FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Cali [2000] FCA 1026

MIGRATION – whether Somali women are members of a particular social group – whether evidence to justify finding that women in Somalia are a particular social group – whether applicant feared persecution ‘for reasons of’ membership of a particular social group.

Migration Act 1958 (Cth) s 476(1)(e), (1)(g) and (4)(a).

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v CALI

V 493 OF 1999

NORTH J

3 AUGUST 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant is to pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application by the Minister for Immigration and Multicultural Affairs (the Minister) to review a decision of the Refugee Review of Tribunal (the Tribunal) made on the 30 July 1999.  The Tribunal determined that Ms Aamina Xaaji Cali, the respondent, is a refugee and remitted the matter for reconsideration by the Minister’s delegate with a direction that the respondent be taken to have satisfied the criteria set out in section 36 (2) of the Migration Act 1958 (Cth) (the Act) for the grant of a protection visa.

2                     The respondent was born in Mogadishu, Somalia, and was a member of the Muslim faith and of the Murusade clan.  She had four brothers, one half brother, a sister and two half sisters. 

3                     The respondent’s father was a successful businessman in Somalia who gave financial and other support to members of their clan.  There was a long history of hostility between her clan and the two bigger tribes in conflict in the civil war in Somalia, namely the Habargidir and the Abgal.  While the Murusade clan did not have strong links with any other clan in particular, some members supported the Habargidir and some supported the Abgal and hence they were suspected by all sides in the conflict. 

4                     The respondent’s mother fled to the southern region of Somalia in 1991 and the respondent then lost contact with her.  She remained with her father and brother in Mogadishu.  In 1991, with the outbreak of civil war, the respondent’s father’s clothing shop was destroyed.  In October 1997, her father was attacked by armed tribesmen and was seriously wounded.  He died shortly after being brought back home.  Then, on or about 18 November 1997, the respondent’s house was attacked and her uncle and brother were killed.  The respondent escaped from Somalia with the help of her late father’s business partner. 

5                     The foregoing account of the background and experiences of the respondent was given to the Tribunal by the respondent and accepted by the Tribunal.

6                     The Tribunal also received a statutory declaration from Mr Ahmed Nur, an Australian citizen who had fled Somalia for Kenya in 1991 at the outbreak of civil war.  He was a member of the Murusade clan and knew the respondent’s family and had business dealings with the respondent’s father.  Mr Nur stated that there was no stable government or law and order in Somalia, and that the Murusade clan had a very difficult time.  He further said that he did not understand how a young woman could be considered safe if she returned to Somalia.

7                     The Tribunal also received an assessment of the respondent by a psychologist who diagnosed the respondent as suffering from a severe level of depression and chronic post-traumatic stress disorder.  There was further evidence from a refugee support worker that the respondent had no financial resources and was destitute.  The respondent had been provided with emergency accommodation in a women’s refuge. 

THE DECISION OF THE TRIBUNAL

8                     The Tribunal first assessed the proposition that it was safe for the respondent to return to Somalia.  This had been the basis upon which the delegate of the Minister had rejected the application for a protection visa.

9                     The Tribunal referred to a statement made by the United Nation’s Special Rapporteur on Somalia in February 1999 which indicated that internal clan conflict had led to the collapse of the central government in 1991 and that there was continuing internal fighting, famine and disease.  The Rapporteur stated that during a visit in November 1998, she found that many fundamental human rights were severely violated in Somalia, and that these violations included rape and sexual violence.  The Rapporteur continued:

            “ … women are systematically discriminated against.”

10                  The Tribunal then referred to a newsagency report concerning the Red Cross’ decision to freeze its activities in Somalia because of insecurity.  Further news reports were referred to which supported the conclusion that the political situation in Mogadishu was unstable.

11                  The Tribunal then dealt particularly with the issue of the risk of persecution arising from the fact that the respondent was a young female.  The Tribunal relied on a BBC On-line Network report to conclude that rape was a weapon used by the various militias against civilians in the south of Somalia.

