FEDERAL COURT OF AUSTRALIA

MIGRATION  -  Refugees – well-founded fear of persecution by reason of membership in a particular social group – group claimed to be “Filipino women” – whether fear of persecution is by reason of membership in the group.

Migration Act 1958 (Cth), ss 36, 420, 476.

Migration Reform Act 1992 (Cth), s 39.

“Applicant A” v Minister of Immigration and Multicultural Affairs (1997) 142 ALR 331 (H Ct), followed.

Blackman v Commissioner of Taxation (1993) 43 FCR 449 (FC), cited.

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited.

Fatin v Immigration and Naturalization Service 12 F 3d 1233 (3d Cir, 1993), discussed.

BASA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 132 of 1998

SACKVILLE J.

SYDNEY

17 JULY, 1998

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal dated 29 January 1998 be affirmed.

2.                  The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The applicant seeks review of a decision by the Refugee Review Tribunal(“the RRT”), made on 29 January 1998, affirming a decision not to grant her a protection visa.  The RRT found that the applicant did not satisfy the definition of “refugee” in the Convention Relating to the Status of Refugees, 1951, as amended by the 1967 Protocol (the “Convention”).  The applicant, who was not legally represented at the hearing, claims that the RRT erred in law in finding that, if she is returned to the Philippines, she will not face a real chance of persecution by reason either of her political opinions or her membership of a particular social group.

The applicant is a citizen of the Philippines, born on 17 April 1968.  She arrived in Australia on 28 June 1992.  On 8 July 1994, she applied to the Department of Immigration and Ethnic Affairs for a protection visa.   She claimed that she was at risk of persecution by reason of her political opinions and thus satisfied the Convention definition.  On 16 November 1994, a delegate of the then Minister refused to grant the visa, on the ground that the delegate was not satisfied that there was a real chance that the applicant would suffer persecution by reason of her political opinions.

The applicant sought review of the delegate’s decision in the RRT.  Prior to the matter being considered by the RRT the applicant put forward an additional claim.  She said that she feared persecution in the form of violence by a former partner with whom she had had an acrimonious separation.  She said that this amounted to a fear of persecution by reason of her membership of a “particular social group”, namely, women in the Philippines or women in the Philippines at risk of domestic violence. 

After a hearing at which the applicant appeared, the RRT (constituted by Tribunal Member Professor M Tsamenyi) determined on 14 October 1996 that the applicant was a person to whom Australia had protection obligations under the Convention.  While the RRT rejected her claim insofar as it was based on a fear of persecution by reason of political opinions, it accepted her alternative claim.  The RRT remitted the application to the delegate, to be reconsidered in accordance with a direction that the applicant satisfied the requirement for a grant of a protection visa. 

The Minister applied to this Court for review of the RRT’s decision (to which I refer as “the first RRT decision”).  The applicant was legally represented in those proceedings.  On 12 June 1997, a Judge of the Court made orders by consent setting aside the first RRT decision and remitting the matter to the RRT to be determined according to law.  Doubtless the applicant’s legal adviser took into account the decision of the High Court in “Applicant A” v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, handed down on 24 February 1997.  In that case a majority of the High Court held, inter alia, that a “particular social group”, for the purposes of the Convention, could not be defined by reference to the very acts which are said to constitute persecution.  The Court also laid down criteria for determining whether a group could constitute a “particular social group” for Convention purposes.

On the second occasion, the RRT was constituted by Tribunal Member R Layton.  The RRT wrote to the applicant offering her an opportunity for a further hearing.  However, the applicant’s solicitor notified the RRT that the applicant did not wish to attend a hearing.  Accordingly, the RRT considered the matter on the basis of the materials previously before the RRT, including the transcript of the applicant’s evidence at the earlier hearing.  In addition, the applicant’s solicitor provided the RRT with further letters and a certificate from the Philippines.

On this occasion, the RRT was not satisfied that the applicant had made out either of the grounds on which she relied to establish that she was a person to whom Australia had protection obligations under the Convention.  Accordingly, the RRT concluded that the applicant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (“Migration Act”) for a protection visa.  It therefore affirmed the decision not to grant the applicant a protection visa.  I refer to the RRT’s decision following the order made by the Court remitting the matter as “the second RRT decision”.

