Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113 (23 February 2001)

Last Updated: 23 February 2001

FEDERAL COURT OF AUSTRALIA

Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113

IMMIGRATION - refugees - Refugee Review Tribunal - finding that applicant not at risk of persecution by reason of political opinion - whether failure to set out findings on material facts - whether evidence to support findings - unrepresented applicant failed to raise claim to fear persecution by reason of membership of particular social group - whether Tribunal erred in failing to consider persecution for that reason - whether extended family can constitute a "particular social group" - whether findings of fact made any error immaterial.

Migration Act 1958 (Cth), ss 430(1)(c), 476(1)(a), 476(1)(e), 476(1)(g), 476(4)(b).

Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, cited.

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, applied.

Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, cited.

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553, cited.

Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855, cited.

Pat Toi Choi v Minister for Immigrationa and Multicultural Affairs (unreported, Lindgren J, 2 December 1998), cited.

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, cited.

Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101, considered.

Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517, followed.

Applicant `A' v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, cited.

Minister for Immigrigation and Multicultural Affairs v Zamora (1998) 85 FCR 458, cited.

Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (unreported, Full Court, 10 December 1998), cited.

Martinez v Secretary of State for the Home Department [1997] Imm AR 227, not followed.

C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366, considered.

Sarrazola v Minister for Immigration and Multicultural Affairs (No 3) [2000] FCA 919, cited.

Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, followed.

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, cited.

Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, cited.

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, followed.

EVERT HAIDEN GIRALDO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 876 of 2000

SACKVILLE J

SYDNEY

23 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 876 OF 2000

BETWEEN:	EVERT HAIDEN GIRALDO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal made on 6 July 2000 be set aside.

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

3. The respondent pay the applicant's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 876 OF 2000

BETWEEN:	EVERT HAIDEN GIRALDO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

1 This is an application to review a decision of the Refugee Review Tribunal ("RRT"), made on 6 July 2000, to affirm a decision not to grant the applicant a protection visa.

2 The applicant is a citizen of Colombia, now aged about 39. He left Colombia, accompanied by his wife and two children, on 10 October 1997, arriving in Australia on 12 October 1997. On 19 November 1997 all four members of the family applied for protection visas. Their applications were rejected by a delegate of the respondent ("the Minister") on 24 June 1998.

3 The applicant, his wife and two children sought review of the delegate's decision in the RRT. As the RRT observed, only the applicant made specific claims under the Convention Relating to the Status of Refugees ("the Convention"). Presumably for this reason, the applicant is the only member of the family who is a party to the proceedings in this Court.

4 One of the criteria for the grant of a protection visa is that the Minister (or, on an application for review, the RRT) must be satisfied at the time of the decision that the applicant for the visa is a non-citizen to whom Australia has protection obligations under the Convention: Migration Act 1958 (Cth) ("Migration Act"), s 36(2).

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

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; 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".

6 Unlike many decisions of the RRT which are the subject of applications for judicial review pursuant to Part 8 of the Migration Act, the RRT specifically accepted the applicant's account of his experiences in Colombia. His claims for a protection visa nevertheless failed because the RRT did not accept that his experience "amount[ed] to persecution for Convention purposes" or that "his fear of future Convention based persecution [was] well-founded".

THE RRT PROCEEDINGS

7 The RRT had before it the applicant's application for a protection visa and a written statement prepared by him in support of the application. The applicant also gave oral evidence to the RRT. Although the application to the RRT for review of the delegate's decision was apparently prepared with the assistance of solicitors, the applicant was not represented at the hearing. Nor was he represented at the time he prepared his written statement.

THE FACTS

8 The applicant lived in Bogota, Colombia all his life, until his departure for Australia in October 1997. The applicant's children were born in Colombia. The applicant worked as a self-employed building contractor until shortly before leaving Colombia.

9 The applicant's wife's uncle is a longstanding member of the Liberal Party of Colombia, one of the two major political parties in that country. The applicant himself was a member of the Liberal Party and unsuccessfully stood for pre-selection at elections ultimately held in 1998 (after he had left Colombia).

10 The applicant and his immediate family regularly visited a farm in San Antonio, located about 60 kilometres from Bogota. The farm had been owned by the applicant's parents-in-law. The parents-in-law had raised their children (the applicant's wife and siblings) on the farm. (The applicant gave oral evidence that title to the farm had been transferred to his wife and three of her four siblings, but the RRT apparently proceeded on the basis that at the relevant time the parents-in-law lived on and worked the farm.)

11 On 31 August 1997, the applicant, his wife and his parents-in-law were at the farm, while the applicant's two children stayed with a relative in Bogota. On that day, five FARC guerillas, each bearing weapons, arrived at the farm. The guerillas told the applicant that they intended to take his thirteen year old daughter for indoctrination and training to further their revolutionary ideals. They also told the applicant that they intended to "recruit" other youngsters in the area. The guerillas stated they knew the applicant's family and political traditions well, since they had declared the uncle to be an enemy of FARC. They also said that the uncle, including his relatives, was a "political objective" of theirs.

