Lupac, Teresita and Anor v Minister for Immigration and Multicultural Affairs Lupac, Alberto and Anor v Minister for Immigration and Multicultural Affairs
[1998] FCA 1490
•24 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status – whether the decision involved an error of law being and error involving an incorrect application of the law to the facts as found – whether the RRT properly came to a conclusion that there was no claim for persecution of the applicants as members of a particular social group – whether RRT had an obligation to give reasons for its decision
Migration Act 1958 (Cth), s 476(1)(e)
Applicant A v Minister for Immigration and Ethnic Affairs and Anor (1997) 192 CLR 225, cited
Jahazi v Minister for Immigration and Ethnic Affairs (1985) 61 FCR 293, cited
Brackenreg v Comcare Australia (1995) 56 FCR 335 cited
TERESITA LUPAC & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 602 of 1998
ALBERTO and MARY ANTOINETTE LUPAC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 696 of 1998
O’CONNOR J
SYDNEY
24 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 602 of 1998
BETWEEN:
TERESITA LUPAC
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 696 of 1998
BETWEEN:
ALBERTO and MARY ANTOINETTE LUPAC
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
O'CONNOR J
DATE OF ORDER:
24 NOVEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decisions of the Refugee Review Tribunal dated 21 May 1998 and 10 June 1998 respectively be set aside and remitted back to the Tribunal for reconsideration according to law.
The respondent pay the applicants’ 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 602 of 1998
BETWEEN:
TERESITA LUPAC
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 696 of 1998
BETWEEN:
ALBERTO and MARY ANTOINETTE LUPAC
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
O'CONNOR J
DATE:
24 NOVEMBER 1998
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
These reasons concern two applications for review. The parties are members of the same family.
The first is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 21 May 1998 (NG 602 of 1998) affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicant and her son.
The second is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 10 June 1998 (NG 696 of 1998) affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicants.
The ground of both applications is that the decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the Tribunal.
LEGISLATIVE CONTEXT
The relevant provisions of the Migration Act 1958 (Cth) (“the Act”) in respect of this application are as follows:
“Application for review
476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
...(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
...
(2) The following are not grounds upon which an application may be made under subsection (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”
A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because she is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, they are persons 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The applicants seek an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law. They also seek an order restraining the Department of Immigration and Multicultural Affairs from removing them from Australia.
FACTUAL BACKGROUND
The applicants are citizens of the Philippines and are part of the same family being the wife and children of a violent drug addict.
The applicant wife claims that she fears returning to the Philippines because her husband is a violent man, who has assaulted her and subjected her to psychological torture. Prior to her departure for Australia her husband had assaulted her very badly and she was bedridden for days. She stated at the Tribunal hearing that her husband treated her this way because he is a drug addict and wants his money. When she was living with her husband she had received money from her mother and sister and her husband would hurt her because she refused to give him this money. The applicant showed the Tribunal the scars on her wrist and eyebrow.
She reported the incidents of violence to the authorities but they informed her that it was purely a domestic matter, and refused to become involved. When her mother found out about the violence against the applicant she went to the Philippines and brought the applicant back to Australia.
She fears that she will be permanently injured or killed by her husband if she returns to the Philippines.
The applicant wife applied to the Department of Immigration and Multicultural Affairs for a protection visa on 5 December 1997. The delegate’s decision refusing the application was made on 23 December 1997. She applied for a review of that decision by the Tribunal on 19 January 1998. The application for review was rejected by the Tribunal and her application for protection visa refused on 21 May 1998.
The children, the applicants in NG 696 of 1998, confirmed their mother’s story.
While living with their father in the Philippines the police raided their home frequently because of their father’s drug associations and he beat them and as well as their mother. The applicant brother had to receive medical treatment for a broken hand and a broken bone in his forehead as a result of beatings by his father.
The applicant children also stated that in 1993 their father stole money from a friend and that man was now threatening the applicants. The applicant brother had to leave school to support the family and the applicant sister left school because she was afraid for her safety and was threatened by the man to whom their father owed money. They stated that they approached their “village head” for help but were told that theirs was a “domestic dispute”.