The Legislation

Although the applicant lodged her application for refugee status prior to the commencement of the Migration Reform Act 1992 (Cth) (“Migration Reform Act”) on 1 September 1994, her application is to be dealt with as if it were an application for a protection visa within the meaning of the Migration Act as in force on 1 September 1994: see Migration Reform Act,     s 39.

Section 36(2) of the Migration Act provides as follows:

“(2)   A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

The term “refugee” is defined in Art 1A(2) of the Convention, as amended.  Article 1A(2) is as follows:

“A.    …the term ‘refugee’ shall apply to any person who:

…

(2)                                       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….”

The Applicant’s Claims to Refugee Status

The applicant’s claim that she feared persecution on the ground of her political opinions was made in her primary application, lodged on 8 July 1994.  She claimed that she had joined student activists opposed to the Philippines Government in 1988.  Later, she assisted her uncle who was a high-ranking officer of the Communist Party of the Philippines – New People’s Party (CPP-NPA), in his work as a CPP-NPA field co-ordinator in Manila.  She said that her work was “secret”.  She acknowledged that she was never interviewed by the authorities in the Philippines before her departure from that country in 1992 and that she had experienced no difficulties in obtaining a passport.  However, the applicant claimed that her uncle had been killed by the military in 1991 and that she had been told by the NPA that she was on a “hit list”.  Rather than go into hiding, she decided to leave the Philippines.  She feared that, if she were to return to the Philippines, she would be killed or seriously harmed by the military.

In a statutory declaration made in September 1996, the applicant made an additional claim that she had a well-founded fear of persecution on the ground that she was a member of a particular social group, namely, "Filipino Women”.  She said that in 1990 she had commenced a relationship with a man “Mr S”, who became jealous and violent towards her and continued to harass her after the relationship ended in 1991.  She said that the authorities in the Philippines would not protect her because Mr S was a member of a very influential family.  In November 1991, according to the applicant, Mr S constantly called her parents’ house, and on one occasion, when the applicant’s family refused to talk to him, he attacked a neighbour with a knife.  She also said that Mr S followed her when she went to the home of a relative in another province.

The RRT’s Reasons

The second RRT decision addressed the applicant’s claim that she feared persecution by reason of her political opinions, notwithstanding that this claim was not actively pressed after the matter had been remitted by this Court.  The RRT noted that the situation relating to the NPA had changed substantially since the applicant had left the Philippines in 1992.  The NPA had been much reduced in number and activity and the President of the Philippines had begun peace talks with many of the insurgency groups in the country.  Diplomatic cables indicated that the “likelihood of Filipinos of any political colour being threatened by elements of the NPA” was extremely low.

The RRT noted that the applicant had stated at her Departmental interview that she had not been a political activist, either at College or in 1991 when she was assisting her uncle in organising meetings.  She had also said that her family had not been questioned by the authorities before her departure from the Philippines, and that she had left the country legally.  In the light of this evidence and the information concerning circumstances in the Philippines, the RRT found that if the applicant returned to the Philippines she would not face a real chance of persecution on the ground of her political opinions or of her past connection with the CPP-NPA.

The RRT observed that the applicant’s claim that she feared persecution by reason of her membership of a particular social group was based solely on her prior relationship with Mr S and her fear that the authorities would not protect her from him.

The RRT stated that it had reservations as to the genuineness of the applicant’s claim to fear Mr S.  It had been unable to clarify its concerns with the applicant, since she had not availed herself of the opportunity to attend an oral hearing.  Among the concerns expressed by the RRT were that the applicant had not raised the issue of domestic violence until September 1996 and that she had provided no supporting evidence of complaints made by her to the police in the Philippines.  The applicant had provided a copy of one police complaint concerning Mr S, but the complainant was a person apparently unrelated to the applicant.

Despite its reservations, the RRT accepted, for the purpose of determining the claim, that the applicant had once had a relationship with Mr S and that he had become jealous and violent towards her.  The RRT also accepted, notwithstanding its reservations, that Mr S had constantly called the applicant’s parents’ house, that he had once attacked a neighbour with a knife, and that he had followed her when she went to the home of a relative in another province.

