Morato, G.C.S. v The Minister for Immigration, Local Government and Ethnic Affairs

Re: GUSTAVO CARLOS SAAVEDRA MORATO
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G73 of 1992
FED No. 982
Number of pages - 39
Immigration
(1992) 111 ALR 417
(1992) 39 FCR 401
(1992) 29 ALD 455 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Lockhart(2) and French(3) JJ.

CATCHWORDS

Immigration - Refugee Status - Interpretation of Convention and Protocol on Refugees - meaning of "particular social group" - whether persons who had "turned Queen's evidence" constituted a particular social group under Convention

Immigration - Ministers discretion to set aside decision - interpretation of s115(5) and (10) of Migration Act 1958 - whether Minister has duty to consider whether it is in the public interest to set aside a decision

Immigration - notice of deportation - interpretation of r179 of Migration Regulations - whether r179 required use of a prescribed notice - no notice prescribed - notice still validly given

Words and Phrases - "particular social group" - "membership"

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Re Attorney-General of Canada v Ward (1990) 67 DLR (4th) 1

Sanchez-Trujillo v Immigration and Naturalization Service 801 F 2d 15 71 (9th Cir 1986)

Matter of Acosta 19 I and N Dec 211 (1985)

Migration Act 1958 ss47, 60, 115

Migration Regulations rr169, 179

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

HEARING

MELBOURNE

#DATE 21:12:1992

Counsel for the Appellant: Mr D.P. Holdenson

Solicitors for the Appellant: Moores

Counsel for the Respondent: Mr R.M. Downing

Solicitor for the Respondent: Australian Government

Solicitor

ORDER

The Court orders that:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

JUDGE1

BLACK C.J. This is an appeal from a decision of a judge of this Court, Olney J., dismissing the appellant's application under the Administrative Decisions (Judicial Review) Act 1977 for review of decisions made by the respondent Minister and delegates of the Minister under the Migration Act 1958. Review of the Minister's conduct was also sought.

The nature of the decisions, the conduct sought to be reviewed and the relevant facts are set out in the reasons for judgment of Lockhart J., which I have had the advantage of reading. The applicable sections of the Act and the Migration Regulations are also discussed in his Honour's reasons.
The primary question is whether the learned judge was wrong in concluding that no error had been shown with respect to the determinations of the appellant's claim to have the status of refugee within the meaning of the 1951 Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.
Section 47 of the Migration Act provides:

"47. (1) A permanent entry permit shall not be granted to a non-citizen after entry into Australia unless at least one of the following paragraphs applies to the non-citizen ...

(d) ... the Minister has determined, in writing, that the non-citizen has the status of refugee within the meaning of:

(i) the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1961 or

(ii) the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967."

The Convention provides, so far as is presently relevant, that a refugee 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 of such fear, is unwilling to avail himself of the protection of that country ..."

