FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Sarrazola [2001] FCA 263

MIGRATION – refugees – persecution – whether a family can be a particular social group – whether persecution of a family member because of conduct of another family member is persecution for reasons of membership of a particular social group – whether error of law

Migration Act 1958 (Cth) s 476(1)(e)

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 Art 1A(2)

Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 - considered

Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 - considered

Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 - applied

C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366 – considered

Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113 - cited

Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 - cited

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 – cited

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 – cited

Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 – cited

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 – cited

Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 - cited

Martinez v Secretary of State for Home Department [1997] Imm AR 227 – not followed

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 - cited

Hope v Bathurst City Council (1980) 144 CLR 1 - cited

Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 - cited

Repatriation Commission v Owens (1996) 70 ALJR 904 - cited

Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 - cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SARRAZOLA

N 983 of 2000

JUDGES:       HEEREY, SUNDBERG AND MERKEL JJ

DATE:            21 MARCH 2001

PLACE:          MELBOURNE (HEARD IN SYDNEY)

On appeal from a Judge of the Federal Court of Australia

THE COURT ORDERS THAT the appeal be dismissed with costs.

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

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

HEEREY J:

1                     For the reasons given by Merkel J I agree with his Honour that the Minister’s appeal should be dismissed.

2                     On the causation issue the Tribunal’s conclusion, in the light of the findings it made, shows that it incorrectly applied the principle that it is sufficient if one of the reasons for which persecution is feared is a ground specified in Art 1A(2) of the Refugees Convention.  History shows that persecution has often been motivated by racial, religious and political motives admixed with other reasons such as opportunistic avarice.  The criminals who threatened the respondent were not seeking to extort money indiscriminately from anyone in Colombia who happened to own assets.

Associate:

Dated:              21 March 2001

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

SUNDBERG J:

3                     For the reasons given by Merkel J, the appeal should be dismissed.

Associate:

Dated:              21 March 2001

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT

MERKEL J:

Introduction:

4                     The present appeal concerns the circumstances in which membership of a particular family can constitute “membership of a particular social group” for the purposes of Art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”).  Article 1A(2) defines a “refugee” as meaning:

“any person who…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

Background

5                     On 13 June 1996 the respondent, her husband and their two children lodged an application for protection visas on the ground that they were refugees. Each member of the family claimed to have a well founded fear of being persecuted for reasons of membership of the family if they return to Colombia, their country of nationality.  In the present case it is not disputed that if the respondent is a refugee that would entitle the other members of her family to protection visas.

6                     A delegate of the appellant (“the Minister”) refused the applications and the Refugee Review Tribunal (“the RRT”) affirmed the delegate’s decision.  The respondent sought a review of the RRT’s decision by the Court.  Hely J set aside the decision and remitted the matter to the RRT to be determined according to law (Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 (“Sarrazola No 1”)).  The Full Court dismissed an appeal by the Minister against the decision of Hely J (Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 (“Sarrazola No 2”)).  The matter again came before the RRT, differently constituted.  The RRT affirmed the delegate’s decision and the respondent again sought a review of the RRT’s decision by the Court.  The primary judge, Madgwick J ([2000] FCA 919), set aside the decision of the RRT and remitted the matter back to the RRT, differently constituted, to be further dealt with according to law.  The Minister has appealed to a Full Court against the decision of Madgwick J.

The RRT’s decision

7                     The RRT accepted the substance of the respondent’s evidence which was as follows.  Her brother, Julian Redondo, owed US$40,000 to certain underworld figures in Colombia.  In December 1994 the respondent’s brother was deported to Colombia from the United States of America after serving five years in prison for drug offences.  On his return to Colombia he stayed with the respondent’s family on two occasions; in late December 1994 for about twelve days and in August 1995 for about one or one and a half months.

8                     In November 1995 a man came to the respondent’s house and asked the respondent if she was her brother’s sister.  He inquired about her brother’s whereabouts because (he said) the brother owed US$40,000.  The man indicated that people were looking for the respondent’s brother in several cities, and when they found him, they would kill him.

