Gounderi v Minister for Immigration and Multicultural Affairs
[1998] FCA 1080
•19 AUGUST 1998
CATCHWORDS
IMMIGRATION – Refugee - refusal of protection visa by Refugee Review Tribunal – Convention definition of “refugee” – “membership of a particular social group” – Fijian national suffering from end stage renal failure – unavailability of haemodialysis facility at any public hospital in Fiji – refugee-claimant dependent on haemodialysis equipment in hospital in Sydney – would die within short period if returned to Fiji – whether Fijian Government’s failure to allocate funds to provide such facility in Fiji constituted persecution of refugee-claimant for reason of his membership of a particular social group, that is, Fijian sufferers of end stage renal failure.
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 (FC), distinguished
Kashayev v Minister for Immigration and Ethnic Affairs (1994) 50 FCR 226, distinguished
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, followed
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, applied
R v Immigration Appeal Tribunal; ex parte Shah [1998] 1 WLR 74, referred to
Minister for Immigration and Ethnic Affairs v Zamora unreported, FCA/FC,
5 August 1998, applied
LovMinister for Immigration and Ethnic Affairs (1995) 61 FCR 221, referred to
SUBERMANI GOUNDER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 406 of 1997
LINDGREN J
SYDNEY
19 AUGUST 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 406 of 1997
BETWEEN:
SUBERMANI GOUNDER
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
19 AUGUST 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
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 406 of 1997
BETWEEN:
SUBERMANI GOUNDER
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
19 AUGUST 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Mr Gounder”) applies for review of a decision of the Refugee Review Tribunal that the Tribunal was not satisfied that he is a refugee, and affirming a decision of a delegate of the respondent Minister refusing him a protection visa.
Mr Gounder was born on 13 July 1940 and is a Fijian national who suffers from end stage renal failure. There is, in effect, no treatment available to him in Fiji. He is receiving haemodialysis treatment three times a week at the Prince Henry Hospital in Sydney. If he is forced to return to Fiji he will shortly die. In terms of the definition of refugee set out below, Mr Gounder claims to be unwilling to return to Fiji because of a well-founded fear of persecution by reason of his “membership of a particular social group”, assumed to be “Fijian citizens who suffer renal failure” or “Fijian citizens who suffer renal failure and who need long term haemodialysis”.
FACTS
Mr Gounder was a school teacher in Fiji. He has suffered from hypertension since 1979.
On 3 December 1993, he was admitted to the Fijian Ministry of Health’s Lautoka Hospital. A report dated 9 December 1993 of Dr J Nasaroa of that hospital stated that Mr Gounder urgently needed “overseas referral and evacuation for renal transplantation”.
On 23 December 1993, Mr Gounder was admitted to the Prince Henry Hospital in Sydney and commenced haemodialysis treatment. He was discharged on 6 January 1994 to be maintained on continuous ambulatory peritoneal dialysis (“CAPD”) in readiness for a renal transplant. He returned from Sydney to Fiji on 21 February 1994 on the CAPD program.
In June 1994, he returned to the Prince Henry Hospital Renal Unit with severe peritonitis. He was changed from the CAPD program to haemodialysis. This required, and, as will appear, still requires, frequent attendance by Mr Gounder at that hospital.
In late October 1994, Mr Gounder had a renal transplant at RSR’s Trinity Acute Care Hospital in Madras, India. He was discharged on 8 November, when it was thought that the operation had been successful. On 13 November, only five days later, he was back at the Prince Henry Hospital Renal Unit. It did not take long for those concerned to be convinced that the transplant was “no longer viable”. Mr Gounder underwent surgery on 18 November and was discharged on 6 December, continuing to receive haemodialysis three times a week. In June 1995, Mr Gounder underwent a further operation.
On 4 July 1995, he applied to the Department of Immigration and Multicultural Affairs for a protection visa (866). He was interviewed on 11 September. On 27 October he was advised by the Department that his application was refused.
On 21 November, he applied to the Tribunal for a review of the decision. He gave evidence before the Tribunal on 15 July 1997. Subsequently, written submissions were made. It seems from the papers that Mr Gounder’s solicitor has been assiduous in looking after his client’s interests and he made thorough and careful submissions to the Tribunal on his client’s behalf. Nonetheless, on 30 April 1998, the Tribunal affirmed the primary decision.
