so discriminate. Most societies contain people who manage to keep their heads when others are losing theirs, and ex hypothesi it is only those in the society who know of a group who will be able to discriminate against members of it. To pursue the same example, if it is only a criminal's next door neighbour who knows of his or her conviction and who, on that account, maltreats his or her children, that is nevertheless within any sensible notion of discrimination by "society". 36 As a matter of precise conceptualisation of the effect of his observations in C and S, Wilcox J must be regarded as having done no more than refer to matters of fact relevant to the evaluation of whether a particular family did or did not constitute a particular social group. However, those matters of fact are incontrovertibly correct in the case of very many families. Once they are perceived, as will be the usual position, to exist in relation to a particular family, there will then be no legal basis for concluding that it does not constitute a particular social group. So far as judicial review in this court is concerned, for the RRT to conclude otherwise would therefore usually amount to an error of law within the meaning of s 476(1)(e) and for the RRT not to enquire into and to make findings about such obviously relevant possible facts would amount to a constructive failure to exercise jurisdiction: see Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247, Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577, Sinclair v Maryborough Mining Warden (1975) 132 CLR 973 at 980 and 983. Thus in many (probably most) cases, for practical purposes it will be accurate enough to say that, as a matter of law, if a person is persecuted (within the meaning of the Convention) for membership of his or her family, that persecution is for reasons of membership of a particular social group. 37 In the present case, there was no reason to think that the applicant's family, on both proffered definitions of it, lacked the usual aspects of a family to which Wilcox J referred, and a good deal of overt material to suggest that it did. Among other things, it was clearly the perception of the persecutors that it did. The perception of persecutors can be relevant in a variety of ways. As Burchett J said in Ram in a somewhat different context:

"[a] social group may be identified, in a particular case, by the perceptions of its persecutors rather than by the reality."

38 In my view, it follows that RRT2 fell into legal error. Reading the Tribunal Member's reasons fairly, it seems quite clear that she took the view that a family could not be a "particular social group" unless the family was well known in the society in question. Once the legitimacy of claims of persecution by non-State agents when allied with the relevant State's inaction or incapacity to prevent it is granted, and it is well settled that such claims are legitimate, there is in my opinion no foundation for this superadded requirement.

