FEDERAL COURT OF AUSTRALIA Parra v Minister for Immigration & Multicultural Affairs 2000 [FCA] 85 MIGRATION – Refugee application – Applicant claimed fear of persecution on account of her political opinion and political activities – Claim rejected by Tribunal – No challenge to that decision – Application for review on basis that Tribunal failed to give effect to an alternative case raised by the material before the Tribunal: fear of persecution on account of membership of a particular social group – Claim of rape of applicant on account of husband's political activities – Whether wives of political activists may constitute a "particular social group" – Whether family constituted by applicant, her husband and their two children may be a "particular social group" – Effect on this matter of Tribunal not being satisfied about husband's alleged political activities – Effect of Tribunal not being satisfied that State would refuse protection. Migration Act 1958, s476 GANET VIBLIANA GRANJA PARRA, JOHANNA ANDREA BASANTES GRANJA and CHRISTIAN ALEJANDRO BASANTES GRANJA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N1171 of 1999 WILCOX J SYDNEY 11 FEBRUARY 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1171 of 1999 BETWEEN: GANET VIBLIANA GRANJA PARRA, JOHANNA ANDREA BASANTES GRANJA and CHRISTIAN ALEJANDRO BASANTES GRANJA Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: WILCOX J DATE OF ORDER: 11 FEBRUARY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The first applicant, Ganet Vibliana Granja Parra, pay the costs of the application incurred by the respondent, Minister for Immigration and Multicultural Affairs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1171 of 1999 BETWEEN: GANET VIBLIANA GRANJA PARRA, JOHANNA ANDREA BASANTES GRANJA and CHRISTIAN ALEJANDRO BASANTES GRANJA Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: WILCOX J DATE: 11 FEBRUARY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 WILCOX J: This is an application by Ganet Vibliana Granja Parra, made on behalf of herself and her children, Johanna Andrea Basantes Granja and Christian Alejandro Basantes Granja, to review a decision of the Refugee Review Tribunal affirming a decision not to grant them protection visas. The Tribunal decided that none of the three visa applicants was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees as amended by the 1967 Protocol. The facts 2 The applicants are citizens of Ecuador. The first applicant's husband is said to be an indigenous Ecuadorian and the first applicant claims he attended meetings relating to the rights and conditions of indigenous Ecuadorians. She says that, in 1994, he was arrested and held for some hours. Later, according to the first applicant, her husband was involved in opposing pressure from powerful people, whose identity she does not know, to engage indigenous Ecuadorians in illegal drug crop cultivation. As a result of his stand, she says, in November 1995, three men came to her house and raped her. She told her husband only that she had been seriously beaten but he went to the police to report the incident. According to the first applicant, he was detained by the police for two nights. Shortly afterwards the family moved to another village from which, in January 1996, the husband departed for Australia. In May 1996 the husband lodged an application for a protection visa. This application was rejected and the rejection was affirmed by the Refugee Review Tribunal on 10 March 1997. 3 The present applicants arrived in Australia on 16 May 1997. On 30 June 1997 they lodged an application for protection visas. The application was refused and they sought review of that decision by the Tribunal. Before the review hearing by the Tribunal on 17 August 1999, the husband left the applicants. It is not clear when this happened but the Tribunal was apprised of the position in advance of the hearing. On 12 August 1999 the first applicant's solicitor wrote a letter to the Registrar of the Tribunal as follows: "We advise that the applicant's spouse has abandoned her and their children. The applicant still fears persecution if she is forced to return to Ecuador as a result of her political opinion and imputed political opinion relating to activities she took part in with her husband." The Tribunal hearing 4 At the hearing the Tribunal member questioned the first applicant about the circumstances of her separation from her husband. The first applicant said he had left the family about 18 months earlier and they had not since heard from him. The Tribunal accepted that the husband had indeed abandoned the family. 5 The Tribunal member satisfied himself, by a search of immigration departure records, that the husband had not departed from Australia but he was unable to obtain any information as to his whereabouts. The Tribunal member felt the applicants' case depended "virtually entirely on the substance and reliability of the husband's claims". The reason, no doubt, was that the first applicant did not suggest that she, herself, had engaged in any political activities. As he was not able to call in the husband for questioning, the Tribunal member listened to the tape of the Tribunal's hearing of the husband's application for review, in order better to understand and evaluate his claims. The Tribunal member was not favourably impressed by the evidence given by the husband at the previous hearing. He thought it contained many discrepancies and implausibilities. The Tribunal member commented in his reasons: "This cannot but have a negative effect on the present matter …" 6 The Tribunal member treated his view about the husband's evidence as entirely destructive of the first applicant's case of fear of persecution because of political opinion. No complaint is made of that reasoning. However, the applicants contend the Tribunal erred in using that conclusion as a sufficient reason for affirming the decision to refuse the application for protection visas. They argue the evidence demonstrated the existence of an alternative basis for granting protection visas and the Tribunal erred in law in failing to consider that basis. Their counsel, Mr Ben Zipser, draws attention to statements of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 56: "… the RRT is not to limit its determination to the 'case' articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented … … the RRT is required to determine the substantive issues raised by the material and evidence before it." [Original emphasis] 7 Mr Zipser argues the material before the Tribunal in the present case disclosed a well-founded fear of persecution of the first applicant by reason of her membership of a particular social group. He points out the first applicant claimed to have been raped by three men as a reprisal for her husband's opposition to their illegal activities and she claimed a fear of similar persecution if she returned to Ecuador. Identification of the "particular social group" 8 During the course of argument, I asked Mr Zipser to identify the relevant "particular social group". He said it consisted of wives of men against whom reprisal action might be taken by criminals. However, this cannot be regarded as a "particular social group" for the purposes of the Convention. Why should the category be limited to wives, as distinct from mothers, daughters, sisters and other close relatives? Given that any man might come into conflict with criminals, how would it be possible to know who was within the described group? 9 By way of alternative submission, Mr Zipser suggested the relevant social group might be the family constituted by the husband and the three applicants, being a family a member of which was involved in confronting criminals. He referred to Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134 in which a Full Court (Einfeld, Moore and Branson JJ) said: "24. In the context of family members being persecuted for reason of one family member having refused to join the mafia … the first question for an Australian decision-maker would be whether, independently of the persecution being experienced by the family members, the family was recognised within society as a group, or as part of a group, set apart from the rest of society. It may be that such a case might be found in a society in which the recruitment activities of the mafia were publicly known, and in which the retaliatory actions of the mafia against persons who rebuffed invitations to join it were so notorious, that the families of those persons had become recognised in the society as together constituting a particular social group … If an applicant in such circumstances had a well-founded fear of persecution for reason of being a member of the particular social group constituted by the families of persons who had rebuffed invitations to join the mafia, it would be illogical and wrong, in our view, to engage in the further refinement of asking whether the applicant was fearful of being persecuted by reason of a personal link with an individual who had rebuffed the mafia or by reason of his or her membership of the social group." 10 It will be noted their Honours had in mind families who were recognised as resisters of corruption. There is no suggestion that the present applicants' family had achieved that status. However, I would not reject on that ground the possibility of a claim on the basis of membership of a particular social group. At first instance, in Sarrazola, Hely J held that a family may constitute a "particular social group" within the meaning of the Convention: see Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101. I agreed with that view in C and S v Minister for Immigration and Multicultural Affairs [1999] FCA 1430. I said at para 33: "It was unnecessary for the Full Court in Sarrazola to deal with the correctness of the statement of Hely J that '[m]embership of a family is a characteristic which distinguishes members of that family from society at large. … family members possess a common unifying element which binds them together as a particular social group'. However, it seems to me the statements are plainly correct. That which binds together the members of a family is not the suffering of prosecution but a relationship of blood and marriage; membership of a family is something that exists independently of any persecution the members may suffer. Moreover, in almost every society, familial links are recognised and families are identifiable. Unless one subscribes to the view, taken in Applicant A only by McHugh J, that the term 'a particular social group' was 'probably intended to cover only a relatively large group of people', there is no reason to exclude its application to a family. Such an application is surely well within the spirit of the Convention. Family members may be targeted for persecution simply because of that membership, and not because of their own actions." Did the material raise a case of persecution on account of membership of a particular social group? 