12 About a week later the applicant received a telephone call at his home from persons he believed to be FARC members. He was told that there were no major problems; that he should be ready to hand over his daughter; and that there would be no need for her to finish the school year as she would receive further education and political and military training in the FARC's camps.

13 After receiving this telephone call, the applicant arranged for his wife and daughter to stay with relatives in North Bogota. The applicant himself stayed with other relatives and attended to his business commitments. There was no further contact between the applicant and the FARC guerillas.

14 Shortly thereafter, the applicant travelled to Venezuela to obtain Australian visas for himself and his immediate family. He returned to Colombia and, as already noted, the family left for Australia on 10 October 1997.

15 The threats made by FARC to the applicant coincided with the guerillas becoming more active in the area in which the farm was located. The guerillas made demands on the applicant's father-in-law that he give them the farm to enable them to grow coca. The father-in-law refused to accede to their demands. In consequence, he was assaulted by FARC guerillas and seriously injured. The father-in-law was hospitalised, and later died of his injuries. (The RRT did not make a specific finding as to the date of the father-in-law's death, but a death certificate provided by the applicant showed that he died in April 1999.) Neither the applicant's mother-in-law nor his wife's siblings remained on the farm.

THE RRT'S REASONING

16 The RRT referred at some length to the independent evidence concerning conditions in Colombia. This evidence suggested that

* Colombia is a country "plagued by internal armed conflict and generalised violence";

* the Government faces a serious challenge to its control over the national territory, with the principal contestants being government security forces, paramilitary groups, guerillas and narcotics traffickers;

* the two major guerilla groups, FARC and the National Liberation Army ("ELN"), exercise a significant degree of influence and initiate armed action in most of Colombia's municipalities;

* FARC recruits children as soldiers from poor rural workers, using intimidation and fear of reprisals;

* FARC sees no gain in pressuring educated urban teens, since they prefer to mould poor children from the countryside; and

* there is nothing to indicate that the Liberal Party or its members and their families have been singled out by political opponents, guerilla groups or others for violence or mistreatment.

17 The RRT noted that the applicant related his fear of harm to a Convention ground by reference to his belief that FARC was aware both of his membership of the Liberal Party and of his uncle's long-standing membership. The RRT seems to have accepted, at least implicitly, that persecution at the hands of FARC had the necessary "official quality" to come within the Convention, since the Colombian authorities were unable to control FARC's activities in certain areas of the country. Nonetheless, the RRT rejected his claim to have a well-founded fear of persecution for reasons of political opinion (actual or imputed):

"I accept the applicant's account of his experiences in Colombia, however for the reasons which follow I do not accept that his experiences amount to persecution for Convention purposes or that his fear of future Convention based persecution is well-founded.

I accept the independent evidence before me that FARC does engage in the recruitment of children. The evidence before me which I also accept as to the recruitment of children also suggests it is based upon the difficult lives of the poor rural workers, involving intimidation and fear of reprisals and that FARC see no gain in pressuring educated urban teens. They prefer to recruit children from the countryside who they can mould into dedicated followers. The evidence before me does not suggest that the children of those associated with the Liberal Party are targeted by FARC for recruitment. As it stands the independent evidence before me does not provide a real substantial basis for the applicant's fear that FARC would seek to forcibly recruit his daughter, an urban teenager from Bogota.

Further, the applicant assumes that because FARC told him that they intended to recruit his daughter that they intended to carry out this threat, as opposed to the threat being the harm which FARC intended to inflict.

In this respect the applicant's evidence is to the effect that his parents-in-law were being pressured by FARC to hand over part of their land for the production of coca. In my view the motivation for and objective to be attained by the threats towards the applicant about his daughter was to intimidate and designed to put pressure on his relatives to accede to the guerillas demands about the use of the land. In my view, the mere fact that FARC told the applicant that they intended to recruit his daughter does not of itself mean that FARC intended to carry out this threat, or that the threat was made for reasons of his political opinion.

...

Notwithstanding the profile the applicant asserted that he and his wife's uncle had in the Liberal Party, he does not claim and his evidence does not suggest, that he encountered any previous difficulties with any individuals or groups including members of FARC. The mere fact that FARC told the applicant that it was their intention to recruit his daughter and that they knew his family and political traditions does not amount to persecution owing to political opinion. In my view the reference to the applicant's family and political traditions was simply haranguing language. There is no suggestion in the evidence that he was being pursued for adherence to an opinion.

I am not satisfied on the evidence before me that FARC had any interest whatsoever in the applicant's political opinions. I am not satisfied from the evidence before me that the applicant has been or is being targeted for reasons of his actual or imputed political opinion.