Causation 39 It was argued that, even if RRT2 had erred in her treatment of the particular social group issue, this was irrelevant to the outcome because the Tribunal Member found that the persecution was for reasons quite unrelated to the family status of the applicant. 40 RRT2's reasoning sufficiently appears from the extracts from her reasons which follow. "… It is not necessary that the fear of persecution be solely attributable to membership of a relevant group; however the extent to which membership of the relevant group is a factor in the risk is a relevant consideration: see Jahazi v MIEA (1995) 61 FCR 293 at 299-300. … Where the claim is one of a "well-founded fear of being persecuted for reasons of…membership of a particular social group", the interaction between the concepts of "persecuted", "for reasons of" and "membership of particular" social group is particularly important: see Applicant A, McHugh J at 256. In a case of the kind presently before me it is important to bear in mind the totality of the Convention definition and to make findings on the evidence as to the motivation for the infliction of harm and the objectives sought to be attained by it. … On the evidence before me the only interest of all these individuals to the criminals was for the information they could provide about the Applicants who were also the owners of the house. … In this case, the criminals are interested in recovering a large debt. On the evidence before me they were first of all interested in the brother's whereabouts. Then they were interested in the house belonging to his sister and her husband, and put pressure on the Applicant (and her husband) to sell the house. The enquiries made of the real estate agent and the tenants, and the brother-in-law, (Carlos) all point to an interest in the owners of the house. Apart from Carlos, the Applicant's brother-in-law, the criminals were not at all interested in the husband's siblings. As a matter of everyday experience in many societies, family members are an obvious target for the recovery of a debt. The Applicant's own evidence is to the effect that there were no surviving immediate members of the brother's family, he was not married and it was for this reason that she as his sister she was selected for payment of the debt, and if the debt was not satisfied, serious harm. But this does not point to a persecutory attitude or motivation towards the family. All the evidence indicates that the only members of the family that the criminals were really interested in were the Applicant and her husband whom, as owners of the house, provided a means of recovering a debt. In that respect, the Applicant's membership of a family, however defined, was entirely subsidiary. They were not interested in persecuting members of the family for reasons of membership of the group. There was nothing perceived about the group or attributed to them which provided the motivation for the infliction of harm; they were not jointly condemned for reasons of their membership of a class seen as dangerous, injurious, heretical, or unacceptable: cf Ram at 568-569, Applicant A per Gummow J at 284, MIMA v Chen Shi Hai [1999] FCA 381 per RD Nicholson J at paragraphs 32-33. Rather, they were perceived to have money, and the capacity to pay a debt. They were being pursued and threatened because of an outstanding debt, and not for their membership of a particular social group. The Applicant's evidence about the threat to the children is that the criminals demanded that she and her husband sell their house in order to pay, and threatened to kill their children if they did not comply. On the evidence before me I find that the motivation for this threat was to exert overwhelming pressure on the Applicant into selling the house and satisfying the debt. I find that the objective to be attained by the threat of physical harm to the children was a purely self interested and criminal means of recovering a debt. I have considered the possibility that the criminals may have been motivated by a further purpose to harm the Applicant for reasons of her membership of the family or familial relationship to her brother as such. However I find, on all the evidence before me, that there was no such purpose. Rather, on the evidence, I find that the agents of harm were and are solely driven by the recovery of a debt. In support of the argument that the Applicant faces persecution for reason of being a member of the Redondo family there is evidence before me as to the comments made by criminals that she was her brother's sister. I accept that these comments were made. However, this does not demonstrate that the harm the Applicant fears at the hands of criminals is for reasons of her membership of a particular social group constituted by the Redondo family, or the Applicant and her immediate family, as distinct from her particular circumstances, that is; because her brother owed money to criminals she became a suitable target from whom they could secure the return of their money. Although there is a causal connection between the Applicant's relationship to her brother and the harm feared, and that in the absence of this relationship she would not have been or be in the future exposed to the risk of harm, that is not the reason for the harm feared. The crucial point is that the agents of harm are motivated to harm the Applicant because they want their money. I find that the interest in the Applicant by criminals was purely personal. I reject as a matter of fact any possibility that the interest in the Applicant was owing to her membership of the family as defined in the submissions by the Applicant's adviser or by any other configuration of the family." (Emphasis added) 41 The high point of the argument in support of RRT2's approach, it seems to me, is that it is true that the threats to the applicant's children were motivated by their status as persons presumed to be dear to her, so that she would do anything within her power to protect them, rather than by their status as family members. If the extortionists had known that the applicant had a great friend, for instance, they might well have been content to threaten the friend. Likewise, though this may be even more far-fetched, if there had been some other person, not a member of the brother's family, who was an appropriate source (an "obvious" target in RRT2's words) for payment of the brother's qua "debt", the persecutors may have been content to leave the applicant wife alone. 42 The difficulty with this is that, however RRT2's reasoning is analysed, and despite her effort to minimise the family connection, it is impossible to escape the centrality of that connection in the actual circumstances of this case. As to the applicant herself being targeted, Hely J said in Sarrazola No 1: "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. 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". 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". 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. 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. 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." Accordingly, the applicant was held not to fear persecution for a Convention reason and was denied refugee status. 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." What his Honour then said is, regrettably, equally apt to RRT2's consideration of the matter. 43 A similar analysis may be made in relation to the threats to the applicant's children. The feared persecution (more accurately, the persecution feared on their account by their guardian) arises from the following essential conditions: · The persecutors wish the applicant to pay her brother's debt ; · They perceive that a means of forcing the applicant to do this is to threaten someone very dear to her; · Her children are, as such, presumed by the persecutors to be very dear to her. 44 The family connection is inescapably crucial. It is simply not to the point that, as well as being persecuted for reasons of their membership of the particular social group constituted by the applicant's family, the children would also be persecuted for their inclusion within some possibly wider collection of persons. 45 The "for reasons of" component of the Convention test of a refugee was recently examined by a Full Court in Gersten v MIMA [2000] FCA 855. The Full Court adopted observations made by Kirby J in his separate but concurring judgment in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553 at [68]: "In the context of the expression 'for reasons of' in the Convention, it is neither practicable nor desirable to attempt to formulate 'rules' or 'principles' which can be substituted for the Convention language." The Full Court also adopted his Honour's formulation that it is: "necessary for the decision maker to "evaluate the postulated connection between the asserted fear of persecution and the ground suggested to give rise to that fear", bearing in mind the "broad policy of the Convention". Of relevance also to this case are other observations of the Full Court: "That there will be cases, and Chen is but one example, where the persecution feared is inflicted for multiple reasons (which include a Convention reason) may readily be accepted. Likewise, it may be accepted that in such a case it will be open to the Tribunal to find that the feared persecution is for a Convention reason." and "A number of important propositions emerge from the joint judgment. These are, relevant to the present discussion: · The question whether persecution is undertaken for a Convention reason can not be entirely isolated from the question whether the conduct is persecution. … · Where enmity or malignity motivates the discriminatory conduct, that fact facilitates the conclusion that the discrimination is for a Convention reason. However absence of enmity or malignity does not mean that the conduct can not amount to persecution for a convention reason. 'It is enough that the reason for the persecution is found in one or more of the five attributes listed in the Convention': Chen at 33." One of those five attributes is of course membership of a particular social group. 46 By reference to these more generally stated tests too, RRT2 appears to me to have fallen into error. It follows from what has been said that it will be enough if an "essential element in the persecution is based upon" a Convention attribute, to adopt a phrase of Lord Hoffman in Shah approved by Kirby J and the Full Court: see Gersten at [30] - [31]. If, as I believe, the kind of analysis made by Hely J and adopted by me is infrangible, it follows that RRT2 cannot, despite the recitation of unexceptionable tests, in practice have applied them: Sun v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 at 121-2, 134. 47 The facts found by RRT2 include: · "there were no surviving immediate members of the brother's family, he was not married and it was for this reason that she as his sister [was] selected for payment of the debt, and if the debt was not satisfied, serious harm;" · because her brother owed money to criminals, she became a suitable target from whom they could secure the return of their money. · "there is a causal connection between the Applicant's relationship to her brother and the harm feared, and … in the absence of this relationship she would not have been or be in the future exposed to the risk of harm" · "there is evidence before me as to the comments made by criminals that she was her brother's sister. I accept that these comments were made" · "[t]he Applicant's evidence about the threat to the children is that the criminals demanded that she and her husband sell their house in order to pay, and threatened to kill their children if they did not comply. On the evidence before me I find that the motivation for this threat was to exert overwhelming pressure on the Applicant into selling the house and satisfying the debt". (Emphasis added) 48 In the light of these factual findings, it is not possible to have applied the correct tests and arrived at the conclusion: "I reject as a matter of fact any possibility that the interest in the Applicant was owing to her membership of the family as defined in the submissions by the Applicant's adviser or by any other configuration of the family."

