SZNEG v Minister for Immigration - [2009] FMCA 786

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 786

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – test for determining the existence of a particular social group considered – persecution arising out of discriminating refusal of state protection considered.

Migration Act 1958, ss.91R, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Applicant S469 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 214
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1

Applicant:

SZNEG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 134 of 2009

Judgment of:

Cameron FM

Hearing date:

12 March 2009

Date of Last Submission:

12 March 2009

Delivered at:

Sydney

Delivered on:

19 August 2009

REPRESENTATION

Counsel for the Applicant:

Ms M. Allars

Solicitors for the Applicant:

Mallesons Stephen Jaques

Counsel for the Respondents:

Mr G.T Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 134 of 2009

SZNEG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Niger where, he claims, he was a slave. He alleges that while in Niger, he became involved with an anti-slavery organisation (“Timidria”) and was detained as a consequence.
The applicant claims to fear persecution in Niger because of his association with Timidria. He also fears persecution because of his “slave status” and because he is a member of the particular social group known as the “Bellah” and fears that he will continue to be enslaved and persecuted by his master.
After his arrival in Australia on 1 April 2007, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 23 May 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 9 September 2007 which was quashed by consent on 17 March 2008.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Background facts

The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-28 of the Tribunal’s decision (Court Book (“CB”) pages 506-530.

Protection visa application

In his protection visa application, the applicant made the following claims:
a)he was a member of the “Bellah” ethnic group which suffers discrimination in Niger. He was also a victim of slavery;
b)according to the International Labour Office and the Nigerien anti-slave organisation “Timidria”, more than 7,000 Bellah individuals live as the property of the Tuareg ethnic group, a situation to which the national authorities have been indifferent;
c)if the applicant returned to Niger it would be synonymous with suicide because of “the heaviness of the climate which reign between my masters and me on one hand and which the authorities on the other”;
d)in 2004 the applicant denounced the practice of slavery with a human rights organisation. He was subsequently tied up and beaten by his masters for 15 days and the meals the masters offered to his family were reduced by half;
e)in April 2005 the applicant and “more than one slave, … leaders of the civil company, traditional chief and three masters favourable to the release of the slaves” were locked in a small cell by the army in the area of Tillaberi;
f)the applicant was released after four weeks. However, he continued to be harassed, his workload was increased, he was regularly tortured and threatened with death by his masters;
g)in 2006 the applicant requested a share in the profits from part of the harvest resulting from his work. As a result, he was beaten and seriously wounded along with forty other slaves, some of whom were killed;
h)the applicant’s brother was forced to join an armed group in the north of Niger. Several slaves, including the applicant’s two sisters, were transferred to a faraway unknown destination;
i)in 2007 the applicant escaped several attempts by his masters to conscript him as a member of the armed group his masters had formed in the north and north-west of the country;
j)the applicant fears returning to Niger because of the inhumane treatment he received and because his masters would want to punish or kill him;
k)the applicant was “of a social group lower than the others” and he owed “respect traditionally and unconditional obedience to [his] masters”;
l)since the applicant spoke out against slavery his life had been insecure;
m)he did not receive any protection from the authorities because they denied the existence of slavery and tried to cover it up to protect the masters who were in positions of power and collaborated with the authorities;
n)some members of the authorities worked hand in hand with the army and the governor of Tillaberi was himself one of the “masters”; and
o)in 2005 the applicant was arrested by the authorities along with about fifty other slaves, leaders of a human rights organisation, traditional chiefs and “masters favourable to our community”.