12                  The Tribunal next referred to the submission on behalf of the respondent that in a decision designated V98/09367 the Tribunal had accepted that “young women” or “young women without a male protector” could form a particular social group for the purposes of the Refugees Convention.

13                 The Tribunal then referred to the decision of the House of Lords in Islam v Secretary of State of the Home Department [1999] 2 AC 629 and said:

“This judgement concerned, in particular, the meaning of the words ‘membership of a particular social group’.  According to Lord Steyn,

‘Generalisations about the position of women in particular countries are out of place in regard to issues of refugee status.  Everything depends on the evidence and the findings of fact in the particular case.’

He then proceeded to discuss the situation for women in Pakistan, the country of nationality of the appellants.  While accepting that a woman’s place in that society was low and that domestic abuse and violence against women were common, he held that these factors alone do not give rise to a claim to refugee status.

‘The distinctive feature of this case is that in Pakistan women are unprotected by the state … It is in my opinion essential to bear in mind at all times that it is not enough for the applicant for asylum to establish that he or she is a member of a particular social group and is liable to persecution.  The applicant must also establish that he or she is liable to persecution because he or she is a member of the group.  The applicant must be the subject of attack, not for himself or herself alone, but because he or she is one of those jointly condemned in the eyes of their persecutors for the possession of the characteristic which is common to the group.’

Lord Hoffman considered the lack of illumination on the meaning of the phrase ‘membership of a particular social group’ in the travaux preparatoires for the Geneva Convention.

‘It seems to me, however, that the general intention is clear enough.  … the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention.  It is not concerned with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination.  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 … 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 … To identify a social group, one must first identify the society of which it forms a part.  In this case, the society is plainly that of Pakistan.  Within that society, it seems to me that women form a social group of the kind contemplated by the Convention.  Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race.  It offends against their rights as human beings to equal treatment and respect.’”

                                                                                                                        [underlining added]

14                 In concluding this section of the decision the Tribunal referred to the issue of the possible safe relocation of women without male protection in Somalia.  The Tribunal said:

“Such re-location would need to be considered in the light of ‘societal discrimination against women and the mistreatment of women and children’ as reported in the US Department of State Country Reports on Human Rights Practices of 1997.

The Canadian IRBDC has considered the relocation of women in Somalia, quoting an experienced anthropologist:

‘… given the fact that Somali society is extremely male-dominated, a woman with no kin-folk especially without male relatives, would have a ‘very difficult time for herself’.  Most economic resources are controlled by men, and women in this circumstance have difficulty finding a way to support themselves … In general, it would be dangerous for a woman without kin because security is often dependent on the threat of retaliation by male members of the family and/or clan group.’  (IRBDC, 1996: Somalia:  Information on the treatment of a woman with no immediate family …, 26 April CISNET)”

15                  Under the heading “Findings and Reasons” the Tribunal next considered the Convention grounds for the application.  It introduced the discussion with the following paragraph:

“As indicated above there are a number of parts to the definition of a refugee as per the Refugees Convention.  Persecution does not stand alone.  Past or particularly potential persecution must be ‘for reasons of’.  The Applicant raised two grounds for consideration.  They were her membership of the Murusade clan and her membership of a particular social group, being that of ‘young Somali woman’ or ‘young Somali woman lacking male protection’.”

                                                                                                                        [underlining added]

16                  The Tribunal first dealt with the question of persecution by reason of the respondent’s Murusade clan membership.  It accepted that the respondent’s father, brother and uncle may have been killed for reasons of their clan membership, and also accepted that there was a real chance that the respondent would be harmed in the ongoing conflict if she returned to Somalia.  The Tribunal then concluded: 

“Undoubtedly the level of violence in much of Somalia and particularly in Mogadishu puts many people at risk of being harmed to the point of persecution.  The Tribunal must assume that there is a real chance that the Applicant could be one of these.  What it does not assume is that this would be for reasons of her membership of her father’s clan.  No attack was made on her in the period during which her father, brother, and uncle died, nor was she harmed in the period during which she sought refuge elsewhere and planned to leave Somalia.  The Tribunal does not believe she would be safe to return to Mogadishu but nor does it find that her risk is associated with her clan membership.”

