Minister for Immigration & Multicultural Affairs v Sarrazola [1999] FCA 1134
MIGRATION – Migration Act 1958 (Cth) – application for protection visa – whether error of law – more than one motivation for persecution – family as particular social group – whether need to establish link to further Convention reason
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v FENNEY SOFIA REDONDO SARRAZOLA N 191 of 1999
EINFELD, MOORE and BRANSON JJ
SYDNEY 6 OCTOBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 191 of 1999
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:
FENNEY SOFIA REDONDO SARRAZOLA Respondent
JUDGES:
EINFELD, MOORE and BRANSON JJ
DATE OF ORDER:
6 OCTOBER 1999
WHERE MADE:
SYDNEY
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.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 191 of 1999
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:
FENNEY SOFIA REDONDO SARRAZOLA Respondent
JUDGES:
EINFELD, MOORE and BRANSON JJ
DATE:
6 OCTOBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
EINFELD, MOORE and BRANSON JJ
INTRODUCTION
This is an appeal from a decision of a judge of this Court (Hely J) whereby his Honour set aside a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the applicant that the respondent was not entitled to a protection visa. His Honour remitted the matter to the Tribunal for determination according to law.
The respondent is, for present purposes, entitled to a protection visa if the Tribunal is satisfied that she is a 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 …” (Article 1A(2) of the 1951 Convention Relating to the Status of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134
Case
[1999] FCA 1134
Decision Date
CaseChat Overview and Summary
In the matter of Minister for Immigration and Multicultural Affairs v Sarrazola, the respondent, a Colombian national, sought to be granted a protection visa on the grounds that she had a well-founded fear of being persecuted if she returned to Colombia. The respondent's brother had been killed by criminals who then threatened her and her family, demanding money they believed was owed by the respondent's brother. The Tribunal rejected the respondent's application, finding that the motivation behind the threats and demands was not based on any of the Convention reasons specified in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees. The primary judge, Hely J, upheld the Tribunal's decision but for different reasons, concluding that the Convention was not intended to protect family members from persecution where the family is not linked to a broader group recognised by the Convention definition.
The key legal issues before the court were whether the primary judge was correct in reaching his own conclusion about the motivation of the persecutors, and whether the respondent's family could constitute a particular social group within the meaning of Article 1A of the Convention. The court found that the primary judge was entitled to conclude that the Tribunal had erred in law by failing to recognise that one person may be motivated to persecute another for more than one reason. Additionally, the court held that the primary judge did not need to determine whether the respondent's family constituted a particular social group, as the Tribunal's error in this respect was immaterial to its ultimate decision.
The court held that the Tribunal erred by concluding that the motivation of the criminals was solely self-interest, which precluded a finding that the persecution was also motivated by a Convention reason. The court emphasised that the existence of a criminal motive does not preclude the possibility of persecution based on a Convention reason. Furthermore, the court noted that the text of the Convention and its object and purpose did not support the Tribunal's approach that the Convention is not intended to protect family members from persecution unless the family is linked to a broader group recognised by the Convention. The appeal was dismissed with costs.
Orders
Orders of the court
The appeal be dismissed with costs.
Background
Background to the litigation
The respondent is, for present purposes, entitled to a protection visa if the Tribunal is satisfied that she is a 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 …” (Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together hereafter referred to as the “Convention”)).BACKGROUND FACTS The respondent is a citizen of Colombia who is in Australia with her husband and children. The Tribunal found that the respondent and the other members of her immediate family had, while in Colombia, received financial demands from, and been threatened by, criminals who were responsible for the death of her brother. The respondent’s brother had a background of criminal involvement. The evidence of the respondent (who was the applicant before the Tribunal) as to the threats against her and her immediate family was summarised by the Tribunal in the following passage from its reasons for decision:“The Applicant stated that in January 1996 a stranger came to their house, stated that he was from the group responsible for her brother’s death, and stated that as his relatives they were now responsible for the money her brother had owed them. The man demanded that they sell their house in order to pay him and threatened to kill their children if they did not comply. …The Applicant stated that in late February 1996, the same man again came to their house, and repeated his demands and threats.” The Tribunal accepted the respondent’s evidence, including her evidence which established that the Colombian authorities were either unable or unwilling to provide her with any meaningful protection.TRIBUNAL’S REASONS FOR DECISION In considering the respondent’s claim to be entitled to a protection visa, the Tribunal noted that there was nothing at all in the evidence to suggest that the criminals involved in the respondent’s brother’s death, and the subsequent threats to the respondent and her immediate family, were in any way motivated against the respondent’s brother for a Convention reason (ie for reason of his race, religion, nationality, political opinion or membership of a particular social group). After giving consideration to certain authorities, the Tribunal concluded:“Although it is well recognised that members of a particular family are capable of constituting a particular social group, the case law tends to support the conclusion that the Convention was not intended to protect family members from persecution where the family is not linked to a broader group recognised by the Convention definition, the motivation for the harm feared is essentially a personal matter and the main target of the persecution falls outside the scope of the Convention.This view accords with common sense. It would make a nonsense of the Convention if in such circumstances an applicant were to be found to be a refugee notwithstanding that the harm feared by the main target (in this instance, her brother) fell outside its scope.In any event, the Tribunal is not satisfied that in this case the financial demands and accompanying threats directed against the Applicant can be said to be motivated by a purpose or desire to harm the Applicant by reason of her family membership or relationship to her brother as such. Rather, the criminals’ concerns were motivated by self-interest to recover the money they believed was owing to them by the Applicant’s deceased brother from the obvious target of opportunity, a sister (and her husband) who owned a house. The Tribunal is satisfied that had the deceased brother had a business partner with assets, and a sister with no assets, the criminals would have pursued the business partner and given no further thought to the Applicant. …To the extent that the Applicant believes that these criminals will now harm or kill her on return to Colombia because she has ignored their instructions by not paying the money demanded, by informing the authorities and by leaving the country, this harm or danger is not motivated by any Convention reason.Having regard to all the circumstances, the Tribunal is therefore not satisfied that the harm feared by the Applicant and her husband on return to Colombia arises (even in part) for a Convention reason.”PRIMARY JUDGE’S REASONS FOR JUDGMENT