First-constituted Tribunal hearing

At the Tribunal hearing, the applicant also made these claims:
a)he came to Australia to take part in the 12^th FINA World Swimming Championships in Melbourne but only arrived on the last day of competition because he had had difficulties obtaining his passport from the police;
b)as a member of Timidria, he spoke to his family and other members of his social group, the Bellah, about their rights. He also participated in demonstrations organised by Timidria and on one occasion he attended a big demonstration for the launch of a book about the problem of slavery in Niger;
c)he was not free to travel around Niger. He was harassed by police and his masters and needed an excuse to travel;
d)in 2005, when he and other slaves were detained in Tillaberi, they were accused of provoking social trouble and leaders of the Timidria organisation were arrested in Niamey and accused of fraud;
e)in 2007 he managed to avoid being deported to the north. Although slaves were not usually warned that they would be deported, he was informed and managed to run away at night. Even so, he stayed nearby at Inates for the three months before he left Niger for Australia;
f)he did not apply for refugee status when he travelled to France and Spain in 2003 as things were not as bad then and he did not think of himself as a refugee;
g)his situation worsened in 2004 when he joined the Timidria organisation and engaged in claiming his rights. Because of this the Tuaregs in his village threatened to deport him;
h)the Timidria organisation distributed help and food but had been unable to achieve more far-reaching changes since 2005 because they had been stopped by the government;
i)although slavery was against the law in Niger, in reality the law was not enforced; and
j)in 2005 Timidria attempted to free a group of people but the government stopped them because it was afraid that it would be discredited internationally.
On 4 July 2008 the Tribunal received a submission from the applicant which provided information concerning the persecution of anti-slavery leaders, evidence of conscription of slaves being sent to fight in the north of Niger and evidence of people trafficking in Niger. It also referred to problems with the interpretation of the applicant’s statements made by him at the first-constituted Tribunal hearing on

17 August 2007
and attached an affidavit from a professional interpreter. The applicant also provided a statutory declaration outlining his fears of what would happen to him were he to return to Niger.

Secondly-constituted Tribunal

On 20 August 2008 the applicant appeared before the Tribunal as secondly constituted to give evidence and present arguments. On that occasion:
a)the Tribunal put to the applicant that he had said that he had been locked up with the Timidria leaders in Tillaberi but that there was no evidence before it confirming that this had happened. The applicant stated that the leaders were locked up in Niamey, he was locked up in Tillaberi with a group of about forty people and he was not aware of why the event had not been reported, although there were witnesses;
b)although the Tribunal had not found any information to suggest that people were being forced to fight in the north of Niger, the applicant stated that the media in Niger were not as free as in other places, which is perhaps why this had not been reported. However, he was certain Timidria knew; and
c)the Tribunal noted that at the previous hearing the applicant stated he could not leave his master’s property without the latter’s knowledge or permission, that his master punished and threatened him with death and that he had not been able to complain or seek any help. It put to the applicant that he had completed his baccalaureat in Tillaberi, studied in Niamey, was a member of Timidria in 2004 and participated in its activities, including demonstrations, and that he had travelled to Spain, France and Australia despite his claim that his freedom of movement was restricted. He responded saying that his national travel movements were always a risk, however, he had travelled internationally because he was representing Niger and he had given his master money.
The applicant also claimed that:
a)he had not asked for protection in Barcelona in 2003 because at that time there were projects in Niger to professionalise activities which could have helped him and he was representing the country so he had felt quite secure and wanted to be in Niger;
b)he suffered both physically and physiologically, his life had been full of put-downs, insults and oppression and it was hard to have peace of mind; and
c)he wanted to be a pharmacist and succeeded in the exam to go to Dakar but this was refused by his master;
The Tribunal put to the applicant that legislation banning slavery had been passed in 2003, that Timidria had been operating openly in Niger and that his life experiences might indicate that he was able to exercise his rights under Niger law and live freely rather than under his master’s control. The applicant responded that the law and the reality were completely different and that although there had been official declarations in 2004 and 2005 that denied the existence of slavery, there was “no will” to apply the law.
When it was put to the applicant that Timidria had taken legal action against masters, he replied that he knew they had tried but there was no individual case where there had been movement at that level. He said that although Timidria had started many actions, he was doubtful of their outcomes.
The applicant told the Tribunal that he could not tolerate living under domination, his life was at risk and that although he had done a lot, he had paid a high price and taken a lot of risks.