                                                                                                [underlining added]

17                 The Tribunal next dealt with the Convention ground of membership of a particular social group of young women, and said:

“The Tribunal has considered various assessments and explanations of the Convention phrase ‘membership of a particular social group’.  Clearly, there is no simple and single explanation.  At the time of writing of the Convention, it occurred to very few that women could suffer persecution simply for being women.  Such a concern waited on later events and the growth of feminist consciousness.  However, in much the same way that the word ‘race’ has been able to be widened to include ethnicities, so the phrase ‘a particular social group’ may be, and has been, widened to include women or sub-groups of women.

In previous decisions, the Tribunal has been satisfied that young Somali women may be defined as members of such a group.  It has been stated that, clearly, apart from a very few exceptions, sexual characteristics are immutable.  While there is a great debate among theorists as to the nature of gender and its construction, Somali society is constructed along the two lines of males and females.  Their roles and status are not interchangeable.  There are expectations as to their behaviour and to the particular positions they may occupy in the society.  They are defined into womanness by law and custom as well as by sex.  This is not a society in which women are first of all citizens and then, secondarily, women.

This matter does not automatically mean that they suffer by virtue of being women, although a case could be made that they are considered unequal to males.  It could also be the case that as they are not expected to arm themselves and fight as members of militia units, they are protected from the worst violence which effects males in their society.

The group ‘women’ may be further defined by reduction into other groups, such as ‘young, unmarried Somali women’.  This is a description of the Applicant.  In more settled times, such young women were clearly defined by the manner of their dress, limitations on their freedom of movement and association and the expectations of their family and society at large as to their behaviour and their future.  The Applicant gave evidence that she was quite happy with her lot prior to the outbreak of the conflict and even after, she preferred to remain with her father than to flee Somalia with her mother.  The Tribunal is satisfied with her evidence that she expected to be protected by her father and her brother and that this also was their expectation as to their behaviour towards her.

Thereby the Tribunal is satisfied that the acceptance of her as a member of the ‘particular social group of young Somali women’ is not defining her into that group by reasons of persecution.  However, it is satisfied that it is possible to define her within this group and so fulfil one of the criteria of the Refugees Convention."

18                  Next the Tribunal dealt with “The persecution feared” as follows:

“The Applicant has claimed that she fled Somalia because she had no male protector left and she fear [sic] rape.  Clearly rape is persecutory.  It is a violent act of abuse.  It is an act especially targeted against women (although the number of male-to-male rapes may well be under-reported).  It is less a random act of war in that it requires a certain deliberate intention on the part of the perpetrator and therefore it differs from the violence inflicted, say, by the shelling of an area or injury or death by a stray bullet.

The incidence of rape in Somalia is high and there is no evidence to suggest that it is diminishing.  The evidence from various sources submitted by the Applicant and found by the Tribunal does not allow for any conclusion that things are getting better and better and that there is a re-establishment of order.  The Tribunal could find no evidence that there is a return to the repulsion of raping another man’s wife or daughter.”

19                  In the last part of this section of the decision under the heading “Real chance of future persecution” it was stated:

“The Tribunal accepts that, while the Applicant has not in the past suffered violence against her person, it is not possible to rule out that for the foreseeable future.”

20                  The Tribunal held that there had not been an improvement in the restoration of order in Somalia and therefore concluded that the applicant could not be safely returned there.  The Tribunal stated:

“While noting the debate over the matter of women and membership of a particular social group, it is satisfied that there are sufficient indicators to permit a finding that a young Somali woman is a member of such a group and that a young Somali woman without male protection is at great risk of harm amounting to persecution.  The Tribunal therefore is satisfied that her fear of returning to Somali [sic] is well-founded.”

GROUNDS OF REVIEW - ERROR OF LAW

21                 The first ground of review advanced by the Minister relied upon section 476(1)(e) of the Act which provides for review on the ground:

“(e)     that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;”

22                  Mr Tracey QC, who appeared as counsel for the Minister, submitted that in order to find that the respondent was entitled to a protection visa the Tribunal was obliged to make a finding that the persecution which the respondent feared was “by reason” of her membership of the particular social group.  He contended that the Tribunal had failed to make such a finding.  He further contended that the failure to make such a finding was an error of law within s 476 (1)(e) of the Act. 