Since "owing to" must be taken to have included "owing in a significant respect to", the matter falls quite outside the permissible scope of evaluation. It follows that, as in the case of RRT1, RRT2 has within the meaning of s 476(1)(e) erred in law.

49 The case may be looked at in another way. For the applicants to fail, it was, as a matter of law, necessary that RRT2 should find that the persecution was not inflicted for reasons that included as an essential element their family membership. But, in the light of the factual findings referred to, there was no evidence or other material from which the Tribunal could reasonably be satisfied that that matter was established. Alternatively, the actual decision was based on the existence of a fact, namely that the motivation of the applicant's persecutors excluded as an essential element family membership, and that fact did not exist. It follows that s 476(1)(g) and para (b) of subs (4) would apply: see Curragh Queensland Mining v Daniel (1992) 34 FCR 212 at 224, Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854, Pat Tat Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556, T v Minister for Immigration & Multicultural Affairs [1999] FCA 878 and Television Capricornia v Australian Broadcasting Tribunal (1986) FCR 511.

Disposition 50 The decision of RRT2 will be set aside and the matter remitted to the Tribunal, differently constituted, to be further dealt with according to law. The respondent is to pay the applicant's costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the Applicant: McDonnells Solicitors

Counsel for the Respondent: N J Williams M R Tyson

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 476(1)(e), 476(1)(g), 476(4)(b)

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