...

Finally I accept the applicant's evidence that his father-in-law was assaulted by FARC when he refused to allow them use of the land to grow coca and that he subsequently died from the injuries inflicted on him in the assault. I also infer from the applicant's evidence that his wife's family were so intimidated by FARC that they left their land. However, I am not satisfied from the evidence before me that these matters indicate that the applicant has been or is being persecuted for reasons of his actual or imputed political opinion.

In my view the totality of the evidence before me suggests that the applicant could not bear the grim realities of general conditions in Colombia. His frequent references to general violence and drugs in Colombia, his failure to seek protection in Venezuela, and his requests that the Tribunal take into account his good character indicates to me that he seeks to avoid the difficult conditions which currently plague Colombia. No doubt the visit and telephone call from FARC caused him anxiety. Whilst it is understandable that the applicant has no wish to remain in Colombia these incidents do not demonstrate that he was being persecuted, or there is a real chance in the future of his being persecuted, for reasons of political opinion or any other Convention reason." (Emphasis added.)

THE GROUNDS OF REVIEW

18 The applicant's written submissions raised several contentions, but only three were pressed in argument.

19 The first was that the RRT had failed to set out the findings on all material questions of fact, as required by s 430(1)(c) of the Migration Act. In particular, so the applicant argued, the RRT had made no finding in relation to the applicant's claim that, after he had left Colombia, his aunt had received two telephone calls from FARC members. In these telephone calls (according to the applicant) his aunt had been told that FARC was going to find that "son-of-a-bitch" and when that happened he would wish that he had never been born. The applicant submitted that the failure to comply with s 430(1)(c) of the Migration Act gave rise to the ground of review specified in s 476(1)(a), namely

"that procedures that were required by this Act...to be observed in connection with the making of the decision were not observed".

20 Secondly, the applicant submitted that the RRT had failed to consider whether the threats made by FARC were capable of constituting persecution even if (as the RRT found) FARC had no intention of actually carrying out the threats. As I understood the submission, its foundation was that the RRT had found that the harm intended by FARC was the making of the threat and not any intention to carry out the threat. According to Mr Karp, who appeared for the applicant, the RRT had failed to consider whether the making of the threats themselves, regardless of the intention of those making them, could constitute "persecution" within the meaning of the Convention. That failure, so it was argued, amounted to an error of law and thus attracted the ground of review specified in s 476(1)(e) of the Migration Act.

21 Thirdly, it was submitted that the RRT had made a finding of fact concerning the motivation of FARC guerillas for making the threats to the applicant, for which there was no evidence. Accordingly, the applicant (so it was argued) could rely on the ground of review specified in s 476(1)(g), namely

"that there was no evidence or other material to justify the making of the decision."

22 The amended notice of appeal raised two other issues that were not referred to in the applicant's written submissions. Mr Karp indicated in the course of argument that the applicant wished to rely on each of these contentions, although it is fair to say that neither argument was developed fully. The additional contentions were these:

* The RRT had failed to consider whether the applicant's conduct in leaving Colombia, of itself, gave rise to a well-founded fear of persecution by FARC.

* The RRT had failed to consider whether the applicant was at risk of persecution, if he were to return to Colombia, by reason of his membership of a particular social group, namely, his extended family including his parents-in-law. While the applicant's case had not been put this way to the RRT, nonetheless the facts found by the RRT raised the question of whether the applicant had a well-founded fear of persecution in Colombia by reason of his membership of the extended family.

THE RRT'S FACT FINDING

23 The RRT's reasoning in support of its critical factual findings is troubling. The RRT accepted the applicant's account of events in Colombia. It therefore accepted that armed FARC guerillas had threatened to take the applicant's daughter by force and that (as the RRT itself found) the guerillas intended to intimidate him. Since the RRT accepted the applicant's account, it follows that the RRT was satisfied that the applicant genuinely feared that FARC could carry out its threat. The RRT also accepted that the guerillas had told the applicant that his uncle had been declared an enemy of FARC and "a political objective", and that that designation extended to his relatives. On the applicant's account, the FARC guerillas said nothing to suggest that the threats were related to the guerilla's desire to take control of the farm.

24 The RRT relied on independent country evidence to find that:

* the applicant's experiences did not amount to persecution for Convention purposes; and

* the motivation for the threats made to the applicant was to put pressure on his relatives to accede to the guerillas' demands concerning the farm.

25 It might be thought that there is a considerable leap between inferring from country reports that FARC guerillas see no gain in pressuring urban educated teens and concluding that threats explicitly made by members of FARC (the organisation which, on the RRT's findings, killed the applicant's father-in-law) were not intended to be carried out and, in any event, were not made for the reasons given by the guerillas. Particularly is this so when the RRT does not explain why the FARC guerillas would bother to hide their true objectives and motivation when communicating their threats to the applicant.

