Applicant S v Minister for Immigration and Multicultural Affairs
[2004] HCA 25
27 May 2004 P52/2003
ORDER
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court made on 21 August 2002 and, in lieu thereof, order that the appeal to the Full Court of the Federal Court be dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
M D Howard for the appellant (instructed by Minter Ellison)
J Basten QC with P R Macliver for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Applicant S v Minister for Immigration and Multicultural Affairs
Immigration – Refugees – Application for protection visa – Well-founded fear of persecution for reason of membership of particular social group – Particular social group identified as able-bodied young men from Afghanistan – Whether member of a particular social group – Whether Afghan society must perceive the particular social group – Whether well-founded fear of persecution – Whether enmity or malignity necessary to establish persecution – Whether facts reveal law of general application – Whether implementation of law of general application can amount to persecution – Whether implementation of ad hoc policy can amount to persecution.
Words and phrases: "Particular social group", "well-founded fear of persecution", "law of general application", "legitimate national objective".
This appeal turns upon the provisions of the Migration Act 1958 (Cth) ("the Act") respecting the issue of protection visas. It is common ground that the appeal is to be determined by reference to the legislation as it stood before the commencement of the Migration Legislation Amendment Act (No 6) 2001 (Cth).
Section 36(1) of the Act provides that there is a class of visas to be known as protection visas. Section 36(2) provides that a criterion for a protection visa is that the applicant for the visa is:
"a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol".
If, after considering a valid application for a protection visa, the Minister is satisfied that this criterion and any other requirements spelled out in par (a) (for example, health requirements) of s 65(1) of the Act are met, the Minister is to grant the visa.
The expression "a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" picks up the definition of "refugee" in Art 1A(2) of these international instruments ("the Convention"), which relevantly provides:
"[Any person who] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25
Case
[2004] HCA 25
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning an Afghan national, identified as Applicant S, who sought a protection visa. The Minister for Immigration and Multicultural Affairs opposed the application. Applicant S claimed to have a well-founded fear of persecution due to his membership in a particular social group, specifically able-bodied young men from Afghanistan, who were subject to forcible recruitment by the Taliban. Both the Minister's delegate and the Refugee Review Tribunal had refused the visa application, although they accepted that the appellant had a well-founded fear of harm.
The central legal issues before the High Court were whether the appellant belonged to a "particular social group" as defined by international refugee law, and whether the forcible recruitment practices of the Taliban constituted persecution. Specifically, the Court had to consider whether the perception of the Afghan society was a necessary element in defining a particular social group, and whether persecution could arise from the implementation of an ad hoc policy or law, even in the absence of enmity or malignity on the part of the persecutor. The Court was also required to interpret and apply previous High Court decisions concerning the definition of a particular social group and the nature of persecution.
The High Court reasoned that a particular social group is defined by a common characteristic that distinguishes it from society at large, and this characteristic cannot be the shared fear of persecution itself. The Court held that the Minister's submission that forcible recruitment by the Taliban did not amount to persecution because it lacked enmity or malignity was incorrect. Drawing on previous authority, the Court determined that persecution can occur even if the motivation behind the discriminatory treatment is not to inflict harm but rather to harness a resource, such as conscripting young men for military service. The Court found that the ad hoc and forcible recruitment of able-bodied young men by the Taliban, which carried a significant risk of serious harm or death, constituted persecution.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Federal Court and ordering that the appeal to that court be dismissed with costs.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court made on 21 August 2002 and, in lieu thereof, order that the appeal to the Full Court of the Federal Court be dismissed with costs.