23                  There is room for debate whether a failure to make a necessary finding is an error of law within the meaning of s 476(1)(e) of the Act.  Such failure is perhaps more likely to constitute a breach a of s 430 of the Act.  In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 a majority of four judges of a five judge bench determined that breach of s 430 was a failure to observe a procedure required by the Act and hence a ground of review under s 476(1)(a).  In the present application the Minister did not rely on s 476(1)(a).  To have done so would have been inconsistent with the argument, now rejected by the Full Court, that a breach of s 430 does not give rise to a ground of review under s 476(1)(a).  It may, however, still be the case that there is some overlap between the grounds of review sufficient to allow that a failure to make a necessary finding amounts to an error of law within s 476(1)(e) of the Act.  In view of the conclusion I have reached on the first ground of this application it is unnecessary for me to resolve that question.

24                  A fair view of the Tribunal’s decision discloses that the Tribunal did determine that the persecution feared by the respondent was for the reason that she belonged to the particular social group of young Somali woman.

25                  The first thing to notice is that the Tribunal was plainly aware of the need to establish the causal connection between the feared persecution and membership of the particular social group.  It referred to that necessity several times in its decision as follows:

·                    Early in the decision the Tribunal set out the law applicable to the case.  It described the causation issue as follows:

“… the reason for the persecution must be found in the singling out of one or more of the Convention reasons – race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution.”

·                                  The Tribunal referred to the Islam decision and set out the passage reproduced in par 13 of these reasons which included the underlined sentence which specifically stipulates the need for the causal connection between the persecution and membership of a particular group.

·                                  In dealing with the two Convention grounds, the Tribunal dealt with the causation question in the opening paragraph referred to in paragraph 15 of these reasons.  That paragraph included the underlined sentence “Past or particularly potential persecution must be ‘for reasons of’”.

·                                  The very basis of rejection of the Murusade clan membership ground was that the feared persecution would not be “for reasons of” the respondent’s membership of her father’s clan.  This is stated by the Tribunal in the underlined sentence set out in par 16 of these reasons.

26                 The Tribunal concluded the discussion concerning the alleged persecution by reason of membership of a particular social group by stating that “… it is satisfied that there are sufficient indicators to permit a finding that a young Somali woman is a member of such a group and that a young Somali woman without male protection is at great risk of harm amounting to persecution.”  While this finding does not expressly state that the risk of persecution was by reason of membership of the group of young Somali woman, that is the clear meaning of the finding in the context of the decision as a whole.  The first ground for review is not made out.

GROUNDS OF REVIEW - NO EVIDENCE

27                  The remaining two grounds of review relied on s 476(1)(g) of the Act which provides for review on the ground:

“(g)     that there was no evidence or other material to justify the making of the decision.”

28                 This ground is governed by s 476(4)(a) which provides:

“The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)       the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established;”

The existence of a particular social group

29                 Counsel for the Minister did not contend that young Somali women could not constitute a particular social group.  Thus, he did not seek to challenge the correctness of the decision in Islam.  Rather, the Minister contended that the evidence available to the Tribunal in this case did not include any evidence that young Somali woman did constitute a particular social group. 

30                  It will be recalled that the Tribunal found that:

“… Somali society is constructed along the two lines of males and females.  Their roles and status are not interchangeable.  There are expectations as to their behaviour and to the particular positions they may occupy in the society.  They are defined into womanness by law and custom as well as by sex.  This is not a society in which women are first of all citizens and then, secondarily, women.”

31                 The source for these conclusions was a previous decision of the Tribunal constituted by the same member. 