The RRT noted that there had been a number of Tribunal decisions holding that “women” in countries other than the Philippines could be a particular social group for the purposes of the Convention.  These cases were distinguishable from the present on the facts.  In any event, they did not stand for the principle that “women per se” constituted a particular social group for the purposes of the Convention.  Rather, they supported the proposition that, depending upon the circumstances in a particular country, women might constitute a “particular social group”.  The RRT considered that

“[a] particular social group is a collection of persons who share a certain characteristic or element which unites them and distinguishes them from society at large.  That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society  The group must be identifiable as a social unit.  Moreover, the characteristic or element which unites the group must be a common fear of persecution, that is, the group must not be defined by the persecution…, ‘Filipino women subject to domestic violence’ would not constitute a particular social group for the purpose of the Convention since the group would be defined by the persecution feared”.

The RRT accepted that it is possible that women in a given society could be a “particular social group” for the purposes of the Convention.  Whether a finding to this effect should be made would depend upon such questions as the way in which the society viewed women and, especially, whether they were seen as a “separate cognisable group” within the society.  Moreover, for an applicant to succeed in a claim for refugee status, it is not sufficient merely to be a member or perceived membership of the “particular social group”.  The harm feared must be, at least in part, by reason of membership of that particular social group.  Furthermore, in order to constitute persecution, the harm must emanate from the authorities in the country or, alternatively, the government must fail or be unable to protect the applicant from persecution.

The RRT referred to information concerning the general situation of women in the Philippines.  After considering this information and the applicant’s evidence, the RRT concluded that women in the Philippines did not constitute a particular social group for the purposes of the Convention.  Although women in the Philippines “share common physical elements”, the evidence did not suggest that they shared a characteristic uniting them and setting them apart from Filipino society at large.  The evidence suggested that they were “no more than a disparate crowd or section of the population”. 

The RRT then made the following finding:

“Even if the Tribunal accepts that women in the Philippines are a particular social group, the Tribunal is not satisfied that the Applicant’s fear is not [sic] for a reason of membership of the particular social group of ‘women’; rather, her fear of harm exists for [a] personal, non-Convention-related reason, that is, from the unwanted attentions of one man, Mr [S].”

The RRT noted that the applicant’s evidence was that she had complained to the police about Mr Santos only once, in October 1994.  On that occasion, the police had advised her to resolve the problem in another way, rather than by pursuing Mr Santos.  The RRT accepted that, on the surface, this appeared to be a failure of State protection of the applicant.  However, she had previously admitted that she had not told the police the full extent of her problem, and that she had not pursued the matter with the police after making the official complaint.  Moreover, the country information relating to the Philippines indicated that there was an increasing awareness of the need both to protect women and to encourage the reporting of crimes against them.  The RRT found

“that the initial failure to pursue the Applicant’s complaint in 1994 does not indicate that there is a real chance that if she returns to the Philippines, complains to the police in the future, telling them the full extent of her fears and their basis, the State would fail to protect her.”

For these reasons, the RRT concluded that the applicant would not face a real chance of persecution for reasons of either political opinion or membership of a particular social group or for any other Convention reason.  It therefore affirmed the decision not to grant a protection visa.

Two Legal Principles

The definition of “refugee” in the Convention contains a number of elements.  For present purposes, it is sufficient to refer to two propositions established by the authorities.

First, the Convention requires that the persecution feared by an applicant for refugee status be for a Convention reason.  In “Applicant A” v Minister, a case in which the appellants claimed to fear sterilisation under China’s “one child policy”, Dawson J put the requirement this way (at 340):

“The words ‘for reasons of’ require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  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.  For instance, the appellants in this case are each members of at least one recognised particular social group – a family, consisting of them and their son – but it is not their membership of that specific family which motives their prospective persecutors.”

In the same case, McHugh J pointed out (at 353) that a broad definition of “particular social group” makes it more difficult to establish the necessary causal link between the feared persecution and the membership of that group:

“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 a particular social group’ is particularly important.  Defining the group widely increases the difficulty of proving that a particular act is persecution ‘for reasons of…membership’ of that group.  Thus if the social group in the present case is defined to mean parents with one child, any involuntary sterilisation of the appellants (which is the relevant persecutory act) would not be ‘for reasons of…membership’ of that group because, even on the most favourable view of the appellants’ case, it would be the particular refusal of the appellants to undergo voluntary sterilisation or to comply with government policy – not their membership of the group of parents with one child – that would lead to action against them.”

Secondly, in order for the feared harm to constitute “persecution” for the purposes of the Convention, the threat must either come from the relevant government or be such that the authorities in the particular country either tolerate the persecutory conduct or are unable to control it.  In “Applicant A” v Minister, McHugh J said this (at 354):

“The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.”

See also at 334, per Brennan CJ; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 430, per McHugh J.

