NAOD v Minister for Immigration - [2004] FMCA 257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOD v MINISTER FOR IMMIGRATION

[2004] FMCA 257

MIGRATION – Application for review of Refugee Review Tribunal decision – whether particular social group had to be identified by the Tribunal – whether failure by Tribunal to consider absence of state protection – whether absence of state protection can constitute persecution where privately motivated perpetrator of harm – relevance of any absence of state protection.

Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 129
Paramananthan v Minister for Immigration (1998) 94 FCR 28
Applicant NABX of 2002 v Minister for Immigration [2002] FCAFC 249

Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244

Applicant:

NAOD

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFARIS

File No:

SZ1233 of 2003

Delivered on:

14 May 2004

Delivered at:

Sydney

Hearing date:

2 March 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Solicitors for the Applicant:

Michaela Byers

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1233 of 2003

NAOD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 12 March 2002 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Morocco, arrived in Australia on 29 November 1999 and applied for a protection visa on

30 January 2001. On 6 June 2001 a delegate of the Minister refused to grant her a protection visa and on 29 June 2001 she applied to the Tribunal for review of that decision.
The applicant claimed to fear persecution in Dubai and Morocco on the basis that while working in Dubai (between February 1998 and September 1999) she had suffered what she considered to be ‘persecutory sexual harassment’ by an important sheikh from the United Arab Emirates from whom she feared harm. She claimed that she had rebuffed the sheikh’s initial overtures at a restaurant in Dubai in September 1998, that this made him embarrassed and angry and that two weeks later he had tried to molest her at work (in the business centre of an international hotel). When she reported the matter to her boss he blamed her for not being nice to important guests. He wanted to fire her but gave her time to find another job. The sheikh found her and kept sending messages to her through his bodyguards. A friend who worked for the Dubai police told her that nobody could protect her as the sheikh was too powerful and her complaints would be ignored. She claimed that she had then returned to Morocco but continued to be harassed, receiving phone calls from strange people (and the Emirates Embassy) telling her that the sheikh was to visit Morocco and wanted to meet her again. After 4 or 5 calls her family had suggested that she come to Australia (she already held a visitor visa) to take her mind off the problem. She decided to seek protection while in Australia after her mother said that she had received telephone calls from a person with an Emirates accent asking for the applicant. She claimed that the caller became angry and abusive about her when informed that she was in Australia and that her mother feared he would seriously harm the applicant.
She claimed to fear that the sheikh would seriously harm her because she had rejected him and so insulted his Arabic manhood, that if she returned to Dubai he would find her, deprive her of her human rights as a woman and keep her prisoner while he took his revenge on her. She claimed that even if she returned to Morocco the sheikh would know how to locate her, that she was a single woman and that it was not unknown for unpleasant powerful people like the sheikh to arrange kidnapping and removal to Dubai. She claimed that the Dubai authorities would not listen to her because of the sheikh’s position and that in Morocco it was almost the same and unless he did something to her she would have no grounds of complaint. She had no contacts in the Moroccan government to whom she could take her case and the sheikh would have the protection of the Emirates Embassy.
In the Tribunal hearing the applicant stated that the only problem she had experienced in Morocco before she went to Dubai was a 1992 sexual assault by a friend who was a member of the Royal family. When she reported his name to the police station the police officer became scared and refused to record her complaint. She added details about the claimed harassment in Dubai and explained that a former Dubai policeman had told her to forget trying to do anything about the sheikh as he was a powerful man in Dubai. She said that there were several phone calls to her in Morocco from the sheikh who tried to scare her and also from the Emirates Embassy. The telephone calls to her mother stopped after the caller (believed to be the sheikh) was told that the applicant was in Australia. Nothing further had been heard from him.
The applicant claimed that she feared that something may happen to her and her family at the hands of the sheikh (a friend of the Dubai royal family) or his men if she returned to Morocco, because he wanted revenge on her and the Moroccan authorities would not help her as they cared only for their relationship with Dubai.
The Tribunal put to the applicant the substance of independent country information about the Moroccan government’s progress in protecting women and in addressing women’s complaints about unequal treatment, about assistance available to women, the judicial system and the severe punishment for men convicted of rape or sexual assault. The Tribunal also put to her information about improvements in Morocco in the last decade. The applicant asserted that the protection of woman may apply to ordinary men but not to powerful men. She rejected a suggestion that she could settle elsewhere in Morocco as she was from Casablanca.
In the Tribunal hearing and in an associated submission from her migration agent the applicant also claimed to fear persecution as a Berber and because she had applied for a protection visa in Australia. She provided a letter from her uncle, a Casablanca lawyer, claiming that Moroccans who do not have official status in another country in which they have resided or who have applied for asylum in another country would be treated on return in accordance with Article 10 of an unspecified Act of 1948 under which they would be liable to imprisonment for up to three months, that the Defence Securite Territoire (DST) could investigate and interrogate such returning Moroccans in the interests of national and international security and that an infringement of the national laws could be pursued through the Courts. The applicant also submitted information in relation to the human rights situation and about discrimination against women in Morocco. She claimed to have a well-founded fear of persecution from the internal security authorities for reason of membership of a particular social group being “single women at risk” and for her imputed political opinion because she had applied for refugee status. The applicant claimed that if she returned to Morocco she would be at a high risk of interrogation by the DST by virtue of having applied for refugee status, that a person of her acquaintance had suffered such an interrogation and that as a result of her fears she had developed medical problems. She elaborated on this claim in a subsequent written statement.