9                     In December 1995 the respondent’s brother was killed, allegedly by assassins.  In early 1996 a stranger came to the house at which the respondent and her family resided and stated that he was from the group responsible for her brother’s death.  The stranger stated that as his relatives they were now responsible for the money her brother owed.  The respondent was selected for payment of the debt as she was the only surviving immediate member of her brother’s family.  The man demanded that the house be sold in order to pay the debt owed and threatened to kill the respondent’s children if she and her husband did not comply with his demands.

10                  The respondent and her husband decided that they should leave Colombia.  They obtained Australian visas in late January 1996 but were unable to leave immediately because, amongst other things, they had insufficient funds.  In late February 1996, the stranger again visited the respondent’s home and repeated his demands and threats.

11                  In March 1996 the respondent’s husband left Colombia for Australia and the respondent remained with her children in Colombia under the pretence that her husband was absent on a trip.  The respondent and her husband also listed their house for sale to “gain time”, though they did not intend to sell it.  At about this time the respondent went to the Prosecutors Office to inform the local authorities of her predicament.  Her complaint was passed on to the police and she agreed to meet a police officer at a nominated cafeteria as she was afraid that she was under surveillance. However, due to other matters, the police officer did not attend the arranged meeting.

12                  In May 1996 a different stranger visited the respondent and demanded that she pay her brother’s debt by the end of the relevant week.  By this time the respondent had organised a bank loan to finance the passage of her children and herself to Australia.  She left one and a half million pesos of this money at the place the second stranger had instructed her to leave the money for collection.

13                  On 27 May 1996 the respondent again attended the Prosecutors Office to tell the local authorities that they “were good for nothing”.  She was informed that little or nothing could be done by the authorities and that people in her situation should “just disappear and resolve the problem for themselves”.

14                  On 28 May 1996 the respondent and her children left Colombia for Australia.  Since that time the respondent’s brother-in-law has also fled to Australia.  He was threatened by two armed men in his workplace in Colombia.  The men demanded to know the whereabouts of the respondent and her family.  In addition, after the respondent’s departure from Colombia, two consecutive inhabitants of the respondent’s former home have vacated her house because of threatening visits from strangers inquiring about the respondent and her family.  The respondent was informed in writing of these events by a friend who had also expressed fears for his own safety, because he had previously assisted the respondent in relation to her house, and urged the respondent’s family not to return to Colombia.

15                  The member constituting the RRT in the present case expressed her findings as follows:

“On the basis of all the material before me I find that the [respondent’s] brother owed an amount of money to men who were involved in criminal activities. I also find that when the [respondent’s] brother was unable to repay the debt these men were responsible for his death. I accept that in the absence of her brother she was seen as responsible for the debt. Indeed 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.’

The [respondent’s] evidence is that other people including non-family members were threatened by these men (the agents of harm) including the [respondent’s] brother-in-law (Carlos), the rental agent (Dr Amparo) who arranged the lease of the [respondent’s] home and the tenants who rented it. I accept that these individuals were threatened and harassed in way which has been described in the evidence before me. This evidence was to effect that the individuals were threatened and harassed to reveal the whereabouts of the [respondent] and her immediate family.

The [respondent’s] evidence is to the effect that those who threatened her last displayed interest in her whereabouts in 1997 when inquiries were made of tenants occupying her house. In my view it is quite likely that the agents of harm have no further interest in her.  However, for present purposes I accept that there is more than a remote possibility that the agents of harm could regain their interest in her at any time. I am also willing to accept, for present purposes, that the threats the [respondent] has experienced and the harm she fears in the future if the threats are carried out is serious harm which might be capable of amounting to persecution. The issue in this case is whether the harm the [respondent] fears is persecution for a Convention reason.”

