MZXCL v Minister for Immigration
[2007] FMCA 1136
•19 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXCL v MIINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1136 |
| MIGRATION – Protection visa – whether failure to consider claim or integer of claim – whether jurisdictional error. |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Applicant M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (unreported decision, 25 August 2003, V679 of 2002) MZXIV v Minister for Immigration & Anor (No 2) [2006] FMCA 1454 NAHW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 399 SZAJL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 217 |
| Applicant: | MZXCL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 804 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 6 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 19 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.A. Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr W.S. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 804 of 2006
| MZXCL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 4 May 2006. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant a protection visa to the Applicant.
The Tribunal decision which is now the subject of this application is in fact the third Tribunal decision dealing with the Applicant's protection visa claim. On 24 January 2002 the Applicant applied for a protection visa. On 18 July 2002 a delegate of the First Respondent refused the application for a protection visa. On 29 July 2002 the Applicant applied for review of the delegate's decision to the Tribunal.
On 28 September 2004, that Tribunal ("the first Tribunal") affirmed the decision under review. The Applicant then sought judicial review of the first Tribunal decision in the Federal Magistrates Court.
On 10 March 2005 the first Tribunal decision was set aside by consent and the matter remitted.
On 30 June 2005, another Tribunal ("the second Tribunal") again affirmed the decision under review. The Applicant then sought judicial review of the second Tribunal decision in this court. On 1 February 2006 the second Tribunal decision was set aside by consent and the matter remitted.
It is perhaps unfortunate that on both occasions when the first and second Tribunal decisions were remitted, there does not appear to be any reason for the remittal, though the parties before this court have satisfied me that errors apparently identified in the reasoning of the first Tribunal and the second Tribunal have not been repeated by the third Tribunal decision which is the decision that is the subject of the current application before this court.
As I indicated, the Tribunal in the matter before this court, which is the third Tribunal, by its decision dated 4 May 2006, affirmed the decision of the delegate to refuse the grant of a protection visa.
Background
The Applicant is a 26-year-old male citizen of the Yemen Republic. He entered Australia on 11 October 2000 as the holder of a student visa. He returned to Yemen on 14 May 2001 and re-entered Australia on 5 September 2001. As indicated earlier, he then applied on 24 January 2002 for a protection visa.
The Applicant's Claims
The First Respondent, in contentions filed before this court, has in my view accurately summarised the Applicant's claims in the following paragraph:
“12.In brief summary, the applicant claimed to have a well-founded fear of persecution in Yemen from the son of a local sheikh who was head of the X tribe. The applicant claimed that whilst he was in Australia on a student visa, his uncle had had an affair with the sheikh’s daughter. As a consequence, when the sheikh became aware of the affair, he sent one of his sons to kill the uncle. In a subsequent gunfight the uncle killed the sheikh’s son and his friend, and the uncle and family members escaped. The applicant further claimed that another son of the sheikh, who was head of the police department, then pursued the applicant’s father and arrested him. He was killed in custody. The sheikh’s son stated that he will take revenge on the applicant’s family. The applicant returned to Yemen on hearing of his father’s death and was arrested and detained by the son. The son had intended to kill the applicant but the applicant escaped and returned to Australia.”
That summary is no doubt based upon material provided to the Tribunal. The material included a statement attached to the application which provides, amongst other items, the following claim:
· “About one and a half months after the Applicant left Yemen (i.e. in late 2000), his uncle … began a secret sexual relationship with a girl who was the daughter of the head of the X tribe. The girl’s father (a sheikh) sent his son (‘Salem’) to kill the Applicant’s uncle. On 24 November 2000, a gunfight ensued, during which the Applicant’s uncle killed (the sheikh’s son) and one of his friends. The Applicant’s uncle, father and other family members escaped. The Applicant knew nothing about this incident. He had been calling his family asking for more money for his studies, to no avail.”
(Court Book pp.200-201)
The Tribunal in its decision referred to the evidence provided by the Applicant to a Tribunal hearing on 12 February 2004 which included the following specific point:
· “On arrival there, his mother told him what had happened (as set out in the Applicant’s protection visa application). After his father’s death, his mother and siblings had gone to the grandfather’s village because he was from a different tribe, and they would be safe there. The Applicant also said that they moved there when the sheikh’s son started looking for them, whilst his father went into hiding. The Applicant then realised that he could be imprisoned and killed like his father. His mother told him to flee.
