NAJE v Minister for Immigration - [2006] FMCA 1006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1006

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(3), 91R, 91X, 476(1)(e), 483A
Migration Legislation Amendment Act (No. 6) 2001 No. 131 (Cth)
United Nations Convention relating to the Status of Refugees 1951, Articles 1A, 1C(5)

Applicant WAEE v Minister for Immigration (2003) 73 ALDR 630
NABE v Minister for Immigration (No.2) [2004] FCAFC 263
NAHI v Minister for Immigration [2004] FCAFC 10
NBGM v Minister for Immigration [2004] FCA 1373
NBGM v Minister for Immigration [2006] FCAFC 60
Vitalis Ananze Okere v Minister for Immigration [1998] 1171 FCA
QAAH of 2004 v Minister for Immigration [2004] FCA 1644
QAAH v Minister for Immigration [2005] FCAFC 136
SAAP v Minister for Immigration [2005] HCA 24
Sarrazola v Minister for Immigration [1999] FCA 101
SZAIZ v Minister for Immigration [2004] FMCA 22
SZAIZ v Minister for Immigration [2004] FCA 954
SZIAZ v Minister for Immigration [2005] HCA Trans 262

Applicant:

NAJE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3324 of 2004

Judgment of:

Lloyd-Jones FM

Hearing date:

20 July 2005

Date of last submission:

8 June 2006

Delivered at:

Sydney

Delivered on:

5 September 2006

REPRESENTATION

Counsel for the Applicant:

L J Karp

Solicitors for the Applicant:

Kessels Goddard & Ajuria

Counsel for the Respondents:

J A C Potts

Solicitors for the Respondents:

Phillips Fox

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 1 October 2004 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3324 of 2004

NAJE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Court of Australia on 1 October 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The proceedings were transferred to the Federal Magistrates Court of Australia on

13 October 2004. The Tribunal decision was made on 17 August 2004 and handed down on 7 September 2004, affirming a decision of the delegate of the first respondent made on 9 December 2003, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “NAJE”.
The applicant has not sought to join the Tribunal as a party, however, given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

The Tribunal decision of Ms Mila Males, reference N04/48117, provides the following background information. The applicant, who claims to be a citizen of Afghanistan, arrived in Australia on

26 November 1999. He lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. The applicant was granted a Temporary Protection (subclass 785) visa on 21 March 2000 on the basis that he was a person to whom Australia had protection obligations under the United Nations Convention relating to the Status of Refugees 1951 (“Refugees Convention”). On 18 April 2000, the applicant applied for a further Protection (class XA) visa. On 9 December 2003, a delegate of the Minister refused to grant a further protection visa and on 5 January 2004, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 134)
The applicant claims that he fears harm from the Taliban, Pashtuns, Hizb-e-Islami and Sunnis because he is Hazara and Shia. He fears he will be harmed by his father’s cousins who are members of the Harakat-e-Islami because of their belief that he will attempt to regain land they took from his father. Also that there is no security in Afghanistan. His wife and children will face problems because they are Arabs who can only speak Arabic and would therefore be viewed as al-Qaeda members, terrorists or belonging to the Taliban.(CB 138)
According to his arrival interview record, the applicant stated that he was 38 years old but did not know his date of birth. He was born in Kohibord village, Behsood, Afghanistan. His parents had passed away and he did not know the whereabouts of his three brothers and two sisters. The applicant stated that he lived in Najaf, Iraq from 1965 to 1979 and returned to Afghanistan after the Gulf War.(CB 138)
The applicant decided to leave Afghanistan after the Taliban began fighting and destroyed the Wahdat party. He was possibly associated with the Wahdat Party and also faces danger because he is Shia and his father is a Mullah. However it is unclear whether it is the applicant or his father who is allegedly associated with the Wahdat party. The applicant also stated that two of his brothers had been killed. Again it is unclear whether the Taliban shot both or just one brother. His mother sold everything she owned to get the applicant out of Afghanistan. He said that he did not want to return to Afghanistan because he would be killed by the Taliban.(CB 139)