26 Whatever misgivings one might have about the RRT's analysis of the facts, it is necessary to bear in mind the warning of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ, against

"turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision".

To be fair to Mr Karp, he did not suggest otherwise.

SECTION 430(1)(c) OF THE MIGRATION ACT

27 Section 430(1)(c) of the Migration Act requires the RRT to prepare a written statement that "sets out the findings on any material question of fact". The content of that obligation was spelled out by the majority of a five member Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, at 481-482:

"Ordinarily, materiality is an objective concept. If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material.

The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make findings on questions of fact that are central to the case raised by the material and evidence before it. In this respect, s 430 sets a standard of decision-making the RRT is required to observe.

...

[I]f a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact to be dealt with...

Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings.... A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists."

Two appeals raising the issue of the construction of s 430(1) have been heard by the High Court on 15 and 16 November 2000 but have not yet determined: Minister for Immigration and Multicultural Affairs v Yusuf ((1999) [1999] FCA 1681; 95 FCR 506 (FC)); Minister for Immigration and Multicultural Affairs v Israelian ([1999] FCA 649 (FC)). For the moment, the principles laid down in Singh are binding on single judges of this Court.

28 In my view, given the way the RRT approached the case (a matter to which I shall return), the applicant's claim that his aunt had received threatening telephone calls after his departure from Colombia cannot be described as a "material fact". The critical questions for the RRT, on its approach, were whether threats had been made to the applicant by the FARC guerillas, whether FARC intended to carry out the threats; and whether the threats had been made for a Convention reason (that reason being identified by the RRT as actual or imputed political opinion). The applicant's account of the telephone call to the aunt was merely one piece of evidence for the RRT to consider, along with all the other evidence before it.

29 Indeed, the applicant's account of the telephone call was not inconsistent with the RRT's findings. At the time the telephone call was said to have been made, FARC had not yet succeeded in acquiring control of the farm. The RRT interpreted the other evidence before it as supporting a finding that FARC's threats were motivated by a desire to drive the applicant's in-laws off their farm. The making of later threats to the applicant's aunt was capable of being interpreted in the same way. If, as Singh holds (at 480), s 430(1)(c) does not require the RRT to give reasons for attaching no weight to evidence that would tend to undermine any of its findings, the RRT cannot be obliged to address factual claims that are consistent with its findings.

30 In any event, I would construe the RRT's reasons as indicating that it accepted the applicant's account of the guerillas' conversation with his aunt. The RRT recounted accurately the applicant's account of the conversation. It also stated that it accepted his account of his experiences in Colombia. I do not read this affirmative statement as implying rejection of the applicant's account of the telephone call to the aunt. On the contrary, I think that the RRT accepted that the telephone call had been made, but did not consider that the making of the call contradicted its findings of fact.

31 I shall consider later whether the RRT should have addressed the possibility that the applicant had a well-founded fear of persecution by reason of his membership of the extended family. The evidence of the communication with the aunt might have a bearing on that issue. But I do not think any breach of s 430(1)(c) of the Migration Act has been made out.

THE THREAT OF PERSECUTION

32 The applicant's second submission was that the RRT had erred in law by failing to consider whether making the threats made by FARC to forcibly recruit the applicant's daughter was of itself persecutory in conduct, regardless of whether FARC intended to carry out the threats.

33 It is true that the RRT did not address this question in any depth. It may have considered that there was no need to do so, having regard to its finding that the threats were not made by reason of the applicant's actual or imputed political opinions. Nonetheless, the RRT explicitly found that the "applicant's experiences" did not amount to persecution for Convention purposes. While it is less clear, a fair reading of the RRT's reasons suggests that it also intended to find that the applicant would not experience persecutory conduct if he were to return to Colombia, at least by reason of his actual or imputed political opinions.

34 The RRT, in its reasons, stated the tests for determining what constitutes "persecution" for the purposes of the Convention, in particular by reference to the judgments of Mason CJ and McHugh J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. Mr Karp did not suggest that the RRT had erred in its statement, nor that more recent authorities required the RRT to adopt any different approach: cf Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553 (HCt); Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 (FC), at [42] ff.

35 The RRT's express finding that the threats made by FARC did not amount to "persecution for Convention purposes" rested on an implicit finding that FARC did not intend to carry out the threat to finally recruit the applicant's daughter. The RRT acknowledged that the threats had caused the applicant "anxiety". But in the absence of a genuine risk (as the RRT interpreted the evidence) that FARC would act on the threats, the RRT considered that the conduct directed at the applicant was not persecutory.

36 There is nothing to suggest that the RRT misunderstood or misapplied the tests it correctly stated. Indeed, Mr Karp did not contend otherwise. Nor can it be said that the RRT overlooked the question. It did address the issue and conclude that the making of the threats themselves did not constitute persecution for Convention purposes.