· The Applicant’s mother told him that the problem arose because his uncle’s tribe was not at the ‘same level’ as that of the sheikh. He did not know his uncle’s fate. The Applicant’s father was wanted because he was ‘responsible, as the brother of the offender, and that the sheikh wanted to take revenge on the whole family. His mother would be in danger had she remained in their home village, but was not in her father’s village, which belonged to a different tribe. In any event, neither women nor young boys (such as his brother) were targeted for revenge.”
(Court Book p.203)
It is noted that the Tribunal also referred to the Applicant's evidence at the earlier Tribunal hearing in relation to the delay in lodging the protection visa application in the following terms:
· “As to the delay in lodging his protection visa application (four months after his return to Australia), the Applicant said that he had been told to wait until the expiry of his student visa, but had been ‘stupid’ to do so.”
(Court Book p.204)
The Tribunal otherwise appropriately refers to the claim set out in part in a statutory declaration from the Applicant. Specific reference again is made to a key claim which was the subject of submissions in this hearing namely, the following from the statutory declaration:
· “The ‘real reason’ for his persecution is that the Applicant and his family are Akhdam, …. They do menial jobs, and face discrimination. (The Applicant refers to his mention at the first hearing of not being ‘at the same level’ as the sheikh.) He repeats that his uncle’s punishment for his affair with the sheikh’s daughter, and the consequent revenge action, arose because they come from a ‘lower caste’.”
(Court Book p.205)
Further material concerning the claim was noted by the current Tribunal to be provided by the Applicant at a second Tribunal hearing on 7 June 2005 where, amongst other things, the Applicant stated:
· “His tribe had dissociated itself from the family following his uncle’s actions.
· The Applicant explained that the danger to him came not only from his association with his uncle and father, but also his having asked questions (‘rising up’) when he returned to Yemen in May 2001. Asked why the sheikh’s son had simply not killed him, the Applicant said it was because killing a haik would bring shame on the sheikh.”
(Court Book p.206)
Part of the claim before the current Tribunal was set out in prehearing submissions from the Applicant's adviser. The submission referred to expert evidence from a number of experts including Paul Dresch from Oxford University, and the key point noted by the current Tribunal from that evidence appears to be the following:
· “Dr Dresch observes (in response to a question based on the second Tribunal’s observation that the Applicant’s wealth suggests he is not a Haik or Khadem) that education and land ownership are not a reliable indicator of how one is treated (without addressing explicitly of whether such wealth would suggest that a person is not a member of any such group).”
(Court Book p.207)
In its decision, the current Tribunal also observes the following:
“Towards the end of the hearing, the Applicant said that he felt no-one had properly understood his claims concerning the Khadem and the haiks. He saw them as essentially the same – Khadem was the original term for servants, but they were known as haiks in his tribe. He believed that this was really just a difference in terminology, and applicable in different circumstances.”
(Court Book p.209)
Further reference to the claim of the Applicant appears in the following passage from the current Tribunal decision:
“The Tribunal explained that, if it were to accept the Applicant’s claims regarding past events involving his family, it would also need to be satisfied that the Applicant’s race or membership of a particular social group (such as the haik) was the essential and significant reason (or reasons) for the harm he feared. The Applicant recounted his uncle’s illicit affair with the daughter of a sheikh, made possible because, as a haik (or servant) he had access to the sheikh’s living quarters. The Tribunal noted that the Applicant had not mentioned the relevance of this matter in his protection visa application. The Applicant said that, while the sheikh’s motivation was obviously revenge at one level, the critical issue was that the usual means of resolving such disputes between tribes was through marriage or some other arrangement – in the case of haiks, however, there was an element of shame arising from their lowly status that led to revenge killings.”
(Court Book pp.213-214)
In its decision, the Tribunal set out in some detail further advice given to the Tribunal from Dr Paul Dresch concerning the terms ‘Akhdam’ and ‘Haik’ (Court Book pp.217-218).
