Ram, K. v The Minister for Immigration & Ethnic Affairs

[1995] FCA 111

CATCHWORDS

Immigration Law - judicial review - application for refugee status - whether well-founded fear of being persecuted for reason of membership of a particular social group - whether those targeted by extortionists as people perceived to be able to pay constitute a particular social group.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth)
United Nations Convention relating to the Status of Refugees 1951
Protocol relating to the Status of Refugees 1967

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417
Re Attorney-General of Canada and Ward: United Nations High Commissioner for Refugees et al., Interveners (1990) 67 DLR (4th) 1
Minister for Immigration and Ethnic Affairs v Respondent A and ors, as yet unreported, Sackville J, 6 December 1994
Kashayev v Minister for Immigration and Ethnic Affairs and anor (1994) 122 ALR 503 at 508
Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 124 ALR 265

Matter No. SG 36 of 1994

KULDIP RAM v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL

VON DOUSSA J
ADELAIDE
10 MARCH 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIAN DISTRICT REGISTRY )
  )
GENERAL DIVISION                  )   No. SG 36 of 1994

BETWEEN:

KULDIP RAM

Applicant

AND:

THE MINISTER FOR
  IMMIGRATION AND ETHNIC
  AFFAIRS and REFUGEE
  REVIEW TRIBUNAL

Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER          :    VON DOUSSA J.

WHERE MADE                  :    ADELAIDE

DATE OF ORDER               :    10 MARCH 1995

THE COURT ORDERS THAT:

1.The application for an order of review be dismissed.

2.The applicant pay the respondents' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIAN DISTRICT REGISTRY )
  )
GENERAL DIVISION                  )   No. SG 36 of 1994

BETWEEN:

KULDIP RAM
  Applicant

AND:

THE MINISTER FOR
  IMMIGRATION AND ETHNIC
  AFFAIRS and REFUGEE
  REVIEW TRIBUNAL
  Respondents

REASONS FOR JUDGMENT

Coram: von Doussa J.
Place: Adelaide
Date : 10 March 1995

This is an application for an order of review brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") with respect to a decision of the Refugee Review Tribunal published on 12 April 1994 which affirmed the decisions of a delegate of the Minister for Immigration and Ethnic Affairs that the applicant is not a refugee in terms of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol") and that his application for a Domestic Protection (Temporary) Entry Permit ("DPTEP") be refused.

Article 1A(2) of the Convention, as amended by the Protocol, provides that the term "refugee" shall apply to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

It is a prescribed criterion under the Migration Regulations for the grant of a DPTEP that the applicant has been determined to have refugee status (Migration Regulations, Schedule 2, Item 784.731).  It followed therefore from the decision that the applicant is not a refugee that the permit application had to fail.  The issue before the Refugee Review Tribunal was whether the applicant came within the Convention definition of "refugee" which was, at that time, incorporated into the Migration Act 1958 (Cth), s.4(1). Before this Court the applicant contends that the Tribunal erred in finding that he was not a refugee.

As certain of the submissions made on the applicant's behalf sought to canvass in detail the evidence which was before the Tribunal, and to question conclusions of fact which the Tribunal made based on that evidence, and the weight given to those conclusions, it is important to note at the outset the limited scope of judicial review. The jurisdiction of this Court under the ADJR Act is not to conduct a review of a decision on the "merits". The jurisdiction is essentially confined to correcting errors of laws which are shown to have occurred in the making of the decision under review. It is appropriate to repeat the often cited passage from the judgment of Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24 at 41:

"...in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power...I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.  The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'.  This ground of review was considered by Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234 in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it."

The applicant is an Indian national and a Sikh by religion who entered Australia on 20 November 1992 as a visitor.  On 17 December 1992 he applied for refugee status.  This was refused on 17 May 1993.  On 27 August 1993 he lodged a further application for refugee status and an application for a DPTEP.  These were refused on 20 October 1993 and the applicant then applied for review to the Tribunal.