Section 424A notice

The Tribunal wrote to the applicant pursuant to s.424A inviting him to comment on or respond to information it considered to be the reason or a part of the reason for affirming the decision under review. In particular, the Tribunal noted the events surrounding the arrest of the applicant in Tillaberi in April 2005, the lack of information available that persons were being sent to the north of Niger against their will and independent country information which suggested that Timidria has brought legal action and freed slaves in Niger. In response, the applicant’s adviser submitted that:
a)in relation to his claim to have been detained in Tillaberi in 2005, at the previous and current Tribunal hearings the applicant made a clear distinction between the arrest of Timidria leaders in Niamey and the arrest of Timidria supporters in Tillaberi in April 2005. In addition, the adviser referred to supporting information regarding the claim of detention, including:
i)a letter from the Timidria National Office which had been produced at both Tribunal hearings;
ii)a letter from the President of Timidria, which the adviser submitted was consistent with the applicant’s claims;
iii)a report entitled “Observatory for the Protection of Human Rights Defenders Annual Report 2005 – Niger” which outlined a number arrests of civil society activists; and
iv)various reports from the US State Department which the adviser submitted outlined extensive suppression of political opponents through arrest and detention;
b)in relation to the applicant’s claim that he was threatened with being sent to fight in the north of Niger, it was unreasonable of the Tribunal to expect NGOs in Niger to have reported and published information on this, given the Nigerien government’s restrictions on reporting the conflict in the north and the limited resources of Nigerien NGOs whose primary concerns are humanitarian relief. Further, it was submitted that regardless of the absence of directly supporting country information, this claim was not inconsistent with available independent general country information on Niger;
c)there is reliable country information to demonstrate that ex-slaves are actively persecuted for attempting to act on their rights and that this is condoned by the Niger government; and
d)the relationship between people of Bella or Bellah ethnicity and slavery appears to be accepted and well understood by local communities. Bella people are indigenous to parts of Mali and Niger and the term “Bellah” refers to many of those enslaved by the Tuaregs and even former slaves. The adviser evidenced this with an article on slavery in Mali and submitted that the applicant, who was born near the border with Northern Mali, has been and would continue to be subject to a similar power relationship with his masters.