The Tribunal accepted that the applicant was of Berber heritage but was not satisfied that she had a well-founded fear of persecution for that reason. It had regard to the fact that the applicant was well educated and had held good jobs in Morocco, that she had not claimed past persecution or fear of persecution on return because she was a Berber and that she had told the Tribunal that she had no problems in Morocco other than a prior sexual assault in 1992 and that she had voluntarily returned to Morocco many times from trips abroad.
The Tribunal also rejected the applicant’s claim to have a well-founded fear of persecution from the Moroccan internal security authorities for reason of membership of the particular social group of “single women at risk” or for reason of an imputed political opinion because she had applied for refugee status. It rejected any claim that she would experience mistreatment as a result of a lengthy absence from Morocco as there was no evidence that there had been any problems or interest from the authorities on her return to Morocco in the past after lengthy absences in Dubai or after shorter trips abroad. The Tribunal gave no weight to the letter from her uncle because the relevant law was not stated, because the Tribunal found the claim to be inconsistent with Morocco being a signatory to the UN Refugee Convention of 1951 and because the Tribunal could find no hint in any of the major human rights sources consulted (which were listed) to suggest that the many thousands of Moroccans who left the country illegally and tried to enter Spain and other European countries illegally and were sent back, attracted serious adverse attention from the DST or even from the border police as claimed by the applicant in her story about the neighbour who was deported from France. Nor was independent evidence to support the claim submitted. The Tribunal also found the claim to be at odds with available information about related issues, for example material in a US State Department report referred to by the applicant’s adviser which indicated that Moroccans may not renounce their citizenship, that tens of thousands of Moroccans hold more than one citizenship and travel on passports from two or more countries and more generally that Morocco is heavily dependent on remittances from citizens working abroad and that there was no suggestion that Moroccans who had been absent for lengthy periods or who may have applied for refugee status abroad were of interest to the authorities for those reasons and that there was nothing to suggest that applying for refugee status imputed an adverse political opinion. The Report relied on in fact suggested that the Moroccan government co-operated with the UNHCR and other humanitarian organisations in assisting refugees, that it had from time to time provided political asylum to individuals and did not forcibly expel persons with a valid claim to refugee status. Furthermore the Tribunal stated that even if the law referred to by the applicant’s uncle existed (and was enforced) the evidence was that it was a law of general application. The Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for reasons relating to her lengthy absence from Morocco and/or her application for refugee status if she returned to Morocco.
As to the claim in relation to the sheikh, the Tribunal set out the applicant’s claims and independent information about the protection of female victims of domestic assault and assistance provided for relocation of victims within Morocco. The Tribunal accepted the applicant’s account about meeting the sheikh in Dubai and about his continued interest in her in Dubai and then when she returned to Morocco. However it did not accept that she was denied protection in Dubai. At the hearing it had become clear that she had not reported the sheikh to the Dubai authorities but had merely sought advice from a friend who had been a policeman. The Tribunal stated that his advice did not suggest that the applicant would be denied protection by the Dubai police for a Convention reasons but rather because of the characteristics of the person against whom she would have been complaining.
The Tribunal accepted as plausible that the sheikh or persons acting on his behalf continued to call the applicant’s home in Morocco as claimed. However it also accepted that there was no further interest or contact from him after he was told (in late 2000) that she was in Australia – over a year before the hearing and decision. Hence the Tribunal was not satisfied that the applicant’s fear of harm from the sheikh now was well-founded. It continued:
Even if the Applicant returned to Morocco and the sheik learned this and resumed his interest in her, the Tribunal cannot be satisfied on the evidence before it, that she has a well-founded fear of persecution from the sheik or persons acting on his behalf, for reason of her membership of a particular social group of Moroccan women or single women at risk, or for any other Convention reason. Her consistent evidence has been that the sheik’s adverse interest in her was because she, as an individual, embarrassed him in front of his friends by refusing his initial overtures and that as a result he was angry and became crazy and obsessed with her. The Tribunal sympathises with the Applicant’s situation but the Tribunal notes that the “Convention was not designed to provide havens for individual persecutions” (Applicant A per McHugh J at 266). The Tribunal is satisfied that the Applicant does not have a well-founded fear of persecution arising from the sheik’s interest in her, if she returns to Morocco now.
The application for judicial review filed by the applicant on 16 April 2003 raised a number of grounds. An amended application was filed on 11 June 2003. Written submissions addressed two areas in which it was contended that the Tribunal reasons involved error of law amounting to jurisdictional error. However in oral submissions counsel for the applicant stated that the only ground relied upon was ground 5 in the amended application filed on 11 June 2003 as clarified in submissions. A further amended application was to be filed after the hearing to clarify the ground relied upon. However no such further amended application has been received by the Court.
Ground 5 is that “The Refugee Review Tribunal reached a conclusion on the question of whether the applicant’s fear of persecution was ‘for reasons’ of her membership of a ‘particular social group’ without properly identifying, or identifying at all, the relevant social group, if any, of which she was a member”. It was contended that the Tribunal did not exercise its jurisdiction according to law and made an error of law in not considering and determining the likelihood of persecution by reason of the likely failure or unwillingness of the authorities in Morocco to protect the applicant if she were to return to Morocco.

