Zamora, Deyse Paquita Cedeno v Minister for Immigration and Multicultural Affairs [1997] FCa 936

[1997] FCA 936

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - whether applicant persecuted for reasons membership of a “particular social group” - particular social group defined by the activities of its members - Tribunal failed to properly consider whether internal flight was a viable option - applicant need not relinquish membership of social group to avoid persecution in country of nationality

Migration Act 1958 (Cth), s 476(1)(e)

Morato v Minister for Immigration, Local Government and Ethnic Affairs (1993) 111 ALR 417, applied
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 CLR 265, applied

ZAMORA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 846 of 1996

MADGWICK J
SYDNEY
5 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 846 of 1996

BETWEEN:	DEYSE PAQUITA CEDENO ZAMORA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		MADGWICK J
DATE OF ORDER:		5 SEPTEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal’s decision be set aside.

2.The matter be remitted to the said Tribunal for determination according to law.

3.The respondent is to pay the applicant’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 846 of 1996

BETWEEN:	DEYSE PAQUITA CEDENO ZAMORA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):	MADGWICK J
DATE:	5 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR: The applicant, who is a national of Ecuador, arrived in Australia on 30 June 1994 and applied for refugee status on 21 September 1994. The Minister’s delegate refused her application for a protection visa, and the Refugee Review Tribunal (“the Tribunal”) subsequently upheld the delegate’s decision on review. This case concerns a review of the Tribunal’s decision on the ground that the Tribunal erred in law, making the decision judicially reviewable under s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”).

The Court is not concerned with mere factual errors, if any exist, nor to seize upon mere verbal infelicities in the Tribunal’s reasons, nor to exercise ingenuity in a search for legal error.

Background facts

The relevant facts, which are taken from the applicant’s statutory declaration dated 27 May 1996, and upon which the Tribunal relied, are as follows.

Before coming to Australia, the applicant had been employed as a tourist guide in Quito, the capital of Ecuador.  The applicant claims that it was a common experience for criminal gangs to attempt to recruit guides to help them steal from tourists.  The applicant states that the first
time she was so approached, she was threatened and told that she would have no choice but to help.  She reported the incident to her office manager, but was told that no one would help her.  However, the applicant several times refused to become involved.   She was followed and socially harassed.

In April 1994 the applicant was hired by a group of German tourists to travel with them in Ecuador.  Against the applicant’s advice, and at her employers’ insistence, the tourists travelled to a lookout, which the applicant knew was a dangerous place where tourists had been attacked and robbed.  The group were confronted by a gang who tried to snatch one woman’s bag.  The applicant told the tourists to run into a clearing, and was left to face the men alone.  She threw her handbag to one of them, and whilst he bent down to pick it up he stabbed her leg with a knife.  The applicant ran towards the clearing, collapsed, and later sought medical treatment.

After this incident, the applicant and her family began receiving threatening telephone calls and pornographic letters.  The applicant arranged for her son to be escorted to and from school out of fear for his safety.

The applicant needed to obtain new working papers from the National Tourist Corporation.  She informed the Corporation that she had been attacked and her papers had been stolen, but was told that there was nothing the Corporation could do to help her avoid the attention of these gangs.  Corrupt and criminal activity against tourists extends into the higher echelons of the Corporation.

The applicant was subsequently abducted from the street by three men and sexually assaulted, apparently as a punishment for not assisting in their schemes to rob tourists.  The applicant was told that she had “good contacts” and that she had to “give them a share”, otherwise she would be killed.  The applicant did not inform the police because she feared their corruption and links to gangs such as those which had harassed her, but tried to borrow money from the bank and her brother to leave the country.  Arrangements were made for the sale of the applicant’s house, and on 28 June 1994 the applicant and her son travelled to Australia.

The applicant claims that she has since been informed that her boyfriend has been kidnapped, and although she is not certain that there is a connection between what happened to her and this event, she had some letters in the bag stolen from her which may have led the criminals to him.