16                  The respondent’s adviser submitted to the RRT that the harm the respondent feared was owing to her membership of her family which constituted membership of a particular social group.  Alternative definitions of the family were proposed: first as constituting the respondent and her immediate family comprising her husband, their children and the deceased brother; second, as the “family of the Rendondo’s” comprising the deceased brother and the respondent, she being the only surviving member of that family.

17                  The RRT accepted that the threats the respondent had experienced and the harm she feared in the future if the threats were carried out constituted serious harm which might be capable of amounting to persecution.  However, the RRT rejected the respondent’s claim for refugee status on two grounds.  First, the RRT found that the respondent’s family, however defined, did not constitute a particular social group.  Second, the RRT found that even if the respondent’s family did constitute a particular social group, the harm which she feared was not “for reasons of” membership of that group.

18                  The RRT, applying Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 at 464 (“Zamora”) stated:

“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.”

19                  The RRT stated its conclusion as follows:

“In the circumstances of this case there is nothing before me that suggests that the [respondent’s] family – defined as the [respondent] and her deceased brother, or the [respondent], her deceased brother, her husband and her 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 supports a finding that the

Rendondo family or the [respondent] and her immediate family, were or are recognised by Columbian 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 [respondent’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 [respondent’s] family is cognisable only to this group of individual criminals.  I find that the [respondent’s] family has not gained any level of public perception in Columbian 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.”

20                  The RRT then went on to consider whether, if it were wrong in its conclusion that the respondent’s family did not constitute a particular social group, the harm that the respondent feared arose “for reasons of” membership of that group.  The RRT accepted that while it is not necessary that the fear of persecution is solely attributable to membership of the relevant social group, the extent to which membership of that group is a factor in the risk is a relevant consideration.

21                  After reviewing the evidence, the RRT stated:

“As a matter of everyday experience in many societies, family members are an obvious target for the recovery of a debt.  The [respondent’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. (sic)  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 [respondent] and her husband whom, as owners of the house, provided a means of recovering a debt.  In that respect, the [respondent’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 [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.”

22                  The RRT concluded that “the agents of harm were solely driven by the recovery of a debt” and the respondent became a suitable target because her brother owed money to criminals and she was a person from whom they could secure the return of their money.  The RRT rejected “as a matter of fact any possibility that the interest [of the alleged persecutors] in [the respondent] was owing to her membership of the family”.

The primary judge’s decision

23                  Madgwick J found that the RRT fell into legal error for two reasons.  First, because it was clear that the RRT member formed the view that the respondent’s family could not be a “particular social group” unless the particular family was well known as such in the society in question.  His Honour said that there is no obstacle to viewing “the usual family” as a “particular social group”.  In particular, his Honour agreed at [29] with the following observations of Wilcox J in C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366 (“C”):

“It was unnecessary for the Full Court in [Sarrazola No 2] to deal with the correctness of the statements of Hely J in [Sarrazola No 1] 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.”

Madgwick J concluded:

“In the present case, there was no reason to think that the [respondent’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.’

In my view it follows that [the RRT] 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.”

24                  The second error Madgwick J found the RRT had made related to its application of the test for causation.  His Honour stated that the feared persecution arose from the persecutors’ wish for the respondent to pay her brother’s debt and from the persecutors’ perception that a way of forcing the respondent to pay the debt was to threaten her and someone dear to her, such as her children.  Madgwick J said that it is impossible to escape the centrality of the family connection to the respondent’s fear of persecution.  Accordingly, an essential element in the respondent’s persecution was based upon a Convention attribute, being membership of a particular social group, namely her family.  Madgwick J said that in the light of the RRT’s factual findings it was not possible for it to have applied the correct legal tests and arrived at the conclusion that it rejected:

“…as a matter of fact any possibility that the interest in the [respondent] was owing to her membership of the family as defined in the submissions by the [respondent’s] adviser or by any other configuration of the family”.

