MZXAE v Minister for Immigration
[2006] FMCA 1087
•4 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXAE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1087 |
| MIGRATION – Review of RRT decision – ground squarely raised on the evidence although not expressly argued – membership of a particular social group – failure to consider ground squarely raised – RRT decision set aside. |
| VXAB v Minister for Immigration & Anor [2006] FMCA 857 NABE v Minister for Immigration & Multicultural Indigenous Affairs (2) [2004] FCA FC (263) |
| Applicant: | MZXAE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG599 of 2005 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 15 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kohn |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read, “Minister for Immigration and Multicultural Affairs”.
The decision of the Refugee Review Tribunal dated 30 March 2005 be set aside.
The matter be remitted to the Refugee Review Tribunal to be determined according to law.
The first respondent pay the Applicant’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 599 of 2005
| MZXAE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding comes before the Court on an application filed on
20 May 2005 whereby the applicant seeks a review of a decision of the second respondent to uphold an earlier decision by the first respondent’s delegate to refuse to grant a protection visa to the applicant.
An unusual aspect of this proceeding is the fact that the applicant, who is a member of the Sri Lankan Army Band, deserted from the
Sri Lankan Army in the company of another when visiting Australia on official duties. That other member also sought protection, which application was rejected by the first respondent’s delegate and subsequently the second respondent. It so happens that the other member’s review application to this Court was heard in the morning of the hearing of this particular application.
There are pertinent parallels between the two applications. The same Counsel appeared before me in both matters and both, with an acknowledgement that the facts of the two cases varied slightly, sought to rely upon the arguments put forward in the earlier hearing as being relevant to the determination of this hearing.
I have provided written reasons in respect of my determination in the earlier hearing (see VXAB v Minister for Immigration & Anor [2006] FMCA 857) (VXAB) and those reasons should be read in conjunction with the reasons set out below.
Whilst the applicant in the first hearing contended that there was a Convention nexus with his persecution arising out of his membership of a particular social group, and because of religious belief, the applicant in this proceeding sought only to rely upon a nexus arising out of his membership of a particular social group.
As with the earlier hearing, the ground for review and the applicant’s contentions, both written and verbal, centre on a pivotal issue.
That issue was whether the Tribunal failed to consider a claim not expressly argued by the applicant before the Tribunal, but one which the Tribunal should have considered as having been squarely raised by the evidence presented to it (see NABE v Minister for Immigration & Multicultural Indigenous Affairs (2) [2004] FCA FC (263) (NABE). The applicant contends that the Tribunal failed to consider whether the applicant qualified as a refugee because of his membership of a “particular social group.”
Background
The applicant is a native of Sri Lanka, of Sinhalese ethnicity and aged 34 years.
In his claim for refugee status the applicant set out his background: namely, that he had commenced learning traditional Kandian dancing at the age of 6, was recognised for his excellence in that skill and was recruited into the Sri Lankan army because of it. On joining the army he was attached to the elite army traditional dancing troupe.
He, like VXAB, was required to perform traditional dance in front of high ranking personnel, at weddings, at special functions, and in particular, at functions conducted by the major political parties in Sri Lanka. Also, like VXAB, he objected to performing such dances at political functions. As a consequence of his objection he was subjected to military punishment in a similar fashion as VXAB, which included pack drills. He also feared that on his return to Sri Lanka he would be subjected to harsh punishment.
The Tribunal’s findings
After reciting much of the applicant’s history in respect of his skills as a traditional dancer, the activities in which he was employed by the Sri Lankan army and his stated objection to being so employed at political functions, the Tribunal made the following relevant findings:
(i)it accepted the applicant’s started learning the traditional Kandian dancing from the age of 6. It accepted he joined the
Sri Lankan army because he was able to utilise his unique dance skills and earn a living doing something he enjoyed.(ii)It accepted the applicant was unhappy in the army due to the lack of freedom. It also found the applicant did not like to perform at political functions because he felt he was being exploited and because he was called back on duty to perform at such functions when he was on leave. The Tribunal, however, did not accept that the applicant’s opposition to performing at such functions was due to any political view or opinions he held.
(iii)The Tribunal also accepted that the applicant may have felt that performing at political functions was something the army should not be involved in and he had no right to engage in.
(iv)It accepted that the applicant did voice his objection to performing at political functions to his commanding officer and others, and that he was punished because of his reluctance to follow orders. It accepted that as punishment he may have been ordered to perform pack drills and other punishments because of his attitude to performing at such functions. The Tribunal, however, believed the applicant was punished in this fashion because of his failure to carry out orders without questioning them, and further found that the applicant was punished like any other officer who did not carry out their duties.
(v)The Tribunal accepted the pack drills and punishments were physically gruelling and may have caused the applicant some pain and discomfort. However, the Tribunal did not accept that these punishments constituted persecution within the meaning of the Convention or were for Convention reasons.
(vi)The Tribunal accepted that the applicant has a strong subjective fear of returning to Sri Lanka because of the punishment he would receive for deserting the army. The applicant confirmed, the Tribunal noted, in the hearing the reason for his desertion was because of his unhappiness and feelings of exploitation due to the demands on him to perform what he believed was outside his duties. The Tribunal then concluded that it was satisfied the applicant did not desert or would not be perceived to have deserted for a Convention reason.
(vii)The Tribunal went on further to conclude that the applicant would be punished under the laws relating to desertion in Sri Lanka and that those laws were of general application.
In concluding the same, the Tribunal, however, accepted that the applicant may receive a harsher punishment under those laws because of the embarrassment to the Sri Lankan government and the army caused by his offending the Sri Lankan High Commissioner in Australia.(viii) “In considering the applicant's claims individually and cumulatively, the Tribunal is satisfied the applicant does not face a real chance of persecution for convention reasons. He accepts he may face prosecution on return to Sri Lanka for his act of deserting the Sri Lankan army when he left his troop in Australia. It also accepts he may be dealt with severely because he has embarrassed the Sri Lankan government, the Sri Lankan High Commissioner in Australia and the army by his actions of absconding whilst in Australia and overstaying in the country. The Tribunal is not satisfied any punishment the applicant would receive on return to Sri Lanka would be exacted because of a convention reason.” (emphasis added)
As in VXAB the Tribunal, in my view, failed to ask itself the right question; namely, is there another Convention reason, apart from political belief on the part of the applicant, as to why the applicant was subjected to persecution and punishment by the army? The answer to such a question may very well be that he had particular characteristics and attributes peculiar to him that set him apart from the community at large and also set him apart from the army in general. The question then may very well be asked as to whether he was a member of a particular social group.
As with VXAB, I find that the Tribunal’s focus was restricted to a consideration of whether the applicant qualified under the Convention because of political opinion and belief to the exclusion of giving consideration to other Convention grounds.
In my view, the peculiar background of the applicant in respect of his training and skills as a Kandian dancer, the special place such dancers have in the esteem of the Sri Lankan community and the fact that his standing and skills are what secured in the first place his employment with the Sri Lankan army band, clearly places the applicant into a category that can be best described under the Convention as a “particular social group” which is set apart and readily identifiable from the community at large. That particular social group is the same identified in VXAB.
Although the applicant did not specifically argue this particular ground at the hearing, the issue was raised squarely before the Tribunal on the facts presented to it.
Conclusion
Having regard to the above, NABE has application to the facts and circumstances of this case. I find the Tribunal failed to give consideration to a Convention ground squarely raised on the material presented to it, although not expressly argued before it.
Accordingly, the decision of the Refugee Review Tribunal, dated
30 March 2005, should be set aside.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date: 4 August 2006
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