The Protocol extends to the operation of the Convention to persons displaced by events occurring after 1 January 1951.
The appellant claims that he has the status of refugee because he has a well-founded fear of persecution for reasons of his membership of a particular social group should he return to Bolivia, his country of nationality. It is not in dispute that he has a well-founded fear of persecution. The question is whether that fear is for reasons of his membership of a particular social group.
The primary judge found that the fear of persecution was based on the fact that the appellant had given information and evidence that led to the conviction and imprisonment of a member of the Diaz family, a family that the appellant asserted was much involved in the drug trade in Bolivia and had powerful connections in that country.
Counsel for the appellant defined the social group of which he submitted his client was a member as a group of persons who have not only provided extensive co-operation and assistance to the police, but who have put that into effect. In elaborating what was meant by "putting into effect" assistance to the police, counsel referred to the fact that the appellant had given evidence for the prosecution against his co-accused. The group as so defined was referred to in argument as one comprising "persons who have turned Queen's evidence" and for convenience I shall refer to the claimed group in this way in these reasons.
The Court was referred to decisions in Canada and the United States in which the meaning of "particular social group" has been discussed. Courts and tribunals in North America have approached the question in different ways and there would appear to be no generally accepted view about the meaning of the expression: See James C. Hathaway, The Law of Refugee Status, Toronto, (1991) pp 157-169; T.D. Parish, "Membership in a Particular Social Group Under the Refugee Act of 1980: Social Identity and the Legal Concept of the Refugee" (1992) 92 Columbia Law Review 923. Great care must of course be taken in attempting to define something that is itself a definition because even small differences in emphasis may be decisive in a particular case and may greatly enlarge or reduce the number of people who would fall within the definition of refugee on account of membership of a particular social group.
There appears to have been no discussion in the Australian cases of the concept of a particular social group except briefly in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396, where Dawson J. referred to the family of the appellant in that case as such a group. In the present case I think it sufficient to examine some fundamental requirements that emerge from the plain meaning of the language used.
The Convention definition does not extend to all persons who have a well-founded fear of being persecuted in their country of nationality; it requires that there be a fear of being persecuted for one of the specified reasons. Those reasons may of course overlap but a recognition that this is so should not obscure the fact that a well-founded fear of persecution for a specified reason must be shown.
Each element of the definition must be considered. A critical element in the present case is that the fear of persecution relied upon must be a fear for reasons of membership of a particular social group. It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is - a member of a particular social group - rather than upon what a person has done or does.
It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group.
The need to show that persecution is for reasons of membership of a group, rather than for an act or acts done, tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character. I emphasise "sole" because that is how the particular social group is sought to be defined in this case. The doing of an act or acts of a particular character may, in some circumstances and together with other factors, point to the existence of a particular social group but in this case it is only the common action of turning Queen's evidence that is said to define the group.
It was conceded in argument that there was no evidence that there was any other person who was a member of the claimed group who had turned Queen's evidence in such circumstances as to attract persecution in Bolivia. It may be accepted, however, that if some other person acted in substantially the same way as the appellant acted in co-operating with the police and in giving evidence against the co-accused Diaz, the same consequences would be feared by that person. Having regard to the way in which the appellant puts his claim to be a refugee and accepting, as the decision-makers did, that he had a well-founded fear of persecution, such a conclusion would seem to be inevitable. In that event, the particular social group, defined broadly as comprising those who have turned Queen's evidence, would enlarge accordingly, but by reason only of an act or acts done. There is no basis for concluding that other persons in Bolivia, or elsewhere for that matter, who have turned Queen's evidence in quite different circumstances would have a well-founded fear of persecution in Bolivia, and this itself suggests that on the material before the decision-makers the appellant's fear of persecution should be taken to exist for reasons of acts done, rather than for reasons of membership of any cognisable social group.
Assuming, however, for the purposes of this case that the definition of refugee extends to persons who are members of a particular social group that exists wholly or substantially outside the country of nationality, it is necessary to examine the characteristics of the supposed group to see whether, on any sensible view of the expression, those who are said to constitute it can be said to be members of a particular social group - a group that has to be sufficiently cognisable as to have something that may sensibly be identified as membership.
There are no doubt many persons in the world who, being involved in criminal activities themselves, have assisted the police and have turned Queen's evidence. But to assume the existence of such people must also be to assume that they have acted in this way for a wide variety of reasons, in a wide variety of circumstances and with a wide variety of consequences for themselves and for others. It is also to assume that these people exhibit an almost limitless diversity in their personal characteristics and in their interaction with society. In truth, the only thing that they may be said to have in common is, by definition, that they have acted on an occasion or occasions in a particular way with respect to the enforcement of the criminal law.
To say that all such people are members of a particular social group would be to make the definition of refugee so wide in this respect as to be almost meaningless and as to have no necessary connection with the humanitarian objectives that select a particular category of persons, refugees, as deserving of special consideration by the international community. For if the approach suggested by the appellant is correct, any person who feared persecution in his or her country of nationality, for reason of an act done that would attract persecution in that country, could validly claim to be a refugee by doing no more than pointing to the existence of other persons who had done the same thing, whatever that thing was. This is because the approach for which the appellant contends relies solely on an act or acts done as defining the asserted social group.
It may be doubted whether such an aggregation of persons could be called "a group" within the usual meaning of that word as applied to people but, in any event, the convention definition does not refer merely to membership of a group; it refers to membership of a particular social group. The word "social" is an essential part of the definition and cannot be ignored as mere surplusage. At the very least, a particular social group connotes a cognisable group in a society, and cognisable to the extent that there may be a well-founded fear of persecution by reason of membership of such a group. In my view the appellant wholly failed to show that the particular social group he asserts is a cognisable social group in any society.
The conclusion may be tested by asking whether, in respect of a group as defined by the appellant, it could ever be said that persecution would be for reasons of membership of such a group rather than for the reason that the person who feared the persecution had engaged in the activity that was said to define the group. The answer must be that 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 my view, therefore, the appellant's case on this point must fail. There was no error in determining that the appellant was not a refugee within the meaning of the Convention and the Protocol.
It must be acknowledged that the part played by acts done, or assumed to have been done, by those who are said to constitute a particular social group can give rise to difficult questions and I should not be taken as concluding that the activities of the members of an asserted group are necessarily irrelevant. It may be, for example, that over a period of time and in particular circumstances, individuals who engage in similar actions can become a cognisable social group. The actions may, for example, bear upon an individual's identity to such an extent that they define the place in society of that individual and other individuals who engage in similar actions. There may be such an interaction in a particular society that a group of people becomes a cognisable element within the society by virtue of their common activity. Persecution may be part of that interaction and may contribute to the development of the social group. Thus similar actions engaged in by people may be a factor to be considered when examining whether a particular social group in fact exists or whether a person is a member of such a group. But all this is far removed from the present case where acts, without anything at all more, are said to define a particular social group.
I agree, for the reasons given by Lockhart J., that the appellant's arguments based on s115 of Migration Act and regulation 179 of the Migration Regulations also fail.
The appeal should be dismissed with costs.

