Cabarrubias, Jovita v Minister for Immigration and Multicultural Affairs

[1998] FCA 832

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - Tribunal did not err in law in finding that the applicants could relocate within the Philippines and therefore were not refugees - question of whether applicants were members of “a particular social group” for the purposes of the Convention - necessity for characteristics that enable definition and/or recognition of such a group other than persecution of its members

Applicant A v Minister For Immigration And Ethnic Affairs (1997) 142 ALR 331, considered and applied

Migration Act 1958 (Cth): s 476

JOVITA CABARRUBIAS and CRESENCIO CABARRUBIAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 834 OF 1997

MADGWICK J
SYDNEY
4 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG834  of   1997

BETWEEN:	JOVITA CABARRUBIAS and CRESENCIO CABARRUBIAS APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MADGWICK J
DATE OF ORDER:		4 MAY 1998
WHERE MADE:		SYDNEY

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicants pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG834  of  1997

BETWEEN:	JOVITA CABARRUBIAS and CRESENCIO CABARRUBIAS APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	4 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR: The applicants seek a review for error of law of a decision by the Refugee Review Tribunal (“the Tribunal”) affirming the decision of a delegate of the Minister, who declared a lack of satisfaction that either is a person to whom Australia has protection obligations under the 1957 Convention relating to the Status of Refugees (as amended by the 1967 Protocol relating to such status): c.f. ss 5(1) and 36(2) of the Migration Act 1958 (Cth).

Background

The applicants are a married couple in their forties and are nationals of the Republic of the Philippines.  They have four children aged between 12 and 24 years.  In or about 1977 they went to Hong Kong where they worked for about 10 years, before returning to the Philippines in 1987.  They lived in a remote area of Northern Luzon, where they had applied their savings to the purchase of a small store and other properties.

In the mid 1970s it was said that the New People’s Army (“the NPA”) first became active, generally against military targets.  The NPA was then friendly to the local community, and the local priest cooperated with the NPA.  Local conditions were generally peaceful.  In 1980 the applicants bought some land and had a house built upon it.

Matters changed after 1983 when the NPA killed some soldiers on a nearby farm.  The Philippines Army suspected the townsfolk of the applicants’ town of collaborating with the NPA.  In 1984, when the applicants visited their home town from Hong Kong for a family funeral, the Army’s presence had diminished but the NPA had begun to seek material help from the townspeople.  Having worked abroad, the applicants were regarded as affluent enough to be fit targets for solicitation.

By 1987 the applicants considered that the situation had improved enough for them to return home.  They bought a grocery business.  The NPA, however, soon began making demands for provisions.  The applicants were eventually handing over 25-30% of their income.

The local mayor told them the only way to survive was to submit to the demands of the NPA.

They fled to Australia in 1988, leaving their children, the youngest aged two, with their maternal grandmother.

The Tribunal’s Decision

The applicants’ case was that they were refugees within the Convention because:

“owing to well-founded fear of persecution for reasons of . . . membership of a particular social group . . ., [they were] outside the country of [their] nationality and unable or, owing to such fear, unwilling to avail [themselves] of the protection of that country . . .” (Art. 1A(2))

There were two major factual questions agitated before the Tribunal.  One was whether the applicants now had a well-founded fear of future harmful attention from the NPA, and the other was whether they could not reasonably avail themselves of the protection of the Philippines’ government elsewhere in that country.

The Tribunal accepted that the applicants:

“were forced out of their business and their home town because they were prime targets for the NPA as it turned from being supported by local people to being a much more violent and demanding armed group . . . in their home town and the surrounding district.”

However, the Tribunal found that:

“. . . the reason for that persecution was attached to the impression that, having worked overseas, they were wealthy and so could be a source of provisions for the NPA.  There were peripheral political aspects to this, that is, they lived in a region where the government forces and the NPA suspected local peoples of taking sides.  However, on their own evidence, they were targets precisely because they were thought to have money and resources because they had lived overseas.

. . .

The Applicant and her husband stated clearly that they were targeted because they had resources that someone else wanted.  The brother who currently lives in their home probably faces the levy imposed by the NPA on all people in the area but is not singled out for any other reason.  That is, the Applicant and her husband, and others living in the area, were targets of the NPA as individuals and not because they belonged to any group.  They cannot be regarded as belonging to a group so much as being individuals living in the same area who have goods and money extracted from them in what are ostensibly [political (?)] but actually criminal actions by the NPA.