32                 The decision was identified earlier in the reasons of the Tribunal presently under consideration as case V98/09367.  In that case, which was decided in November 1998 and concerned the fear of persecution by a 19 year old female citizen of Somalia, the Tribunal said: 

“The Tribunal is satisfied that even outside of the context of civil war in Somalia, it could be properly held that young women there may form a particular social group.  There were and are expectations as to their demeanour and limitations on their freedom of movement and choice;  they were and are defined by law and custom into a  particular position in law, politics and society.  Women as a group have been and remain outside the political process.  According to the United States Department of State Country Reports on Human Rights Practices for 1996,  ‘No women hold prominent public positions and few participated in regional reconciliation efforts … Women suffered disproportionately heavily in the civil war and the strife that has followed … (p. 253)”

33                 The Minister did not suggest that there was anything illegitimate in the Tribunal relying upon a previous decision concerning the same subject matter.  Nor did the Minister contend that if there was evidence of discrimination against women, the existence of discrimination could not constitute women a particular social group.  This approach was consistent with Islam in which Lord Hoffmann said at 651-2:

“In my opinion, the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention.  It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination.  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.

…

To what social group, if any, did the appellants belong?  To identify a social group, one must first identify the society of which it forms a part.  In this case, the society is plainly that of Pakistan.  Within the society, it seems to me that women form a social group of the kind contemplated by the Convention.  Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race.  It offends against their rights as human beings to equal treatment and respect.”

34                 Rather, the Minister contended that it was not clear what previous decisions had been relied upon.  In my view the prior reference to decision V98/09367 provided the link to the previous decisions later referred to by the Tribunal.  It is not clear why the Tribunal referred to prior decisions when only one was identified.  However, nothing turns on this because the one decision relied upon did conclude that Somali woman constituted a particular social group.

35                 The Minister submitted that the previous decision was not applicable because it concerned different facts.  This submission is not made out because the finding in question related to a common issue, namely, whether Somali woman constituted a particular social group.  Whether the particular woman applicant had a well founded fear of persecution was a separate question which depended on the circumstances of her case.  But this was not the issue on which the Tribunal drew from its previous decision.

36                 Mr Tracey also suggested that there was a confusion in the decision of the Tribunal as to the precise designation of the particular social group referred to, and that confusion pointed to the absence of evidence of the existence of a particular social group.  In particular, Mr Tracey referred to the concluding statement that the Tribunal was satisfied “that there are sufficient indicators to permit a finding that a young Somali woman is a member of such a group and that a young Somali woman without male protection is at great risk of harm amounting to persecution.”

37                 This submission seems to misunderstand the process undertaken by the Tribunal.  The cases have made clear that a particular social group is not defined by reference to the fear to persecution itself:  Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 263, Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at par 13, Islam 639-640.  As a result the Tribunal correctly determined the existence of the particular social group first and then separately considered the nature of the persecution feared.

38                 The particular social group found by the Tribunal was young Somali women.  It was in assessing the likelihood of harm that the Tribunal looked to the absence of male protection.  The absence of male protection was not an element which the Tribunal saw as defining the particular social group.  The absence of male protection was a factor the Tribunal used as part of the measure of the degree of risk faced by this member of the group.  Thus, this ground of challenge also fails. 

Causal link

39                  The Minister finally contended that there was no evidence that young Somali women were persecuted because they were women.  Mr Tracey, contended that even if young Somali women were a particular social group, and the evidence established that women in Somalia were subject to rape there was no evidence of the necessary link between the feared persecution and belonging to the particular social group.  He suggested that a possible explanation for the prevalence of rape was the breakdown of law and order in Somali society.

40                  Ms Mortimer who appeared as counsel for the respondent submitted that rape is by definition an act taken against a female by reason of her gender.  That does not mean that rape may not be for reasons other than gender as well.  Ms Mortimer argued that once the Tribunal found that persecution which the respondent feared was the danger of rape it followed that the persecution feared was by reason of being female. 

41                  The reasons of the Tribunal do not clearly deal with the link between the fear of rape and membership of the particular social group of young Somali women.  However, in defining the persecution feared the Tribunal, as to rape , said:

“It is an act especially targeted against women (although the number of male-to-male rapes may well be under-reported).  It is less a random act of war in that it requires a certain deliberate intention on the part of the perpetrator and therefore if differs from the violence inflicted, say, by the shelling of an area or injury or death by a stray bullet.”