Tribunal’s Findings and Reasons

A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions, prepared by Mr Potts. I adopt paragraphs 11 to 18 of those submissions for the purposes of this judgment:
11.The Tribunal recited at length and in detail the applicant’s claims. It reviewed independent country information. The Tribunal then made a number of findings.
12.First, the Tribunal found that the independent evidence indicated that the situation in Afghanistan had fundamentally changed with the ousting of the Taliban by coalition forces, and the establishment of the Transitional Authority two years before. The Tribunal was satisfied that that situation would last for the foreseeable future. The Tribunal therefore found that the circumstances in connection with which the applicant was recognised as a refugee had ceased to exist, and that consequently he ceased to be a refugee in accordance with Article 1C(5) of the Convention in relation to those circumstances.
13.Second, the Tribunal found that it could not rule out the possibility that the applicant would be harmed by his father’s cousins, to deter him from regaining his father’s land. The Tribunal however found that the cousins would harm the applicant for reasons of self-interest, and not for one or more of the Convention grounds.
14.Third, the only fear the applicant claimed from the Wahdat, Sepah and Harakat parties, was from his father’s cousins who were members of Harakat.
15.Fourth, the claimed fears based on ethnicity and religion were not well-founded given the independent evidence about conditions in the applicant’s home district of Behsood.
16.Fifth, whilst there were security problems in Afghanistan, the applicant’s home area in the Behsood districts of Wardak province were safe, and therefore the applicant did not face a real chance of harm due to any lack of security.
17.Sixth, the Tribunal found that the applicant’s wife and children would not face persecution for reasons of their Arab ethnicity in Afghanistan if they returned there and were reunited with the applicant. Consequently there was not a real chance that the applicant would be harmed on that basis.
18.The Tribunal found for these reasons that the applicant did not have a well-founded fear of persecution for a Convention reason or reasons in Afghanistan.

Application for Review of the Tribunal’s Decision

On 1 October 2004, the applicant’s solicitors, Kessels Goddard & Ajuria, filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.The Tribunal committed jurisdictional error by misunderstanding the meaning and effect of Article 1C(5) of the Refugees Convention, asking the wrong questions, failing to ask the right questions and in failing to test the applicant’s claims against the statutory criteria.
Particulars
(a)   The Tribunal erroneously considered that cessation of refugee status in Article 1C(5) was established when a person who had been recognised as a refugee no longer had a well founded fear of persecution for the reason for which he has been so recognised.
(b)   The Tribunal should have held that the cessation of refugee status in Article 1C(5) was established only when the danger to the applicant, stemming from the reasons for which he or she was recognised as a refugee, and also those circumstances stemming from and surrounding such recognition, had ceased to exist.
(c)   The Tribunal erroneously interpreted Article 1C(5) as being satisfied in circumstances where there had simply been,
(a) a change of political power in Afghanistan, and
(b) a change in the balance of military power in Afghanistan.
(d)   The Tribunal should have asked itself and considered whether,
(i)   The Taliban have changed their ideology and beliefs to the extent that Hazaras are no longer considered to be heretics, and
(ii) The Taliban are still militarily capable to attacking Hazaras, and
(iii) The Taliban have demonstrated a willingness to attack Hazaras as and when the opportunity presented itself.
2.The second respondent misapplied the law in finding that section 36(3) Migration Act 1958 will apply irrespective of the operation of the cessation clause.
3.The second respondent erred in its reasoning in the course of deciding that the danger that it found may be faced by the applicant from members of a part of his family was not for reason of membership of a particular social group, being his family.
Particulars
(a)   Error in the interpretation and application of the words, “for reason of…membership of a particular social group”.
4.The second respondent erred in failing to consider an issue which arose on its finding that the applicant would be safe in his native area – that being whether he would face a well founded fear of persecution in travelling to that area.

Submissions

At the time of the hearing of 20 July 2005, two Federal Court decisions, QAAH of 2004 v Minister for Immigration [2004] FCA 1644 and NBGM v Minister for Immigration [2004] FCA 1373 (“NBGM [2004]”), had both been appealed to the Full Federal Court. It was agreed that the hearing should proceed subject to both parties being permitted to file additional submissions and seek to have the matter re-listed for further hearing after the outcome of those two appeals. QAAH v Minister for Immigration [2005] FCAFC 136 (“QAAH”) per Wilcox, Madgwick and Lander JJ was decided on 27 July 2005. NBGM v Minister for Immigration [2006] FCAFC 60 (“NBGM [2006]”) per Black CJ, Marshall, Mansfield, Stone and Allsop JJ was decided on 12 May 2006. Both parties filed additional post-hearing submissions, but did not seek a further hearing. This judgment is based on the material formally presented to the Court at the hearing of

20 July 2005 and the supplementary submissions.
Mr Karp, appearing for the applicant, submitted that the application filed in these proceedings raised four grounds of review. The first and second grounds address Article 1C(5) of the Refugees Convention and s.36(3) of the Act. The applicant made formal submissions that the Tribunal had erred and that this Court was bound by NBGM [2004]. Mr Karp submitted that there was nothing that he could argue in respect of the first two grounds to persuade the Court one way or another, pending the appeal decision. Therefore, Mr Karp formally submitted that Emmett J in NBGM [2004] was wrong, to preserve the position of his client.
Supplementary submissions were filed by both parties about the effects of QAAH and NBGM [2006] on this case. The applicant’s additional submissions (dated 18 May 2006) were filed in my chambers on