. . .

Ultimately, the application fails because the Applicant and her husband cannot be found to have been persecuted for reasons of their membership of a particular social group or for any other Convention reason.  They were targets for extortion.  They were not persecuted but victimised.”

On the issue of the applicants’ ability to escape the persecution by internal relocation elsewhere in the Philippines, the Tribunal found:

“I have considered whether the Applicant and her husband could have removed the problem by removing themselves elsewhere within the Philippines rather than to Australia.  While this is unjust, in that it is the victims who are forced to take action, refugee protection is a substitute for the protection of one’s own country.  It is granted when the asylum seekers’ country has no ability or willingness to protect them from the well-founded fear of persecution.  While the Philippines has a number of difficulties, it is not the case that its citizens, in every part of the country, must live in constant fear of an ever diminishing group of subversives, the NPA.  Current government policy is to eliminate the conflicts which have undermined civil society in the Philippines.  That is, government policy at least is to protect its citizens from being harmed by the NPA.  The NPA is not a dominant group in every area of the Philippines and there are an increasing number of areas where its influence is very small.  It is reasonable to consider whether the Applicant and her husband could have removed themselves to such an area or if not then, then now, in 1997 as the NPA ceases to be a nationally dominant movement.  Their children are studying in Manila and that must act as some sort of lure for the Applicant and her husband to re-locate there.  I do not accept the Applicant’s evidence that the children, now young adults, are in hiding.  This is unconvincing, both in the manner in which the information was conveyed at the hearing and in its plausibility.  The children were never targets of the NPA, living mostly with their grandparents away from the Applicant.  They are not a source of funds for the NPA.  They have no political profile which would lead the NPA to target them in Manila.

I also have taken into account that the Applicant and her husband have some of the skills needed for re-locating.  They lived away from their home town for a number of years.  They had the initiative to seek jobs abroad.  They were not entirely without personal and financial resources.  It is reasonable to expect that they should at least have tried to live elsewhere.  There is no evidence that they would have been hounded in all parts of the Philippines.  It was the particular business they ran in the particular area of the Philippines which made them victims of extortion.  I note that the Applicant and her husband were able to set up a restaurant business in Australia.  Although some of the money was borrowed and the business has now been sold, I find that it is reasonable to expect that the funds used for this purpose could have been used for the same purpose in a Philippines city such as Manilla.  They apparently were not faced with unemployment nor with needing the help of a social welfare system.”

Conclusions

Nothing, in my opinion, can be dressed up as a question of law to suggest legal error as to the second matter, the availability of protection elsewhere in the Philippines.  It is a pure question of fact and it is unnecessary to consider it further.  That would be enough to determine the appeal, but I offer the following on the other matters debated.

The first question depends upon the meaning to be assigned to the expression “for reasons of . . . membership of a particular social group”, although it is also important to recognise, as the Tribunal did, that, in the words of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (at 568):

“. . . there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind.  That concept flows through the separate elements of the definition.  The well-founded fear of which it speaks is a fear of ‘being persecuted’.  Persecution involves the infliction of harm, but it implies something more:  an element of an attitude on the part of those who persecute which leads to an infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by the persecutors.  Not every isolated act of harm to a person is an act of persecution.  Consistently with the use of the words ‘persecuted’, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is membership of a ‘particular social group’.  If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possess, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’.  The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ - the membership of the social group must provide the reason.....”

The meaning of that expression was, of course, extensively canvassed in Applicant A v Minister for Immigration and Ethnic Affairs (1996-7) 142 ALR 331. Brennan CJ said (at 335-337):

“. . . a ‘social group’ is a group the members of which possess some characteristic which distinguishes them from society at large.  The characteristic may consist in any attribute, including attributes of non-criminal conduct or family life, which distinguish the members of the group from society at large.  The persons possessing any such characteristic form a particular social group.  If membership of a social group, however constituted, attracts persecution, the enjoyment by the members of that group of their fundamental rights and freedoms is denied, and the denial is prima facie discriminatory.
. . .
If a characteristic distinguishes a social group from society at large and attracts persecution to the members of the group that is so distinguished, I see no reason why a well-founded fear of that persecution might not support an application for refugee status.”  (emphasis added)

Dawson J said (at 341):

“A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart 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 . . .