The applicant says that she is afraid to return to Ecuador because of the assaults upon her, and her fears that the police are unable to protect her, and secondly, because she fears a resumption of great pressure, including serious harassment and possible violence, to force her to become involved in criminal activities.

The Tribunal’s decision

The Tribunal accepted the applicant’s claims that she was targeted by criminals who were intent on enlisting her assistance to steal from tourists and that she had been brutally assaulted by them when she refused.  The Tribunal also accepted that the applicant had an honest belief that she would face the same kind of harm if she returned to Ecuador.  Nor was it doubted that such a belief might have been well-founded. The Tribunal did, however, have doubts as to whether the “accredited tourist industry workers in Ecuador”, of which the applicant was one, amounted to “a particular social group”. But, accepting that that class of persons could be so categorised, the Tribunal considered that the persecution suffered by the applicant was not for a Convention reason, because she was not persecuted for being a member of that group but as an individual.  The Tribunal stated:

“In my view the Applicant was targeted by a criminal element in Ecuador because they saw that she, as an individual, could be of assistance in helping them to steal from tourists.  This was their motivation.  Their targeting of other tourist workers does not change this.  They weren’t motivated by a desire to persecute her because she was a member of a group of professional tourist workers.  They were not motivated because the Applicant was a certified tourist guide with the Ecuadorian Tourist Commission.  They were motivated because she could assist in their goals to obtain money by theft.  To put the matter another way, in the Tribunal’s view, the Applicant was targeted not because she was a member of a group of professional accredited tourist workers but because at the time she was targeted she was involved in guiding tourists around who were perceived by the persecutors rightly or wrongly to be wealthy.  The targeting had nothing to do with either her professionalism or accreditation.  It had nothing to do with group membership.  It was simply
because she was guiding tourists around.  Had the Applicant not been working in this capacity but visiting the places or her own she would not have been targeted.  Accordingly in the Tribunal’s view the persecution was not because of the Applicant’s membership of this group but because of what she was doing.  Her membership of the group was of no interest to those doing the persecution in the absence of the tourists.  This is highlighted in her evidence when all initial approaches are made in the presence of tourists and the attack with the knife is also in the presence of some tourists.  The attacks when the tourists were not there, assuming they were linked, were obviously designed to make the Applicant more compliant when she had tourists.  Nonetheless the motivation of the persecutors was to obtain money from tourists in the future and not to persecute her because of her membership of a group of accredited professional tourist guides or certified tourist guides.  Indeed in the submission from the Applicant’s advisers of 12 September 1996 it was submitted that ‘the gangs had a clear motive and that was to involve the Applicant in their activities’ (p4).  The motive then is not to persecute the Applicant because she is a tourist guide but the aim is to involve her in their activities.  The aim is to enlist the Applicant to assist in thefts from tourists.”

The Tribunal was also not satisfied that the applicant could not gain employment in another field if she returned to Ecuador, nor that the criminals would wish, contrary to the applicant’s assertion, to force her to return to her previous employment:

“In the Tribunal’s view it is the Applicant’s presence with foreign tourists that is the initiating factor.  If the Applicant did not return to this employment then the initiating factor would not exist.  Certainly they may well treat the next person in the same way but as the Applicant refused to assist I do not accept that they would be interested in forcing her to return to this employment.  If the Applicant is not working in this industry then this group would have no reason to come after her.  This is further indication that as the Tribunal has found above, the Applicant is not persecuted by reason of her membership of a particular social group.  The Applicant has previously worked in a number of occupations in Ecuador.  I see no reason why she should not be able to obtain another job away from the tourist industry.  This would prevent her being again subject to the sort of attacks, assuming such attacks were not random, she was subject to before she left Ecuador.  If the Applicant follows this course then there is no real chance that she will face persecution for a Convention reason should she return to Ecuador.”