They fear returning to the same situation in the Philippines, where no protection is available.
The applicant children applied to the Department of Immigration and Multicultural Affairs for a protection visa on 19 July 1996. The delegate’s decision refusing the application was made on 25 July 1997. The applicants applied for a review of that decision by the Tribunal 13 August 1997. The application for review was rejected by the Tribunal and the application for protection visa refused on 10 June 1998.
TRIBUNAL’S DECISION
The Tribunal found all applicants were frank and open and were satisfied that they were credible witnesses. As a result the evidence they gave was accepted.
However, the Tribunal found that the applicants had made no claim, nor was there any evidence to suggest that they feared persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion. It was accepted that the applicants feared persecution by their husband and father, however the Tribunal said he was targeting them as individuals and not for one of the Convention reasons. The Tribunal therefore was not satisfied that the applicants had a well founded fear of being persecuted for a Convention reason.
Having considered the evidence as a whole, the Tribunal was not satisfied that the applicants were persons to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.
SUBMISSIONS OF THE PARTIES
The applicants submitted to the Court that they had claimed at the Tribunal they feared persecution for reasons of their membership of a particular social group – their family. The applicants relied on various passages from Applicant A v Minister for Immigration and Ethnic Affairs and Anor (1997) 192 CLR 225 where the High Court accepted that a family could be a particular social group, and provided that they were being persecuted “for reasons of” membership of that group, they could come within the protection of the Convention.
The respondent submits that the Tribunal had, implicitly, come to the conclusion that the persecution was indiscriminate and targetting the family members as individuals. They submit that the decision is correct even though the question of the social group was not specifically considered and findings in relation to it were not made. The respondent also relied on the following passage from Jahazi v Minister for Immigration and Ethnic Affairs (1985) 61 FCR 293 at 299-300 (per French J):
“But a bare causal connection is not, in my opinion, sufficient to attract Convention protection. The question whether a particular causal connection between persecution and membership of a group attracts Convention protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention. While it is not necessary that the fear of persecution be solely attributable to membership of a relevant social group, a decision-maker can have regard to the extent to which membership of the relevant group is a factor in the risk of persecution.
…
Membership of the group is the occasion of the connection [to the persecutor] and to that extent there is a causal connection between that membership and the apprehended harm. But the fear of persecution in this case is not attributable to membership of the group in any sense relevant to the Convention.”
The respondent submitted that in this case the Tribunal had found “as a matter of evaluation” that the motivation for the persecution feared is not a Convention ground. The Tribunal evidently regarded the facts as being a “standard” case of domestic violence and therefore not a case of persecution because of membership. No explanation was offered in submission as to why, if this was so, the decision maker did not say so. Certainly no reference to the principle enunciated in this case was made.
DECISION
In the reasons for decision, in both matters, although heard separately, the Tribunal under the heading “Findings and Reasons” said:
“The applicant(s) have made no claim, nor is there any evidence to suggest that she fears persecution for reasons of her race, religion, nationality, membership of a particular social group or political opinion.”
However, unlike many of the decisions which are made by the Tribunal, all of these applicants were accepted as open and frank and having credibility after having told stories of family violence. They were not found to have exaggerated or (to have been) telling lies.
The applicants were found by the decision maker to have been persecuted by their husband and father respectively. However, the Tribunal then concluded that this could not amount to persecution under the Refugee Convention, because the perpetrator was targetting them personally (or individually) and not for “one of the Convention Reasons”. No reason, based on the evidence, was given for this conclusion.
Even if one took into account only those claims made by the applicants at the Tribunal hearing, which are referred to by the decision maker in the reasons for decision and with no reference to the transcript, it is clearly not open for the decision maker to conclude that these applicants have made no claim for refugee status because of their membership of a particular social group. Nor could one conclude that there was no evidence on which such a claim could be considered.