THE NO EVIDENCE SUBMISSION

37 In order for the applicant to establish that there was no evidence or other material to justify the making of the decision (Migration Act, s 476(1)(g)), he must also satisfy the requirements of either s 476(4)(a) or s 476(4)(b) of the Migration Act. The applicant abandoned reliance on s 476(4)(a). Accordingly he must satisfy the requirements of s 476(4)(b), namely that

"the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

38 Section 476(4)(b) is the "gateway" through which an applicant must pass before the Court can proceed to hold that s 476(1)(g) is satisfied: Pat Tai Choi v Minister for Immigration and Multicultural Affairs (unreported, Lindgren J, 2 December 1998) at 9. It follows that the applicant cannot avail himself of s 476(5)(g) unless he demonstrates that the "particular fact" does not exist: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, at 223, per Black CJ.

39 The particular fact identified by the applicant is that the FARC guerillas made the threats because they wished to intimidate the applicant and to induce his parents-in-law in effect to turn their farm over to FARC. The applicant adduced no evidence that would permit me to conclude that the FARC guerillas did not have the motivation attributed to them by the RRT. He has therefore not satisfied the requirements of s 476(4)(b).

40 In any event, there was evidence before the RRT to justify the making of the finding. The country information relied on by the RRT provided at least some support for the RRT's finding that the FARC guerillas made the threats to the applicant not because of any actual or imputed political opinion on his part, but because FARC wished to obtain control of the farm. Whether another decision-maker would have drawn that inference from the country information is not to the point. The finding was not devoid of an evidentiary basis.

THE APPLICANT'S DEPARTURE FROM COLOMBIA

41 The basis for the applicant's fourth submission, that the RRT had failed to consider whether the applicant's actions in leaving Colombia gave rise to a well-founded fear of persecution by FARC, is elusive. The applicant never suggested that FARC would or might seek to punish him for leaving the country. Mr Karp could not point to anything in the country information or other evidence that even faintly supported such a claim other than the conversations between the applicant's aunt and a telephone caller from FARC. But what was communicated to the aunt was not a threat to harm the applicant because he had left Colombia, but the renewal of the threat made earlier.

PARTICULAR SOCIAL GROUP

42 As I have noted, the applicant's submission that the RRT had failed to consider whether he had a well-founded fear of persecution by reason of his membership of a particular social group, namely his extended family, was not fully developed. As I understood the argument Mr Karp intended to make, it contained the following steps:

(i) A particular family or extended family is capable of constituting a particular social group for the purposes of the Convention.

(ii) A member of such a family who is at risk of persecution by reason of his or her association with another family member may have a well-founded fear of persecution for a Convention reason.

(iii) The family member may have such a well-founded fear notwithstanding that

* the persecutors may have more than one motive for persecuting him or her; and

* the other family member could not claim to be a refugee within the meaning of the Convention.

(iv) In this case, the RRT found that the motivation for the threats made against the applicant was FARC's desire to put pressure on his relatives to accede to the guerillas' demands.

(v) Notwithstanding this finding, the RRT failed to consider whether the applicant's extended family (his own family and that of his parents-in-law) constituted a particular social group in Colombia and, if so, whether he feared persecution by reason of his association with other members of that family, especially his parents-in-law.

(vi) This failure constituted an error of law by the RRT, being an incorrect application of the law to the facts as found by it (Migration Act, s 476(1)(e)).

43 The argument is inconsistent with Mr Karp's contention that there was no evidence to support the finding that FARC guerillas made the threats to the applicant because they wished to intimidate him and, through him, his parents-in-law. There is nothing, however, to prevent an applicant advancing mutually inconsistent arguments.

44 In my opinion, the first three steps in the argument are supported by the present state of authority in this Court, in particular by Sarrazola v Minister for Immigration and Multicultural Affairs [1999] FCA 101 (Hely J) ("Sarrazola (No 1)"), aff'd Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517 ("Sarrazola (No 2)"). Sarrazola was a case similar to the present. The applicant claimed to fear harm from Colombian criminals who were responsible for the death of her brother. The brother had himself been a criminal. His former criminal associates had threatened to kill the applicant's children if she did not pay money the brother was said to owe them.

45 The RRT was prepared to assume that the applicant's family constituted a particular social group. Nonetheless, the RRT rejected the applicant's claim to a protection visa, on the ground that the harm feared by her did not arise for a Convention reason. It reached this conclusion for two reasons. First, it held that the Convention was not intended to protect family members from persecution where the family is not linked to a broader group recognised by a Convention definition. Secondly, the RRT found that the threats directed to the applicant were not motivated by a purpose or desire to harm her by reason of her relationship to her brother as such. Rather, the criminals were motivated by self-interest, a non-Convention reason.