The Tribunal also found that it was reasonable for the applicant to relocate to another part of Ecuador, and that it was likely she would be able to find alternative employment, considering that she had previously lived in a number of places, that she had friends and contacts in
another city, and had worked at a number of jobs.  The Tribunal did not accept the applicant’s claim that the group of criminals would be able to find her anywhere in Ecuador.

Grounds of review

The applicant submits that the Tribunal erred in law, such that the decision is subject to judicial review under s 476(1)(e) of the Act. In particular, the applicant claims that the Tribunal:

(a)erred in its interpretation and application of the meaning of the term “particular social group” in the definition of refugee; and

(b)erred in law in its interpretation and application of the “internal flight” principle.

Conclusions

Article 1A(2) of the Convention defines a “refugee” as a person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

“persecuted for reasons of . . . membership of a particular social group”

The Tribunal’s finding that the applicant might have been a member of a “particular social group” was not challenged, and the review must proceed on that basis.  Thus, it is established that she was a member of a social group, the membership of which is or may be defined in large measure by the activities of the members, their work:  if one does not work, it may be difficult to say that one is a “professional” tourist guide; if one does work as such that may be enough to make one a professional in the field.  The applicant’s activities as a member of that
social group furnished the reasons for her persecution:  granted that the interest of criminal elements in her lay in her opportunities for proximity to tourists, and to arrange where they might so go, she would have no such capacity unless she worked as an accredited tourist guide.  It is therefore difficult to say that the persecution is not by reason of her membership of the relevant social group.  It is true that there are other people outside the particular social group identified or assumed by the Tribunal whose activities would render them equally liable to persecution on account of those activities (for example, taxi drivers could easily lure tourists to isolated places where criminals of the kind who persecuted the applicant could plunder them). But that is not really the point, for it does not deny the inseparable connection between the applicant’s membership of the relevant social group and her activities as such a member which attracted the persecution. 

In the ordinary case, it is true, as Black CJ said in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1993) 111 ALR 417 at 421, that the Convention contemplates that you are persecuted because of what you are, rather than what you do. However, the expression “particular social group” should not be narrowly defined. Lockhart J said in Morato (at 432):

“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 on Procedures and Criteria for Determining Refugee Status (1979)] 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.” (emphasis added)

Thus, the social characteristics which define some groups are what the members of the group do.  Where membership of a social group is defined by what its members do, then whether persecution on account of an activity of a member of the group can also be said to be persecution by reason of the membership of the group, is a matter of fact and degree.  It will depend on how closely the activity concerned is bound up with the key activities that define the membership of the group.  Here it would seem that the applicant’s activities which attracted the persecution of her could be said to be the core activities of her social group. 

One could only arrive at a contrary conclusion by artificially and overly technically defining the relevant social group:  the Tribunal invited such a definition from the applicant’s legal advisor who offered “professional accredited tourist workers”.  The Tribunal then, in effect, relied on the assertion that it is not a criterion of membership of such a group that one be working with tourists, to say that the applicant was not targeted by reason of her membership of that group.  As indicated, that was, in my view, an error:  it failed to consider the force of the extremely close relation between the applicant’s relevant activities and the defining qualities of the group.  But, even if that approach did not involve an error of law, as I think it did, there is no apparent reason why accredited tourist guides who actively pursue their profession could not be regarded as a “particular social group”.  Practising barristers, for example, may constitute one social group as well as being part of another, namely all barristers, practising or non-practising.

In my view the Tribunal erred in not considering whether there was such a narrower group than was submitted by her legal advisor.  Cases of this kind are hardly apt for turning submissions into pleadings, if there is reason to think that, unwittingly, a submission may not have got to the heart of the matter.