The Tribunal’s decision and reasons

After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although the Tribunal accepted that the applicant was “of servile descent” or “of slave status” in Niger, that he had been a member of Timidria since 2004 and that in his capacity as a member of Timidria he travelled to demonstrations in Tillaberi, Ayorou and Naimey, it did not accept that he was arrested in April 2005 at Tillaberi, noting that:
i)it was unable to find any information about this event, although it found information that confirmed the leaders of Timidria were locked up in Niamey in 2005;
ii)it found that the letter from the President of Timidria dated 9 July 2007 did not indicate that arrests and detentions occurred in Tillaberi;
iii)it found that the letter dated 27 August 2008, again from the President of Timidria, did not provide evidence corroborative of the applicant’s claim concerning a mass arrest at Tillaberi; and
iv)considering that it was unable to find any contemporaneous reports of this event and, given the presence of the international media at the release of slaves at Inates in April 2005, it did not accept that mass arrests of the sort claimed by the applicant would have gone unreported;
b)the Tribunal did not accept that the applicant’s eldest brother was forced to take part in the fighting in the north of Niger, that the applicant himself escaped from also being forced to fight, or that there is a real chance that if the applicant were to return to Niger he would be forced to take part in such fighting, noting that:
i)while it accepted that fighting occurs in the north of Niger, there was no information available to the Tribunal to suggest that people from other parts of Niger are being forced to take part in this fighting and the applicant was given many opportunities to provide such information; and
ii)the evidence submitted by the applicant’s adviser did not assist the Tribunal to understand why Timidria would not report that people from the applicant’s area in the west of Niger were being forcibly taken to fight, especially given that he stated at the hearing that he was certain Timidria knew about this;
c)the Tribunal did not accept the applicant’s claims that he had restrictions placed on his freedom of movement by his masters, that he was punished, harassed and threatened by his masters and the authorities. In making this finding, it noted that the applicant gave evidence that he completed his baccalaureat in Tillaberi, studied in Niamey, was a member of Timidria in 2004, participated in demonstrations in several different regions and travelled overseas to Barcelona and France in 2003 where he did not apply for refugee status;
d)the Tribunal did not accept that there is a real chance the applicant would suffer harm on the basis of his membership of Timidria or because of his past or possible future anti-slavery activities if he were to return to Niger. It noted that the evidence before it suggested that anti-slavery activists or members of Timidria continue to operate openly in Niger and, apart from the incident in 2005, there was no evidence before the Tribunal that Timidria has subsequently experienced any further problems from the government;
e)although the Tribunal accepted that the Bellah are a particular social group and that the applicant is a member of that group, it did not accept that he would suffer persecution for reasons of his membership of that particular social group, noting that:
i)while it accepted that there may be some Bellah in Niger who suffer the harm claimed by the applicant, it found that they suffer that harm because they are slaves, not because they are Bellah; and
ii)whilst slaves are Bellah there is evidence that not all Bellah are slaves.
Therefore, the Tribunal found that being Bellah was not the essential and significant reason for the serious harm the applicant claimed to fear;
f)the Tribunal noted that while slavery undoubtedly continues to exist in Niger, it had to determine whether slavery “exists as one or more particular social groups for the purposes of the Convention”. It identified possible groups as “slaves in Niger”, “people born into servitude”, “people of servile status” and “people with a master”. The Tribunal did not accept that being Bellah was a determinative characteristic that would make any of these groups particular social groups, or that it was evidence that the applicant is a member of any of those groups;
g)although the Tribunal was satisfied that the group “slaves in Niger” is a particular social group, defined by the common characteristic of being “subject to someone else’s control”, it was not satisfied that the applicant is a member of that particular social group. It found that the applicant’s accepted history, that he completed his baccalaureat, studied in Niamey, travelled overseas in 2003, joined an anti-slavery organisation and participated in its activities, indicated that he was not a slave or enslaved and therefore not subject to someone else’s control. Further, the Tribunal found that the applicant will not be under the control of a master in the future because he has not been so in the past, he is a 31-year old man who has been able to study in a country that is 83% illiterate and has travelled both nationally and internationally;
h)the Tribunal was satisfied that the applicant is a member of the particular social group “people born into servitude” or of “slave caste”, a group distinguished by Niger’s caste system. However, the Tribunal found that, while people born into servitude in Niger can be treated as slaves, this was not because they were born into a particular social group “people born into servitude or of the slave caste” but because of the social and economic disadvantage suffered by most members of the group. In any event, for reasons relating to his education, travel and membership of Timidria, the Tribunal was not satisfied that the applicant would be treated as a slave for reasons of his membership of this group;
i)the Tribunal accepted that there is a particular social group “people of servile status” in Niger, distinguished by Niger’s caste system in terms of the status members hold in society rather than the caste into which they are born. However, in light of its findings that the applicant was not a slave in Niger, the Tribunal did not accept that the applicant was a member of this group;
j)on the basis of country information the Tribunal found that although there is a particular social group “people with a master” in Niger, it found that the applicant does not continue to have a master and is therefore not a member of this particular social group. However, if he does continue to have a master, the Tribunal considered that the applicant’s master has not restricted his freedoms in the past and also found that he has not suffered serious harm in the past, and will not suffer serious harm in the future, noting that:
i)country information suggests that most victims of slavery do not act on their rights for a variety of reasons including fear and physical coercion;
ii)the applicant has had the wherewithal to complain and exercise his right under Niger law to be free of his alleged master; and
iii)his education, Timidria connections and participation in that group demonstrate his capacity and will to exercise his rights to live freely rather than being forced to act in accordance with his master’s wishes; and
k)given the applicant’s accepted history and its findings that he does not have a well-founded fear of persecution, the Tribunal was not satisfied that any less favourable treatment which the applicant might receive (in Niger) would amount to harm sufficiently serious to constitute persecution for the purposes of the Convention.

Proceedings in this Court

In his application the applicant alleged:
(1)The Second Respondent misconstrued and misapplied the test set out in section 36(2) of the Migration Act 1956 [sic] (Cth) in relation to whether Australia has protection obligations to the Applicant under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (“Convention”), in the following ways:
(a)The Second Respondent failed properly to consider whether the Applicant was a member of the particular social group defined as “Slaves in Niger”;
(b)The Second Respondent failed properly to consider whether the Applicant was a member of a particular social group known as “people of servile status” in Niger, and whether the Applicant had a well-founded fear of persecution by reason of membership of that group;
(c)the Second Respondent failed properly to consider whether the Applicant was a member of a particular social group, the “Bellah” in Niger, or alternatively whether the Applicant had a well-founded fear of persecution by reason of membership of that group.
(2)In considering the existence of a real chance of persecution only by assessing the risk of persecution by Niger State authorities, and in failing to consider the risk of persecution by non-State agents with the toleration of the State or in circumstances where the State was unable or unwilling to provide effective protection against such persecution, the Second Respondent:
(a)misinterpreted or misapplied, or failed to apply, the correct legal test as to whether there was:
(i) a well-founded fear of persecution; and/or
(ii) inability or unwillingness to avail oneself of protection owing to fear of persecution;
within the meaning of the Convention; or
(b)failed to take into account a relevant consideration, namely the Applicant’s claim (and related evidence) of a well-founded fear of persecution by his master/former master (or his associates) and/or the toleration by Niger State authorities of, or the inability or unwillingness of Niger State authorities, to provide effective protection against, such persecution.
(3)The Second Respondent failed to take into consideration all of the elements or integers of the claim put forward by the Applicant, and as a consequence there was a constructive failure to exercise jurisdiction.