DEFINITION OF REFUGEE
The prescribed criteria for the grant of a protection visa are set out in s 36(2) of the Migration Act 1958 (“the Act”) and in Part 866 of Schedule 2 to the Migration Regulations 1994. The main criterion is that the Minister is satisfied that an applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (together, “the Convention”). Australia has undertaken protection obligations to persons who are refugees as defined in the Convention. The Convention defines a refugee as, relevantly, a person who:
“… owing to 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; ...”
As noted earlier, Mr Gounder’s case is that he has a well-founded fear of persecution for reason of his membership of a particular social group.
APPLICATION FOR ORDER OF REVIEW FILED 28 MAY 1997
The ground of the present application is that found in s 476 (1) (e) of the Act, that is, that the decision involved an error of law. It is submitted that the Tribunal’s error involved both an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the person who made the decision. The particular error of law relied on by Mr Gounder is that the Tribunal incorrectly interpreted the Convention definition of “refugee” and incorrectly applied that definition to the facts as found by it.
OUTLINE OF MR GOUNDER’S SUBMISSIONS
Mr Gounder first distinguishes cases in which voluntary action on the part of a refugee-claimant has given rise to his or her membership of the particular social group in question. He is not a person whose voluntary acts have attracted the infliction of the harm in question. He refers to Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 (FC) (“Morato”) at 404-406 (convicted drug traffickers who turned State’s evidence) and Kashayev v Minister for Immigration and Ethnic Affairs (1994) 50 FCR 226 (Northrop J) (“Kashayev”) at 234 (Russian seamen who imported and sold used cars from Japan and were targeted by the Russian “Mafia”).
Second, Mr Gounder submits that the harm feared is sufficiently serious. There can be no question about this.
Third, Mr Gounder submits that persecutory conduct can consist of inaction. The particular inaction on which he relies is the failure of the Fijian government to provide haemodialysis facilities with trained personnel in a public hospital in Fiji.
Fourth, while acknowledging that governmental policy, albeit discriminatory, is not necessarily persecution, Mr Gounder submits that it can be where its effect is disproportionate to the advantages to be obtained by the policy. He submits that the death of those suffering from end stage renal failure is disproportionate to any benefit that can be imagined arising from the allocation of limited funds to purposes other than the provision of the haemodialysis equipment and staff trained in its use.
I will not address the Minister’s submissions separately because I accept them in general and they will be reflected later in these Reasons.
FINDINGS OF FACT AND REASONS FOR DECISION OF THE TRIBUNAL
The Tribunal found that Mr Gounder was suffering from end stage renal failure which required haemodialysis; that his condition was very serious; that without haemodialysis on a regular basis, such as he is receiving in Sydney, he would shortly die; and that the Government of Fiji does not provide long-term haemodialysis in public hospitals. The Tribunal was prepared to assume in Mr Gounder’s favour that the treatment he required was not effectively available in his home, and that, therefore, his fear of serious harm upon returning to Fiji was well-founded.
The Tribunal accepted that a failure to provide adequate medical care might, in some circumstances, amount to persecution for a Convention reason.
The Tribunal was prepared to assume that Mr Gounder did belong to a “particular social group, namely people suffering from kidney failure, or people who have kidney failure and who require long term haemodialysis”. However, it saw the crucial issue as being whether Mr Gounder’s well-founded fear was a well-founded fear of being “persecuted for reasons of his membership of” the group so defined. In an important passage, the Tribunal member said this:
“The evidence does not suggest that the Fijian Government’s failure to provide medical treatment for people with kidney disease, or those who require long term haemodialysis, arises from any motivation to harm such people, or that such people are jointly condemned by the authorities; rather, the evidence indicates that it is a question of economics, as Dr George stated and as Dr Nasoroa said in his letter when he said that provision of haemodialysis was not a priority of the Government of Fiji due to the costs involved and the other pressing areas of need within the Fijian health system.
Every Government must assess its own budgetary constraints with the economic realities and the wealth available for that country to spend on those areas for which the Government has responsibility. In this case the evidence is that the Fijian Government spends a considerable sum of its annual budget, and a significant proportion of its GDP, on health. It is not a wealthy nation. If, in the sad event, the Government does not have the money for haemodialysis, then that is unfortunate, but it is not persecution.”
Another passage from the Tribunal’s Reasons on which the Minister relied was this:
“The Tribunal accepts that the Fiji health system is unable to meet the special demands which a person with the applicant’s condition requires and that this is because Fiji’s Government cannot afford the costs involved in establishing and running the services which the applicant requires.”
