Minister for Immigration & Multicultural Affairs v Sarrazola [2001] FCA 263
MIGRATION – refugees – persecution – whether a family can be a particular social group – whether persecution of a family member because of conduct of another family member is persecution for reasons of membership of a particular social group – whether error of law
Migration Act 1958 (Cth) s 476(1)(e) Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 Art 1A(2)
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SARRAZOLA N 983 of 2000
JUDGES: HEEREY, SUNDBERG AND MERKEL JJ DATE: 21 MARCH 2001 PLACE: MELBOURNE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 983 OF 2000
On appeal from a Judge of the Federal Court of Australia
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT
AND:
FENNY SOPHIA REDONDO SARRAZOLA RESPONDENT
JUDGE:
HEEREY, SUNDBERG AND MERKEL JJ
DATE OF ORDER:
21 MARCH 2001
WHERE MADE:
MELBOURNE (HEARD IN 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 983 OF 2000
On appeal from a Judge of the Federal Court of Australia
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT
AND:
FENNY SOPHIA REDONDO SARRAZOLA RESPONDENT
JUDGE:
HEEREY, SUNDBERG AND MERKEL JJ
DATE:
21 MARCH 2001
PLACE:
MELBOURNE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
HEEREY J:
For the reasons given by Merkel J I agree with his Honour…
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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Details
AGLC
Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263
Case
[2001] FCA 263
Decision Date
CaseChat Overview and Summary
The Full Court of the Federal Court of Australia considered the case of Minister for Immigration and Multicultural Affairs v Sarrazola (No 2), in which the respondent claimed refugee status on the basis of membership in a particular social group, namely her family. The court was tasked with determining whether the respondent’s family could be classified as a "particular social group" under Article 1A(2) of the Convention Relating to the Status of Refugees 1951, as amended. The court examined the respondent's claim that she and her family faced persecution in Colombia due to her brother's debt to underworld figures, which ultimately led to his murder and subsequent threats against the respondent and her children.
The central legal issue revolved around the interpretation and application of the term "particular social group" in the context of refugee law. The court had to decide if the respondent’s family could be considered a cohesive social group with a distinct identity that warranted refugee protection under the Convention. This required an analysis of whether the shared familial ties and the specific circumstances surrounding the persecution were sufficient to establish the requisite social group.
In its reasoning, the Full Court highlighted that the concept of a "particular social group" must be interpreted broadly but with a focus on groups that are socially distinct within the relevant society. The court examined the evidence of threats and persecution faced by the respondent and her family due to the respondent's brother's debt and death, which placed them in a vulnerable position. The court concluded that the respondent's family shared a common characteristic – their connection to the deceased brother – which made them a cohesive group facing a common threat. Therefore, the court found that the respondent’s family did constitute a "particular social group" for the purposes of the Convention. The decision of the primary judge, Madgwick J, was upheld, and the Full Court dismissed the Minister's appeal.
Orders
Orders of the court
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Background
Background to the litigation
The present appeal concerns the circumstances in which membership of a particular family can constitute “membership of a particular social group” for the purposes of Art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”). Article 1A(2) defines a “refugee” as meaning:“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 the protection of that country.”Background On 13 June 1996 the respondent, her husband and their two children lodged an application for protection visas on the ground that they were refugees. Each member of the family claimed to have a well founded fear of being persecuted for reasons of membership of the family if they return to Colombia, their country of nationality. In the present case it is not disputed that if the respondent is a refugee that would entitle the other members of her family to protection visas. A delegate of the appellant (“the Minister”) refused the applications and the Refugee Review Tribunal (“the RRT”) affirmed the delegate’s decision. The respondent sought a review of the RRT’s decision by the Court. Hely J set aside the decision and remitted the matter to the RRT to be determined according to law (Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 (“Sarrazola No 1”)). The Full Court dismissed an appeal by the Minister against the decision of Hely J (Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 (“Sarrazola No 2”)). The matter again came before the RRT, differently constituted. The RRT affirmed the delegate’s decision and the respondent again sought a review of the RRT’s decision by the Court. The primary judge, Madgwick J ([2000] FCA 919), set aside the decision of the RRT and remitted the matter back to the RRT, differently constituted, to be further dealt with according to law. The Minister has appealed to a Full Court against the decision of Madgwick J.The RRT’s decision The RRT accepted the substance of the respondent’s evidence which was as follows. Her brother, Julian Redondo, owed US$40,000 to certain underworld figures in Colombia. In December 1994 the respondent’s brother was deported to Colombia from the United States of America after serving five years in prison for drug offences. On his return to Colombia he stayed with the respondent’s family on two occasions; in late December 1994 for about twelve days and in August 1995 for about one or one and a half months. In November 1995 a man came to the respondent’s house and asked the respondent if she was her brother’s sister. He inquired about her brother’s whereabouts because (he said) the brother owed US$40,000. The man indicated that people were looking for the respondent’s brother in several cities, and when they found him, they would kill him.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
A delegate of the appellant (“the Minister”) refused the applications and the Refugee Review Tribunal (“the RRT”) affirmed the delegate’s decision. The respondent sought a review of the RRT’s decision by the Court. Hely J set aside the decision and remitted the matter to the RRT to be determined according to law (Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 (“Sarrazola No 1”)). The Full Court dismissed an appeal by the Minister against the decision of Hely J (Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 95 FCR 517 (“Sarrazola No 2”)). The matter again came before the RRT, differently constituted. The RRT affirmed the delegate’s decision and the respondent again sought a review of the RRT’s decision by the Court. The primary judge, Madgwick J ([2000] FCA 919), set aside the decision of the RRT and remitted the matter back to the RRT, differently constituted, to be further dealt with according to law. The Minister has appealed to a Full Court against the decision of Madgwick J.The RRT’s decision The RRT accepted the substance of the respondent’s evidence which was as follows. Her brother, Julian Redondo, owed US$40,000 to certain underworld figures in Colombia. In December 1994 the respondent’s brother was deported to Colombia from the United States of America after serving five years in prison for drug offences. On his return to Colombia he stayed with the respondent’s family on two occasions; in late December 1994 for about twelve days and in August 1995 for about one or one and a half months. In November 1995 a man came to the respondent’s house and asked the respondent if she was her brother’s sister. He inquired about her brother’s whereabouts because (he said) the brother owed US$40,000. The man indicated that people were looking for the respondent’s brother in several cities, and when they found him, they would kill him. In December 1995 the respondent’s brother was killed, allegedly by assassins. In early 1996 a stranger came to the house at which the respondent and her family resided and stated that he was from the group responsible for her brother’s death. The stranger stated that as his relatives they were now responsible for the money her brother owed. The respondent was selected for payment of the debt as she was the only surviving immediate member of her brother’s family. The man demanded that the house be sold in order to pay the debt owed and threatened to kill the respondent’s children if she and her husband did not comply with his demands. The respondent and her husband decided that they should leave Colombia. They obtained Australian visas in late January 1996 but were unable to leave immediately because, amongst other things, they had insufficient funds. In late February 1996, the stranger again visited the respondent’s home and repeated his demands and threats. In March 1996 the respondent’s husband left Colombia for Australia and the respondent remained with her children in Colombia under the pretence that her husband was absent on a trip. The respondent and her husband also listed their house for sale to “gain time”, though they did not intend to sell it. At about this time the respondent went to the Prosecutors Office to inform the local authorities of her predicament. Her complaint was passed on to the police and she agreed to meet a police officer at a nominated cafeteria as she was afraid that she was under surveillance. However, due to other matters, the police officer did not attend the arranged meeting.