18 May 2006 and the respondent’s additional submissions (dated

6 June 2006) were filed in my chambers on 8 June 2006. The majority in QAAH (Wilcox and Madgwick JJ) held that Article 1C(5) required not merely a consideration of whether the applicant had a well-founded fear of persecution at the time of decision of a permanent protection visa, but whether there had been a cessation of circumstances that led to the applicant’s fear of persecution in the first place. NBGM [2006] also addressed the interpretation of Article 1C(5) and s.36(3). Mr Potts submitted that QAAH must now be read subject to the latter decision of NBGM [2006]. Further that, to the extent of any inconsistencies between the two decisions, NBGM [2006] being later in time should prevail.
NBGM [2006] is complicated primarily because of the divergence of reasoning between the Justices in the case. The appeal was dismissed by majority comprised of Black CJ, Mansfield and Stone JJ, with Marshall and Allsop JJ dissenting. There were differences in the reasoning of the Justices in the majority, with Black CJ and Mansfield J agreeing and Stone J holding that the appeal should be dismissed for slightly different reasons. The ratio decidendi in NBGM [2006] is found at [25] per Black CJ, which is endorsed by Mansfield J at [59] and Stone J at [149]. The consensus by the majority is described as follows by Black CJ at [25]:
The members of the Full Court have reached differing conclusions both as to the outcome of the appeal and as to the reasons for the outcome. As a majority would dismiss the appeal, that will be the order of the Court. Given the practical importance of the case, I think it appropriate to observe that whilst there are two lines of reasoning leading to the majority conclusion that the appeal should be dismissed, there is a common conclusion about the task to be performed by the decision-maker on an application for a permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa. The majority would agree that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the applicant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason. The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s 36 requires.
Mr Karp submitted that the Tribunal’s reasoning in this case of why it believed that Article 1C(5) applied, may be summarised as follows:
a)The applicant was granted a temporary protection visa on the basis that he would be persecuted by the Taliban because he is Hazara, a Shia Muslim and his father is a Shia cleric.(CB 166.10)
b)At the time the Taliban controlled most of Afghanistan and was targeting Shia Muslims.(CB 166.10-167.1)
c)The overthrow of the Taliban, the establishment of a transitional authority and the involvement of international forces indicate that the situation in Afghanistan has fundamentally changed.(CB 167.2)
d)This would last for the foreseeable future.(CB 167.3)
e)Therefore the circumstances in connection with the applicant being recognised as a refugee had ceased to exist.
The country information as assessed and cited by the Tribunal said that Afghanistan as a whole and Wardak Province in particular was extremely unstable.(CB 156-162) The information stated, “The Province was also known to be a stronghold for the Taliban and

Hizb-Islami.”(CB 161.5) This was part of the applicant’s case.(CB 151-152) The information obtained by the Tribunal referred to past persecution of the Hazara by the Taliban who considered them to be heretics because of their Shia beliefs.(CB 156.1)
Mr Karp submitted that it was insufficient for the Tribunal to merely look at changes in the government of Afghanistan and its balance of military power. It ignored completely, in its findings and reasons on the Article 1C(5) issue, country information which said that Afghanistan remained unstable, the Taliban was the primary cause of this instability and that the applicant’s home province continued to be a Taliban stronghold. Nor did it ask whether the Taliban had changed its stand that the Hazara were heretics.
Mr Karp submitted that in the absence of findings on these issues, it was impossible to suggest that the circumstances in connection with the applicant being recognized as a refugee had ceased to exist: QAAH at [76]-[77] per Wilcox J. It was submitted that the Tribunal’s enquiries were far too narrow and did not address, according to law, the question of whether or not the applicant fell within Article 1C(5). This insufficiency was compounded by the fact that the Tribunal did not consider the continuity of the applicant’s alleged safety as it was required to do pursuant to NBGM [2006] per Allsop J at [184] (with whom Black CJ at [23], Marshall J at [26] and Mansfield J at [41] agreed).
Mr Karp acknowledged that the Tribunal considered its findings were valid for the “foreseeable future”.(CB 167.3) However this has little meaning in terms of an enquiry into whether circumstances had “ceased to exist” unless the Tribunal also considered how far into the future it was looking. Depending on the circumstances, the future might be “reasonably foreseeable” for a day, a week, a month or longer. An enquiry into the “reasonably foreseeable future” is more appropriate for an assessment of whether a person has a well-founded fear of persecution rather than whether a previously existing situation has ceased to exist, unless it can be said with confidence that there is continuity in the existing situation. Mr Karp argued that the Tribunal erred by failing to consider this issue in the light of the country information mentioned above, which it was bound to consider pursuant to s.424(1) of the Act.
Mr Potts submitted that unlike the Tribunal in QAAH, this Tribunal did not accept that Afghanistan was still unstable, or that the interim government was unable to protect the applicant: QAAH at [76]. With reference to the material at [14] - [15] above, Mr Karp argued that this evidence may have led the Tribunal to a contrary conclusion. Mr Potts submitted that the weight to be given to particular evidence, including country information, was entirely a matter for the Tribunal in adjudicating the merits of the case: NAHI v Minister for Immigration [2004] FCAFC 10 at [10] – [11]. The Court cannot draw an inference that the Tribunal ignored country information to which the applicant referred: Applicant WAEE v Minister for Immigration (2003) 73 ALDR 630 at [46] – [47].
Mr Potts also submitted that unlike the Court in QAAH, this Court should not conclude that the Tribunal “looked merely at changes in the government and the balance of military power in Afghanistan” as submitted by Mr Karp at [15] above. The Tribunal referred to the situation “as being fundamentally changed” not only through the ousting of the Taliban, but the establishment of a transitional authority, the involvement of the United Nations in the reconstruction of Afghanistan, the presence of international forces and an international commitment to Afghanistan. It was submitted that the Tribunal plainly considered the longevity of the change and concluded by reference to specific factors that this change would endure in the foreseeable future. There was nothing objectionable about the use of the term “foreseeable future” as Mr Karp submitted. Mr Potts argued that the Tribunal properly applied Article 1C(5) and lawfully concluded that the circumstances in which the applicant was recognised as a refugee had ceased to exist.