46 On the application for review, the Minister did not attempt to support the first of the RRT's reasons for its conclusion. Hely J expressed the view that the Minister's concession was well-founded. His Honour observed that neither the text of the Convention, nor its context or purpose, requires an applicant for a protection visa to establish not only a well-founded fear of persecution by reason of membership of a family group but also that another family member is affected by conduct within the scope of the Convention.

47 Hely J then considered whether the applicant's fear of persecution was by reason of her membership of a particular social group. His Honour expressed the opinion that the principal authorities ("Applicant A" v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 255; Chan Yee Kin v Minister; Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458; Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (unreported, Full Federal Court, 10 December 1998) seemed to favour the conclusion that a family is capable of forming a particular social group. He continued (at [36]):

"In view of the preceding discussion, and in the absence of decisive authority to the contrary, in my opinion, a family can constitute a particular social group within the meaning of Article 1A(2) of the Refugees Convention. A family is cognisable as a group in society such that its members share something which unites them and sets them apart from the general community. Membership of a family is a characteristic which distinguishes members of that family from society at large. In other words, family members possess a common unifying element which binds them together as a particular social group."

48 Hely J found that in the circumstances of the case before him the "family" was to be identified by reference to the perceptions of the persecutors. Accordingly, the family constituted the applicant, her husband and two children and the applicant's deceased brother. His Honour noted that the RRT, in effect, had found that part of the reason for the applicant's well-founded fear of persecution was her familial tie with her brother. Since family membership did not have to be the sole reason for a well-founded fear of persecution, it followed that the RRT had erred in law in deciding that her fear of persecution was not for reason of family membership without at least considering the extent to which family membership was a factor in the risk of persecution.

49 On appeal, the Minister relied on two contentions. First it was said that the identification of the motivation of the prosecutors was entirely a matter of fact to be determined by the RRT. Secondly, while the Minister accepted that it was possible for a family to constitute a particular social group, he submitted that Hely J should not have found that the particular family identified in this case answered that description.

50 The Full Court held, in Sarrazola (No 2) (at 521-522), that the RRT had erred by failing to recognise that a person may be motivated to persecute another for more than one reason. Thus the RRT's conclusion as to the criminals' motivation could not be regarded as an unassailable factual finding.

51 The Full Court also agreed with Hely J that the RRT had erred in acting on the basis that the Convention is not intended to protect family members from persecution unless the family is linked to a broader group recognised by the Convention definition. The Full Court considered that there is nothing absurd in the proposition that the family members of a person who is the main target of persecutors can be found to be refugees even though the "target person" cannot. Their Honours declined to follow the approach taken by the English Court of Appeal in Martinez v Secretary of State for the Home Department [1997] Imm AR 227, a case where family members feared persecution because one of their number refused to join the mafia. In Martinez, Thorpe LJ held (at 229) that where the "root of the threat" is a particular family member, rather than the family

"any Convention foundation for the claim must be ancillary to and dependent in that of the person threatened."

The Court in Sarrazola (No 2) considered that this approach was not consistent with the Australian authorities.

52 In C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430; (1999) 94 FCR 366, the female applicant (S), a Colombian citizen, claimed to fear retribution at the hands of the "Cali cartel" by reason of her husband's activities in reporting criminal behaviour. Wilcox J referred to the judgments at first instance and on appeal in Sarrazola. His Honour considered that Hely J's observation, that family members possess a common unifying element which binds them together as a particular social group, was "plainly correct". Wilcox J continued as follows (at 377-378):

"That which binds together the members of a family is not the suffering of persecution 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.... It follows I conclude the Tribunal member erred in holding in this case that `family membership will only be relevant for the purposes of the Convention where there is a link to a broader relevant group'. There apparently being no question but that S, her children and C's mother were within a particular social group that might properly be described as C's family, the critical question for the Tribunal was whether the persecution they feared arose out of their membership of that group. The Tribunal failed to consider that issue."

53 For the sake of completeness, I note that in Sarrazola v Minister for Immigration and Multicultural Affairs (No 3) [2000] FCA 919, Madgwick J set aside the decision of the RRT made after the proceedings had been remitted in accordance with the orders of Hely J that had been affirmed by the Full Court. The RRT found that, on the evidence, the applicant and her family (however perceived) had not been perceived as a cognisable group in Colombia. Madgwick J considered that the RRT had fallen into error in reaching that conclusion. His Honour also held that the RRT had erred in finding that the threatened persecution was for reasons unconnected with the family status of the applicant. His Honour followed the reasoning in the earlier cases, although he also addressed other issues. As Sarrazola (No 3) is subject to appeal, I say no more about it.

54 The Full Court in Sarrazola (No 2) pointed out (at 523) that, where an applicant for a protection visa based his or her claim on a fear of persecution by reason of membership of a particular social group, the first task of the decision-maker is to identify the relevant group. Whether the particular social group exists is to be ascertained in conformity with the authorities, the effect of which was summarised by the Full Court in Minister for Immigration and Multicultural Affairs v Zamora, at 464:

"To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community."