Ground 1: Tribunal applied the wrong test for whether Australia owed protection obligations to the applicant

Consideration of whether the applicant was a member of a particular social group defined as “slaves in Niger”

Detailed particulars were supplied in support of this aspect of the allegation which can be summarised as:
a)the Tribunal failed to define correctly the criteria for membership of the particular social group identified as “slaves in Niger”;
b)as a result, the Tribunal failed to apply the correct test for membership of that particular social group when considering whether the applicant is or is not a member of it; and
c)the Tribunal failed to take into account relevant evidence when determining whether or not the applicant is a member of that particular social group and consequently whether:
i)he has a well-founded fear of persecution by reason of his membership of that particular social group; and
ii)is, owing to that fear, unable or unwilling to obtain state protection in respect of that fear.
In Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 it was said that:
… identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand. (per Gleeson CJ, Gummow and Kirby JJ at 400-401 [36])
Correctly identifying a particular social group ensures that the decision-maker addresses accurately the case that is put in respect of which the relevant jurisdiction and powers are invoked (Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 per Kirby J at 403 [68]) and it is not until the Tribunal correctly identifies the relevant particular social group, should it exist, that it can ask whether an applicant is a member of that group and has a well-founded fear of persecution on that account. As to how to identify a particular social group, in Applicant S’s case it was said:
… the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. (per Gleeson CJ, Gummow and Kirby JJ at 400 [36])
Misapplying these criteria will amount to error on the Tribunal’s part.
In supporting the Tribunal’s decision, the Minister submitted that the identification of a particular social group involves a factual finding which is immune from review in this Court. That submission elides an issue and cannot be accepted in the terms advanced. The Tribunal must, as matters of fact, identify the particular social group to which the applicant allegedly belongs, should there be one; Applicant S469 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 214 at [7] and, if one is identified, determine whether the applicant is a member of that group. However, the identification of the particular social group must be undertaken in accordance with the principles laid down in Applicant S’s case. If the Tribunal fails to do this, it will have erred and its decision will be liable to be set aside.
Consequently, the principal issue arising out of the first allegation in the application to this Court is whether the Tribunal correctly applied the test set out in Applicant S’s case when considering the features which distinguished the particular social group known as “slaves in Niger”. As that issue involves a question of law it is not immune from review by the Court.
The Tribunal stated that the characteristic or attribute of the group “slaves in Niger” which unites the people who share it, and makes them a cognisable group within Niger, is slavery or enslavement. It defined slavery or enslavement partly by reference to what it took to be the applicant’s understanding of those concepts, that is, being subject to someone else’s control. The Tribunal also stated that identifying the group using concepts of control was supported by the definition of “slave” found in the third edition of the Macquarie Dictionary. The Tribunal noted that the Macquarie Dictionary defines a slave as one who is the property of and wholly subject to another, one who works for and is the prisoner of another or one entirely under the domination of some influence. The Tribunal went on to say that “enslaved” means to make a slave.
Most relevantly, in paras.79 and 80 of its decision the Tribunal said:
The Tribunal accepts that persons who are subject to someone else’s control or made a slave have a common characteristic that can identify them as slaves. But if being under the domination of another or enslaved is the only persecution feared “slaves in Niger” will not be a particular social group because it would be a group defined by the persecutory conduct. However, evidence indicates that persons who are subject to someone else’s control are also subject to harm such as being:
Forced to work, forced into unions or marriage, and have no control over whether their children go to school. Slaves are unable to inherit, all property belongs to the master and they are prevented from owning land. (see letter from Anti-slavery, 10 July 2008).
Since members of the group “slaves in Niger” have a common characteristic “subject to someone else’s control” that is not itself the feared persecution, and that sets them apart from their society, the Tribunal finds it is a particular social group.
The Tribunal can be seen to be saying at the outset of that passage that if being under the domination of another is the only persecution feared, “slaves in Niger” will not be a particular social group because the group would be one defined by persecutory conduct. However, it then went on to say that the real persecution was actually other harm which it identified. Confusingly given its initial comments, the Tribunal ultimately concluded that the characteristic of being “subject to someone else’s control” was not actually the feared persecution but was instead a distinguishing characteristic which sets “slaves in Niger” apart from their society.
The applicant submitted that it was erroneous for the Tribunal to use control as a distinguishing concept when identifying “slaves in Niger”. He said that the Tribunal should have identified that group by reference to concepts of ownership, that is to say, by the circumstance of one person being owned by another. The applicant’s case was that it was the attribute of being owned by another person, rather than the existence of constraints on physical freedom, which was the defining characteristic of “slaves in Niger”. The applicant submitted that by defining slavery in terms of control, rather than ownership, the Tribunal narrowed the definition unduly with the consequence that the applicant did not fall within it.
The applicant observed that although the International Convention to Suppress the Slave Trade and Slavery 1926 referred to slavery being the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and the idea of property or ownership was one of the various different aspects of the definition of slavery found in the Macquarie Dictionary and referred to by the Tribunal, it was not the aspect which the Tribunal chose to adopt as the characteristic which distinguished “slaves in Niger” as a particular social group. The applicant submitted that the Tribunal ought to have been open to considering concepts of slavery in a manner consistent with the way it is understood under international customary law which, he said, was reflected in the 1926 Slavery Convention and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery.