Mr Potts’ second argument was that in any event, regardless of whether or not the Tribunal correctly applied Article 1C(5), the relevant enquiry is in fact whether the applicant had a well-founded fear of persecution at the time of the Tribunal decision. The earlier determination that the applicant was a refugee at the temporary protection visa stage, is irrelevant: NBGM at [25] per Black CJ. The Tribunal concluded that the applicant did not have a well-founded fear of persecution in Afghanistan for a Convention reason or reasons.(CB 171) Mr Potts submitted that that was all the Tribunal was required to do and the finding involved no legal error.
Mr Karp also indicated to the Court that he did not press the fourth ground of the application and that his submissions would be in support of the third ground, which raised the question of causation in the context of Article 1A(2). It was submitted that the causation question arose in an interview (identified as “Summary of I/V”) conducted by the delegate: CB 96. This was in relation to the application for a permanent Protection (Class 866) visa:
Q: What particular difficulties do you have if you returned to Afghanistan?
In Wardak
I have a problem in the family. Father was cleric and member of wahdat party and the cousins of my father were members of Harakat. Between parties there was hostility and father told people that any fighter would be an unbeliever therefore the hostility was serious and cousins wanted to revenge. Mother was in Afgh[anistan] and a cousin of my father pushed mother to leave house and confiscate land. Mother had to leave the house and our land was confiscated. My sister in Iran went to Afgh[anistan] to see my mother and cousins of my father told my sister we’re happy you came because you can be a hostage but people tried to help my sister and she left Afgh[anistan] with mother and went to Iran. She called me to say don’t go to Afgh[anistan] and only because people help me. The cousin of my father will create difficulty.(CB 96.5)
Mr Karp indicated that it should be assumed that the applicant’s father and two brothers were murdered by the Taliban, although it is unclear exactly when that happened. Mr Karp submitted that the answer to the line of questioning above at [21] is a clear claim that the applicant had problems because:
a)His father being a mullah offended some of his cousins.
b)The cousins sought revenge and confiscated land belonging to his father and his father’s family.
c)The cousins would then “create difficulties”.
This is a claim that the applicant encountered problems because of his membership of his family, which constitutes a particular social group: Sarrazola v Minister for Immigration [1999] FCA 101 (“Sarrazola”).
Mr Karp emphasised that the revenge which the applicant’s cousins sought was directly related to what the applicant’s father had said. The cousins forced his mother to leave the house and confiscated their land. The resulting problem faced by the applicant’s mother and sister was described by the Tribunal in its decision.(CB 147-148, reproduced at [24] below) Mr Karp argued that the applicant’s fears, quite reasonably, were that if he returned to Afghanistan he would be in trouble because the cousins would think that he wished to reclaim his land. Mr Karp argued that there is a clear, obvious and necessary connection between the applicant’s membership of his family and the persecution that he fears.
Mr Karp submitted that the applicant made a statement to that effect at the Tribunal hearing which was recorded in its decision under the headings ‘Claims and Evidence’ and ‘Problem with Father’s Cousins’:
The Tribunal asked the applicant whether he had any contact with anyone from his village or his district of Behsood. The applicant said he had not. His said that his father’s second cousins are in Behsood and against his family. The Tribunal noted that he had only mentioned that the cousins wanted revenge against his father because his father was a member of the Wahdat for the first time in his interview last year. The applicant said that the second cousin took some land from his father and the cousins were members of the Harakat party. There are problems between the two families. The applicant said that the cousins thought his mother and sister had came to the village to regain their land and wanted to kill his mother and sister. If a neighbour had not intervened, his sister and mother would have been killed. The man in whose house the applicant’s mother and sister were staying told the cousins that it was contrary to Afghan culture for a man to “face” a woman so the cousins did not harm his mother or sister. The applicant stated that that was why his mother and sister left Afghanistan.
The Tribunal noted that this happened in the past and asked the applicant if he faced any danger if he went back to Afghanistan from these cousins. The applicant said that they would kill him because the cousins would think that he wanted to get the land back.(CB 147-148)
The Tribunal decision also states:
The Tribunal told the applicant that it did not seem that his problem with the cousins came within the Refugees Convention because the Convention only covered persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal put to the applicant that if the cousins harmed him because they wanted to retain the land, that was not for one of the five reasons mentioned.(CB 148.5)
Mr Karp then referred the Court to NABE v Minister for Immigration (No.2) [2004] FCAFC 263 (“NABE”) at [68] per Black CJ, French and Selway JJ:
…A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal…
Mr Karp submitted that the threats against the applicant were expressly made and the claim clearly arises from material before the Tribunal, being the Departmental interview and the Tribunal hearing.
The Tribunal considered the various reasons why the applicant feared persecution before dealing with Article 1C(5):