Internal flight

In relation to whether the State of nationality as a whole cannot provide the applicant with effective protection, that is, whether “internal flight” was available to her, this is a paradigm case for full weight to be given to the “range of realities” that affect the applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 CLR 265, per Black CJ at 270) and the State. The first such reality is that the applicant is a recovering victim of a serious sexual assault. Secondly, this assault and a previous stabbing were persecutory of her by reason of her occupation. Thirdly, that was the occupation for which she was best equipped, and had followed for some years and is the sole support of her child; she is 36 years of age. Fourthly, in the nature of things, such occupation would appear inescapably less likely to provide fully for her and her child’s livelihood in the less populous centres of Ecuador. Fifthly, on the assumptions which the Tribunal thought might be correct, official corruption was widespread in the capital, Quito; there was no apparent reason to think that it would be less so elsewhere. Hence there would appear to be a very real chance that, wherever the applicant might resume her main occupation in Ecuador, she would again face persecution and a practical inability on the part of the State to protect her from it. It appears that the Tribunal did not recognise the necessity to consider the realities as they subjectively affect the applicant.

Insofar as it might be said that she could combine internal flight with the relinquishment of her occupation as a tourist guide, that is to suggest that her apparent ability to avoid persecution by quitting her social group means that she has no well-founded fear of persecution for reasons of membership of that social group.  By analogy, it is to say to a persecuted professor, psychiatrist, lawyer or novelist, that he or she may have no refuge abroad because, by leaving the university, the consulting room, the chambers or the typewriter to dig paddocks, he or she might escape the persecution without emigration.  If the assumption that the applicant was a member of a social group as contemplated by the Convention is correct (and, although the present case is an unusual set of circumstances, that assumption is not plainly offensive to common sense, ordinary language or the context and the purpose of the Convention), it would be an abnegation of the Convention if a member of a social group persecuted for such membership had to renounce such membership before qualifying as a refugee.  The Convention proceeds on the basis that persecution on account of such membership of a social group of itself warrants the signatory States sheltering people so persecuted:  it is evidently thought to be a matter which goes to human dignity itself that one be free to join, or pursue membership of, groups that can be regarded as “particular social groups”.  As Lockhart J has pointed out, such groups are those that “might well” attract persecution and, as is shown by the examples his Honour gave in Morato, occupational groups are among them.  It is not only intellectually distinguished occupations which may qualify as social groups:  in many countries, many a farmer could lay no claim to such distinction but, as Lockhart J, with respect, rightly recognised, farmers have historically been among those persecuted.

In relying on the suggestion that the applicant could escape persecution by relinguishing her membership of the group which gave rise to the persecution, it seems to me that the Tribunal erred in not having regard to the considerations to which I have just referred.  In applying them, other matters of fact and degree may of course be relevant.  If the applicant could, for example, move easily to an occupation as remunerative, as congenial, as prestigious in Ecuador and for which she was as well-qualified as that of a tourist guide, and thereby escape persecution, the matter might bear a different colour.  In such a case, one might perhaps doubt the sufficiency of the claimed persecution; as often happens, it may not be easy conceptually to separate the different elements of the “refugee” definition, because there is an underlying “unity of concept” in the notion (Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 per Burchett J at 317).

In summary, the Tribunal seems to me to have made the following errors of law:

(1)The Tribunal misapplied the applicable law by failing to consider whether the close inter-relationship of the defining qualities of the social group, of which it was accepted the applicant was a member, with the activities in relation to which she was persecuted, was such that it might be said that she was “persecuted for reasons of . . . membership of [that] particular social group”.

(2)The Tribunal failed to consider there was another relevant and more limited “particular” social group to which the applicant could be said to belong.

(3)The Tribunal failed to consider the subjective effect on the applicant of the “range of realities” which affected her and her country of nationality.

(4)The Tribunal wrongly relied on the supposed circumstance that the applicant might escape her persecution by relinquishing her membership of the social group, which membership gave rise to the persecution.

The Tribunal’s decision should be set aside and the matter should be remitted back to the Tribunal for determination according to law.  The respondent should pay the applicant’s costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:            5 September 1997

Counsel for the Applicant:	G Craddock
Solicitor for the Applicant:	Kessels & Associates
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 August 1997
Date of Judgment:	5 September 1997