JUDGE2

LOCKHART J. This appeal is concerned primarily with the interpretation of the term "refugee" in the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967. The construction of s. 115 of the Migration Act 1958 ("the Act") and regulation 179 of the Migration Regulations ("the Regulations") also arises in the appeal.

The appellant, Gustavo Carlos Saavedra Morato, applied to the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for review of the following decisions and conduct:

1. the decision of Christopher Dear (a duly appointed Delegate of the respondent, The Minister for Immigration, Local Government and Ethnic Affairs ("the Minister") made on 8 October 1991 that the appellant not be granted refugee status;

2. the decision of Christopher Dear made on 21 October 1991 that the appellant not be granted a Domestic Protection (Temporary) Entry Permit ("DPTEP");

3. the conduct of the Minister and his alleged failure to make decisions:

(a) to set aside the decisions and/or conduct referred to above or any of them;

(b) to give consideration under s. 115(5) of the Act as to whether it was in the public interest for any or all of the said decisions and/or conduct to be set aside;

(c) to think that it was in the public interest to do, pursuant to s. 115(5) of the Act, any or all of the matters set out in s. 115(5) in respect of any or all of the said decisions and/or conduct; and

(d) to set aside any or all of the said decisions and/or conduct and substitute, pursuant to s. 115(5)((b) of the Act, a decision to grant to the appellant a DPTEP;

4. the decision of Deborah Joy Bates, a duly appointed Delegate of the Minister, made on 21 November 1991, that the applicant be deported.

The learned primary Judge (Olney J.) dismissed the appellant's application for review with costs. The appellant appeals to this Full Court from his Honour's judgment.

The Appellant's History
4. The appellant was born on 22 August 1949 in Bolivia. He is a citizen of that country. The appellant last entered Australia on 13 September 1988 using a forged Bolivian passport in another name. He had entered Australia on two previous occasions: in February 1983 using a false name and during the first quarter of 1984 using another false name. He admitted to officers of the Department of Immigration, Local Government and Ethnic Affairs ("the Department") that he travelled to Australia on those occasions for the purpose of trafficking in cocaine.

He also admitted to prior convictions for possession of drugs in Bolivia in 1977 and 1985 and to having served periods of imprisonment on both occasions; and to a conviction in France in 1980 for having false identity papers.
On 12 December 1988 the appellant was arrested by officers of the Australian Federal Police and charged with two other persons, Carlos Diaz and John Stanley Thompson, with being knowingly concerned in the importation of 4.5 kilograms of cocaine.
On 1 March 1990 the appellant pleaded guilty to a charge of being knowingly concerned in the importation of cocaine and was sentenced by a Judge of the County Court at Melbourne to six and a half years imprisonment with a non-parole period of four years.
The appellant's co-offender, Diaz, was tried on a charge of being knowingly concerned in the importation of cocaine. The appellant gave evidence for the prosecution. Diaz was convicted and sentenced to fourteen years imprisonment with a non-parole period of eleven years. It is the co-operation of the appellant with the police and the giving of evidence for the prosecution in the trial of Diaz that provides the factual source of the questions of law which arise in this case.
On 13 November 1990 the appellant was informed by an officer of the Department of his status as an illegal entrant under s. 20 of the Act. On 15 January 1991 the appellant applied for refugee status (his application was in fact dated 30 November 1990 but not lodged until 15 January 1991).
On 1 March 1991 the Determination of Refugee Status Committee ("the DORS Committee") decided to recommend rejection of the appellant's application for refugee status and he was informed of that decision.
On 24 April 1991 a delegate of the Minister decided that the appellant's application for refugee status be refused.