The Tribunal Decision
In its decision under the heading "Findings and Reasons" (Court Book p.218), the Tribunal relevantly states:
“… His uncle had an illicit affair with the daughter of the local sheikh, and killed the sheikh’s son and another person in an ensuing gunfight. The sheikh’s eldest son imprisoned, and killed the Applicant’s father. On his return to Yemen, the Applicant too was imprisoned, but managed to escape. He fears prospective harm because of his membership of his uncle’s family. He states that the harm he fears also arises because of his membership of a particular social group (eg. the Haik, a servant class):- the dispute would be amenable to a monetary or other negotiated settlement if it were not for the fact of the Applicant’s inferior social standing as a member of this group. He also contends that, even if the Tribunal were not satisfied that such harm is Convention-related, the fact that the local authorities consist of the rival tribe means that they would deny him protection from such harm as might befall him, because of his inferior social standing.
The Tribunal is required to determine whether the Applicant has a well-founded fear and, if so, whether what he fears amounts to persecution for a Convention reason.”
(Court Book pp.218-219)
The Tribunal made significant adverse findings in relation to the Applicant's claims. It is appropriate to set out extracts from the Tribunal's findings, which in my view provide an insight into the Tribunal's reasoning process which is relevant for the purpose of the present application, as follows:
“The Tribunal has grave concerns about the Applicant’s credibility, for reasons that are elaborated below. The Applicant did himself few favours in presenting his overall case. For instance, it was his claim that he survived in Australia on savings that he brought with him from Yemen, money given to him by his mother … and borrowings from unspecified friends. He insisted that he has not worked in Melbourne. The Tribunal does not accept this as a truthful account of his finances, but rather an attempt to obscure his non-compliance with his visa conditions. This does not necessarily reflect on the veracity of his refugee claims, but does leave the impression that the Applicant has not been candid.
…
The Tribunal does not accept the Applicant’s evidence as to the circumstances of his father’s death, namely that he was killed in prison by the sheikh’s oldest son, head of the Police Department, in revenge for his uncle’s affair with the sheikh’s daughter and later killing of one of the sheikh’s sons and another person. It speaks in the Applicant’s favour, as noted by his current adviser, that he has consistently claimed this to be the case. However, the Tribunal does not accept the Applicant’s claim that he was told only of his father’s death, with no further information as to the cause or location or – as he told a previous Tribunal – with only a vague and, as it later turned out, incorrect assurance that it was alright for him to return. The Tribunal finds it implausible that he would not have asked about the death, or have been forewarned of relevant circumstances. The Applicant’s return to Yemen is consistent with the conduct of an oldest son who learned of his father’s death by natural causes or by criminal or other violence which did not represent on ongoing danger to him.
…
The Tribunal does not accept the alleged death certificate as authentic. It takes into account the absence of any sample documents with which it might compare this document, as well as the Applicant’s evidence and (limited) country information suggesting that official documentation in Yemen is somewhat haphazard, and might not conform with either local formal requirements or what might in other contexts be expected (such as a cause of death on death certificates). Despite several variations on his account as to how he came to obtain the document, the Tribunal notes that it is now the Applicant’s evidence that his mother obtained it from a health official for the express purpose of assisting the Applicant in presenting his refugee claims. It is the contents of the document that lead the Tribunal to reject it – namely the reference to the father having died in prison, who no cause of death recorded. The Applicant speculated that the certificate identifies the prison as the place of death because everyone knew that anyway. The Tribunal does not accept this – it posits that local officials involved in persecution feel compel to issue documents that faithfully record the place of death. Nor does the Tribunal accept the Applicant’s suggestion that the certificate omits the cause of death because local officials may have been too scared to record the cause of death. An unexplained death in custody is a cause of immediate suspicion, and serves only the Applicant’s purpose, i.e. his refugee claims. Had officials been afraid of revealing what had really happened, they could readily have given an innocuous cause of death and a more generalised location. In sum, the Tribunal is unable to accept the alleged death certificate as evidence of the cause and place of the death of the Applicant’s father.
…
The Tribunal’s finding is reinforced by the Applicant’s own action, remaining in his grandfather’s village from mid-May 2001 until his alleged arrest in July 2001. According to his evidence at hearing, the Applicant had a return airfare to Australia. The Tribunal does not accept the Applicant’s claim to have stayed there because of his interested in finding out more about the death – the ‘facts’ were before him, his mother had warned him of the danger to him as well, and his location in his grandfather’s village (which he claimed did not have telephones or a postal service) were hardly conducive to either further investigation, or political or other pressure on such formidable foes. The Tribunal accepts that the Applicant went to his grandfather’s village to join his mother and siblings who had moved there following his father’s death. They did so because his mother chose to return to her birthplace when he died, and not for any sinister reasons. The Tribunal finds that the Applicant’s sojourn there was for familial reasons, until such time as he decided to return to Australia.