…the Tribuanl finds that the cousins would harm the applicnat for reasons of self-interest and not for one or more of the Convention grounds. The applicant states that the cousins would seek to harm him because they would assume that he would attempt to regain his father’s land. This is not for reasons of one or more of the Convention grounds of race, religion, nationality, particular social group or political opinion (whether actual or imputed). The applicant was unable to explain whow the motivation of the cousins would be Convention related except to say that they were members of Harakat and Harakat had members in the government. The fact that the cousins are members of a political party does not in itself necessarily mean that the motivation for their actions are based on political opinion. Further, the applicant has said that he himself has not been a genuine member of any political party nor does he want to be a member of any party in the future.(CB 168)
The Tribunal then dealt with the balance of the applicant’s claim. By focussing on the question of fear of the father’s cousins, Mr Karp conceded that s.91R of the Act applies to this decision. Migration Legislation Amendment Act (No. 6) 2001 No. 131 (Cth) makes that clear. However, Mr Karp submitted that even though s.91R applies, it still requires a causal nexus between the persecution feared and the Convention reason; that is, there must be a causal nexus between persecution feared and the reason for the persecution:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
Mr Karp submitted that the Tribunal fell into immediate error by using the term “motivation”. Motivation is one but not the only factor going to causation. Mr Karp referred the Court to Vitalis Ananze Okere v Minister for Immigration [1998] 1171 FCA (“Okere”) per Branson J:
It follows from the above analysis that I reject the contention made on behalf of the respondent that Article 1A(2) of the Refugees Convention is to be construed as excluding from the protection afforded by the Refugees Convention persons who have a well-founded fear of persecution which is motivated not directly for reason, for example, of their religion, but only "indirectly" for reason of their religion. According to this contention, for example, persons who have a well-founded fear of persecution for reason of their refusal to work on the Sabbath could not be found to have a well-founded fear of persecution for reason of their religion; the persecution feared by them would be related to their refusal to work and not to their religion.
Mr Karp submitted that the following paragraph of Okere was pertinent:
History supports the view that religious persecution often takes "indirect" forms. To take only one well known example, few would question that Sir Thomas Moore was executed for reason of his religion albeit that his attainder was based on his refusal to take the Succession Oath in a form which acknowledged Henry VIII as head of the Church of England.
Mr Karp submitted that the immediate reasons for persecution may not be the most pertinent one. He also acknowledged that Okere was decided before the introduction of s.91R. Mr Karp argued that it is clear that fear of persecution for a non-Convention basis does not preclude a claim of fear for a Convention basis, notwithstanding s.91R. This is because s.91R deals not with the nexus itself but with a nexus sufficient to satisfy the section. To satisfy s.91R, the Tribunal must ask itself the necessary questions. Mr Karp argued that the Tribunal did not ask itself what the essential and significant reason for the persecution was, but said instead:
The Tribunal finds that cousins would harm the applicnat for reasons of self-interest and not for one or more of the Convention grounds.(CB 168)
Mr Karp argued that the Tribunal did not say anything about s.91R because it denied any nexus with the Convention ground. This conclusion cannot be supported and indicates jurisdictional error.
Mr Karp further argued that what the Tribunal had to do when considering the question of causation was to look at all possible causes, see Sarrazola at [43] - [45]:
43.The basis for RRT's finding that the applicant's well-founded fear of persecution was not for reason of her family membership was reproduced in its entirety at paragraph 18 above. The crux of that reasoning is as follows:
"...the criminals' concerns were motivated by self-interest to recover the money they believe was owing to them by the applicant's deceased brother from the obvious target of opportunity, a sister (and her husband) who owned a house". [DRD p12]
Put more succinctly, RRT found that the reason for the applicant's well-founded fear of persecution was extortion associated with the recovery of her deceased brother's debt.
44.This reason for the applicant's fear of persecution necessarily incorporates three notions:
* A debt is owed to the criminals,
* The debtor is the applicant's deceased brother,
* The attitude of the persecutors (see paragraph 7 above) is that his relatives are now responsible for payment of the brother's debt.
45.These notions are inextricably linked. It is only when regard is had to the combination that the reason for the applicant's fear of persecution emerges. Once this is accepted, it was not open to RRT to conclude that:
"the Tribunal is...not satisfied that the harm feared by the applicant and her husband on return to Colombia arises (even in part) for a Convention reason." [DRD p13, emphasis added]
In effect RRT found that part of the reason for the applicant's well-founded fear of persecution was her familial tie with her brother. Then, RRT proceeded to find that the applicant's fear was not for reason of that familial tie "even in part".
Justice Hely in Sarrazola found an error of law pursuant to the then s.476(1)(e) of the Act.
Mr Karp submitted that in Sarrazola, similar to this case, the elements of the claim were that the applicant’s father and grandfather were religious leaders, mullahs and members of the Wahdat. The cousins were members of another party, the Harakat:
Between the parties there was hostility and father told people that any fighter would be an unbeliever, therefore the hostility was serious and cousins wanted to revenge.(CB 96.5)
This resulted in bad blood within the family. As the cousins took the applicant’s father’s land it was believed that the cousins would then attempt to kill the applicant because they feared that he would attempt to recover the land. On this basis it was simply not open to the Tribunal to find that the cousins would harm the applicant simply out of self-interest and not for one or more of the Convention grounds. Mr Karp argued that there is a necessary nexus between the family and the persecution that the applicant fears. If he were not a member of that family, he would not face the problem he did.