However, far from narrowing the concept of slavery as the applicant submitted, the Tribunal’s approach was more in keeping with the expanded concept of slavery which appears to have gained currency since the 1926 Slavery Convention. The 1956 Supplementary Slavery Convention and the Macquarie Dictionary indicate that the concept of slavery is broader than simple ownership and includes other conduct and circumstances, such as people trafficking and debt bondage. Moreover, it is difficult to understand how it could be said that the Tribunal’s approach was too narrow given that ownership implies control but control does not necessarily imply ownership. Indeed, once that is recognised, it can be observed that ownership and control are cognate ideas and the control identified by the Tribunal is similar to and yet broader than the ownership which the applicant said was the proper test for slavery. Even so, it must be recognised that not every form of control will amount to slavery and be suitable to distinguish the particular social group postulated. For instance, control need not denote servitude or subjection; it can signify simple subservience or even aspects of mere employment.
But in any event, the Tribunal was not required to identify a universally acceptable indicium of slavery or to define slavery per se. Its task was to determine whether there existed a particular social group “slaves in Niger” which was identifiable by some distinguishing characteristic. The conclusion which it reached was a finding of fact which, subject to the following discussion, cannot be disturbed by the Court.
The only matter which can concern the Court in this connection is whether, in performing this fact finding task, the Tribunal misapplied the test set out in Applicant S’s case. The applicant implicitly acknowledged this issue by advocating as the test which the Tribunal should have applied one based on ownership, a concept which, seemingly on the applicant’s case, has no persecutory qualities, in preference to the Tribunal’s test based on control which, on the applicant’s case, certainly did have persecutory qualities.
The confusion in this aspect of the case arises from the Tribunal’s unclear expression when it discussed control in paras.79 and 80 of its decision quoted above at [25]. In those paragraphs, the Tribunal correctly identifies control as a distinguishing characteristic but then mis-characterises it as persecution. That leads to a perception that “slaves in Niger” are subject to one sort of mistreatment (control) which is not properly to be characterised as persecutory conduct and other sorts of mistreatment (manifestations of that control) which do amount to persecutory conduct. This in turn suggests that the Tribunal was confused and drew a false distinction between what really were no more than two sorts of persecution. Although the Tribunal’s reasons are not lucidly expressed, it should be concluded that where it spoke of domination amounting to persecution, and thus appeared to confuse the distinguishing characteristic with the harm, in fact when it used the word “control” it meant control in the sense of power, not the uses to which such power might be put. This is made clear by its reference to the dictionary definition of slave at para.78 of its decision record, by its reference to the persecutory manifestations of such control and by its ultimate finding that the common characteristic of the group was “not itself the feared persecution”.
Although the Tribunal could have been clearer, the progress of this discussion in paras.78-80 of its reasons demonstrates well enough what it concluded. That is to say, it did not identify the particular social group of “slaves in Niger” by reference to the persecutory conduct allegedly feared by the applicant but by reference to the control which enabled that persecution to occur. Consequently, I do not find that the Tribunal identified the particular social group “slaves in Niger” by reference to the persecution which the applicant said he feared, and which presumably members of the particular social group also feared, or that because of this it failed to apply correctly the test laid down in Applicant’s S’s case.
The discussion quoted above at [25] also raises the question of what “control” meant in this situation. The applicant submitted that the Tribunal’s use of the term “control” implied physical control involving physical restriction and even detention, in the sense that a slave cannot go outside the physical area defined by the master and would probably be required to undertake work under the supervision of that master. The applicant submitted that being physically under another’s control was not a characteristic which could be used to identify a particular social group but was actually the persecution itself.
To qualify “control” by calling it “physical control” transforms it from the abstract concept of one person having power over another to the actual manifestation of that power. The applicant’s argument sought to transform control from a distinguishing characteristic to conduct of a persecutory nature. However, the applicant’s addition of the adjective “physical” is an interpolation into the Tribunal’s reasoning of an idea which that reasoning did not contain and distorts what the Tribunal was saying. As discussed above at [32] and [33], the Tribunal drew a distinction between concepts of power, which as already noted in these reasons are cognate to concepts of ownership, and conduct which amounts to persecution.
But in any event, the Tribunal found as a fact that the applicant was not a member of the particular social group “slaves in Niger” because, it concluded, he was not under anyone else’s control. This finding also excludes any issue of the applicant being owned by a master and thus a member of a particular social group defined by ownership because ownership, to have any reality, involves the owner’s right to control the property which is owned. Although the applicant’s case was that notwithstanding the degree of freedom which he obviously enjoyed he was, all the same, a slave, the Tribunal rejected this. In fact at para.66 of its decision the Tribunal said:
The Tribunal therefore finds that despite his assertions to the contrary, it does not accept that the alleged restrictions on his freedom including his freedom of movement by his masters and by the authorities and the alleged harassment, threats and punishment by his masters to him and his mother because he has left have occurred.
The Tribunal subsequently concluded at para.81 of its decision that the applicant’s alleged master did not exercise over him the sort of control which is characteristic of a person who is a member of the particular social group “slaves in Niger”. It concluded that, in reality, the applicant was under no one else’s control at all. This was a factual conclusion which was open to the Tribunal on the evidence before it. Although the applicant might dispute the correctness of the Tribunal’s conclusion that he is a free man, the Court is not empowered to substitute a different one.