The applicant was born on 13 June 1956, and grew up, in the Punjab.  He married, and has two children.  His level of formal education was apparently only elementary and he has no particular skills or training.  However from 1977 to 1987 he worked as a contract labourer in Saudi Arabia.  He returned to his home with savings of about 100,000 rupees.  He gave evidence to the Tribunal that it was generally well known in his village that he had returned with a considerable sum of money which, he claimed, made him a member of a particular social group within the meaning of the Convention definition of "refugee".  That social group was variously designated by the applicant as "those who are perceived to have returned from abroad with money", or "rich Sikhs", or simply "the rich".

The applicant described to the Tribunal his perception of the political, religious and ethnic violence which existed in the Punjab from his return in 1987 until his flight to Australia.  He explained that the Sikh people were demanding the formation of a separate State, Khalistan.  Sikh extremist groups and opposing Hindu groups used violence and the police sometimes posed as extremists.  There was continuing civil conflict, and human rights abuses he said were commonplace.  So too was extortion of those with money.  He said it was "standard practice" in Punjab villages that "government people" would come and extort money from people, and "everyone knows all attacks are generated by the police" and that the extortion demands were politically motivated.  Other statements made by the applicant either in his applications for refugee status, or in supporting statements, were less dogmatic, saying that sometimes extortionists would come dressed in police uniforms, at other times their identity could not be determined, and that some of the extortion activities were carried out by extremists or criminals.
     The applicant alleged that in 1988 during the night he and his family were visited by men, who he described as "extremists or criminals" wearing disguising cloths around their heads, who demanded money from him.  He handed over what he had with him.  The men said they would come back for more, and would kill him if he did not hand it over.  He said he was terrified.  He did not report the event to the police or seek their protection "because it may have been them who were the criminals".  He went into hiding.  In one statement he said that the "extremists/bandits" did come back looking for him.  He was terrified for his own safety and that of his family.  Eventually with the help of a friend he made his way to New Delhi.  The friend obtained a visitors' visa for him to come to Australia.

The applicant before the Tribunal, but not in statements supporting earlier applications, said that he also had "close affiliation" with the Sikh Youth Federation of All India ("SYFAI").  He was not a registered member but gave it financial support.  As a Sikh and a Punjabi he supported the establishment of Khalistan, but he was a "covert member" of SYFAI.  He had kept his support hidden "for fear of vilification by supporters of the current regime, etc."

In rejecting the applications for refugee status and a DPTEP on 21 October 1993 the primary decision-maker, without considering in detail whether the applicant had a well founded fear of being persecuted found that the fears which he alleged from the extremists or criminals were not based on a Convention reason, but could fairly be characterised as being of a common criminal nature.  The primary decision-maker also found that the applicant could relocate within India to escape the particular conditions that prevailed in the Punjab (cf Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265.)

The Tribunal referred to the discussion concerning the meaning of a "well-founded fear of being persecuted" in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379. The Tribunal correctly noted that the term had both a subjective and an objective requirement; subjectively the applicant must actually be in fear and objectively the fear must be based in reality. The Tribunal also noted that a fear of being persecuted is well-founded if there is a "real chance" that the applicant will be persecuted if he or she is returned to the country of nationality (Chan at 389, 398, 407, 429).

The Tribunal on the material before it accepted that the applicant, being outside the country of his nationality, had a subjective fear of persecution should he be returned.

The first of the grounds on which an order of review is sought in the further and better particulars of the application is that the Tribunal erred in finding that the applicant's fear "was not objectively reasonable, i.e. there was no real chance of persecution occurring".