It follows that the Tribunal does not accept the Applicant was arrested in his grandfather’s village, and detained in a prison in his home village from 2 July to 23 August 2001, by the sheikh’s son, persons acting on his behalf or anyone at else. The Tribunal also does not accept that the Applicant was subject to any harm – beatings, attempted sexual assault or anything else – whilst in custody or in any other circumstances.
…
Despite the alleged travails, the Applicant travelled to Sana’a where – contrary to his assertions not to have the assistance of anyone – he remained for a further week or more, before using his return ticket to Australia. This lends further weight to the Tribunal’s findings above that the Applicant had not experienced harm, let alone persecutory harm, when he returned to Yemen.
The Tribunal has reached the above conclusions taking into account country information indicating that Yemen has high levels of tribal violence, including blood feuds, and that there are serious infrastructure and governance problems, particularly in remote areas. It is the analysis of the Applicant’s personal circumstances and claims that it lead it to dismiss his claim that he and his family were subject to persecutory harm associated with these or any other factors.
On his return to Australia, the Applicant waited four months before submitting his protection visa application, just one week prior to the expiry of his student visa. He attributed this to poor advice he had received – implicitly from his former adviser Mr Altintas – to the effect that he should wait before presenting his refugee claims. The Tribunal accepts that the Applicant began preparation of his refugee claims whilst in Yemen. It has before it only the Applicant’s implied assertion that he told Mr Altintas about his refugee claims. The Tribunal accepts this as plausible, and therefore draws no adverse conclusions from the fact of the Applicant’s delay in submitting his protection visa application. This does not, however, cure the concerns detailed above that the Applicant’s experiences do not support his refugee claims.
In view of the above findings, it is not necessary for the Tribunal to determine whether the Applicant’s now-dismissed claims of past harm establish persecution within the meaning of the Convention, i.e. for the essential and significant reason of his membership of a particular social group (whether his uncle’s family, or a group such as Haiks), his political opinion (being imputed opposition to the sheikh’s local domination or the tribal values on which it was said to rest) or any other Convention ground.
Such factors are relevant, however, in determining whether the Applicant has a well-founded fear of prospective persecution. In his protection visa application, the Applicant referred only to the particular incidents involving his uncle and father, asserting that the sheikh’s eldest son had sworn to take revenge on all members of the Applicant’s family. At the first Tribunal hearing, he alluded to his tribe not being on the ‘same level’ as that of the sheikh. It was his current adviser’s contention that in this comment lay the germ of a more sustained claim, namely that the Applicant was being targeted not merely for his membership of his family (which would be affected by the operation of s.91S of the Act), but that he was a member of particular social group and that he faced both past and prospective harm for reason of his membership of that group.
The Tribunal has considered the discussion of this issue at past and the current Tribunal hearings, the Applicant’s several submissions and country information, including the recent advice from Dr Dresch. It notes the ‘crystallisation’ of the Applicant’s claim – from the time of Mr Gelev’s appointment as adviser, in his submission of 30 May 2005 – to assert that he was a Khadem or Haik, and that he would be persecuted for reason of such status. The Tribunal takes account of Dr Dresch’s cautionary note, supported by other independent information concerning the complexity and dynamic nature of Yemeni social structure, suggesting that such groups cannot be given a fixed, uniform definition or attributes. There appear to be regional and local variations, and numerous exception, often driven by social dynamics, that preclude conclusions such that Khadem must be of identifiably African origin or necessarily in abject poverty.
That does not mean, however, that the Tribunal must accept uncritically each and every assertion regarding membership of such groups. As flagged in its letter of 6 April 2006, the Tribunal is deeply disquieted by the Applicant’s propensity to identify himself at all with various races or social groups. For instance, in his protection visa application, the Applicant wrote that he was Arab, yet it was submitted on his behalf on 30 March 2006, (in support of his claim to be Haik and Akhdam) that he was not Arab. Asked to explain this, the Applicant said at the most recent hearing that he felt Arab, having grown up in such an environment; in response to the Tribunal’s letter of 6 April 2006 and at hearing, Mr Gelev suggested that the Applicant was unsure his ethnicity, and that the submission might have been injudiciously worded. In a similar vein, the Applicant has variously contended that he is Khadem and a Haik (30 March 2006), later clarifying – in response to the second Tribunal’s observation that Akhdam are reputedly of African origin – that his position as a Haik is perhaps akin to or interchangeable with that of a Khadem. The Tribunal understands the Applicant’s current position to be that he is Haik – a member of servant class or ‘caste’ – and subject to poor treatment as a result of his membership of such group, regardless of the term actually used.
