SZCEI v Minister for Immigration
[2006] FMCA 991
•14 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCEI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 991 |
| MIGRATION – Review of RRT decision − where Afghani applicant granted temporary protection visa − where Tribunal refused grant of further visa − where Tribunal no longer considered applicant to have a well founded fear of persecution given changed circumstances in applicant’s country of nationality − whether Tribunal’s application of Article 1C(5) of the Refugees Convention to assessment under s.36(3) was the correct approach where applicant already holds temporary protection visa − where applicant found not to be a part of a particular ‘social group’ for the purposes of the Convention − whether Tribunal committed jurisdictional error in defining ‘social group’. |
| Migration Act 1958, s.36(3) Federal Magistrates Court Rules 2001 Refugees Convention Article 1C(5) |
| NBGM v Minister for Immigration [2006] FCAFC 60 QAAH v Minister for Immigration [2005] FCAFC 136 SZECG v Minister for Immigration [2006] FCA 733 TPC v Abbco Iceworks (1994) 52 FCR 96 Applicant A v Minister for Immigration (1997) 190 CLR 225 Applicant S v Minister for Immigration [2004] 217 CLR 387 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 |
| Applicant: | SZCEI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2753 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 7 July 2006 |
| Date of Last Submission: | 7 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Craddock Murray Neumann Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2753 of 2003
| SZCEI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, who is a citizen of Afghanistan, arrived in Australia on 5 October 1999. He lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.
He was granted a sub-class 785 (temporary protection) visa on
5 January 2000 on the basis that he was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. On 10 February 2000 he lodged an application for a further protection visa with the Department.
On 13 August 2003 a delegate of the Minister refused to grant a further protection visa and on 21 August 2003 the applicant applied for review of that decision. The applicant was represented at the review by a firm of solicitors and migration agents and appeared before the Tribunal. On 28 October 2003 the Tribunal affirmed the decision not to grant a protection visa.
In coming to its decision the Tribunal came to a number of conclusions about the status of the law in relation to the application. It determined that the provisions of Article 1C(5) of the Refugees Convention applied so that it was bound to consider whether, in accordance with that article, the applicant could no longer continue to refuse to avail himself of the protection of his country of nationality because the circumstances in connection with which he was recognised as a refugee had ceased to exist. It found as a fact that the circumstances pursuant to which protection was granted was the existence of the Taliban as the government of Afghanistan and the persecution by the Taliban of persons of Hazara ethnicity such as the applicant. Having determined that the Taliban government had been removed in 2001 the Tribunal stated:
“On the basis of all the material before it the Tribunal finds that the applicant can no longer continue to refuse to avail himself of the protection of Afghanistan because the circumstances in connection with which the applicant was recognised as a refugee has ceased to exist. Therefore, Article 1C(5) of the Convention applies to the applicant.”
The Tribunal also found:
“Even if the Tribunal were wrong in its conclusion about the application of Article 1C(5) the Tribunal finds that the applicant is not a person to whom Australia has protection obligations in relation to the circumstances in connection with which he was recognised as a refugee, because of the operation of s.36(3) of the Act. As explained above, if a previously recognised refugee no longer has a well founded fear of being persecuted in his or her country of nationality for one or more of the convention reasons, and has not taken all possible steps to avail himself or herself of a right to enter and reside in that country s.36(3) will apply irrespective of the operation of the cessation clauses. The Tribunal finds that, as a national, the applicant is able to avail himself of the right to enter and reside in Afghanistan and that, having regard to the changed circumstances since he was recognised as a refugee, he no longer has a well founded fear of being persecuted in that country because of the circumstances in connection with which he was so recognised. It follows that s. 36(3) applies in relation to those circumstances.”
The Tribunal then went on to consider some further claims made by the applicant which had arisen since he was recognised as a refugee in January 2000:
“The applicant has claimed that, in the current environment in Afghanistan, if he was to return, he would face persecution as a Hazara and as a Shi’a (and therefore perceived by some not to be a true Muslim), from members of other ethnic groups particularly the Pashtuns and that he would face persecution by a Hazara warlord who has had past political disputes with family members particularly the applicant’s paternal uncles. He has also claimed that he would be persecuted because he was a member of a particular social group defined as “Afghans who have returned to their village/local area after a long area” or “Afghans who are Hazara who have returned to their village/local area after a long absence.””