On the question whether the fear held by the applicant was based in reality the Tribunal first considered his claim based on persecution because of his membership of the SYAFI.  The Tribunal accepted his claim that he had a "close affiliation" with that organisation but that he had kept his support hidden.  However the Tribunal held that it would "give no weight to it because the applicant makes no claims of any active political involvement or that any adverse consequences have flown from his support of the organisation".  Counsel for the applicant criticises the Tribunal's failure to give weight to the applicant's membership of the SYAFI as being manifestly unreasonable, because, it is argued, the Tribunal should have inferred that a reason for the extortion threats alleged by the applicant was his affiliation with the SYAFI.  If, as the applicant says, he was not a registered member of SYAFI, and kept his support for it hidden, it is not readily apparent why this inference should be drawn.  His evidence and the submissions made on his behalf suggest no likely reason why such an inference would arise.  As the Tribunal noted, the applicant has made no claim of active political involvement or that adverse consequences to him have resulted because of his affiliation.  The decision to give no weight to the applicant's membership of SYFAI was in essence a matter for the Tribunal based on the facts of the case.  It was a decision open on the evidence, and it is not one that involves an error of law such that the jurisdiction of this Court to interfere is attracted.  

The Tribunal then went on to consider whether the applicant's fear was based in reality on reasons of religion and membership of a particular social group.  The Tribunal canvassed in detail markedly different versions given at different times by the applicant of the extortion incident alleged to have happened in 1988.  There is no need to rehearse those stories but it is hardly surprising that the Tribunal said it held serious doubts about the applicant's claims.  Nevertheless the Tribunal accepted that the applicant had returned to India from Saudi Arabia with a considerable amount of money, and, giving the applicant the benefit of the doubt that the differences in his stories were merely the product of confusion, accepted that he had been the victim of an extortion demand that caused him to be afraid and to go into hiding.  The Tribunal distilled the following assertions from the applicant's statement and evidence (and it is not suggested that the summary was other than fair and accurate):

".The applicant fears returning to the Punjab because of the generally dangerous situation which exists there.

.While he does not know exactly who the extortionists were, the police were a law unto themselves and it was standard practice in Punjabi villages for police to extort money and to make people disappear.

.There were two kinds of extortion: by criminals and by political activists.  The extortion was used purely as a cover-up and was in reality a threat because of his covert political support.  Extortion only happens to Sikhs so it is politically motivated.  He is targeted as a member of a particular social group, Sikhs returning from working abroad.  A friend who had returned to the Punjab with money after working abroad was found dead and he fears a similar fate."

The Tribunal referred to reports in 1992 and 1993 from the United States Department of State, from Amnesty International, from the Australian High Commission in New Delhi and from the Research Directorate, Immigration and Refugee Board of Canada.  On the basis of this material and the evidence from the witnesses including the applicant who gave evidence before the Tribunal, the Tribunal held that, at least at the time when the applicant was in the Punjab, "there were certain risks involved in living" there.  Some of the risks were plainly not due to persecution for Convention reasons, e.g. the risk of a bomb exploding in a public transport bus.  Risks of that kind were common to the whole population.  The Tribunal accepted that there was also a high level of violence and abuse of human rights.  The Tribunal found that the applicant had "good reason" for his distrust of the police whose generally violent culture had been well documented by Amnesty International.

The Tribunal continued:

"However, the applicant has produced no evidence to link the extortion demands made on him with the police, relying instead on statements such as 'everyone knows all attacks are generated by the police'.

Irrespective of whether or not the extortionists were policemen, the applicant has not satisfied me that the extortion was anything other than a criminal act, or that he was targeted for any reason other than he was known to have money.  Significantly, in neither of the above versions of the extortion demands does he suggest that the extortionists have any motive for the extortion apart from the fact that he was seen as having money. In his original application he concedes the possibility of the extortion demand being a plain criminal act by referring to the extortionists as 'extremists or criminals' and 'extremists/criminals'.  I have already found that there is no objective basis to any fear the applicant may have because of his covert support for the SYFAI.  I do not, therefore, accept the claim that the extortion was used purely as a cover-up and was in reality a threat because of his covert political support."

The Tribunal therefore rejected the suggestion implicit in parts of the applicant's statements and evidence that he had a well-founded fear of persecution for reasons of political opinion.