Background
Background to the litigation
Both questions, but particularly the first, involve consideration of what was decided in earlier decisions of this Court and the grounds for those decisions. The cases are Applicant A v Minister for Immigration and Ethnic Affairs[1], Chen Shi Hai v Minister for Immigration and Multicultural Affairs[2], Minister for Immigration and Multicultural Affairs v Yusuf[3] and Minister for Immigration and Multicultural Affairs v Khawar[4]. It is necessary to approach the judgments in those cases with an appreciation of the procedural setting in which they reached this Court and the actual outcomes which were achieved.[1](1997) 190 CLR 225.[2](2000) 201 CLR 293.[3](2001) 206 CLR 323.[4](2002) 210 CLR 1.Facts and litigation The appellant is a married Afghan male of Pashtun ethnicity, from Malizo village of Gizab district in Orozgan province, Afghanistan. The appellant's wife, father, mother and four brothers remain in the village. He was born in 1980, and arrived in Australia on 11 July 2000 by boat. On 25 July 2000 the appellant applied for a protection visa. On 5 September 2000 the Minister's delegate refused the appellant's application. The appellant sought review of the delegate's decision by the Refugee Review Tribunal ("the Tribunal"). On 4 January 2001, the Tribunal affirmed the delegate's decision[5].[5]Refugee Review Tribunal, Decision and Reasons for Decision, ref N00/35095 at 25. Both the Minister's delegate and the Tribunal accepted that the appellant's reason for leaving Afghanistan was to avoid the Taliban who were recruiting for military service. The Taliban had tried twice forcibly to recruit the appellant. On the first occasion, the appellant avoided recruitment by paying off the recruiters. On the second occasion, the appellant told the recruiters that he needed to speak to his parents. He then departed immediately from Afghanistan with the assistance of a people smuggler. Although not dealing expressly with whether the appellant had a well‑founded fear of persecution, the Tribunal did find that the appellant "may face serious harm" as a result of conscription (it was also accepted that the appellant had a well‑founded fear of harm). This issue was given considerable attention during oral argument before this Court. The Tribunal accepted that many young men in Afghanistan had been recruited by the Taliban. The Taliban practised ad hoc, random, forcible recruitment of young men, where the only apparent criterion for recruitment was that the young men be able-bodied. This was borne out by both the country information accepted by the Tribunal and the fact that the appellant's brother was not recruited because he was not able-bodied. The Tribunal also noted that thousands of young men had left Afghanistan to avoid recruitment by the Taliban. The Tribunal's reasons for rejecting the appellant's claim appear from the following passage[6]:"The nature of the recruitment process is such that there are no criteria for selection save being able-bodied and, being in the wrong place at the wrong time.By his own account he was approached in an ad hoc recruitment drive and, I also find that the recruiters in that exercise were not seriously concerned whether he did fight or not as they were equally content with being paid to allow him to avoid the recruitment drive.When the second group came they took no action when he said he wanted to speak to his parents first and indicated that he may also pay them.Given the Taliban's rigid approach to compliance this action leads me to conclude they were not concerned about the Applicant who had no skills or any significant value to them apart from his youth and the fact he was able‑bodied. No immediate follow‑up occurred and he was not required to report to them.This leads me to conclude that he was not targeted to the extent that he was listed or registered for recruitment by the Taliban but was merely seen as a young man who was available in that area at that time and, in the random manner of such an ad hoc drive he was able to avoid recruitment for a second time." (emphasis added)[6]Refugee Review Tribunal, Decision and Reasons for Decision, ref N00/35095 at 23.
The third-party perspective is a common feature in the decision-making by the Tribunal and by the delegates of the Minister. Decisions made by these decision-makers may rely on "country information" gathered by international bodies and nations other than the applicant's nation of origin. Such information often contains opinions held by those bodies or governments of those nations[44]. From this information it is permissible for the decision-maker to draw conclusions as to whether the group is cognisable within the community. Such conclusions are clearly objective. However, as accepted by McHugh J in Applicant A, subjective perceptions held by the community are also relevant.[44]The Tribunal in this matter referred to reports of international bodies, the Commonwealth Department of Foreign Affairs and Trade and the United States State Department.Conclusions as to "particular social group" Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A[45], a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand[46].[45](1997) 190 CLR 225 at 241.[46]See, eg, Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1099 [72] per Kirby J; 197 ALR 389 at 404. Persecution The Minister made two related submissions regarding the issue of persecution. First, the Minister submitted that forcible recruitment by the Taliban does not amount to persecution under the Convention, because, although there may be a foreseeable risk of harm[47], the critical element of enmity or malignity is absent; the regime merely sought to harness the valued resource of those capable of fighting rather than inflict harm upon the individuals conscripted. Those conscripted, so it was submitted, may die or suffer harm in the fighting, but the purpose of the regime is not to rid itself of young men. This submission should not be accepted.[47]Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 304 [33]. Chen decided that persecution can proceed from reasons other than "enmity" and "malignity"[48]. From the perspective of those responsible for discriminatory treatment, the persecution might in fact be motivated by an intention to confer a benefit[49]. This in itself does not remove the spectre of persecution.[48](2000) 201 CLR 293 at 305 [35], 311‑312 [60].[49](2000) 201 CLR 293 at 305 [35].