On 6 May 1991 the appellant wrote to the DORS Committee seeking a review of the decision of the Minister's Delegate of 24 April 1991, the review to be conducted by the Refugee Status Review Committee ("the RSRC").
On 4 July 1991 the application of the appellant for a DPTEP was refused on the ground that he had been refused refugee status.
Between 7 and 15 July 1991 the appellant gave evidence at committal proceedings concerning John Stanley Thompson, but Mr Thompson was not committed for trial.
On 16 July 1991 the appellant became eligible for parole, but was immediately arrested pursuant to s. 92 of the Act which empowers an officer to arrest a person whom the officer reasonably supposes to be an illegal entrant. On 19 July 1991 the appellant applied for a review of the decision refusing his DPTEP.
On 25 July 1991 the Commonwealth Director of Public Prosecutions informed the Department that there was no longer any need for the appellant to remain in Australia. On 28 August 1991 the RSRC recommended that refugee status be not granted to the appellant (by a 3 to 1 majority, the representative of the Department of the Attorney-General dissenting). On 12 September 1991 the appellant was informed of that recommendation and invited to comment within seven days. On 19 September 1991 the appellant's solicitors sent a submission to the RSRC.
On 8 October 1991 the decision was made by the review officer (Christopher Dear) affirming the decision of 24 April 1991 that the appellant's application for refugee status be refused. This is one of the decisions impugned in this case. On 9 October 1991 the appellant was informed of the decision of 8 October.
On 21 October 1991 Christopher Dear, the review officer, affirmed the decision of 4 July 1991 to refuse to grant the appellant a DPTEP. This decision is also challenged in this case.
On 6 November 1991 a minute was sent by the Chairman of the RSRC to the Assistant Secretary DORS Policy and Review Branch of the Department seeking that consideration be given to the exercise by the Minister of his power under s. 115 to grant a DPTEP to the appellant. The minute concluded with this sentence:

"Should you wish to exercise your power under s. 115 to grant the applicant a DPTEP, an instrument to do so is attached for your decision."

Mr Castello, Assistant Secretary of the DORS Committee sent a minute to the Minister, also dated 6 November 1991, seeking the consideration by the Minister of the exercise by him of his powers under s. 115 and concluded with a recommendation in the following terms:

"It is recommended that you:

(1) give consideration under the provision of s. 115(5) of the Migration Act as to whether it is in the public interest for the decision of the review officer to be set aside in respect of the applications of Gustavo Carlos Saavedra Morato and Grisel Fajardo Antelo for a DPTEP, and

(2) on the grounds that it is not in the public interest, decline to set aside the decision of the review officer not the approve a DPTEP for Gustavo Carlos Saavedra Morato and Grisel Fajardo Antelo Should you decide to set aside the decision of the review officer in respect of these persons, the necessary instruments are appended to the RSRC's recommendations at Attachments A and B.

The reference in the minute to Grisel Fajardo Antelo is to the appellant's wife, whom he married after he had last arrived in Australia and who is also a Bolivian citizen. They have one child.
On 7 November 1991 Mr Castello wrote a minute for the consideration by the Minister in which he said:

"This is the first case for submission to the Minister in which the Refugee Status Review Committee has recommended that the Minister exercise discretion under Section 115 of the Act and allow further stay on humanitarian grounds. My recommendation to the Minister is that he not exercise that discretion in this instance. The SAAVEDRA case is likely to continue to be subject to media attention. For your information"

It appears that this minute was dispatched to the Minister's office on 8 November 1991.
On 15 November 1991 the Minister sent a memorandum to the Department in these terms:

"I have not considered these cases. I understand from staff in my office that the departmental decison (sic) maker has rejected their refugee claims. I do not wish to exercise my Section 115 powers in either case."

By letter dated 19 November 1991 from the Department to the appellant, the appellant was informed that the Minister had decided not to exercise his power under s. 115. He was also given written notice of the Minister's intention to exercise his power to order the deportation of the appellant.
On 21 November 1991 a deportation order was made by Deborah Joy Bates as a delegate of the Minister against the appellant. On 29 November 1991 the appellant filed the application for judicial review in this case.

The Statutory Provisions
27. The appellant is a non-citizen (namely, a person who is not an Australian citizen: s. 4) who, on entering Australia, became an illegal entrant (s. 14(2)) and remains an illegal entrant whilst he remains in Australia and does not hold a properly endorsed valid entry permit (s. 14(2)). Section 14(2) applies because the appellant is a person to whom s. 20(1) applies in that he entered Australia on production of a forged passport.