The Tribunal then proceeded to consider whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group.  It noted that the evidence supported a finding that extortionists in the Punjab targeted anyone from whom money could be extorted and did not focus solely on those who had returned from overseas.  The Tribunal cited, by way of example, from advice received from the Australian High Commission in New Delhi (Department of Foreign Affairs and Trade cable O.ND84486 of 6 July 1992):

"Indian government figures indicate that at any one time there are up to two million Indians working overseas.  Sikhs are inordinately represented in this figure as a percentage of their community's size.

Indians do not have to travel abroad to be counted among those who have money at their disposal.  Newspaper reports from Punjab indicate extortion from established businessmen heading up well-known companies at national, state and local levels.  There is presumably a village level also, with local pharmacists being popular targets.  Many Punjabis receive remittances from abroad anyway, which make them comparatively well-off.

By contrast, there are no media reports of recently-returned Sikhs being the subject of extortion because they have travelled and hence have some money.  Informants were bemused by this suggestion.  Such a claim may generally be discounted."

The Tribunal found that extortion activities, whether by political extremists or others, were not directed solely at
those returning from overseas and held that they were directed at anyone from whom the extortionists believed they could extract money.  The Tribunal held that the targets of extortion in the Punjab did not constitute a particular social group and said:

"In this case the targets of extortion in the Punjab are diverse and in no way form a 'cognisable' group.  They share no 'common social characteristics' other than the fact that they are seen as capable of making payments.  I therefore find that the harm feared by the applicant is not a fear that arises from his membership of a particular social group."

On the allegation that the applicant had a well-founded fear of persecution for reasons of religion the Tribunal held:

"The applicant also claims persecution on the basis of his Sikh religion.  He states that extortion only happens to Sikhs so it is politically motivated.  However, I am not satisfied that the applicant has produced evidence to suggest that he was the victim of extortion for any other reason than the fact that he had money. I find, therefore, that any harm feared by him, is not for reason of religion, and it is not 'politically motivated'.

The Tribunal summed up its findings with the conclusion "that the applicant's fear is not one for reason of any of the grounds in the Convention" and therefore that he was not a refugee.  The applicant's contention that the Tribunal erred in finding that his "fear was not objectively reasonable" misunderstands the reasons of the Tribunal.  It is implicit in the Tribunal's discussion of the reasons advanced by the applicant for his fear of persecution that the Tribunal has accepted that there was an objective base for the applicant's fear, but the Tribunal has held that the reason for that fear was not a Convention reason.  Rather it was a fear based on the general civil disorder in the Punjab, on the violent culture of the police, and on the risk of extortion from extremists or criminals who might target anyone in the community whom they believed had money. 

The second ground on which review is sought contends that the Tribunal erred in failing to hold that the applicant's well-founded fear of persecution was not for a Convention reason.  Oral argument included grounds not covered by the further and better particulars of the application, but counsel for the respondents has taken no point on that account.  It was contended that the Tribunal erred in not giving weight to the applicant's membership of SYFAI so as to find that political opinion was a reason for the applicant's fear of persecution.  I have already dealt with that submission.  Counsel also contended that the Tribunal erred in holding that the applicant had produced no evidence to link the extortion demands made on him with the police.  It was contended that the Tribunal placed too high an onus of proof on the applicant.  The Court was referred to paragraphs 201 to 204 of the "Handbook on Procedures and Criteria for Determining Refugee Status" published by the Office of the United Nations High Commission for Refugees (Reedited, Geneva, January 1992).  The handbook was referred to by Mason CJ in Chan at 392 as a practical guide for the use of those who are required to determine whether or not a person is a refugee.  Paragraphs 203 and 204 provide:

"203.After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements.  As explained above (paragraph 196), it is hardly possible for a refugee to 'prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized.  It is therefore frequently necessary to give the applicant the benefit of the doubt.

204.The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility.  The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."