The next step for the decision-maker is to consider whether the applicant's well-founded fear of persecution (assuming such fear is established) is for reason of his or her membership of that particular social group: Sarrazola (No 2), at 523.

55 The applicant did not suggest to the RRT that he feared persecution for reason of membership of a particular social group. Nonetheless, in my view, subject to questions I shall address later, the RRT erred in failing to address whether the applicant could make out such a case.

56 Mr Karp identified the family group in the present case as comprising the applicant, his immediate family, his parents-in-law (the father-in-law having died) and his wife's siblings. It is ultimately a question of fact for the RRT to determine whether such a family group could be said to exist, conformably with the principles summarised in Zamora. There was, however, some material before the RRT that would have allowed it to make such a finding. For example, the RRT found that the motivation for FARC making threats to the applicant was to put pressure on his parents-in-law to accede to the guerillas' demands about the use of the land. This suggests that FARC may have regarded the extended family (as defined by Mr Karp) as a group set apart from the rest of the community. Of course, the characteristic uniting a group said to constitute a "particular social group" cannot simply be a fear of persecution: Applicant "A" v Minister, at 242, per Dawson J; at 263, per McHugh J. But the material before the RRT concerning the relationship among family members was consistent with the extended family having characteristics, other than the fear of persecution, uniting its members. Of course, the signifigance of that material is a matter for the RRT and it is inappropriate for me to pre-empt any finding the RRT might make on this question.

57 There was also material before the RRT suggesting that the applicant's fear of persecution was by reason of his membership of the extended family. Indeed, the RRT specifically found that FARC threatened the applicant with the forcible recruitment of his daughter in order to induce the applicant's parents-in-law to accede to FARC's offer. While it would be a matter for the RRT to make the relevant findings of fact, it would seem to be open to the RRT to conclude that at least one of the reasons for the applicant's fear of persecution was his membership of the extended family: that is, he and his immediate family were targeted for threats because of their association with the parents-in-law whose land FARC wanted to control.

58 As I understood Mr Markus, he did not dispute that the effect of the authorities is as I have described, although he left open the possibility that the Full Court might take a different view, perhaps on the appeal in Sarrazola (No 3). He submitted, however, that the proceedings should not be remitted to the RRT, for two reasons:

* first, the RRT could not be said to have erred, given that the applicant did not make an express claim before it to fear persecution for reasons of membership of a particular social group;

* secondly, it was implicit in the RRT's reasons that there was no basis for any continuing fear of persecution on the applicant's part, because it had found that the FARC had succeeded in its objective of controlling the use made of the farm occupied by the parents-in-law.

59 I do not think that the first ground relied on by Mr Markus is a basis for denying relief to the applicant. In Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, at 50, I said this:

"The general principle is that a tribunal is not obliged to make out an applicant's case. However, there are circumstances where the tribunal may be obliged to undertake further factual inquiries, even though the applicant has not specifically requested that course: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 (FC) at 49-50. It seems to me that, where an unrepresented applicant presents evidence to the RRT which, if accepted, is capable of making out the applicant's claim that he or she satisfies the Convention on a particular basis, the RRT may be required to consider the issue. Particularly is this so where the RRT accepts the substance of the applicant's account. I agree with the comments recently made by Branson J in Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, No 134 of 1998, 26 October 1998), at 2:

`The respondent contends that the applicant did not articulate before the RRT a conscientious objection to military training and service. It is true that he did not expressly do so, and a decision-maker is not obliged to make a case for an applicant (Luu v Renevier). However, in my view, in appropriate cases, a decision-maker such as the RRT may be required to give consideration to whether evidence in fact given by an applicant might support an application on a basis not articulated by an applicant. This will more likely be found to be the case where an applicant is unrepresented, as the present applicant was before the RRT'."

See also Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, at 63, per Merkel J; Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, at 388, per Merkel J.

60 In this case, the RRT not only accepted the applicant's account of events, but found that the motivation for the threats made to the applicant was not that expressed by the FARC guerillas but something different, namely to force his parents-in-law to yield to the guerillas' demands. The motivation found by the RRT strongly suggests that FARC's threats had been directed to the applicant because of his association with his parents-in-law. As I have noted, the applicant was unrepresented before the RRT. In these circumstances, I do not think it is an answer to the applicant's contentions in this Court that he failed specifically to direct the RRT's attention to the fact that its own findings raised the issue of whether he had a well-founded fear of persecution by reason of his membership of a particular social group.