Mr Karp submitted that in order for the Tribunal to engage s.91R, it must identify the both Convention and non-Convention reasons for the applicant’s fear of persecution. The failure of Tribunal failed in identifying the possibility of persecution for reason of a particular social group and failure to appreciate that a clear nexus exists between persecution of the applicant and membership of his family, resulted in jurisdictional error. The Tribunal had simply failed to ask itself the right questions. For the Tribunal to determine the essential and significant reason for persecution, it must canvass all the reasons. Mr Karp submitted that it did not do so.
Mr Potts submitted in relation to the third ground that the correct question was whether the Tribunal failed to properly deal with the application by not asking itself the right questions and by not considering a claim expressly articulated or which arose from material put before it. Mr Potts referred the Court to NABE at [60] on the principle of law applied in that case:
…This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
Mr Potts submitted that this is the test that this Court has to apply to determine whether or not a claim of membership of a particular social group was made or clearly arose.
The first test is that the Tribunal must consider a clearly articulated claim. The second test in NABE is reproduced at [16] above. If a claim clearly arises from the material before the Tribunal, then it is bound to consider it. However, as the Full Federal Court held in NABE there is no inference of a claim if it is not clearly articulated, unless it is in fact obvious from all the material. There is no requirement for the Tribunal to sift through the material with a fine toothcomb as this places an excessive burden on the Tribunal. It was submitted that the rule is based on practical considerations to ensure that the Tribunal deals fairly with what is put before it, or clearly arises from the material it has.
Mr Potts submitted that the first respondent’s position is that the claim was never articulated, nor did it clearly arise from the material. Both written and oral claims are not obvious, if considered in their context and given a fair reading. Mr Potts submitted that the applicant’s claim at [21] above is a claim for fear of persecution of membership of his family. Mr Potts acknowledged that the applicant’s statement at the Departmental interview, “I have a problem in the family” may prove problematic for the respondent’s arguments. However, that statement is contextualised by what followed after. (CB 96)
It was submitted that it is clear that the cousins wanted revenge on the applicant because they were members of another political party. There is no inference to be made that the applicant’s cousins wanted revenge for membership of his father’s family.
The applicant went on to say:
Mother was in Afgh[anistan] and a cousin of my father pushed mother to leave house and confiscate land. Mother had to leave the house and our land was confiscated. My sister in Iran went to Afgh[anistan] to see my mother and cousins of my father told my sister we’re happy you came because you can be a hostage but people tried to help my sister and she left Afgh[anistan] with mother and went to Iran. She called me to say don’t go to Afgh[anistan] and only because people help me. The cousin of my father will create difficulty.(CB 96)
Mr Potts submitted again that there is nothing in this latter part which makes clear that what was being claimed was fear of persecution from the cousins because they were from another party and would confiscate the applicant’s land. This claim was made in an interview with a Departmental officer and the Tribunal endeavoured to explore this aspect of the claim with the applicant at its hearing.
Mr Potts referred the Court to the passage as set out at [28] above. It was submitted that the applicant clarified that two of his father’s cousins would harm him on assumption that he would attempt to regain the land in question, if he returned to Afghanistan. Mr Potts submitted that the nexus was with the land and not with the family. There was no claim that because of the applicant’s membership of his father’s family, he would be targeted by his cousins. Mr Potts referred to the following Tribunal statement:
The Tribunal doubts that the cousins would want to harm the applicant if he returned to his home in Behsood. Firstly, the applicant has not claimed that he would in fact attempt to reclaim the land. Secondly, he claims he had his own home two hours away from his parents’ home so it would not be necessary for him to reclaim his father’s land.(CB 167.6)
Mr Potts submitted that if the applicant had made it clear that he had no intention of reclaiming the land, it is hard to see why the cousins would assume he would do so. The Tribunal went on to say:
It seems likely that the threats made to the applicant’s mother and sister were simply intended to discourage them from seeking to regain the land as the threats were not carried out.(CB 167.8)
Mr Potts submitted that the Tribunal then found or assumed in the applicant’s favour, though it could rule out the possibility that the cousins would harm him. The Tribunal then made a clear finding on the Convention nexus:
…the Tribuanl finds that the cousins would harm the applicant for reasons of self-interest and not for one or more of the Convention grounds. The applicant states that the cousins would seek to harm him because they would assume that he would attempt to regain his father’s land. This is not for reasons of one or more of the Convention grounds of race, religion, nationality, particular social group or political opinion (whether actual or imputed).(CB 168.1)
In so far as the Tribunal understood the claims both explicit and implicit in the material, it could not find a Convention nexus in them. Mr Potts submitted that the Tribunal dealt adequately with the claims advanced. It was clearly looking for a connection between one of the Convention grounds and the harm that the applicant might suffer at the hands of his cousins. The Tribunal did not find a nexus that would give rise to jusidictional error.