The Tribunal had earlier given the benefit of the doubt in accordance with notions of fairness and justice reflected in these paragraphs to the applicant when considering his stories about the 1988 incident.  There is no reason to think that the Tribunal departed from these notions when making its finding about the police.  The problem which the applicant faced was that his statements and evidence failed to lay any coherent or plausible base for the assertion that the extortion incident and threats were linked with the police.  On the contrary his first applications and early statements laid the blame on extremists and criminals.  When the Tribunal sought to explore the basis for the applicant's later assertion that the police were involved the applicant advanced the implausible statement "everyone knows all attacks are generated by the police".  That generality was not supported by the various reports on the situation in the Punjab which the Tribunal considered.  In the end there was nothing which could justify as a reasonable possibility the generality asserted by the applicant, so no question arose of giving him the benefit of a doubt about which one of a number of plausible possibilities was the case.  In my opinion the Tribunal did not fall into error in this respect.

The second ground for review, as pleaded in the further and better particulars, is:

"The Respondent having found that the Applicant was the victim of extortion demand which caused him to be afraid and to go into hiding and that political extremists and others have held rich Sikh businessmen for ransom, erred in concluding that as such rich Sikh persons do not constitute a social group, the harm feared by the Applicant does not arise from his membership of a particular social group and therefore he is not a refugee on convention grounds."

This ground puts an unwarranted gloss on the findings of the Tribunal.  It assumes that the Tribunal accepted the applicant's assertion that extortion only happens to Sikhs and that, by implication, membership of the Sikh religion is one of the characteristics of the alleged particular social group, the other characteristic being wealth.  Initially the applicant sought to identify a particular social group which had a third characteristic, namely that members of the group had returned from overseas, but that characteristic is no longer advanced.  The finding of the Tribunal however was that extortionists in Punjab whoever they might be, targeted anyone from whom they believed money could be extorted.  It was against this finding that the Tribunal held that the targets of extortion in the Punjab did not constitute a "particular social group" because they were diverse, without "common social characteristics" other than the fact that they are seen as capable of making payments, and did not constitute a cognisable group. 

The grounds for an order of review pleaded in the application do not challenge the finding that the target group of the extortionists in the Punjab at the relevant times comprised anyone from whom the extortionists believed they could extract money.  Moreover, the evidence and other material before the Tribunal, at least insofar as it has been made known to this Court, gives no reason to question this finding of fact.  The finding was not only open, it emerged as the highly probable situation from all the material before the Tribunal.  The real question which arises for consideration, although it is not precisely identified in the application, is whether the applicant's well-founded fear of being persecuted because he was perceived to be someone capable of making payments was a fear for reason of "membership of a particular social group". 

The Tribunal, in finding that the targets of extortion in the Punjab did not constitute a particular social group relied in particular on passages from the judgment of Lockhart J in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 at 432.

In Morato the applicant for refugee status had given evidence in Australia against a member of a well-known family from his country of nationality involved in the trafficking of narcotics. He said he feared retribution if he were to be returned to that country. It was accepted that he had a well-founded fear. The social group of which he claimed membership was people who have "turned Queen's evidence". The Full Court of the Federal Court, affirming the decision of a single judge, held that he was not a member of a "particular social group". Black CJ, with whom French J agreed, in reference to the Convention definition of "refugee" said at 420:

"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."

and later at 421-422:

"...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...

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."

Lockhart J considered decisions of the Courts of the United States and Canada, and legal writings concerning the meaning of a "particular social group".  One of the cases to which he referred was Re Attorney-General of Canada and Ward (1990) 67 DLR (4th) 1, a decision of the Federal Court of Appeal of Canada. Lockhart J expressed the following conclusions at 431-432:

"'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 cognisable or recognisable 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'...

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 recognisable or cognisable 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 recognisable or cognisable 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."