This passage suggest that the Tribunal saw the linkage in the circumstances of the case as following almost without question. 

42                  The argument raised by the Minister calls for an analysis of what is required to prove the existence of the causal link between the persecution feared and membership of the particular social group.  The approach of the Tribunal is consistent with the recent High Court decision in Chen.  That case concerned the entitlement of a young Chinese child to a protection visa.  The child was born to unmarried parents who already had two children.  The child was thus a member of a particular social group, namely, black children, that is to say children born outside the guidelines stipulated by the Government of China.  The child would suffer persecution by being denied access to food, education and health care beyond the very basic level, and would probably face social discrimination and some prejudice and ostracism.   The question was whether the persecution was by reason of membership of a particular social group or, as held by the Tribunal and a majority of the Full Court of the Federal Court, by reason of the conduct of the parents in contravening Chinese law.  The High Court held the former and the majority (Gleeson CJ, Gaudron, Gummow, Hayne JJ) said at par 25 and 32:

“[25]  As was pointed out in Applicant A, not every form of discriminatory or persecutory behaviour is covered by the Convention definition of ‘refugee’.  It covers only conduct undertaken for reasons specified in the Convention.  And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether the conduct amounts to persecution.

…

[32]    Once it is accepted that ‘black children’ are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that the treatment is for a reason other than his being a ‘black child’.  As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute.”

[footnote omitted]

43                  Kirby J, who concurred in the result, addressed the same issue in pars 70-71 thus:

“[70]  In the instant proceedings, the tribunal found all the necessary ingredients for the Convention definition in favour of the appellant except the causative element.  This was the consideration which classified the persecution awaiting him on his return to the PRC as being ‘for reasons of’ membership of a ‘particular social group’, which it accepted, namely, “black children’.  Instead, the tribunal concluded that the judicial authorities in this court in Applicant A, and in the Federal Court, necessitated a different conclusion.  In part, this result followed because the tribunal diverted itself into the notions of ‘enmity and malignity’ just mentioned.  But, in part, it also ensued because the tribunal thought itself obliged to classify the ‘reasons’ for the persecution which it found by ascribing them solely to the breach by the parents of laws and programs of general application in the PRC designed to uphold that country’s population control policy.  This approach found favour with the majority of the Full Court which reversed the primary judge’s order.  In my opinion the tribunal and the majority of the Full Court erred in law.  The primary judge was correct on this point.  His order should not have been disturbed.

[71]    Once discrimination and persecution against the appellant, a child, were found (as the evidence accepted by the tribunal amply justified) the classification of the persecution in this case as being ‘for reasons of’ membership of a ‘particular social group’ followed quite readily.  It is true that the object of the population control policy of the PRC was addressed solely to the parents.  But it was equally true that one way of reinforcing that policy, as found by the tribunal, was by actions and deprivations addressed to the children of such parents.”

[footnote omitted]

44                  The approach of the High Court in Chen to the causation issue reveals that often the determination that conduct amounts to persecution cannot be divorced from the inquiry whether the conduct was undertaken for a Convention reason.  The conclusion that conduct is persecutory will in those cases carry with it as a matter of “common sense” or will “readily” lead to the conclusion that the conduct was done for a Convention reason.  In the present case the Tribunal seems to have adopted such an approach.

45                  In any event, in this case, there was clear evidence upon which the Tribunal was entitled to rely that as a young Somali woman the respondent had a well founded fear of rape.  There was also evidence upon which the Tribunal was entitled to rely that women were singled out as targets of sexual violence.  There was reference to the fact that the same danger of sexual violence did not apply to males.  The evidence cited by the Tribunal that “women are systematically discriminated against” alone, or, at least, together with the nature of rape as a gender-based persecution, provided the basis upon which the Tribunal was entitled to find that the respondent had a well founded fear of rape for the reason that she was a young Somali woman.  Thus, the third ground of review is not made out.

CONCLUSION

46                  For the reasons stated this application is dismissed with costs. 

Associate:

Dated:              3 August 2000