In summary, the Tribunal concluded that the serious harm which Mr Gounder feared, with good reason, was not harm which resulted from persecution of him by reason of his membership of a particular social group.
REASONING
It seems to me that the present case is substantially resolved if the relevant part of the definition is not broken up but is understood as a whole. With respect, this notion was well expressed by Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (“Ram”). His Honour said (at 568-569):
“In my opinion, 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 the 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 their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word ‘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 possesses, 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. There is thus a common thread which links the expressions ‘persecuted’, ‘for reasons of’, and ‘membership of a particular social group’. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.
….
… it remains important to keep steadily in mind the essential unity of the conception. A crowd is not a social group, and numerous individuals with similar characteristics do not make up a social group — certainly not one of a kind that is properly described as having a membership. 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.”
This passage is consistent with the judgments of members of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”). In that case, Gummow J (at 285) expressed agreement with the last two sentences of the passage set out above, and McHugh J said (at 256):
“The phrase ‘a well-founded fear of being persecuted for reasons of … membership of a particular social group’ is a compound conception. It is therefore a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations. Indeed, to ignore the totality of the words that define a refugee for the purposes of the Convention and the Act would be an error of law by virtue of a failure to construe the definition as a whole.
Where the claim is one of a ‘well-founded fear of being persecuted for reasons of ... membership of a particular social group’, the interaction between the concepts of ‘persecuted’, ‘for reasons of’ and ‘membership of a particular social group’ is particularly important.”
The three elements, “persecuted”, “for reasons of” and “membership of a particular social group” inform each other. This does not mean that it is impermissible to consider them separately, but it does mean that ultimately they must be understood as part of the total expression.
In particular judgments, emphasis has been placed on one element of the definition or another. In Morato it was not in dispute that the appellant had a well-founded fear of “persecution”. This confined the area of controversy to the issue whether the feared persecution was for reason of membership of a particular social group. Black CJ distinguished between persecution by reason of acts done or perceived to have been done, and persecution by reason of membership of a particular social group. His Honour said (at 406):
“…the supposed particular social group, defined by an act or acts done, is so lacking in common characteristics that persecution, if it occurred, would be by reason of those acts and not by reason of membership of a particular social group."
In Kashayev, Northrop J applied the same distinction, invoking the formulation of it in Ward v Canada (Minister of Employment and Immigration) (1993) 103 DLR (4th) 1 at 33, as a distinction between targeting a person for what he or she was doing and not for what he or she was “in an immutable or fundamental way”.
Seizing upon this distinction, counsel for Mr Gounder submits that his client is a paradigm example of a person who is not being persecuted for any form of voluntary action on his part. But it turns the exclusionary distinction to which I have referred on its head to say that since Mr Gounder does not fall foul of it, he must be included in the category of persons who fear being “persecuted” “for reason of” “membership of a particular social group.”
I would not wish to be thought to accept that volition to any degree is necessarily inconsistent with the notion of membership of a particular social group. It is not inconsistent with the “religion” and “political opinion” limbs of the definition. On the other hand, race and nationality cannot be changed at will. Although one can change one’s religion and political opinion, the exercise of the will involved in doing so is hardly like that employed in changing one’s tie or brand of toothpaste. The beliefs involved are so fundamental that the Convention accepts that it would be an affront to human dignity and conscience to require a person to change them, and protects them accordingly. In my opinion, as will appear below, these aspects of the other four limbs (race, religion, nationality and political opinion) illuminate somewhat the significance of the “membership of a particular social group” limb.
Conscious of the perils of, and the need to avoid, an attempt at exhaustive redefinition, I suggest that the following interrelated and often overlapping propositions should be accepted:
(a)The “membership of a particular social group” is, like race, religion, nationality and political opinion, a limiting category, and does not encompass all persons who face persecution for any reason not falling within the other four categories;
(b)The unifying characteristic must exist independently of, and precede, the persecutory conduct (Applicant A at 242 per Dawson J, 263-4 per McHugh J; R v Immigration Appeal Tribunal; ex parte Shah (“Shah”) [1998] 1 WLR 74 (CA); Minister for Immigration and Ethnic Affairs v Zamora, unreported, FCA/FC, 5 August, 1998 at 8);
(c)The persecutory conduct necessarily involves an antecedent adverse perception of the characteristic, of those who possess it, or of their conduct, on the part of the persecutors (the “attitude” or “motivation” of the persecutors referred to by Burchett J in Ram at 568);
(d)The persecutors’ own perception, if not the perception of others in the country of nationality, of the characteristic gives it a particular social significance, which is something distinct from the mere fact of its being shared (Applicant A at 264 per McHugh J);
(e)The characteristic must be recognised by persons other than the members of the group themselves as the identifier of a “social group” (Applicant A at 264 per McHugh J; Zamora at 8);
(f)Although it may be relevant that the supposed members of a particular social group conceive of themselves as constituting such a group, and that they are “joined together in a group with some degree of cohesiveness, co-operation or interdependence” (Shah at 93 per Staughton LJ), they need not do or be so; what is required is that others see them as set apart from society in general (Applicant A at 241 per Dawson J, 265-266 per McHugh J; contra Shah at 93 per Staughton LJ).