It was claimed that the persecution in issue was an anticipated failure to protect against harm likely to result to the applicant from the sheikh from the United Arab Emirates. It was submitted that the Tribunal did not consider and thereby failed to make a finding as to whether the failure to provide protection where the motivation of the perpetrator of the violence is private can result in persecution of the kind referred to in the Convention. It was contended that the applicant’s claim was presented on this basis. It was also submitted that the Tribunal erred in failing to find that the applicant was a member of a particular social group, that is women in Morocco, or more narrowly, woman at risk of private harm in Morocco and that such errors amounted to jurisdictional error.
The applicant contended that her circumstances were on all fours with the decision of the High Court in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 in which it was recognised that woman in a country (in that case Pakistan) could be recognised as a particular social group and that an absence of state protection for a Convention reason in relation to privately motivated harm could come within the Refugees Convention.
The appellant in Khawar was a woman from Pakistan who claimed to fear domestic violence at the hands of her husband. She claimed to have reported such domestic violence to the police on four occasions and that no action had been taken. Importantly the Tribunal in Khawar had proceeded on the basis that the applicant’s claims were true (see Gleeson CJ at [8], McHugh and Gummow JJ at [51] – [52]). However it had held that her husband’s motivation was personal rather than because she was a member of a particular social group. The claims of the appellant in Khawar raised a claim that the absence of state protection was by reason of her membership of a particular social group (if it were the case that women in Pakistan could be so described) (Gleeson CJ at [31] and [32], McHugh and Gummow JJ at [81] – [83]). It was in this context that the High Court considered that the Tribunal erred in failing to make findings about the appellant’s claims that the authorities failed to assist her and that such domestic violence was tolerated and condoned by the authorities ‘as an aspect of systematic discrimination against women’ (Gleeson CJ at [25]).
However there are a number of distinctions between this case and Khawar (and also see SDAV v MIMIA [2003] FCAFC 129). In Khawar the Tribunal had proceeded on the basis that the appellant feared harm from her husband. The Tribunal in this case did not regard the applicant’s fear of harm from the sheikh as now well-founded given the absence of any interest or contact from him for some considerable time. As the Tribunal rejected the claimed fear of harm, the reasons for the claimed fear and the presence or absence of state protection (for whatever reason) did not arise for consideration. The Tribunal did go on to make a finding that if the sheikh resumed his interest in the applicant on her return to Morocco, it could not be satisfied that she would have a well-founded fear of persecution from the sheikh or persons acting on his behalf for reason of her membership of a particular social group of Moroccan women or single women at risk or for any other Convention reason as his motivations had been towards her as an individual. No issue is taken with the Tribunal conclusions as to the private motivation of the sheikh. The issue is whether the Tribunal should have considered an anticipated failure by the authorities to protect against harm for reason of the applicant’s membership of a particular social group. However, the applicant did not claim that she would be denied state protection or that conduct of the sheikh (if it occurred) would be tolerated or condoned for a reason other than the status of the sheikh.
The applicant did not frame her claim to fear persecution in relation to activities of the Sheikh in terms of a particular social group. It is, however, well established that the Tribunal is not limited to determination of the case articulated by an applicant “if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant” (Merkel J in Paranananthan v Minister for Immigration [1994] FCA 28 at [63] and see Applicant NABX of 2002 v Minister for Immigration [2002] FCAFC 249 at [31] and MIMA v Applicant S [2002] FCAFC 244 at [73]. If such a case is raised then, as the High Court indicated in Dranichnikov v Minister for Immigration [2003] HCA 26 at [26] per Gleeson CJ, the Tribunal first needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention, then whether the applicant is a member of that class and then whether the applicant has a well-founded fear for a Convention reason.