The appeal

25                  In his appeal against the decision of Madgwick J the Minister relied, essentially, on two grounds.  The first was that the RRT had not erred in law as it had correctly applied the Zamora test in finding that the respondent’s family was cognisable only to a group of individual criminals who were the would be persecutors, and had not gained any level of public perception in Columbian society as a group set apart from the community.  The Minister submitted:

“The primary judge has formulated a ‘template’ of reasoning, to be applied to ‘the usual family’ in the absence of reason to think that a particular family lacks the ‘usual aspects of a family’ to which Wilcox J referred.  The primary judge did not identify what those ‘usual aspects’ are, and nor are they clear from the judgment of Wilcox J in C….  That approach has led the primary judge to substitute his own finding as to whether the respondent’s family is ‘a group that is set apart from the rest of the community’ for that which the tribunal, applying Zamora’s case, had made.  In doing so, the primary judge has departed from the approach laid down in Zamora, and has exceeded the proper  bounds of judicial review.”

26                  The second ground was that on the basis of the findings of fact made by the RRT it was at the very least open to it to conclude after applying the tests, which it had correctly formulated, that the nexus to a Convention reason had not been made out.  The Minister also contended that his Honour was in error in stating that for the respondent to fail it was necessary that the RRT find that the persecution was not inflicted for reasons that included, as an essential element, their family membership.  The Minister argued:

“There is nothing in s.65, nor in the Convention, to suggest that the respondent was entitled to succeed ‘as a matter of law’ unless the tribunal found ‘that the persecution was not inflicted for reasons that included as an essential element their family membership’.  The statutory framework is quite inconsistent with such an approach.”

27                  The respondent disputed that any error had been made by Madgwick J and contended that his Honour correctly applied the decisions in Zamora, Sarrazola No 1 and Sarrazola No 2.

The family – a social group

28                  It is clear that the respondent’s claim for refugee status is premised upon her family constituting a particular social group for the purposes of the Convention.  It seems to now be accepted in the Court that a family can constitute a particular social group.  In Sarrazola No 1, after observing that there is no decisive authority to the contrary, Hely J concluded that “…a family can constitute a particular social group within the meaning of Article 1A(2)”.  His Honour said at [36]:

“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.”

29                  Wilcox J observed in C at [33] that it was unnecessary for the Full Court in Sarrazola No 2 to deal with the correctness of the above statement of Hely J but said, however, that the statement was “plainly correct”.  Wilcox J also found that there is no reason to exclude the Convention’s application to a family.  Madgwick J at first instance, agreed with Wilcox J’s observations in C, saying they were “a logical development of what Hely J said in Sarrazola No 1”.

30                  More recently, in Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113 Sackville J (at [42] and [44]) accepted that the following propositions are supported by the present state of authority in the Court:

“(i)      A particular family or extended family is capable of constituting a particular social group for the purposes of the Convention.

(ii)               A member of such a family who is at risk of persecution by reason of his or her association with another family member may have a well-founded fear of persecution for a Convention reason.

(iii)             The family member may have such a well-founded fear notwithstanding that

·        the persecutors may have more than one motive for persecuting him or her; and

·        the other family member could not claim to be a refugee within the meaning of the Convention.”

31                  These propositions are also supported by a contextual approach to the Convention.  The preamble to the Convention refers to the Universal Declaration of Human Rights 1948 (“the Universal Declaration”) as “[affirming] the principle that human beings shall enjoy fundamental rights and freedoms without discrimination” and states that an object of the Convention is to “assure refugees the widest possible exercise of these fundamental rights and freedoms”.  In Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 at [80], (in a passage with which Gray J concurred at [20]).  I stated that it is appropriate to consider the Universal Declaration and the objects of the Convention in interpreting Art 1A(2).  Relevantly for present purposes, Art 16(3) of the Universal Declaration states that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”  Accordingly, it is entirely consistent with the Convention that a person’s freedom from persecution on the basis that he or she is a member of a particular social group, namely a family, can be one of the fundamental rights and freedoms assured to refugees.  Similar observations were made by Madgwick J (at [33] and [34]).