The Tribunal failed properly to consider whether the applicant was a member of a particular social group “people of servile status”

The applicant particularised the allegation that the Tribunal failed properly to consider whether he is a member of the Nigerien particular social group known as “people of servile status” by reference to a number of matters which can be summarised as follows:
a)although in para.52 of its decision the Tribunal accepted that the applicant is “of servile descent” or “of slave status”, at para.86 it said that it was not satisfied that he belongs to the particular social group “people of servile status”;
b)the Tribunal failed to identify the common characteristic distinguishing the particular social group “people of servile status”;
c)the Tribunal erred in its factual finding that the applicant is not a member of the particular social group “people of servile status” given that it had found that he is “of servile descent” or “of slave status”; and
d)the Tribunal erred when determining whether the applicant is a member of the particular social group “people of servile status” by relying on its finding that the applicant is not a “slave in Niger”.
Relevantly for the first three points set out above, what the Tribunal said at para.86 of its decision was:
The group “people of servile status” is also distinguished by Niger’s caste system, but in terms of the status members hold in society rather than the caste they are born into. The Tribunal accepts that in Niger there is a servile caste with a common characteristic binding its members together and setting them apart as a recognisable group in society. It also accepts it is a group where the common characteristic is not the fear of persecution as country information shows they are subject to a variety of types of physical and psychological harm. The Tribunal is therefore satisfied that “people of servile status” is a particular social group in Niger. However the Tribunal is not satisfied that the applicant has the profile of a person of servile status in Niger.
Earlier, at para.52 of its decision it had said:
The Tribunal accepts that the applicant is “of servile descent” or of “slave status” in Niger …