This case first came before me on 24 February 2006. At that time I adjourned the matter because I was aware that a specially convened Full Bench of the Federal Court of Australia was hearing NBGM v Minister for Immigration [2006] FCAFC 60 in which the arguments that were to be raised in the instant case were being considered so far as the application of the Refugee Convention was concerned. I was also aware of an appeal to the High Court in a matter known as QAAH v Minister for Immigration [2005] FCAFC 136. Once the decision in NGBM was handed down I arranged for this matter to be heard.
The amended application contained four grounds, one of which related to an alleged jurisdictional error in the interpretation of Article 1C(5) of the Refugees Convention, two related to a misapplication of s.36(3) of the Migration Act 1958 and the fourth was in the following form:
“4 The Tribunal asked itself the wrong question/took into account an irrelevant consideration in assessing whether the applicant was a member of a particular social group.
Particulars
(a)The Tribunal asked itself whether those belonging to the posited particular social group were perceived as set apart from Afghan society, whereas such perception is not a requirement of a particular social group.”
I was provided by the respondent with some helpful supplementary written submissions in relation to the position of the court following the decision in NBGM v Minister for Immigration [2006] FCAFC 60, with particular reference to the decision of Branson J in SZECG v Minister for Immigration [2006] FCA 733, a matter on appeal from the Federal Magistrates Court. Her Honour confirmed that the ratio of the decision in NBGM accepted by the majority, and set out at [25] in the judgment of the Chief Justice, required the Tribunal to consider whether the applicant had, at the time of its decision, a well founded fear of persecution in Afghanistan for a convention reason. That was the test carried out by the Tribunal in the instant case. Mr Karp, who appears on behalf of the applicant, accepts that I am bound by the decisions in NBGM and SZECG but not by the reasoning: TPC v Abbco Iceworks (1994) 52 FCR 96 at [113] per Burchett J. Mr Karp reserves his position that NBGM and cases following therefrom were wrongly decided and that the correct interpretation of the law was that contained in QAAH which was accepted by the minority in NBGM.
The effect of this concession was that I was left only with the discrete point raised by paragraph 4 of the amended application.
At the time of the Tribunal’s decision the requirements for finding the existence of a particular social group had been defined by the High Court in Applicant A v Minister for Immigration (1997) 190 CLR 225. In a submission from the applicant’s lawyers to the Tribunal, found at [CB 244], there is found the following at [CB 247]:
“It is submitted that the social groups proposed above fulfil the following criteria:
a) the term particular social group is indeterminate and flexible. Attempts to provide an exhaustive definition have been resisted by the courts (Applicant A v Minister for Immigration (1997) 190 CLR 225 per McHugh J at 259);
b) there must, however, be a common unifying element, characteristic attribute, activity, belief, interest or goal which unites the members of the group ( Applicant A, per Dawson J at 241, McHugh J at 264 266);
c) the group must be cognisable within the relevant society; there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community by reason of those shared characteristics (Applicant A per Dawson J at 241, McHugh J at 264, 266);
d) the group cannot be defined by persecution suffered or a common fear of persecution (Applicant A, per Dawson J at 242, McHugh J at 263, Gummow J at 285-6);
e) whilst persecution cannot define the social group, the actions of the persecutors may serve to identify or cause the particular social group in the society (Applicant A per McHugh J at 264).”
The Tribunal’s findings and reasons in relation to the evidence put to it for the existence of the particular social group defined by the applicant and his membership thereof are found at [CB 290]:
“The applicant’s agent has suggested that the applicant is at risk of persecution as a member of a particular social group, which she defined as “Afghans who have returned to their village/local area after a long absence” and/or Afghans who are Hazara who have returned to their village/local area after a long absence.” The agent drew the Tribunal’s attention to various cases in which the issue of “particular social group” has been discussed and, in particular, that of Applicant A cited above.
However, the Tribunal is not persuaded that a group along the lines suggested by the applicant’s agent could properly be regarded as a “particular social group” within the meaning of the Convention. As noted above, Applicant A is seen as authority for the proposition that a putative “particular social group” in the Convention sense must be shown to have three features; there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; that characteristic must set the group apart, as a social group, from the rest of the community; and there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.
However, the applicant’s agent has not indicated how those individuals who have returned to their homes after long absences constitute a group which is united in any way, or set aside from the community at large, either in their own eyes or in the eyes of the community at large. Afghanistan has a long history of civil unrest which has caused massive disruptions in the community. It is a matter of public knowledge that many thousands of people were forced to leave their homes in order to avoid the fighting. Others left their homes to participate in the fighting on behalf of one or another of the warring groups. Of those who have returned to their homes, some have been abroad in neighbouring Islamic countries such as Iran or Pakistan, others have travelled further to western countries like Australia, while others were displaced within Afghanistan. Some returned months or even years ago and others more recently. Some have returned with little in the way of possessions, and others with more.
