Devi, Indra v Minister for Immigration and Multicultural Affairs

[1997] FCA 1122

FEDERAL COURT OF AUSTRALIA

MIGRATION - judicial review of decision Refugee Review Tribunal - destitute Indian woman from Fiji - whether persecution driven by Convention reason - no error of law.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381 applied.

INDRA DEVI v  THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 810 of 1996

JUDGE:	WHITLAM J
DATE:	28 OCTOBER 1997
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 810  of   1996

BETWEEN:	INDRA DEVI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		WHITLAM J
DATE OF ORDER:		28 OCTOBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 810 of 1996

BETWEEN:	INDRA DEVI APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	28 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 September 1996. The Tribunal affirmed the decision of the respondent’s delegate refusing to grant the applicant a protection visa. The Tribunal was not satisfied that the applicant met the criterion prescribed by s 36(2) of the Act, that is, that she was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocal.

The applicant is a Fijian national of Indian ethnic origin.  She has had a very sad life.  The Tribunal accepted “the basic features of her claims as true”.  These were: that she had run away from her family home in a rural village at twelve years of age in order to avoid an arranged marriage to a man aged fifty-five; that she had lived on the streets in Nadi for a year surviving by begging and eating scraps from garbage; that during this time she was sexually abused and raped by Indian males; that she was then taken in by an Indian family, with whom she has lived happily ever since, doing housework and looking after the children.  When the family migrated to Australia in 1987, the applicant came too.  She was thirty-nine years old at the time of the hearing before the Tribunal.

Material referred to in the Tribunal’s decision statement included reports that, in Fiji, Indian women who were victims of rape and sexual assault were ostracized, and that the Social Welfare Department provided “accreditation letters” to recipients of a monthly destitute allowance who supplement their allowance by begging.  The Tribunal said that, with little education and no qualifications, the applicant was not capable of establishing herself in Fiji if she returned there alone.  The Tribunal found that, if she returns to Fiji, the applicant will face “serious emotional and material hardship”.  The Tribunal referred to discrimination faced by “women in Fiji, or Fiji Indian women in particular, as a group”.  It considered that “the chance is remote that [the applicant] would face persecution merely because she was a member of either group”.  The Tribunal also concluded that the applicant’s economic hardship “will arise from non-Convention related reasons”.  In reaching its decision the Tribunal purported to apply the reasoning of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568.

The applicant relies on the ground specified in s 476(1)(e) of the Act. Specifically, it is submitted that, in applying the Convention definition of refugee to the facts as found by it, the Tribunal failed to consider whether destitute Indian women may form a social group in Fiji. It is even contended that the applicant “would be a member of a sub-group, a group of Indian Fiji women with accreditation letters”.

The Convention relevantly defines the term “refugee” as:

“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 protection of that country.”

The words “race, religion, nationality, membership of a particular social group or political opinion” are, as Dawson J said in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381, generally referred to as “Convention reasons”.

The Tribunal’s decision antedated the decision of the High Court in Applicant A.  In that case the formulation of Burchett J in Ram was expressly approved by two of the majority, Dawson J (at 389) and Gummow J (at 413-414). Dawson J said (at 388) that the words “for reasons of” require a causal nexus between actual or perceived membership of a particular social group and the well-founded fear of persecution. His Honour explained (at 392) that, by incorporating the five convention reasons, the Convention plainly contemplates that there will be persons fearing persecution who will not be able to gain asylum as refugees.

McHugh J said (at 398):

“Paradoxically, defining the group narrowly may take it outside the concept of “a particular social group” and increase the difficulty of proving that the act relied on is persecution “for reasons of ... membership” of the group.  If the definition of a group has to be hedged with qualifications to relate it an alleged persecutory act, the proper conclusion may be that the reason for the act was not membership of the group but the conduct of the individual.   . . .

When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind.  The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group.  Discrimination - even discrimination amounting to persecution  - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be.  The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.”

His Honour also said (at 401):

“The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution.”

Gummow J emphasized (at 414) that, in his view, numerous individuals with similar characteristics or aspirations do not comprise a particular social group of which they are members.  His Honour also concluded (at 414) that the text of the Convention as a whole, and Art 1 in particular, shows the deliberate choice not to include as “refugees” all persons who have a well-founded fear of persecution.
In the present case the Tribunal appears to have regarded “women in Fiji” or “Fiji Indian women” as social groups for the purposes of the Convention definition.  The identification of these particular social groups was apparently suggested by the applicant’s migration agent at the interview with the respondent’s delegate, who noted his argument: “women belonged to a social gp.  He thinks she has experienced persecution as a female in a social gp plus from a race point of view.”  I think that the submission now made by reference to a further refined group, namely, those “with accreditation letters”, is disingenuous.  The material about such letters was, after all, not known to the applicant’s adviser.  If I may echo what Dawson J said in Applicant A (at 393), the argument amounts to little more than the assertion of common demographic factors.

Be that as it may, however any social group is identified, Applicant A confirms that the Tribunal had to be satisfied that any persecution would be driven by a Convention reason.  That is the question to which the Tribunal directed its mind and, accordingly, its decision did not involve an error of law.

The application will be dismissed with costs.  I would not wish to part from the case of this unfortunate women without making two observations.  The first is how inappropriate it was to encourage any hope on her part that she would be recognised as a refugee.  Her migration agent seems to have acknowledged the hopelessness of the case as long ago as 24 November 1995 in a frank telephone conversation with the respondent’s delegate.  The other matter relates to the compassionate conduct of that delegate.  On her own initiative the delegate appears to have arranged counselling at a local community health centre to assist the applicant.  This belies the often projected image of a federal bureaucracy concerned only with its own narrow bailiwick.  Our community should be grateful that a public servant exhibits such instinctive decency towards an alien in the position of the applicant.

I certify that this and the preceding (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam J

Associate:
Dated:            28 October 1997

Counsel for the applicant:	K L Duncombe
Solicitor for the applicant:	Chandra Jamnadas
Counsel for the respondent:	R T Beech-Jones
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	15 July 1997
Date of judgment:	28 October 1997