32                  Leading texts on refugee law also support the view that refugee claims based on family affiliation fall within the scope of the social group category in Art 1A(2).  Thus, Professor Hathaway states “[a]s a rule, therefore, whenever there is an indication that the status or activity of a claimant’s relative is the basis for a risk of persecution, a claim grounded in family background is properly receivable under the social group category”: J. Hathaway, The Law of Refugee Status, 166.  See also G. Goodwin-Gill, The Refugee in International Law, 30.

33                  In my view there can be little doubt that persecution by reason of being a member of a particular family can constitute persecution for reasons of membership of a particular social group for the purposes of Art 1A(2).  That conclusion does not, however, answer the question of what is the relevant “social” group, albeit that it is a family, in a particular case.  A “family” in its ordinary and natural meaning can mean, inter alia, parents and their children; a group of persons closely related by blood; all persons descended from a common progenitor; or other meanings which may be appropriate to the particular cultural, or any other relevant, context in which the question arises.

34                  Plainly, the identification of that group by the RRT will depend upon the circumstances of the case.  Although Madgwick J stated that there was no reason to think the respondent’s family, however configurated, lacked “the usual attributes of a family” referred to  by Wilcox J in C, I do not take his Honour to have concluded that it follows that any particular configuration of the respondent’s family was therefore a “particular social group”.  Rather, his Honour was indicating (at [37]-[38]) that it was open to the RRT to so conclude but, instead of directing itself to that issue, the RRT erroneously imposed an additional requirement that the particular family must be “well known in the society in question”.

Reasoning on the Appeal

(a)        A particular social group

35                  The Full Court in Sarrazola No 2 at [22]-[25], in discussing the criteria to be applied to the identification of the existence of a particular social group, stated:

“22.     In Zamora at 464…the Full Court expressed the view that Applicant A is authority for the following proposition:

‘To determine that a particular social group exists, the putative group must be shown to have the following features.  First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group.  Second, that characteristic must set the group apart, as a social group, from the rest of the community.  Thirdly, 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.’

23.       It is only after the relevant particular social group, if any, has been identified that a decision-maker can sensibly give consideration to the question whether the applicant has a well-founded fear of persecution for reason of his or her membership of that particular social group.  As was pointed out by Dawson J in Applicant A at 240:

‘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’.

24.       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.

25.       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’).  If an applicant in such circumstances had a well-founded fear of persecution for reason of being a member of the particular social group constituted by the families of persons who had rebuffed invitations to join the mafia, it would be illogical and wrong, in our view, to engage in the further refinement of asking whether the applicant was fearful of being persecuted by reason of a personal link with an individual who had rebuffed the mafia or by reason of his or her membership of the social group.”

36                  In order to determine the existence of the second and third factors in Zamora the RRT was required to address whether the characteristics of the family configuration raised by the material and evidence before it (see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 482) set the group apart as a social group from the rest of the community, and whether the group was recognised by the relevant section of Columbian society as a group that is so set apart.  The characteristics that usually unite a family as a collection of individuals and that which will set it apart from the rest of the community will be familial links of the kind described by Wilcox J in C.  The determination of which of those links apply in a particular case will identify, and thereby define, the relevant group as the particular social group for the purposes of Art 1(2A).

37                  Importantly, in addressing the third factor in Zamora the question is whether the family unit considered to be a social group is publicly recognised as being set apart as such.  It is not whether the particular family (ie the members of the family however configured) is well known as such.

38                  If the latter question were the relevant question it is difficult to perceive how any particular family could be viewed as a social group other than a family that had, fortuitously or otherwise, gained fame or notoriety, or a family which had a special or institutionalised position in society, such as a Royal family.  I do not accept that the application of the Convention in relation to a family as a social group is so limited.  In particular, I do not accept that only the fundamental familial rights and freedoms of members of well known families are to be assured under the Convention, rather than the fundamental familial rights and freedoms of members of a family unit as such.

39                  In the present case there was material before the RRT upon which it could have concluded that the respondent’s family, on either configuration relied upon, has characteristics (relationship of blood, marriage etc) that satisfied the three factors stipulated in Zamora.