…
These factors create the strong impression that the Applicant has tailored his claims – particularly concerning his family’s role within their community – to prove his claimed membership of an inferior social group (howsoever defined). The Tribunal recognises that applicant’s may exaggerate or embellish their claims to substantiate truthful claims, and therefore accepts that it would be unsafe to rely on this alone to dismiss the Applicant’s claims to be a member of an inferior social group.
However, the Tribunal does not accept that the Applicant is a member of any such group (such as Haik) and that he faces a real chance of persecution for reason of such membership, or for any other Convention reason…
…
However, the Tribunal is not satisfied that he has antagonised his local sheikh, or that he has any attributes that would lead them to harm him, either directly or by omission. Accordingly, the Tribunal is not satisfied that the Applicant will be harmed by the Al Khabani tribe, and is also not satisfied that the local authorities will deny him protection from such harm as might befall him, for any reason at all.
The Tribunal has considered the Applicant’s claims individually and cumulatively. It is not satisfied that the Applicant has suffered past harm, let alone persecutory harm, in Yemen for reasons of his race, (putative) particular social group, political opinion or any reason at all. On the totality of the material before it, the Tribunal does not accept that there are any other factors – including membership of any particular social group – to indicate that he faces a real chance of prospective persecution. The Tribunal is therefore not satisfied that he has a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Yemen. He is not a refugee.” (sic)
(Court Book pp.219, 220, 221, 222, 223, 224, 225 and 226)
The Amended Application
The Applicant only pursues one ground in support of this application. That ground appears as particular (i)(a) in the particulars subjoined to ground 1 of the Amended Application. The other grounds or particulars are not pursued.
The ground pursued is set out in the following terms:
“i)in that it misunderstood and/or misconstrued a criterion under s36 of the Act about which it had to be satisfied for the purposes of s65 and/or failed to consider the case as put and/or an issue going directly to the question whether that criterion was satisfied and/or a central element of the applicant’s claim.
a)the tribunal failed to consider and filed to make findings expressly, impliedly or at all upon the seminal issue and claim of the uncle’s illicit affair with the sheikh’s daughter and the claim of the uncle’s persecution for reasons of membership of a particular social group (i.e lower caste or tribe) and thus the risk of harm to the applicant by reason of his being a family member of his uncle’s family.”
Submissions
Applicant's Submissions
It was submitted that the Tribunal's findings and reasons "completely overlooked ... the seminal issue in the initiating factor for the purposes of the Applicant's own fears of persecution - his uncle's illicit affair with the sheik's daughter".
Although it was acknowledged, as set out in the detailed extract from the Tribunal's decision earlier in this judgment, that the Tribunal refers to this event at the beginning of its findings and reasons, it was argued that the Tribunal did not otherwise make a specific finding concerning that issue which, it was noted, is based upon the uncle's lower caste or tribe status which was capable of providing the appropriate Convention nexus to support the Applicant's case.
It was submitted that the findings of the Tribunal do not contain a finding or an analysis of the critical initiating event and the reasons for it.
When considering the Tribunal's reasons as a whole, it was argued that an inference can be drawn from the absence of any specific finding that the Tribunal had committed jurisdictional error. It was argued that the claim regarding the uncle's illicit affair was "placed in a particular conceptual framework, had an important significance for whether the Applicant's fears were well-founded for a convention reason".