When the Full Court delivered judgment in Morato an appeal from the decision of the Federal Court of Appeal in Re Attorney-General of Canada and Ward to the Supreme Court of Canada was awaiting hearing.  The decision of the Supreme Court of Canada was delivered on 30 June 1993:  see Re Attorney-General of Canada and Ward; United Nations High Commissioner for Refugees et al., Interveners (1993) 103 DLR (4th) 1. The applicant for refugee status, Ward, was a resident of Northern Ireland and considered therefore as a national both of the United Kingdom and the Republic of Ireland. He was a member of the Irish National Liberation Army. While a member of that organisation he assisted hostages to escape. For this conduct he was sentenced to death by the organisation for insubordination but managed to escape before the sentence was carried out. He travelled to Canada on an Irish passport and there sought refugee status. The Canadian Immigration Appeal Board held that he was a Convention refugee under the Immigration Act 1976 (Canada) which in substance adopts the definition of "refugee" in the Convention and Protocol.
     The Federal Court of Appeal, by a majority, reversed that decision.  The majority considered that for a well-founded fear of persecution to arise from membership of a group it was necessary for the activities of the group to be "activities perceived to be a possible danger of some kind to the government".  Ward had failed to prove the State's complicity in his persecution:  his fear arose not from reprisals from the established government of the country of his residence but from an organisation that sought to overthrow that government.  The appeal to the Supreme Court of Canada was allowed.  It was held that state complicity in the persecution is not a prerequisite to a valid refugee claim.  The definition extended to situations in which the state is not an accomplice in persecution, but is unable to protect its citizens.  This conclusion is in accord with the observations of McHugh J in Chan at 430.  The State of Ireland admitted its inability to protect Ward, and in the circumstance Ward had established a well-founded fear of persecution which the Court held arose for reason of his political opinion - a ground not argued in the Federal Court of Appeal.

In the present case the Tribunal has implicitly accepted that the police in the Punjab provided no adequate protection against the extortion activities of extremists and criminals, and the contrary was not argued before this Court.

On the question of membership of a "particular social group" La Forest J, delivering the judgment of the four members of the Court who participated, said at 33-34:

"The meaning assigned to 'particular social group' in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative.  The tests proposed in Mayers v Canada (Minister of Employment and Immigration) (1992) 97 DLR (4th) 729, Cheung v Canada (Minister of Employment and Immigration) (1993) 102 DLR (4th) 214 and Matter of Acosta (United States Board of Immigration Appeals, Interim Decision 2986, 919850 WL 56042 (BIA)), provide a good working rule to achieve this result.  They identify three possible categories:

(1)groups defined by an innate or unchangeable characteristic;

(2)groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3)groups associated by a former voluntary status, unalterable due to its historical permanence.

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists.  The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person."

Applying this test to the facts at pp37-38, the Supreme Court held that the Irish National Liberation Army members did not constitute a "particular social group".

In Minister for Immigration and Ethnic Affairs v Respondent A and Ors, (as yet unreported, Sackville J, 6 December 1994), Sackville J observed that the approval by the Supreme Court of the decision of the Federal Court of Appeal in Cheung suggests that the three criteria articulated by La Forest J do not exhaust the categories of "particular social groups" for the purpose of the Convention.  Sackville J
considered whether the concept of a "particular social group" was confined to groups comprising members with an "associational interest".  He held that it was not. (at 15,41)  Further, his Honour held: (at 42-43)

"...a number of people having characteristics in common (even without any associational interest) are capable of constituting a particular social group.  Whether or not they do so is likely to depend not only upon the nature of the characteristics the individuals have in common, but upon the extent to which the society to which they belong recognises those characteristics as creating an identifiable social group.  The mere fact that a person fears persecution by reason of a characteristic that he or she has in common with another person who also fears persecution, does not establish that the two are members of a particular social group.  Morato itself illustrates this proposition, as does Kashayev v Minister for Immigration and Ethnic Affairs and Anor (1994) 122 ALR 503.

The tests stated in these decisions would support the conclusion that, depending on all the circumstances, the attribute of wealth could constitute an interest in common sufficient to tie together a member of people as a "particular social group".  The attribute is a characteristic arising from what the person is (or has) rather than from what the person has done or does: cf Black CJ in Morato, at 420. The attribute of wealth, like that of land ownership, is not something that a person should be forced to forsake. Whether in a particular case the attribute of wealth is alone a sufficient characteristic to define a particular social group will depend on whether in the circumstances that attribute connotes a cognisable group in a society which has something that may be sensibly identified as membership: Morato at 421 per Black CJ and at 432 per Lockhart J.