40                  Whether the factors were satisfied and, if so, how the family was to be defined, was a question of fact for the RRT: see Giraldo at [56] per Sackville J and Sarrazola No 1 at [37]-[41] per Hely J.  However, the RRT did not address the characteristics that might identify and thereby define the family that, on the facts of the present case, might be set apart from the general community as a social group.  Rather, the RRT addressed the separate and additional question of whether the particular family was recognised, in the sense of being well known, by Columbian society as a group that is set apart from the rest of the community.

41                  The Minister said that some support for the RRT’s approach could be found from the manner in which the Full Court in Sarrazola No 2 dealt with the relevant family unit as a social group in the “mafia” example it gave at [25].  The example given was of retaliatory actions by the Mafia against the family of persons who refused to join the Mafia becoming so notorious that the families of those persons might become recognised in the society as together constituting a particular social group.  Subject to the definition of membership of the relevant families (ie blood, marital relationships etc) the example given might constitute a social group.  I do not agree, however, that the example was given on the basis of the Full Court accepting that a particular family subjected to such retaliatory actions cannot constitute a particular social group for the purposes of Art 1A(2).  If that were intended to be suggested by way of dicta by their Honours, implicitly if not explicitly, for the reasons already given I would respectfully disagree.

42                  If I am wrong in that view then the RRT in the present case may have erred in any event in failing to address whether, on the material and evidence before it, the relevant social group was the families held responsible for the obligations of persons alleged to owe outstanding debts or obligations to underworld groups in Columbia.  The fact that the respondent’s claim was not put by the claimant in that way does not necessarily relieve the RRT, as an inquisitorial body, from the duty of addressing it: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-63; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293; Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 at [114] and Giraldo at [58]-[59].

43                  Finally, I would observe that there is nothing anomalous about the Convention operating to protect innocent members of individual families from retaliation or retribution (amounting to persecution) for the reason that they are members of a family, one of whose members has committed an actual or a perceived wrong.  In that regard I agree with the observation of Hely J in Sarrazola No 1 at [22]:

“Nor is it obvious to me why it would make a nonsense of the Refugees Convention to treat its operation as attracted even though fear of persecution by the brother, were he alive, would be outside its scope.  Neither the text of the Refugees Convention, nor its context, object or purpose supports such an approach.  There is no reason in principle why the actions of an individual cannot act as a catalyst to bring the wrath of potential persecutors down upon a race, members of a religion, or members of a particular social group.”

44                  Accordingly, for the above reasons, Madgwick J was correct in concluding that the RRT erred in law in requiring that the members of the respondent’s family (however configurated) as such, must be publicly known to be a distinct social group in Columbian society.

(b)        Causal nexus

45                  The RRT also rejected the respondent’s claim on the basis that she was not at risk by reason of membership of her family.  Rather, it concluded that she and her husband were being pursued and threatened because of an outstanding debt which they, as owners of their house, had the means to pay.  As was pointed out by Madgwick J, Hely J rejected an almost identical approach to causation on the part of the RRT that first heard the claim: see Sarrazola No 1 at [42]-[51].  In discussing the RRT’s finding that the reason for the respondent’s well founded fear of persecution was extortion associated with the recovery of her deceased brother’s debt, Hely J observed:

“44.     This reason for the [respondent’s] fear of persecution necessarily incorporates three notions:

·        A debt is owed to the criminals,

·        The debtor is the [respondent’s] deceased brother,

·        The attitude of the persecutors…is that his relatives are now responsible for payment of the brother’s debt.

45.       These notions are inextricably linked.  It is only when regard is had to the combination that the reason for the [respondent’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.’…

In effect RRT found that part of the reason for the [respondent’s] well-founded fear of persecution was her familial tie with her brother.  Then, RRT proceeded to find that the [respondent’s] fear was not for reason of that familial tie ‘even in part’.