(g)The persecutory conduct may expose as a particular social group, persons who might otherwise have been thought merely to share a particular characteristic, such as left-handedness or blue-eyedness (cf Applicant A at 264 per McHugh J);
(h)The fact that voluntary action, past or ongoing, contributes, to some extent, to the unifying characteristic is not a disqualification (or a requirement) (Applicant A at 241 per Dawson J);
Notwithstanding (h), the “particular social group” to which the definition refers is not, like a tennis club, of a kind that a person quits as a matter of easygoing choice;
(j)The requisite nature and degree of difficulty of a person’s abandoning the common characteristic is perhaps incapable of definition, and all that I find it necessary and appropriate to say is that, consistently with (h) and (i), above, and with the aspects of the other four limbs of the Convention definition mentioned earlier, it will suffice either that it is impossible for the group members to abandon it, or that to require them to do so would be inconsistent with the respect for their human dignity and conscience that the Convention is concerned to protect (see TD Parish, “Membership in a Particular Social Group under the Refugee Act of 1980; Social Identity and the Legal Concept of the Refugee” (1992) 92 Col L Rev 923 at 923, 953).
In my opinion, Mr Gounder’s condition does not make him a member of a particular social group. This is not to say that persons suffering from a common illness or physical disability can never form such a group (I do not understand Tamberlin J to have held otherwise in Lo vMinister for Immigration and Ethnic Affairs (1995) 61 FCR 221). It seems to me, however, that Mr Gounder seeks to create a particular social group out of the discriminatory effect on such persons, not the discriminatory intention, of a government policy which is neutral in terms of definition. I note that, in my view, propositions (b), (c), (d), (e) and (g) above do not characterise the circumstances of the present case.
The Tribunal found that the Fijian health system is unable to meet the demands of persons placed as Mr Gounder is, because the Fijian Government cannot afford the cost of providing the haemodialysis facility and associated services. It found as a fact that the serious harm in question is not inflicted by the Fijian Government on Mr Gounder “by reason of” his membership of the particular social group suggested by him, that is, by reason of his being a Fijian citizen who suffers renal failure or a Fijian citizen who suffers renal failure and who needs long-term haemodialysis. This finding of fact makes it impossible to conclude that the Tribunal’s decision was infected by error of law.
In sum, not only are citizens of Fiji who suffer from renal failure, or those of them who need long-term haemodialysis, not a particular social group; they are also not “persecuted” by the Fijian Government, and the severe harm they suffer is not inflicted upon them by that Government “for reason of” their shared characteristic.
It is perhaps worthwhile making the point in passing, that, given limited resources, to meet the requirements of Mr Gounder would involve a reallocation of resources and denial of some other services or equipment to other Fijian citizens who share the characteristic of needing them.
The present application will be dismissed. Before parting with it, however, I would make two observations. The first is that s 417(1) of the Act is available. That subsection provides that:
“If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal … another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.”
Second, and perhaps more significantly, there is the availability of a visa subclass 685 -Medical Treatment (Long Stay). On the hearing, counsel for the Minister drew attention to the availability of a visa of that class where a person is
“unfit to depart Australia, as evidenced by a statement from the Commonwealth Medical Officer.”
I understand that Mr Gounder has remained in Sydney in order to attend the Prince Henry Hospital Renal Unit pursuant to successive visas and that a problem which he has faced is the necessity of making repeated applications for the renewal or issue of such visas.
The orders of the Court are that:
the application be dismissed.
[and, after brief argument on costs]
the applicant pay the respondent’s costs.
I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren
Associate:
Dated: 19 August 1998
Counsel for the Applicant: Dr SC Churches Solicitor for the Applicant: M Nair & Co Counsel for the Respondent: Ms E Wilkins Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 August 1998 Date of Judgment: 19 August 1998
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