Regulations made under the Act may make provision for the grant and refusal of entry permits subject to conditions and subject to limitations as to the time the holder is authorised to remain in Australia (s. 33(1)); and they may provide for different classes of entry permits and that a person is entitled to be granted an entry permit of a particular class if that person satisfies all of the prescribed criteria in relation to that class (s. 33(2)).
By regulation 21, classes of entry permits are prescribed for the purpose of s. 33(2)(a) of the Act including the class described as "Domestic protection (temporary)".
The expression "temporary entry permit" means an entry permit that is subject to a limitation as to the time the holder is authorised to remain in Australia (s. 4(1)).
Where a person applies for an entry permit of a particular class in accordance with the regulations and pays the prescribed fee, and it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of that class, the Minister shall (subject to the Act) grant the application; but if it appears to the Minister that the applicant is not, under the Regulations, so entitled, the Minister shall refuse to grant such entry permit (s. 34).
An application by a person to the Minister for refugee status lodged before 1 July 1991, also has effect as an application for a DPTEP (regulation 22D(1)(a)).
An applicant for an entry permit must satisfy the prescribed criteria in relation to the relevant class of entry permit (other than public interest criteria and prescribed health criteria) applicable at the time of application (regulation 34A(1)).
The regulations prescribe certain criteria, not presently relevant, concerning the grant of entry permits generally; and in regulation 117A(1) the following additional criteria are prescribed for a DPTEP, namely, that, when a decision on the application for a permit is made, the applicant must be in Australia and the Minister has determined that he has refugee status and has complied with certain requirements with respect to medical examinations, and the Minister is satisfied that the grant of the permit is in the national interest. The period during which a DPTEP is to have effect must not exceed four years (regulation 117A(2)).
Section 115 provides the basis for a scheme of internal review of certain decisions of the Minister. It provides, inter alia, that the regulations may provide for decisions of the Minister to be reviewed and for the appointment of review officers who are to conduct such reviews (s. 115(1)(a) and (b)). A decision to order the deportation of a person and a decision by the Minister that a person is not a refugee within the meaning of the Convention or the Protocol may not be prescribed by regulations under s. 115 (s. 120(1)(c) and (d)).
By regulation 2A(2)(a)(i) of the Migration (Review) Regulations 1989 ("the Review Regulations") a decision is not internally reviewable if it is a decision made by the Minister personally. The Review Regulations provide in Part 2A for the review of decisions concerning DPTEPs.
Sub-section (5) of s. 115 is relevant with respect to certain of the questions that arise in this appeal, but I shall set it out later.
The provisions of the Act relating to deportation commence with s. 60 which empowers the Minister, after considering the prescribed matters and no other matters, to order the deportation of a person who is an illegal entrant under any provision of the Act (s. 60(1)).
For the purposes of s. 60(1) certain matters prescribed by regulation 179 to be considered by the Minister in relation to a person referred to in that subsection. I shall set out the relevant parts of regulation 179 later.
These are the statutory provisions with which this case is concerned.
Refugee Status
As mentioned earlier, the appellant's application for refugee status is dated 30 November 1990 but was not lodged with the Department until 15 January 1991. The application contains many details of the appellant's life including statements by him about the fears which he has for his life and safety if he returns to Bolivia. The material on this question is not in dispute, so I shall summarise it.
There is a substantial drug trade in Bolivia concentrating on providing the base product for the drug cocaine. The people involved in the drug business in Bolivia form a close knit community; most drug traffickers and users know each other and are in regular contact with each other. Many Bolivians exist by working directly or indirectly with the cocaine trade. Diaz, the former co-accused of the appellant in Australia, is a member of a prominent family in Bolivia heavily involved in the drug trade. Diaz has a cousin who is a major in the drug enforcement arm of the Bolivian police. Diaz also has an uncle who was a high ranking member of the "political control", the secret police force with substantial power in government. The mother of Diaz is the head of the family, and, like her husband until he died, she has substantial influence in Bolivia in relation to the drug trade. The brother and cousin of Diaz are also involved in the trade. People who cause problems for members of the drug trade in Bolivia are harshly dealt with by members of the trade. By giving evidence in Australia against Diaz the appellant genuinely fears for his life if he returns to Bolivia because drug trade informants are hated there. He fears that the Diaz family would be able to find him and kill him if he returned to Bolivia.
Whether these facts are true is not a matter on which it is appropriate for the Court to comment; but it was accepted at the trial and on the appeal that the appellant genuinely fears for his life because of these matters which he asserts to be true and it is not suggested that the fear which he has is not well founded.
At the heart of the question whether the appellant may be granted refugee status is the definition of "refugee" contained in the Convention and the Protocol, namely:

"any 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. ..."

It is common ground between the parties that the central question in the case is whether the appellant answers the description of a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group" if he is returned to Bolivia.
The relevant decision makers in this matter acted on the basis that any fears of persecution which the appellant holds do not arise by reason of his membership of a "particular social group" within the meaning of the Convention and Protocol.
The key findings of the primary Judge with respect to this question were expressed by him in these terms:

"The fact is that the applicant's fear of persecution is based on a much more confined basis than has been argued, namely, that he has given information and evidence that has led to the conviction, and imprisonment, of a member of the Diaz family. From the very outset in his application for refugee status, and throughout the many submissions made on his behalf, it is the involvement of the Diaz family connections in Bolivia that is said to give rise to the applicant's fear of persecution. The ordinary meaning of the words 'membership of a particular social group' is in my opinion incapable of encompassing the claim made by the applicant. There is no suggestion that he is other than an individual who has informed on a member of a particular family. There is no suggestion that he is a member of a group of such people, social or otherwise, who share similar characteristics. In my opinion the application for refugee status was doomed to failure from the very outset, and it follows that the decision to refuse the application cannot be challenged."