Both parties agreed that s.91R applied to this matter. Mr Potts drew the Court’s attention to SZAIZ v Minister for Immigration [2004] FMCA 22 which was appealed by the applicant and dismissed in the Federal Court: SZAIZ v Minister for Immigration [2004] FCA 954. A special leave application in the High Court was also refused: SZIAZ v Minister for Immigration [2005] HCA Trans 262. In SZAIZ v Minister for Immigration [2004] FMCA 22 at [16], Raphael FM stated:
16.…the RRT did not appreciate that there could be more than one “essential and significant reason” and therefore applied the wrong legal test and fell into jurisdictional error…The revised explanatory memorandum to the amending Act which inserted s 91R explains what is required of the decision maker:
[21] Under the new paragraph 91R(1)(a), persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention does not constitute persecution unless that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution. The Refugees Convention does not require that persecution for non-Convention grounds be taken into account in assessing whether a person is owed protection obligations under the Convention. Where the harm feared is attributed to a number of motivations, the proposed legislation will make it clear that it is insufficient that there are merely minor or non-central Convention related motivations in order to bring the persecution within the scope of the Convention. However, persecution for multiple motivations will satisfy the proposed legislative requirements where the Convention ground or grounds in aggregate constitute at least the essential and significant motivation for the harm feared.
…
Mr Potts submitted that in this case the Tribunal was required to consider whether such motivation was Convention related. It was then required to look for the essential and significant reason or reasons for fear of persecution. The Tribunal was not satisfied that the reasons in this case were Convention based. Mr Potts submitted that the interpretation given by Raphael FM in SZAIZ v Minister for Immigration in respect of s.91R applies to the case before this Court.
Mr Potts further submitted that Mr Karp’s reliance on Okere must be treated carefully as Okere was decided well before the enactment of s.91R. Mr Potts argued that although Branson J in Okere may have been correct in saying that one may, in some cases, look beyond the express reasons for someone being targeted to discern if it was for a Convention reason, that may now conflict with s.91R.
Mr Potts submitted that Sarrazola as relied upon by Mr Karp (see [32] - [33] above) can be distinguished on its facts because of differences in the nature of the claim advanced by the applicant in that case. The following extract from Sarrazola at [7] relates to the applicant’s brother (now deceased):
7. In January 1996 a stranger came to the applicant's house, stated that he was from the group responsible for her brother's death, and stated that:
"...as his relatives they were now responsible for the money her brother had owed them. The man demanded that they sell their house in order to pay him and threatened to kill their children if they did not comply."
The reason the applicant in Sarrazola feared harm was because she was the sister of a debtor. In Sarrazola at [43] - [44] (reproduced at [32] above), Hely J held that there was an internal inconsistency in the Tribunal’s reasons. Part of the reason for the applicant’s fear was her familial relationship with her brother. However, the Tribunal found that her fear was not due to the family connection. In His Honour’s view the reasoning was internally inconsistent and illogical and hence erroneous. Mr Potts argued that in this case, a similar problem with the Tribunal’s reasoning does not arise nor is there internal inconsistency on the critical issue. Mr Potts argued that it was open to the Tribunal to make the finding that it did in relation to a lack of Convention nexus. The Tribunal was not persuaded that this particular applicant had been a target or was singled out by his cousins for a Convention reason. This was a finding that was open to the Tribunal on the evidence before it. It was not the case that the evidence and material before the Tribunal mandated a finding. Neither was it the case that the only finding open to the Tribunal on the evidence was that a Convention nexus was satisfied and the applicant had a fear of persecution for a Convention reason. Mr Potts submitted that the alternate factual finding made by the Tribunal was open to it based on the evidence before it.
Mr Potts made submissions in respect of Mr Karp’s submission that the use of the word “motivation” demonstrated an erroneous approach by the Tribunal on that issue.(see [30] above) The word “motivation” was used by the Tribunal in its reasons under the heading “Protection obligations”:
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However, the motivation needed not to be of entity, malignity or other antipathy towards the victim on a part of the persecutor.(CB135.9)(emphasis added)
The Tribunal then applied the term in its “Findings and Reasons” in relation to “Fear of father’s cousins”:
…the Tribunal finds that the cousins would harm the applicant for reasons of self interest and not for one or more of the Convention grounds.(CB168.1)
Mr Potts submitted that there was nothing erroneous in the way the Tribunal stated the test, or how the word “motivation” was applied. The use of this particular word does not in itself demonstrate error in the test that the Tribunal applied. Mr Potts submitted that the Tribunal’s intention was that one must look to the reasons why a particular person was singled out or targeted, which is in accordance with the Convention and the Act.