46.       As earlier indicated, the applicant need not demonstrate that her family membership is the sole reason for her well-founded fear of being persecuted: Jahazi.  As Hill J said in Mohamed v Minister for Immigration & Multicultural Affairs (unreported, Hill J, 11 May 1998) at p 13:

‘... ‘race, religion, nationality, membership of a particular social group or political opinion’ may be but one of several reasons for persecution’.

47.       It follows that once RRT found that part of the reason for the [respondent’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 [respondent’s] fear of persecution was not for reason of her family membership without at least considering the extent to which membership of the family is a factor in the risk of persecution.

48.       It should be noted that this is not simply a case of extortion; which would not come within the terms of Article 1A(2) of the Refugees Convention.  In other words, it would be inaccurate to suggest that the persecutors’ motivation in this case is merely the exaction of money.  Rather, the motivation of the persecutors is properly stated as recovery of the [respondent’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 [respondent] 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 [respondent] is in fear of persecution simply because she is ‘an obvious target of opportunity’ is contrary to the facts which RRT has found or accepted.

49.       A useful contrast can be drawn between this matter and the case of Guo Wei Zhi v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court, 10 December 1998).  In Guo Wei Zhi the brother of a criminal was suspected by Chinese authorities of involvement in illegal activities.  He sought refugee status under Article 1A(2) of the Refugees Convention on the ground that he had a well-founded fear of persecution for reason of his membership of a particular social group.  That social group was said to be his family.  The issue on appeal to the Full Federal Court was whether the brother’s well-founded fear of being persecuted was for reason of his blood relationship with the criminal.  At p 5 of his Honour’s judgment, Emmett J held:

‘The attention of the authorities [the persecutors] was not attracted because of the appellant’s association with Guo Wei Rong [the criminal] qua brother.  That attention was attracted by reason of his association with Guo Wei Rong qua criminal.’

50.       Accordingly, the [respondent] was held not to fear persecution for a Convention reason and was denied refugee status.

51.       If one were to apply the terminology employed by Emmett J to the present case, the attention of the persecutors is attracted by reason of the [respondent’s] association with the deceased qua brother.  Dissimilarly to the facts of Guo Wei Zhi, the [respondent] has no other association with the deceased.  This highlights the reason for the persecutors fastening upon the [respondent]: she is the sister of her indebted brother.  It follows that the [respondent’s] well-founded fear of being persecuted is for a Convention reason; namely, her family membership.”

46                  Although Hely J identified the error of law made by the RRT as a failure to consider the extent to which family membership is a factor in the risk of persecution, it is clear that his Honour was in no doubt that, had the RRT done so, it must have concluded that the “applicant’s well founded fear of being persecuted is for a Convention reason; namely, her family membership”.

47                  The Full Court in Sarrazola No 2 dealt with the causation issue on the basis that the RRT failed to recognise that a person may be motivated to persecute another for more than one reason.  It concluded at [17]:

“In adopting the approach that a finding that the criminals were motivated by a desire to recover the money that they believed was owing to them by the respondent’s brother was inconsistent with a finding that the criminals were motivated by a desire to harm the respondent by reason of her relationship to her brother, the Tribunal, in our view, made an error of law of the kind referred to in s 476(1)(e) of the Act.”

48                  I have set out the reasoning of Hely J, which I find to be persuasive, in some detail as, save for the error of law issue discussed by his Honour at [47], the same observations can be made in respect of the reconstituted RRT’s decision.  The evidence accepted by the RRT (see [4]-[12] above) may be summarised as follows:

·        a debt is owed to the criminals;

·        the debtor is the respondent’s deceased brother;

·        the attitude of the persecutors is that his relatives are now responsible for payment of the debt;

·        the respondent was selected for payment of the debt as the only surviving immediate member of the brother’s family;

·        the means of forcing the respondent to pay the debt was to threaten the respondent and her family.

49                  For the reasons given by Hely J it might have been expected that upon evaluation of those facts the RRT would conclude that one of the reasons for the respondent’s well founded fear of persecution is her family membership.