The appellant challenged this finding before us and submitted he is a member of a particular social group, namely, police informers, or, perhaps more accurately on the facts of this case, people who have "turned Queen's evidence". It is the correctness of this submission to which I now turn.
The question whether or not a person answers the description of a "refugee" within the meaning of the Convention and the Protocol must be determined upon the facts as they exist when the person concerned seeks recognition as a refugee: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason C.J. at 386-7 and McHugh J. at 432.
The word "persecuted" is not defined in the Convention or the Protocol. As Mason C.J. observed in Chan at 388, there are some forms of selective or discriminatory treatment by a State of its citizens which do not amount to persecution. The words include some serious punishment or penalty or some significant detriment or disadvantage to the applicant for refugee status if he returns. Mason C.J. said, also at 388:

"Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason."

A well-founded fear of persecution arises if there is a "real chance" that the person will be persecuted if he returns to his country of nationality. This was the test suggested by Grahl-Madsen, The Status of Refugees in International Law (1966) vol 1, 181 and adopted in Chan by Mason C.J. at 389, Toohey J. at 407 and McHugh J. at 429. As Dawson J. observed at 396-7 with respect to the phrase "well-founded fear of being persecuted":

"The phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear."

McHugh J. observed in Chan at 430:

"Nor is it a necessary element of persecution that the individual should be the victim of a series of acts. A single act of oppression may suffice. ... The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution... other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol."

In this case there is no dispute about whether the appellant had at the relevant time a well-founded fear of being persecuted. The question is whether that fear is of persecution for the reason of "membership of a particular social group".
The question of whether a person is entitled to refugee status on the basis that he has a well-founded fear of being persecuted for reasons of membership of a particular social group has attracted the attention of the Courts and legal writers. In Sanchez-Trujillo v Immigration and Naturalization Service, 801 F 2d 1571, (9th Cir 1986) the United States Court of Appeals examined the question, including the meaning of a "particular social group". The Court held that young, urban, working-class Salvadoran males of military age (18-30) who had not joined the armed forces and had not expressed overt support for the Salvadoran government were not cognizable as a particular social group. The Court was considering the definition of "refugee" under the Protocol as incorporated into the Refugee Act 1980 of the United States. The Court propounded four tests for evaluating the claim that a person was a member of a particular social group, namely:

. First, the identification of a cognizable group; . Second, showing that the applicant for refugee status is a member of that group;

. Third, proof that persecution is aimed at one of the group's unifying characteristics and . Fourth, the present of "special circumstances" that merit the recognition of a solely group-based claim.

The tests have been criticized by legal writers as adopting too narrow a standard: see, for example, Asylum for Persecuted Social Groups: A Closed Door Left Slightly Ajar - Sanchez-Trujillo - by Daniel Compton (1987) 62 Wash L Rev 913.

The Court looked for guidance to the Handbook On Procedures and Criteria For Determining Refugee Status (1979) issued by the office of the United Nations High Commissioner for Refugees in 1979 to assist member States to carry out their obligations under the Protocol.
It is plain from the judgments of the members of the High Court in Chan that the Handbook may be considered for the purpose of determining the meaning of "refugee"; but it is simply one element for courts to consider on this question.
The Handbook refers to a "particular social group" in the content of the definition of "refugee" in the Convention and Protocol in these terms:

"77. A 'particular social group' normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government's policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution."

But the United States Court of Appeal for the Ninth Circuit did not find the Handbook's discussion helpful. It relied on its own interpretation of the language used in the Refugee Act and found at 1576:

"...the phrase 'particular social group' implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group."

The Court gave as an example of a particular social group, "the immediate members of a certain family", and contrasted this with an example of what it described as a "statistical group of males, taller than six feet", whom the Court said would not qualify for asylum. The Court found the alleged social group in the case before it to be closer to this second category.
A Canadian case bearing on the question is Re Attorney-General of Canada v Ward (1990) 67 DLR (4th) 1, a decision of the Federal Court of Appeal. Special leave to appeal to the Supreme Court of Canada was granted in 1990; but the outcome of the case is not yet known. The respondent was a resident of Northern Ireland and was considered therefore a national of both the United Kingdom and the Republic of Ireland. He was a member of the Irish National Liberation Army, the object of which is the unification of Ireland. While a member he assisted hostages to escape. Subsequently he was imprisoned for the offence of forcible confinement. After he was released from prison he went to Canada on an Irish passport and sought refugee status. The organization of which he was a member sentenced him to death in absentia for his insubordination. The Canadian Immigration Appeal Board held that he was a Convention refugee under s. 2(1) of the Immigration Act 1976 (Canada) which in substance adopts the definition of "refugee" in the Convention and Protocol. On appeal to the Federal Court of Appeal it was held, by majority, that the appeal should be allowed. The case was disposed of on a number of bases but, so far as relevant for present purposes, the majority of the Court said that he could not qualify as a refugee and because the organisation of which he was a member sought to overthrow the established government of the country of his residence and since his fear did not arise because of reprisals from that government, but of reprisals from the organisation. He had to prove not only his fear of persecution, but the State's complicity therein and he failed to do this. Urie J.A., part of the majority, referred to the Handbook and gained from it support for the view that for persecution to arise from membership of a group it must be because of the group's "activities perceived to be a possible danger of some kind to the government". Marceau J.A. agreed with Urie J.A. MacGuigan J.A. dissented and held that the respondent was a member of a "particular social group" within the meaning of the definition of "Convention refugee" under s. 2(1) of the Immigration Act 1976 (Canada). He said (at 19) there was nothing absolute about social groups:

"They may have ideologies, but some members may not adhere to them, belonging rather for reasons of prestige, or fear, or some other non-ideological reason. ... The concept of social groups should not, in my opinion, be wielded like a broadsword to lop off all individualizing circumstances within an arbitrarily designated circumference. In a world fractured by racism and religion, politics and poverty, reality is too complex to be thus limited by conceptual absolutes."

Another decision to which we were referred in argument was the Matter of Acosta, a decision of the United States Board of Immigration Appeals, 1 March 1985, reported as Interim Decision 2986 commencing at 211 where the Board expressed the view (at 233) that a "particular social group" refers to "a group of persons all of whom share a common immutable characteristic". The Board said (also at 233):

"The shared characteristic might be an innate one such as sex, colour or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis."

We were referred in argument to the decision of the United States Court of Appeals, Ninth Circuit in Lazo-Majano v Immigration and Naturalization Service 813 F 2d 1432 (9th Cir 1987), again involving El Salvadoran citizens seeking asylum in the United States. In my opinion that case concerned different questions to those that arise in the present case and is, therefore, of little assistance.
There are many published writings of learned authors which relate to the present question including Guy S Goodwin-Gill, The Refugee In International Law, (especially at 30); James C Hathaway The Law of Refugee Status at 157-169; Daniel Compton, earlier mentioned; and Arthur C. Helton Persecution On Account Of Membership In A Social Group As A Basis for Refugee Status, 1983, 15 Columbia Human Rights Law Review 39.
A useful analysis of the history of the expression "particular social group" is contained in the article by Daniel Compton at 923-927. Arthur C Helton put the point well in his article at 45:

"The intent of the framers of the Refugee Convention was not to redress prior persecution of social groups, but rather to save individuals from future injustice. The 'social group category' was meant to be a catch-all which could include all bases for and types of persecution which an imaginative despot might conjure up."

"Social" is a word of wide import. The Oxford English Dictionary states as one of its definitions "pertaining, relating, or due to ... society as a natural or ordinary condition of human life". This is a helpful guide for present purposes. In my opinion the words "social group" signify a cognizable or recognizable group within a society, a group that has some real common element. Although a voluntary association of persons may fall within the definition, it is not a requirement that there be such an association to constitute a social group within the definition of "refugee". Sanchez-Trujillo is a decision to the contrary, but I find the four tests there propounded too narrow; they impose a straitjacket into an essentially fluid international scene.
The word "particular" does not narrow the scope or meaning of the expression "particular social group". Rather it indicates that there must be an identifiable social group to which one can point and say that there is a particular social group.
The interpretation of the expression "particular social group" calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time. The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons. Social groups may have interests in common as diverse as education, morality and sexual preference. Examples include the nobility, land owners, lawyers, novelists, farmers, members of a linguistic or other minority, even members of some associations, clubs or societies. The Handbook provides some assistance because it states that a social group "normally comprises persons of similar background, habits or social status". This emphasises the need for some common or binding element of persons to constitute them as a recognizable or cognizable group. The social group referred to in the Convention and Protocol is intended to encompass groups of people who share common social characteristics and might be the target of persecution but who do not fit into classifications of race, religion or political opinion.
In my opinion for a person to be a member of a "particular social group" within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognizable or cognizable group within a society that shares some interest or experience in common. I do not think it wise, necessary or desirable to further define the expression. It must be borne in mind, however, that the question is whether a person's well-found fear of persecution is for reasons of membership of a particular social group. The membership of the group is the touchstone of the test of refugee status.
Applying this test to the facts of the present case I am in agreement with the conclusion of the primary Judge that the applicant's well-founded fear of persecution is due, not to membership of any particular social group, but because as an individual he has "informed on" a member of the Diaz family, apparently with powerful connections in Bolivia. The evidence does not support any finding that there is a recognizable or cognizable group of people who are informers or who have turned Queen's evidence. All that one can say is that there are many people throughout the world who have been police informers or have turned Queen's evidence. But many people throughout the world are also murderers, rapists or bank robbers; lovers of Bach, Mozart or Wagner or enjoy reading Proust, Dickens or Patrick White. There may be some circumstances where readers of the works of a particular writer belong to a certain society or club and may be victimized by the State of their nationality because they belong to it. But there is nothing in the present case to suggest that there is an identifiable group, either in Bolivia or elsewhere, which has a common experience or characteristic which they share together of police informers or persons who have turned Queen's evidence.
It follows that unless the appellant can succeed in relation to his argument based on s. 115 or regulation 179 of the Regulations the appeal must fail.