61 Nor do I think it a reason to reject the applicant's contention that the RRT inferred from the applicant's evidence that his wife's family were so intimidated by FARC (presumably because it was responsible for killing the wife's father) that they left their land. There was no occasion for the RRT, in its approach, to make any specific finding as to whether the departure of the wife's family from the farm meant that FARC had no further interest in intimidating them. Nor did it make any such finding. The RRT did not inquire, for example, whether the wife's family planned or hoped to resume occupation of the farm or whether they had other property that might attract FARC's interest. In my opinion, it reads too much into the RRT's reasons to suggest that it intended to find that the FARC had no further interest in the wife's family when the RRT did not regard that issue as relevant to its analysis.

62 There is, however, a more formidable obstacle to the applicant's success on this issue, although it was not specifically raised by Mr Markus. As I have explained, the RRT took the view that the threats made by FARC did not amount to persecution for Convention purposes because it considered that the guerillas did not intend to carry out the threats. It might be said that, even if the applicant had raised before the RRT the contention that he feared persecution by reason of his membership of a particular social group, he must still have failed in his claim to a protection visa. This would follow (so it might be argued) because, even if the applicant genuinely feared persecution by reason of his membership of a particular social group (the extended family) his fear of persecution was not well-founded since FARC did not intend to carry out its threats. On this argument, there would be no objective basis for the applicant's fear of persecution on his return to Colombia.

63 In order for an applicant to establish that a decision of the RRT "involved an error of law" (Migration Act, s 476(1)(e)), he or she must show that the error is material, in the sense that it might have affected the outcome of the proceedings. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ said this (at 353):

"A decision does not `involve' an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different."

His Honour went on to identify "the critical question on this aspect of the case" as

"whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made." (Emphasis added.)

Toohey and Gaudron JJ expressed the principle as follows (at 384):

"For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred."

64 Ordinarily, the fact that the RRT has made a finding that appears to undercut an alternative basis for an applicant's claim to come within the Convention would suggest that the RRT's failure to consider that alternative claim is merely an immaterial error. That is, the factual finding would suggest that the RRT must have come to the same decision, even if it had directed its attention to the alternative basis for the applicant's claim.

65 This is not, however, necessarily the case. In particular, as Mason CJ specifically acknowledged in Bond, it may be enough to establish the materiality of an error that the RRT, had it applied the correct legal principles, might have made different findings of fact.

66 The RRT in the present case approached the fact-finding process by reference to what it understood to be the applicant's claim, namely that FARC had threatened to forcibly recruit his daughter because of his actual or imputed political opinion. The RRT's finding that the applicant was not at risk of persecution was influenced by the RRT's apparent assumption that the only possible harm to which the applicant might be exposed was the risk that FARC would forcibly recruit his daughter. The RRT did not think that there was a real chance that FARC would actually carry out that particular threat. It reached that conclusion by reference to the country information which suggested that FARC was not interested in the forcible recruitment of urban educated teenagers. The RRT did not address whether FARC might have been motivated to inflict some other kind of harm upon the applicant by reason of his membership of the extended family. It therefore did not address whether FARC might inflict some other kind of harm on the applicant should he return to Colombia.

67 Had the RRT recognised that a question arose as to whether the applicant had a well-founded fear of persecution by reason of his membership of his extended family, it may have taken a different view of the kind of harm to which the applicant was exposed. For example, in the conversation reported by the applicant's aunt, the nature of the harm threatened was not specified. As I have explained, the RRT probably thought it unnecessary to refer to the evidence of that conversation, since it interpreted the possible persecutory conduct faced by the applicant as limited to the forcible recruitment of his daughter (a threat the RRT discounted). But if the RRT had considered that the applicant was at risk of persecution by reason of his membership of the extended family, it might have taken a different view of the significance of that conversation. It might also have interpreted the earlier threats, made by FARC directly to the applicant, as not necessarily limited to the specific harm mentioned at the time. It is to be borne in mind that the RRT accepted that FARC had killed the applicant's father-in-law in order to advance its goals. Had the RRT asked itself what harm FARC might be prepared to inflict on the applicant, in order to put pressure on his parents-in-law or other members of his extended family, it may have reached a different conclusion as to whether he had a well-founded fear of persecution on his return to Colombia.

68 None of this is intended to suggest that the applicant will be able to make out the necessary ingredients of a claim to have a well-founded fear of persecution by reason of his membership of his extended family. That is a matter for the RRT to decide. In my opinion, however, the matter should be remitted to the RRT for determination in accordance with law.

CONCLUSION

69 The decision of the RRT made on 6 July 2000 should be set aside. The matter should be remitted to the RRT for determination in accordance with law. The Minister should pay the applicant's costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 23 February 2001

Counsel for the Applicant:	Mr L Karp
Solicitor for the Applicant:	Partners in Law
Solicitor for the Respondent:	Mr A Markus appeared for the Australian Government Solicitor
Date of Hearing:	2 February 2001
Date of Judgment:	23 February 2001