It was specifically submitted as follows:
“26.The pre-hearing submission (at CB 107) made the point that S91S did not apply because the applicant’s uncle was being persecuted for a Convention reason. That reason was that of membership of a particular social group, it being put that if he had been from a more prestigious tribe (rather than the one to which he belonged) he would never have been targeted (see CB 106 para [4.1]). The specific link is then made that the Applicant’s persecution is for reason of his membership of the family of his uncle (CB 106 [par 4.2]) A range of country and expert opinion provided the substratum of support for these linked submissions (See CB 161; 188, 190, 191, 207, 217) The evidence put on behalf f the applicant of ‘status’ is found at CB 187, 189, 203, 204-205; 206, 208; 214)
27.Without the consideration which was required of the elements set out in Ground 1 the Tribunal dismissed the claims of past persecution and held (at CB 223) that ‘it was not necessary for the tribunal to determine whether the Applicant’s now-dismissed claims of past harm establish persecution within the meaning of the Convention i.e for …. Reason of membership of a particular social group (whether his uncle’s family or a group such as Haiks) …’. It is submitted a contrario that the Tribunal was required first to deal with the integer or element of the claim regarding the uncle (which it failed to do) – and then to analyse the applicability of the Convention ground advanced to see whether it provided a Convention nexus (which it considered was unnecessary). On these two counts there was jurisdictional error in the Tribunal’s reasons (see e.g SBAB v Minster for Immigration and Multicultural Affairs [2002] FCAFC161).”
Counsel referred the court to the decision of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 in support of the submission that, if it failed to consider a contention that the Applicant fears persecution for a particular reason which, if accepted, would justify it concluding the Applicant has satisfied the relevant criterion, then if supported by probative material, the Tribunal would have failed to discharge its duty.
Reference was also made to the decision of Ryan J in Applicant M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (unreported decision, 25 August 2003, V679 of 2002) where the court relevantly states the following:
“17The applicant raised a significant issue as to whether he has a well-founded fear of persecution, by asserting that two named colleagues belonging to a like class of persons (those providing humanitarian relief to Tamils) had apparently been murdered following their detention by the authorities. The Tribunal came to the conclusion that the applicant was not sufficiently prominent among Tamil aid-workers to attract adverse government attention. It seems to have concluded, on this basis alone, that he was not at risk of persecution. I am persuaded that the Tribunal made no finding of fact regarding the alleged murder of the applicant's colleagues. The conclusion to be drawn from that omission is that it did not regard this matter as material: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per Gleeson CJ at 330 [5], and per Gaudron J at 338 [35].
18In the present case, the Tribunal had before it specific evidence regarding the death of the applicant's colleagues which bore directly on the issue of whether his fear of persecution was well-founded. It was, in the language of Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, a component integer of the applicant's claim. The Tribunal's failure to regard it as material raises the inference that it did not ask itself the right question and, indeed, had "an erroneous understanding of what constitutes a well-founded fear of persecution": Yusuf per McHugh, Gummow and Hayne JJ at 348 [75]. While the likelihood of the applicant's coming to the attention of authorities is certainly material to that question, so is the treatment meted out to his colleagues engaged in like activities. In this sense, the Tribunal, by its error, may also have failed to take into account a relevant consideration. The Tribunal's misapprehension of the question it was required to ask, upon which the exercise of its powers was predicated, led it into jurisdictional error of the type described in Yusuf.
…
20As already indicated, in the present case the Tribunal adverted to an issue but made no finding on the question relevant to that issue. Having recited in its summary of the applicant's case, his claim that two colleagues (whom he had named) had been killed after being detained by security forces, the Tribunal then failed to refer to the matter again under the heading "findings" or, indeed, anywhere else. This absence of any recorded finding on the issue gives rise to two possible interpretations. In some cases it might be possible to infer that, having raised an issue and not having referred to the matter again, the Tribunal was not convinced that the claim had been made out. That inference was open in Yusuf in the circumstances of that case.”
The Applicant relied upon a decision of Riley FM in MZXIV v Minister for Immigration & Anor (No 2) [2006] FMCA 1454 and, in particular, the following paragraph:
“50.A failure to consider a claim raised expressly or implicitly on the material before the Tribunal is a clear jurisdictional error: Htun v Minister for Immigration, Multicultural & Indigenous Affairs (2001) 194 ALR 244 at 13; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27; Minister for Immigration, Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [81]-[83]. Such an error was made by the Tribunal in this case.”
First Respondent's Submissions
The First Respondent submitted that the Tribunal did not overlook in its reasoning the Applicant's uncle's illicit affair with the daughter of a sheik and the claim of the Applicant's persecution for reasons of membership of a particular social group and the risk of harm to the Applicant as a member of the uncle's family. Reference was made to the extracts from the Tribunal's decision set out earlier in this judgment and its rejection of the Applicant's evidence.