The relationships of these applicants, (domestic or family ties), were established in evidence and accepted by the Tribunal. The fact that reports of incidents of violence were made by the applicants to a number of the authorities and their refusal to respond because it was a “purely domestic matter” was accepted. The fear of future persecution on return to the Phillipines was apparently accepted. With this evidence before it the Tribunal was not able to come to the conclusion that there was no claim (or evidence to found a claim) for persecution as members of a particular social group.
Indeed in addition to the family social group relied on by the applicants, the possibility of gender-based persecution could have been considered by the Tribunal.
As the decision maker no doubt knew, the Department of Immigration and Multicultural Affairs issued guidelines for refugee and humanitarian visa applicants, on gender issues in July 1996 (See “Report of the UNHCR Symposium on Gender-Based Persecution” (1997) International Journal of Refugee Law 195). These guidelines recognise that refugees, because of their gender or even age, may face problems in fleeing persecution.
Relevant to this case, the guidelines say the following:
“Agents of persecution
4.11.A Convention refugee is someone who is at risk because their country of nationality has failed to protect them from persecution. A failure to protect can occur in several ways. It may be that the authorities are themselves the perpetrators of the persecution. However, it may be that the persecutor is another party from whom the authorities do not protect the person either because they are unwilling or unable to do so. Claims of gender-based persecution often involve persecution committed by non-state agents.
4.12In some societies, particular types of violence against women may be officially condemned or even illegal but in fact be so endemic that local authorities turn a blind eye to its occurrence. Sometimes these forms of abuse are systemic or culturally acceptable so that local authorities may actively participate or be complicit in the harms suffered.
4.13It is important to remember that the international protection of the Refugee Convention is only available to those who are not able to gain protection from their national authorities. Where a non-State agent is involved there is a need to establish that the State is ‘unwilling or unable’ to protect the applicant. Clearly, this is established if the authorities were aware of a person’s need for protection (either because of her approach or by some other means) and none was forthcoming.
4.14It should also be noted that it is not always reasonable or possible for a woman to alert the authorities to her need for protection. State protection should be effective – with provision of mechanisms for dealing with complaints and also assurance that such avenues for redress are realistic and accessible to a woman of her culture and position.
·Officers should investigate why a woman did not seek the protection of the State, as her inability to even request protection may in itself be indicative of a failure of state protection.” (p 208)
Applicants in these cases could have been so affected and this would need to be taken into account in assessing whether there had been discriminatory persecution protected by the Convention. There is no doubt there was evidence before the Tribunal of complaints to authorities which were ignored because the complaints were "domestic" in nature. In my view these matters should then have been considered by the decision maker in evaluating the applications.
The outcome of such consideration may not, of course, have been favourable to the applicants but it was required on the accepted facts. As Sheppard J, as he then was, said in Brackenreg v Comcare Australia (1995) 56 FCR 335 at 349:
“In the present case the findings of fact upon which the Tribunal relied appear clearly. That is in accordance with the obligation cast on the Tribunal by s 43(2B) of the Act. But what it fails to do is to refer to the evidence upon which those findings were based. Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations. Furthermore, there is a real purpose in requiring a tribunal to refer to the evidence upon which its finding of facts are based. This enables a court dealing with an appeal on a question of law from the Tribunal to determine, more confidently than might otherwise be the case, whether or not the findings of fact made by the Tribunal were based upon evidence before it and were thus findings which were open to it to make. If they were not, an error of law would be disclosed.”
The Tribunal has an obligation to give reasons for its decision. The consequences of the facts, as found or accepted had to be considered and if rejected or not preferred, this must be stated and why, for the reasons given in the passage quoted above. To fail to do so is an error of law
It was submitted by the respondent that, taking a broad approach to the task of giving reasons, the Tribunal here has adequately explained the conclusions reached. I disagree.
The Court orders that these decisions be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor
Associate:
Dated: 24 November 1998
Counsel for the Applicants: R Lee Solicitor for the Applicants: Belen Oag, Solicitors Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 October 1998 Date of Judgment: 24 November 1998
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