However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution.”

McHugh J held that (at 355):

“[n]ot only is it impossible to define the phrase [‘membership of a social group’] exhaustively, it is pointless to attempt to do so”,

but that (at 358-9):

“[t]he concept of persecution can have no place in defining the terms ‘a particular social group’ . . .

Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society.  Left-handed men are not a particular social group.  But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group.  Their persecution for being left-handed would create a public perception that they were a particular social group.  But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.

The fact that the actions of the persecutors can serve to identify or even create "a particular social group" emphasises the point that the existence of such a group depends in most, perhaps all, cases on external perceptions of the group. The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in the "particular social group" category is the notion of "membership" expressly mentioned. The use of that term in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of
  characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group. Those indiscriminately killed or robbed by guerillas, for example, are not a particular social group.”

Gummow J said (at 375-6):

“. . .numerous individuals with similar characteristics or aspirations in my view do not comprise a particular social group of which they are members.  I agree with the statement in Ram:

‘There must be a common unifying element binding the members together before there is a social group of that kind.  When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.’ ”

Kirby J said (at 389):

“. . . They must be definable by reference to common pre-existing features.  Yet they need not be known as members of the group, even to each other, because the very persecution which helps to define or reinforce the ‘group’ may, in some cases, make such identification dangerous.”  (emphasis added)

Later, his Honour said (at 393-4):

“In the result, I agree with the opinion of Professor Fullerton citing the conclusions of Graves [297]. . . . Professor Graves urges that courts and agencies should turn away from attempts to formulate abstract definitions.  Instead, [the courts] should recognise ‘particular social groups’ on a case by case basis.  This approach conforms to the refusal of German courts to attempt a definition, or exhaustive description, of the category of ‘particular social groups’.  It accepts that an element of intuition on the part of decision-makers is inescapable, based on the assumption that they will recognise persecuted social groups of particularity when they see them.  While this is not an entirely satisfactory conclusion, it is preferable to an attempt by courts unduly to narrow the operation of the Convention or to impose upon its deliberately broad and ambulatory language categories which are by no means exhaustive of the actual words used.”

Thus, it is clear that:

(a)as Dawson J put it (at 340):

“the phrase ‘particular social group’ should be given a broad interpretation to encompass all those who fairly fall within its language and should be construed in light of the context in which it appears”.

(b)Nevertheless, the phrase is not a catch-all or a “general safety net” for any collection of people in a society who are persecuted but who do not fall within the other criteria of Art. 1A(2) of the Convention:  “for reasons of race, religion [or] nationality”.

(c)“A particular social group” must have characteristics that enable its definition and recognition as such other than by the fact of persecution of its members.  In that sense, the characteristics must “pre-exist” the persecution, although the persecution may be instrumental in creating the necessary perception or recognition that persons with those characteristics constitute a particular social group.

The Tribunal found that the applicants were simply “individuals . . . who [had] goods and money extracted from them”.  As a matter of inference, the only thing which could have made them members of anything which, on the broadest view, could be called a particular social group was that, in the opinion of the NPA, they were fit targets for mulcting.  They exhibited, in other words, no characteristic “pre-existing” their persecution which could enable recognition that they were members of a particular social group.  The Tribunal did not err in law, therefore, in concluding that they were not “persecuted for reasons of their membership of a particular social group or for any other Convention reason”.

An effort was made to argue that, because the NPA has Marxist inspirations, the applicants must have been targeted on account of what the NPA’s leaders must have supposed would be their political opinion.  There was no evidence of this and any effort to require its inference must founder on the notorious facts of the diversity, by the 1980s, of the streams of Marxian thought and the variety of stages and means of insurrection by guerilla methods.  It seems highly unsafe to me, given support for the NPA from elements of the Catholic clergy, to make the assumption implicit in the submission that NPA leaders would necessarily have a narrow view of the factors that determine an individual’s political opinion.  It can hardly be said that the Tribunal erred in law in not making such an assumption.

The application will be dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:                May 1998

Counsel for the Applicant:	R Lee
Solicitor for the Applicant:	Belen Oag Solicitors
Counsel for the Respondent:	V Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 April 1998
Date of Judgment:	4 May 1998