It was argued the Tribunal had "clearly and unequivocally rejected all the Applicant's substantive claims of harm arising from the claimed affair". It was further submitted that the Tribunal "not only rejected his own claims of past imprisonment and persecution as a consequence of the claimed affair, but also his claim that his father was killed by the sheik's son, in a revenge attack resulting from the claimed affair".
The First Respondent relied upon the decision of Allsop J in NAHW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 399 as follows:
“18The serious harm that is referred to by s 91R is that of which the applicant for protection claims to have a well-founded fear. It is not the harm which the applicant says that he has suffered in the past. Of course, as the High Court has stated, the past is very often a helpful guide to the future; but s 91R and Article 1A are directed to the future and the question whether the applicant for protection has a well-founded fear of persecution for a Convention reason should he or she return to the relevant country.”
It was argued that after making the significant findings rejecting the Applicant's claim of past harm, the Tribunal then further considered other submissions made on behalf of the Applicant and was not satisfied that the Applicant's claimed fears related to harm for one or more of Convention reasons. Again reference was made to the Tribunal's decision set out earlier in this judgment where it was not satisfied that the Applicant might be denied protection from such harm as might "befall him for any reason at all". That finding, it was submitted, was made in the course of the Tribunal's finding that the Applicant's fear was not in any event for a Convention-related reason.
It was argued that the circumstances of the present application are similar to those considered by the Full Court of the Federal Court in SZAJL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 217 where the court stated:
“37As the respondent has submitted, the finding made by the Tribunal that the appellant had the protection of the authorities available to other Mombai citizens was made in the context of the earlier finding that the harm feared by the appellant was not for any Convention reason. That being so, it was necessary, in order for the appellant to be a refugee within the definition of Art 1A(2) of the Convention, for him to establish that the State tolerated the harm or condoned it for one of the Convention reasons: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. Where the harm feared is inflicted by the State or its agents is one thing. But where that is not so, and the harm is not for a Convention reason, the necessary nexus may be supplied by the attitude of the State: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 78 ALJR 678 at [21]. In this case, the Tribunal’s findings were that the State did not withdraw its protection from the appellant at all (or, significantly, not for any Convention reason). The finding was that this protection was given equally to the appellant and to all the other citizens of Mombai. That being so, there was no Convention nexus to any harm feared.”
Specific reference was made to the significant finding of the Tribunal that it was not satisfied the Applicant had suffered past harm "let alone persecutory harm", and it was submitted there was accordingly no error in the manner in which the Tribunal dealt with the claim of persecution arising from the uncle's claimed illicit affair.
Reasoning
In my view, a proper reading of the Tribunal's decision clearly demonstrates that unlike the circumstances in other cases relied upon by the Applicant, it did have proper regard to this claim arising out of the uncle's illicit affair.
I am satisfied that in its reasons set out earlier in this judgment, the Tribunal properly summarised under the heading "Findings and Reasons" the essence of the claim. The Tribunal then proceeded in my view, as submitted by the First Respondent, to properly consider and reject the claims made by the Applicant which were founded in part upon the claim arising from the uncle's affair.
The mere fact that the Tribunal has not made a specific finding in relation to the affair does not of itself detract from the conclusion that the Tribunal has properly had regard to that as a factor, or indeed a substratum of facts relevant to its decision-making, and then reached its conclusion as to whether the Applicant did or did not have a basis for claiming fear for a convention reason.
In my view the Tribunal has not failed to consider in this case a claim expressly or implicitly raised on the material and has therefore not committed any jurisdictional error. In the present case it is not simply a matter of the Tribunal reciting the claim under the heading "Claims and Evidence" but rather including it as the introduction to its "Findings and Reasons" and then proceeding to make significant adverse findings which in part result in a rejection of the claim arising from the uncle's affair.
In those circumstances it would be an unduly technical assessment of the Tribunal's reasons to then find jurisdictional error simply on the basis of a claimed failure to make a specific finding on what has been submitted to be a core issue or integer raised by the Applicant. It is clear to me, in the manner in which the claim has been raised, that the Tribunal has thoroughly and properly considered this matter and reached a conclusion free of jurisdictional error.
I otherwise accept, as submitted by the First Respondent, that even in the absence of making a specific finding rejecting the uncle's claimed affair, the Tribunal in any event proceeded to reject the Applicant's substantive claims of harm arising from the claimed affair. Having done that, I accept, as submitted by the First Respondent, that the Tribunal had properly considered the claim as formulated by the Applicant.
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 19 July 2007
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