50                  The RRT accepted that the respondent was selected for payment as the surviving immediate relative.  It later stated that that factor “was entirely subsidiary”.  It then stated that she and her family were pursued and threatened because of an outstanding debt and not because of membership of any family group.  The RRT concluded that the family connection formed no part of the motivation, purpose or reasons for the persecution by the “agents of harm” and rejected “any possibility that the interest in the respondent was owing to her membership of the family”.  Rather, the RRT said the interest was “purely personal”.

51                  The RRT’s approach is akin to that taken in Martinez v Secretary of State for Home Department [1997] Imm AR 227 where an analogous question of causation arose.  Thorpe LJ (at 229) said that the Martinez family is not being persecuted because of being the Martinez family but, rather, because the persecution is directly linked to the stepfather and his refusal to join the Mafia.  Thus, the only interest in retaliatory action against the Martinez family was said to be “because of that act”.  The Full Court in Sarrazola No 2 (see [19], [24] and [25]-[26]) criticised the approach of Thorpe LJ to causation and did not follow the decision in that case.

52                  On the facts found by the RRT the respondent was being persecuted both by reason of her family membership and because her brother had failed to pay the debt due to the criminals threatening her.  To find, as the RRT did, that she was later pursued and threatened because it was believed she has the means to pay, cannot negative the significance of the fact that she was selected as the target to pay because of her family membership.  To elevate having the means to pay to be the only reason motivating the respondent’s persecutors is, bearing in mind “the broad policy of the Convention” (see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 570 per Kirby J (“Chen”)) as illogical and wrong (see Sarrazola No 2 at [25]) as selecting the brother’s act of failing to pay as the only reason motivating the persecutors.

53                  The RRT cannot immunise itself from review by correctly stating the tests to be applied in order to determine whether the causal nexus requirements of Art 1(2A) are satisfied.  It must also correctly apply the tests.  Ultimately, “the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law”: see Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7 (“Hope”) per Mason J.  In the present case, for the above reasons and the reasons given by Hely J in Sarrazola No 1, the RRT’s conclusions cannot reasonably be supported by the meaning to be ascribed to the words “for reasons of membership of a social group” in Art 1A(2) on the facts fully found by it: cf Hope at 10 per Mason J.  Thus, the conclusions of the RRT necessarily involved an error of law.

54                  The RRT purported to evaluate the postulated connection between the asserted fear of persecution and the ground suggested to give rise to that fear (see Chen at 570 and Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 at [28]-[29]).  However, I agree with Madgwick J, for the reasons his Honour gives at [45]-[48], that the RRT in undertaking that evaluation could not have applied the correct legal tests in relation to determining whether the requisite causal nexus existed and conclude, as it did, that there was an absence of any connection between the persecution feared by the respondent and her family membership.

55                  The only reasonable explanation for the RRT’s conclusion is that it has treated the reasons for the persistence of the persecutors in threatening the respondent and her family (having the means to pay) as separate or severable from the reason why she was selected and held to be responsible for her brother’s debt (her family connection).  It is not open to the RRT to disregard the latter reason, which is inextricably linked to the former reason, without ignoring or disregarding evidence that it has accepted, which is impermissible.  The situation is analogous to an Administrative Appeals Tribunal, which is also an inquisitorial body, impermissibly ignoring some of the facts contained in the material relied upon by one of the parties before it in determining a matter: see Repatriation Commission v Owens (1996) 70 ALJR 904 and Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 at [51].

56                  The errors to which I have referred involved an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the RRT.  Accordingly, for the above reasons, the RRT erred in law within the meaning of s 476(1)(e) in arriving at its conclusion on the absence of a causal nexus.  In view of that conclusion it is unnecessary to deal with the other contentions of the Minister concerning the reasoning of Madgwick J on the causation issue.

Conclusion

57                  The appeal is to be dismissed with costs.

Associate:

Dated:              21 March 2001