In the present case the evidence does not indicate association of any kind by the applicant with other members of the group he seeks to identify.  Although an "associational interest" is not essential to the concept of a particular social group, evidence of association may be an important factor in establishing the existence of an identifiable group.  Further, there is no suggestion in the evidence that the society to which the applicant belonged recognised the characteristic of wealth as alone creating an identifiable group.  It would be an exceptional case where the attribute of wealth alone could fulfil the above tests without there being further evidence of association or common interest arising out of the attribute of wealth.

In the absence of any other evidence of association or common interest the stumbling block for the applicant in the present case is the vagueness and uncertainty of a group comprising all those people who the extremists and criminal extortionists perceive to be able to pay.  That is a group without any meaningful delimitation.  For example the group would include all those subject to potential threat no matter what the amount demanded.  On the evidence the demands could be for any amount; and a low demand could well be targeted at a person of modest means - or even at a person with virtually no means but access to the money of another which could be obtained to meet the demand.  As the level of potential demands is indeterminate, so is the range of potential victims.  Moreover, the potential victims of extortion threats will include not only those who have money or the ability to obtain it, but also those who are wrongly perceived to be able to pay.  There is no reason to think that the extortionists would have the means or the will to verify in advance the chosen victim's capacity to pay:  rumour would suffice.  It is not apparent why the potential targets of the extortionists in the Punjab would be any fewer in number than the potential targets of criminals engaging in other more common forms of crime against property like theft or robbery.

The group alleged is an extraordinarily wide one.  The group is much wider and more diverse than the suggested group of people who have turned Queen's evidence which Black CJ in Morato said would make the definition of refugee so wide in the relevant respect as to be almost meaningless and as to have no necessary connection with the humanitarian objectives that select a particular category of persons as deserving of special consideration by the international community.

In my opinion the range of people suggested by the applicant as constituting the particular social group of which he claims membership has no sufficiently identifying characteristic or common element to constitute them members of a cognisable or recognisable group within the Punjab.  In my opinion the Tribunal correctly concluded that the applicant did not have a well-founded fear of being persecuted for reason of membership of a particular social group.

The third and final ground for seeking an order of review which was pressed on the applicant's behalf alleged error by the Tribunal in concluding that the situation in Punjab had improved since the applicant had left to the degree that "the possibility of the applicant suffering for reasons that are outside the protection of the Convention are greatly reduced".  It was contended that this finding disregarded the seriousness of the situation at the time when the applicant left the Punjab and disregarded the evidence adduced by the applicant about the present situation.  It was said that the Tribunal erred in not taking as the starting point of its deliberations the situation described by the applicant.  It is unnecessary to consider whether the Tribunal erred in this way, as the passage in the reasons for decision to which the submission relates did not form any operative part of the reasoning leading to the decision that the applicant is not a refugee.  The passages in question concerned the continuing level of risk associated with reasons that are outside the Convention, and form no more than an aside, probably to offer a measure of reassurance to the applicant.

The further and better particulars of the grounds of the application in paragraph 4 contended that the Tribunal should have held that the applicant was a refugee on "cumulative grounds".  This paragraph was not pressed in argument, and had no hope of success in the face of positive findings that there was no Convention reason for the applicant's fear, unless one or more of those findings were shown to be tainted with error. That is not the case.

Although one of the grounds on which refugee status was found not to exist by the primary decision-maker was that the applicant could relocate within India to escape the threats which he feared in the Punjab, that was not an issue considered by the Tribunal, and did not form part of its decision.

In my opinion the application should be dismissed.

I certify that this and the 24
  preceding pages are a true
  copy of the Reasons for
  Judgment of Justice von Doussa

Associate:

Dated:

Counsel for the applicant        : Mr G Patel
Solicitors for the applicant     : Messrs Patel & Co.
Counsel for the respondents      : Ms S Maharaj

Solicitors for the respondents    : Australian Government
        Solicitor

Date of hearing                  : 26 August 1994