The Tribunal is not aware of anything which would indicate that those who have returned to their home area or villages after a long absence together constitute a group which is seen as sufficiently different from the Afghan society at large as to constitute a “particular social group” within the meaning of the Convention.
The Tribunal notes the articles submitted by the agent in which people who have returned to Afghanistan have commented on the incidence of violence and robberies. However, the totality of the information before the Tribunal indicates that violence and robberies are, unfortunately, still a daily occurred in that country. There is nothing to suggest that those who have returned are singled out for attention.
The Tribunal finds that the groups postulated by the applicant’s agent do not constitute “particular social groups” in the Convention sense in Afghanistan.
The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution in Afghanistan for a Convention reason.”
It is clear from the last sentence of the second paragraph of the extract cited above that the Tribunal considered that recognition within society of the group was a necessary constituent of the definition. But this would now be considered a jurisdictional error since the decision of the High Court in Applicant S v Minister for Immigration [2004] 217 CLR 387 at [27, 34-36] as the law has been clarified so that whilst recognition may amount to evidence of the existence of a social group it is no longer a requirement. The essential factor is the distinguishing of the group from the rest of society. But it is important to note that even with this amended form of definition the Tribunal had still to be satisfied of the existence of a common unifying element characteristic, attribute, activity, belief, interest or goal and the members of this group must still be distinguished from the rest of society. If the decision made by the Tribunal on the facts is that these characteristics do not exist then the jurisdictional error in making reference to the “requirement” is not a jurisdictional error that goes to the heart of the decision but is in reality irrelevant to the decision. It seems to me that from a reading of the decision in a holistic way and not “with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [9] per Brennan J that the Tribunal made its decision predominantly on the basis of the first two limbs of the test set out in Applicant A and not on the basis of the third which, in the light of the decision of Applicant S, it stated incorrectly. The Tribunal held that there was a lack of evidence on which it could be clearly substantiated that the applicant fell within the convention definition of a “particular social group”. It did not decide the issue on the question of whether the rest of the community perceived the group to be made up of individuals set apart from it.
Mr Karp argues that the Tribunal did this very thing and that this evidenced by the use of the words “either in their own eyes or in the eyes of the community at large the Tribunal is not aware of anything which would indicate that those who have returned to their home area or villages after a long absence together constitute a group which is seen as sufficiently different from Afghan society and there is nothing to suggest that those who have returned are singled out for attention.” (emphasis added).
Mr Johnson submits that the manner in which the Tribunal expresses itself was conditioned by the arguments put to it by the applicant’s advisors rather than being an independent interpretation of the law by the Tribunal itself. Whilst I would tend to agree with him I do not think that would save the decision from a jurisdictional error which both the applicant and the Tribunal had consensually committed.
In my view the Tribunal was not suggesting that the lack of evidence that the group was set aside existed solely because there was no evidence of how it was perceived by others. It came to the conclusion that it was not perceived in that manner by the putative members of the group either. This would be enough to take the group out of the convention definition.
I accept that the second reference to the group being seen is a reference to the Applicant A definition but as I have said I believe this reference to be otiose. Finally, I do not agree that the reference by the Tribunal to the “lack of evidence that those who have returned are singled out for attention” is likewise a reference to perception. To my mind, it is merely a reference to the motive for the alleged persecution. What the Tribunal is really saying is that it sees no evidence that the motive for the persecution e.g. by way of robberies, which it accepts are widespread, is the membership of the group. There was evidence of general lawlessness constituted by robberies and assaults on Afghani citizens generally. There was no satisfactory evidence (so the Tribunal determined) that the susceptibility of returnees to this violence resulted from their status as returnees as opposed to their status as Afghanis.
In these circumstances I am unable to find that in relation to the discrete the matter the Tribunal fell into jurisdictional error in the manner in which it came to its conclusion. The conclusion arose out of findings of fact with which the court cannot interfere and those findings of fact excluded the applicant from falling within the definition of membership of a social group whether or not that definition required the group to be recognised. I dismiss the application and I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
I cannot conclude these reasons without making reference to recent reports appearing in all forms of the media of the resurgence of Taliban in Ghazni province, the applicant’s home state. Fighting in Southern Afghanistan is reported to be violent and the NATO troops sent there are at considerable risk. It is to be hoped that in light of this further change in circumstances since the application was declined, the Minister can give the applicant the benefit of s.48B of the Migration Act.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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