11 The question, then, is whether or not it is correct to say, as Mr Zipser does, that the material before the Tribunal in the present case "raises a case" of a well-founded fear of persecution on account of the applicants' membership of the particular social group consisting of themselves and the husband. In that connection, it is first necessary to consider whether there was material before the Tribunal that required it to address the question whether, if the first applicant returned to Ecuador, there would be a real chance she would suffer persecution on account of her relationship with her husband. 12 During the course of submissions, there was discussion as to what Merkel J meant by the words "raises a case". Mr Zipser says his Honour must have meant it would be sufficient if the evidence reveals even the possibility of persecution on an unarticulated basis. Moreover, Merkel J did not think it necessary there be evidence of all elements of the alternative basis of claim; a mere suggestion would be enough to enliven the Tribunal's obligation, as an inquisitor, to investigate the existence of the other elements. He contends Merkel J should not be taken as referring to the existence of what would be described in a curial setting as a prima facie case; that is, a mosaic of evidence supporting each of the elements needed to be established in order to make good the claim. 13 I cannot accept that submission. It attributes to Merkel J an egregious error of law. In a number of cases (the most significant of which were noted by Merkel J in Paramanathan at 56), I have held there exist circumstances in which an administrative tribunal like the Refugee Review Tribunal has an obligation to make inquiries in relation to a particular fact. However, in common with other members of the Court, I have also said it is no part of a tribunal's function to make good a case claimed by an applicant. Still less would it be part of a tribunal's function to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim. Consistently with the submission of counsel for the Minister, Mr Robert Bromwich, I think Merkel J meant to refer to evidence or material that demonstrates the existence of all elements of a well-founded fear of persecution on a particular basis. 14 The reasons given by the Tribunal in the present case do not include any finding, one way or the other, about the truth of the first applicant's claim of rape. However, it is clear the Tribunal disbelieved the evidence given by the husband at the earlier Tribunal hearing about his opposition to persons seeking to force indigenous Ecuadorians to engage in drug cultivation. It seems there was no other evidence of acts of opposition. Under those circumstances, the Tribunal must be taken to have rejected the first applicant's claim that the rape, if it occurred, was related to her husband's opposition to the criminals. It seems to follow there was no basis for the Tribunal to conclude that the applicant was raped, if she was, because of her status as the wife of her husband; that is, because of her membership of the particular social group constituted by the family. The chance of future persecution 15 There is a further difficulty about the first applicant's contention that the material before the Tribunal raised a case of a well-founded fear of persecution based on membership of the family. It is natural for people concerned with a claim of such a fear to scrutinise the past, because this is often a guide to the likely future position. However, it must always be remembered that the critical issue is the chance of persecution in the future. In the present case, the Tribunal appreciated that point. In its reasons for decision, the Tribunal said: "If the above-cited tests were not met, then in order for the Tribunal to find that there was a real chance of Convention-related persecution, it would be necessary to be satisfied that the state would refuse to protect the 'refuser' from revenge at the hands of the criminals for reasons of his or her actual or imputed political opinion, or, for that matter, for reasons of his or her ethnicity. The Tribunal could not be satisfied on the basis of the unreliable evidence in the present case that this were so." 16 At one stage there was a question in my mind as to whether, in this passage, the Tribunal was addressing the position of a hypothetical applicant, rather than the first applicant in this case. I wondered whether the words "or her" were explicable on the basis that the first sentence was intended as a general statement of principle, independent of the facts of this case. However, on reflection, it seems to me that the opening words of the sentence indicate the Tribunal had the present case in mind. The notion of the applicant herself being a "refuser" is explicable on the basis that she, herself, had claimed a political opinion that might attract persecution, as demonstrated by her solicitor's letter of 12 August 1999 quoted in para 3 above. 17 If the Tribunal's statement is to be understood in this way, it amounts to a clear indication that the Tribunal was not satisfied the applicant faced a real chance of persecution if she returned to Ecuador. That being so, the material before the Tribunal did not "raise a case" for the grant of a protection visa on an unarticulated basis. Disposition 18 This being the only ground of review advanced by the applicants in this Court, the application for review must be dismissed. The first applicant must pay the respondent's costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 11 February 2000 Counsel for the Applicant: B Zipser Counsel for the Respondent: R Bromwich Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 February 2000