Section 115
69. The relevant provisions of s. 115, namely, sub-ss. (5) and (10), are as follows:

"(5) Where the Minister thinks that it is in the public interest to do so, the Minister may:

(a) set aside a decision affirmed, varied or made by a review officer under regulations made under subsection (1); and

(b) substitute for the review the decision:

(i) the decision sought by the applicant in the primary application; or

(ii) another decision in terms to which the applicant agrees. ...

(10) The Minister does not have a duty to consider whether to exercise the power under subsections (5) or (6) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person or in any other circumstances."

It was argued by counsel for the appellant that, upon its proper construction, sub-s. (5) of s. 115 is divisible into two distinct segments: first, that which requires the Minister to make a determination "as to the public interest"; and second, if he makes such a determination, he may then exercise one of the powers expressly set out in para. (a) or (b). Hence, it was said, sub-s. (10) does not commence to apply until the first stage has been passed. The Minister did not divide his task into these stages, so it was argued that the appellant should succeed in the appeal.
In my opinion sub-s. (5) cannot be construed in this fashion. It does not involve a two stage exercise. It empowers the Minister to set aside a decision of the kind mentioned in para. (a) and substitute for that decision another decision of the kind mentioned in para. (b) where the Minister thinks it is in the public interest to do so. Sub-section (10) operates to ensure that the Minister has no duty to consider whether to exercise the power under sub-s. (5) in respect of any decision.
When the Minister said in his memorandum of 15 November 1991:

"I have not considered these cases. I understand from staff in my office that the departmental decison (sic) maker has rejected their refugee claims. I do not wish to exercise my Section 115 powers in either case."

he was simply indicating, by both the first and third sentences, that he did not propose to consider whether to exercise his powers under s. 115.

Plainly the Minister had received (and I assume examined) the various minutes which were written to him and to which reference was made earlier, in particular those of 6 and 7 November 1991; and doubtless he examined them, if only briefly, to decide if it was a case where he would embark upon the exercise of considering whether he should exercise the power under sub-s. (5) or not. The evidence does not establish that the Minister's consideration had reached the point where he had embarked upon the task of undertaking that consideration. If he had done so then different arguments might have been available to the appellant.
Regulation 179
Section 60(1) of the Act provides:-

"60(1) The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act. ..."

Regulation 179 prescribes the "matters" to be considered by the Minister. The relevant part of the regulation is in the following terms:-

"(b) whether the person has been given in accordance with these Regulations a notice of the intention to refer to the Minister the question of the exercise of the power:

(i) to order the deportation of the person; or

(ii) to require the person to leave Australia;

as the case requires;"

Counsel for the appellant argued that it is a condition precedent to the exercise of the Minister's power to order the deportation of a person that there is in existence a form of notice of the kind mentioned in regulation 179 which has been prescribed by the regulations. As no such notice has been prescribed (which is the fact), an essential integer of the conditions precedent to the exercise of power is missing, so the appellant must succeed. So went the argument. This argument must fail.
Regulation 169 relates to service of documents including documents of the kind mentioned in paragraph (b) of regulation 179 by providing that documents may be "given to, or served on, a person".
It is plain that a notice is "given in accordance with these regulations" within the meaning of regulation 179 if it is given by one of the methods permitted by regulation 169.
In any event, s. 60 is not couched in language that requires the existence of all of the prescribed matters as conditions precedent to the exercise of the Minister's power to deport. The Minister is required to consider such of the prescribed matters as exist and no other matters.
Before leaving the case I shall mention one matter. There is a suggestion in the evidence that the appellant agreed to turn Queen's evidence against Diaz following the inducement of investigating officers that, if he did so, he would not be forced to leave Australia and that he "would be given a new identity". There is also evidence to the contrary. This question was not an issue in the proceeding before the primary judge or on appeal, so I have no view with respect to it. But one is left with an uneasy state of mind. If this question has been examined by the relevant authorities, so be it; but if it has not, it should be. The appellant's history of false passports and involvement with drugs do not endear him to this country; but if he is forced to leave it he must do so with Australia's honour and sense of fairness intact.
The appeal must be dismissed with costs.

JUDGE3

FRENCH J. I have read the reasons of the Chief Justice in draft form and I agree with his reasons and the orders that he proposes.

[1992] FCA 982

21 DECEMBER 1992