Conclusion

At the hearing of 20 July 2005, Mr Karp, appearing for the applicant, made formal submissions in respect of the first two grounds of the application on the understanding that the Court was bound by NBGM [2004] per Emmett J. Subsequent to the hearing, the Full Federal Court has handed down QAAH and NBGM [2006]. Counsel for both parties then filed supplementary submissions in relation to those two subsequent decisions. I have addressed the salient points of both arguments above. I acknowledge the divergence of reasoning between the members of the Full Federal Court in NBGM [2006] and the further divergence of reasoning between QAAH and NBGM [2006]. This has resulted in new submissions in the case about the correct application of Article 1C(5) of the Convention. However, given the ratio decidendi of the Full Federal Court in NBGM [2006], I believe the relevant question before this Court is whether the applicant had a well-founded fear of persecution at the time of the Tribunal’s decision. In NBGM [2006] at [25], His Honour Black CJ stated:
…that s 36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the applicant for a permanent protection visa then has a well-founded fear of persecution for a Convention reason…
In this case, the Tribunal member concluded that the applicant did not have a well-founded fear of persecution for a Convention reason.
The relevant weight to be given to the various pieces of evidence, including independent country information, remains a matter for the Tribunal to determine. It is not for this Court to infer what material the Tribunal ignored or placed no weight on: NAHI v Minister for Immigration and Applicant WAEE v Minister for Immigration. The balance of the argument in respect of the first and second grounds relate to the application of Article 1C(5) by the Tribunal in its deliberations. The argument advanced by Mr Karp was that the Tribunal’s examination or enquiries of the material before it were insufficient or too narrow in its focus. The counter argument raised by Mr Potts was that the Tribunal properly applied Article 1C(5) and then concluded that the circumstances under which the applicant was originally recognised as a refugee ceased to exist by the time the matter came before it. However, before considering the relevant merits of the competing submissions, I believe this Court is obliged to focus on the ratio decidendi in NBGM [2006]. Consequently, the first two grounds cannot be sustained.
The fourth ground was not pressed by Mr Karp, which leaves in issue the third ground of the application. Mr Karp took the Court through material in support of his argument that the applicant’s well-founded fear of persecution was for reason of membership of a particular social group, that is, his family. It was argued that the threats as discussed above were expressly made and clearly apparent from an examination of the material before the Tribunal. In support of his contention, Mr Karp carried out a detailed analysis of that material. The Tribunal did not accept that argument on the basis that it found that the applicant’s cousins would harm the applicant because of self-interest, not for one or more of the Convention grounds.
The issue to be resolved is whether the Tribunal failed to properly deal with the application by either asking itself the wrong question or incorrectly evaluating the material before it. I accept the submissions made by Mr Potts that this Court has to apply the two tests found in NABE. Mr Potts assisted the Court in a detailed examination of both of those tests and I am satisfied that the nexus is with the land and not with the family. The cousins would harm the applicant for reason of self-interest should the applicant seek to reclaim his father’s land and not for one or more of the Convention grounds. I am satisfied that the Tribunal applied the correct test and drew the correct conclusion. It was not satisfied that a Convention nexus was established. Consequently, the application must be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 4 September 2006