It is necessary to consider whether the evidence and material before the Tribunal raised such a claim.
The Tribunal considered the specific claims the applicant made about events in Dubai, at a time when the sheikh was pursuing her. It found, however, that she had not been denied protection in Dubai, but had merely sought advice from an ex-policeman. Hence, her claims did not establish a past absence of state protection. Moreover the Tribunal considered the future in Dubai, but found that the advice of the ex-policeman did not suggest that the applicant would be denied police protection for a Convention reason, but because of the characteristics of the particular person ‘against whom she would have been complaining’. The material before the Tribunal did not raise a claim that any lack of state protection was or would be an aspect of systematic discrimination against women or some other group or that there would be state tolerance or condonation of private harm in relation to a member of any group. Hence it was not necessary for the Tribunal to consider whether the applicant was a member of a particular social group or identify a relevant social group.
The Tribunal did not address the issue of state protection in Morocco in its findings, but this must be seen in the context of the material which the Tribunal was considering and the findings it had made. As the applicant acknowledged, unless the sheikh did something to her she would have no grounds of complaint to the authorities. The Tribunal concluded that her fear was not well-founded in Morocco given the absence of any interest from the sheikh and the time that had passed. Contrary to the situation in Khawar, she had not sought state protection in Morocco, except in 1992 in relation to a claimed assault by a member of the Royal Family. There was no evidence before the Tribunal, nor did the applicant claim, that the Moroccan government would condone, tolerate or be unable or unwilling to help her by reason of her membership of any social group or for any other Convention reason (rather than, as claimed, because of the position of the sheikh himself or, indeed, the individual status of the member of the Royal Family about whom she had complained in 1992). In fact the country information the Tribunal referred to in its reasons indicated that female victims of domestic assault were assisted and protected by the state. Such inaction on the part of the state as she suggested would occur, was not said to be by reason of her characteristics (either individually or as a woman at risk of private harm or otherwise) but rather because of the status of the sheikh. In this respect the claim differs from Khawar where the High Court held that ‘discriminatory inactivity’ of state authorities in responding to the violence of non-state actors could amount to persecution. This is not a case in which it was claimed that there would be systematic and discriminatory failure (or a deliberate abstention) by the authorities to afford protection “to a member of an identified group” (Dranichnikov v MIMA [2003] HCA 26 at [30] per Gummow and Callinan JJ) or otherwise for reason of one of the Convention grounds. Hence it was not necessary for the Tribunal to identify a social group in the context of consideration of this aspect of the applicant’s claims. In this respect it is to be noted that the Tribunal also considered and rejected the applicant’s claim to fear persecution from the internal security authorities (such as the DST). It was in this context that she had claimed to fear persecution for reason of membership of the particular social group of women or of single women-at-risk. The applicant’s counsel did not take issue with the Tribunal reasoning in that respect. The identification by the applicant of a particular social group in the context of this claim was quite separate from her claimed fears resulting from the conduct of the sheikh. Further, as the applicant did not claim (and her material did not raise a claim) that she would be denied state protection in Morocco for a Convention reason there is no jurisdictional error in the Tribunal’s failure to address the issue of whether any absence of state protection could constitute persecution where there was a privately motivated perpetrator of harm as suggested in Khawar.
It has not been established that the Tribunal erred in a manner constituting jurisdictional error as contended by the applicant. As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 14 May 2004