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In considering the respondent’s claim to be entitled to a protection visa, the Tribunal noted that there was nothing at all in the evidence to suggest that the criminals involved in the respondent’s brother’s death, and the subsequent threats to the respondent and her immediate family, were in any way motivated against the respondent’s brother for a Convention reason (ie for reason of his race, religion, nationality, political opinion or membership of a particular social group). After giving consideration to certain authorities, the Tribunal concluded:“Although it is well recognised that members of a particular family are capable of constituting a particular social group, the case law tends to support the conclusion that the Convention was not intended to protect family members from persecution where the family is not linked to a broader group recognised by the Convention definition, the motivation for the harm feared is essentially a personal matter and the main target of the persecution falls outside the scope of the Convention.This view accords with common sense. It would make a nonsense of the Convention if in such circumstances an applicant were to be found to be a refugee notwithstanding that the harm feared by the main target (in this instance, her brother) fell outside its scope.In any event, the Tribunal is not satisfied that in this case the financial demands and accompanying threats directed against the Applicant can be said to be motivated by a purpose or desire to harm the Applicant by reason of her family membership or relationship to her brother as such. Rather, the criminals’ concerns were motivated by self-interest to recover the money they believed was owing to them by the Applicant’s deceased brother from the obvious target of opportunity, a sister (and her husband) who owned a house. The Tribunal is satisfied that had the deceased brother had a business partner with assets, and a sister with no assets, the criminals would have pursued the business partner and given no further thought to the Applicant. …To the extent that the Applicant believes that these criminals will now harm or kill her on return to Colombia because she has ignored their instructions by not paying the money demanded, by informing the authorities and by leaving the country, this harm or danger is not motivated by any Convention reason.Having regard to all the circumstances, the Tribunal is therefore not satisfied that the harm feared by the Applicant and her husband on return to Colombia arises (even in part) for a Convention reason.”PRIMARY JUDGE’S REASONS FOR JUDGMENT Hely J observed that the Tribunal did not express a conclusion as to whether or not the respondent was relevantly a member of a particular social group within the meaning of Article 1A of the Convention. However, with respect to the Tribunal’s conclusion that the Convention is not intended to protect family members from persecution where the family is not linked to a broader group recognised by the Convention, his Honour said:“Neither the text of the Convention, nor the context object or purpose of the treaty supports the approach adopted by RRT in relation to its first reason. Indeed I did not understand counsel for the respondent to support that approach. Rather, she approached the matter on the basis that RRT’s errors in this respect were immaterial, because RRT did not base its ultimate decision on this point.”
Ratio Decidendi
Legal Principle Established
Mr Basten QC, counsel for the appellant, relied on two principal contentions. First, that since the identification of the motivation of the persecutors was entirely a matter of fact to be determined by the Tribunal, it was not open to the primary judge to reach his own conclusion as to the motivation of the persecutors and disregard the finding of the Tribunal. Secondly, that although it is not impossible for a family group to constitute a particular social group within the meaning of Article 1A of the Convention, the primary judge ought to have found that the family of the respondent’s deceased brother, however delimited, could not relevantly constitute a particular social group within the meaning of the Convention.CONSIDERATION Section 476(1)(e) of the Migration Act 1958 (Cth) (the “Act”) provides that an application may be made to this Court for review of a decision of the Tribunal on the ground -“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.”Motivation for Persecution In its reasons for decision the Tribunal failed to recognise that one person may be motivated to persecute another for more than one reason. It appears to have acted on the basis that a finding that the criminals were motivated by self-interest to recover the money they believed was owing to them by the Applicant’s deceased brother was necessarily inconsistent with a finding that they were motivated by a purpose or desire to harm the Applicant by reason of her family membership or relationship to her brother as such. As Einfeld J pointed out in Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823 at para 30 in the context of extortion by the Chechen mafia:“… the Chechen mafia may have chosen to extort Mr Chokov as opposed to another person because of his association with his Chechen wife and the attacks may also have been motivated by the criminal procurement of money. The existence of a criminal motive does not mean that the crimes were not also related to Mrs Chokova’s [sic] national origins.” In Kanagasbai v Minister for Immigration and Multicultural Affairs [1999] FCA 205 at para 20 Branson J said:“I further consider it appropriate to note that, for the reasons discussed by me in Okere v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 678, the Tribunal’s finding that the motivation of those who harassed the applicant was to obtain money is not necessarily inconsistent with a finding that the applicant was harassed for reasons of her race or political opinion. It is, of course, the case that extortion based on a perception of the victim’s personal wealth, or otherwise aimed at the victim as an individual, will not amount to persecution for a Refugees Convention reason (Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568-9). However, in this case there was material before the Tribunal capable of supporting a finding that the applicant was selected as a target for extortion by reason of her race or political opinion. That is, it was open to the Tribunal to find that whilst the aim of the harassers was to obtain money from the applicant, the true reason why she was selected for harassment was her race or political opinion.”