Did the RRT Err in Law?

The RRT found that Filipino women did not constitute a “particular social group”.  In making that finding, I do not think that the RRT misapplied the principles stated by the majority in “Applicant A” v Minister.  However, I do not think it is necessary to examine that question in detail.  This is because the RRT made two further findings, each of which (unless susceptible to challenge) is fatal to the applicant’s case.  Each finding was predicated on the assumption that, contrary to the conclusion expressed by the RRT, Filipino women did constitute a particular social group.

The findings made by the RRT were these:

·        First, the RRT was not satisfied that the applicant feared harm by reason of membership of a particular social group, namely, Filipino women.  Rather, her fear was of harm inflicted by Mr S, arising from their previous relationship.

·        Secondly, there was no real chance that, if the applicant told the police in the Philippines of the full extent of her fears, the authorities would not protect her.

In my opinion, the material before the RRT clearly was sufficient to justify it making each of these findings.  Indeed, it might be thought that the first finding was inevitable.  The applicant did not face persecution because she was a Filipino woman, but because of the unfortunate circumstances of her relationship with Mr S and his apparent propensity for violence.

The case is similar to, but clearer than, Fatin v Immigration and Naturalization Service 12 F 3d 1233 (3d Cir, 1993), referred to by  McHugh J in “Applicant A” v Minister, (at 358, n 117).  There the United States Court of Appeals held that it was open to conclude that “women in Iran” could constitute a particular social group (at 1240).  However, the petitioner failed in her claim for refugee status because she faced persecution not because she was a woman, but because she refused to conform to Iran’s gender-specific laws and social norms (at 1241).  See also McHugh J’s observations concerning Canada (Minister of Employment and Immigration) v Mayers [1993] 1 FC 154 (Can CA) in “Applicant A” v Minister, (at 358, n 120).

In my opinion, the RRT correctly identified and applied the two legal principles to which I have referred. There is no basis for challenging the two critical factual findings each of which is fatal to the applicant’s claim that she fears persecution by reason of her membership in a particular social group.  Accordingly, the applicant has identified no error of law that would justify setting aside the second RRT decision.

The Finding on Political Opinion

It is not clear whether the applicant intended to challenge the RRT’s finding that she did not have a well-founded fear of persecution on the ground of political opinion.  In any event, the RRT’s finding was simply one of fact, based on a consideration of the evidence before it.  The finding does not give rise to any error of law.

Section 420 of the Migration Act

In her written submissions, which appear to have been prepared with the assistance of a person with some legal knowledge, the applicant contended that the RRT had failed to “act according to substantial justice and the merits of the case”: Migration Act, ss 420(1)(b), 476(1)(a).  The basis for this contention appears to be that the second RRT decision reached a different conclusion from that reached in the first RRT decision.

The fact that the second RRT decision reached a different conclusion does not demonstrate that the RRT had failed to comply with s 420(1)(b) of the Migration Act (assuming that non-compliance constitutes a ground of review under s 476(1)(a)).  The Court remitted the matter to the RRT for determination according to law.  The RRT was bound to consider the matter afresh (Blackman v Commissioner of Taxation (1993) 43 FCR 449 (FC)) and it did so.  The different result came about in part because of the need to apply the principles articulated in “Applicant A” v Minister  and in part because the RRT on the second occasion took a different view of the evidence on the question of state protection.  It also appears that the first RRT decision did not give close consideration to the causation question on which the second RRT decision reached a conclusion adverse to the applicant.  None of these differences suggests that the RRT failed to afford the applicant substantial justice or to consider the merits of her case.

The Applicant’s Legal Advice

The applicant said in her submissions that the terms and effect of the consent orders in this Court were not explained to her.  I make no comment on the correctness or otherwise of this assertion.  The fact is that the applicant consented to orders in this Court and did so with the benefit of legal advice.  No application has been made to set aside the consent orders.  Even if the applicant’s complaints were supported by evidence, they would provide no basis for setting aside the RRT’s decision.

Bias

The applicant’s written submissions made an assertion that the Tribunal Member making the second RRT decision was biased.  There was no evidence to support that assertion and it appears to have been based simply on the fact that the second RRT decision was unfavourable to the applicant.  In these circumstances, I declined to grant leave to the applicant to amend her application to raise the question of bias. 

CONCLUSION

The decision of the RRT made on 29 January 1998 should be affirmed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              17 July, 1998