The applicant submitted that, having found that he is “of slave status” and “of servile descent”, it was illogical for the Tribunal to find subsequently that he is not a member of the particular social group “people of servile status”. He submitted that this pointed to the Tribunal having asked the wrong question.
The applicant also submitted that it was not clear exactly how the Tribunal defined “people of servile status” because it started its comments by saying that the group is distinguished by Niger’s caste system but then went on to say that this distinction is made:
… in terms of the status members hold in society rather than the caste they are born into. (para.86)
It was submitted that the Tribunal failed to identify the common characteristic binding “people of servile status” together and, in particular, left it unclear whether it considered the group’s defining attribute to be birth into a particular caste or the status which a person holds in Nigerien society. The applicant submitted that although the Tribunal’s manner of defining the group left open the question of whether a person’s birth is the group’s defining characteristic, it nevertheless determined that the applicant is not a member of the group because, given the life of freedom he had enjoyed, he does not have the profile of a person of servile status.
The applicant also pointed to the Tribunal’s reference to the earlier part of its decision, where it had considered the “slaves in Niger” particular social group. The applicant submitted that this reference indicated that the Tribunal’s conclusion concerning whether he is one of the “people of servile status” was actually determined by its earlier finding that he is not one of the “slaves in Niger”.
Turning first to the applicant’s assertion that the Tribunal failed to identify a common characteristic distinguishing “people of servile status” as a particular social group, it should first be recalled that the Tribunal found that the “people of servile status” are a group distinguished by the Nigerien caste system. “Caste” is relevantly defined by the New Shorter Oxford English Dictionary as:
Any more or less exclusive social class.
The Macquarie Dictionary (rev. 3^rd ed) relevantly defines it as:
[A]ny rigid system of social distinctions.
The applicant’s submission implies that something more than Nigerien society’s recognition that “people of servile status” are members of a distinct social caste is required in order to identify the relevant particular social group. This is not necessarily so. In this regard, in Applicant S’s case Gleeson CJ, Gummow and Kirby JJ said, with reference to McHugh J’s reasons in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 concerning societal perceptions of the existence of a particular social group:
His Honour was expanding on the requirement that the existence of a particular social group requires that the group be distinguished or set apart from society at large. One way in which this may be determined is by examining whether the society in question perceives there to be such a group. Thus, perceptions held by the community may amount to evidence that a social group is a cognisable group within the community. (at 397-398 [27])
Their Honours went on to hold that the distinctiveness which a group is required to possess in order to be a particular social group does not depend on societal recognition of that distinctiveness, the ultimate question being whether the group is, in fact, distinguished from the rest of society. However societal recognition is evidence on that question.
It was therefore open to the Tribunal to find that the particular social group “people of servile status” exists because Nigerien society acknowledges it and considers it to be distinct from Nigerien society at large. That is to say, the group’s distinguishing attribute or characteristic is the recognition afforded it by Nigerien society. No error is disclosed by the Tribunal identifying this particular social group in that way.
It is also incorrect to say that the Tribunal identified or defined the particular social group “people of servile status” partly by reference to status inherited at birth rather than by reference to status dictated only by social and economic advantage or disadvantage. And it is incorrect to suggest that the Tribunal failed to identify the common characteristic binding “people of servile status” together. What the Tribunal relevantly said at para.86 of its decision was:
The group “people of servile status” is also distinguished by Niger’s caste system, but in terms of the status members hold in society rather than the caste they are born into.
This statement needs to be read in the context of, and as an express counterpoint to, the Tribunal’s earlier consideration of the particular social group “people born into servitude” in paras.83-85 of its decision. There it had found that the particular social group “people born into servitude” is a group distinguished by Niger’s caste system, the membership of which is acquired at birth by inheritance. The Tribunal’s use of the word “also” in the passage quoted in the preceding paragraph is a reference to that antecedent discussion.
In paras.83-85 and in para.86, the Tribunal relevantly identified two groups of people recognised by the Nigerien caste system as being particular social groups, and concluded that one is distinguished by its birth, namely “people born into servitude”, and another is distinguished simply by its status in society, namely “people of servile status”. While, on the Tribunal’s appreciation of the facts, membership of these groups arises out of general economic disadvantage and disempowerment, it found that membership of the former group is a matter of inheritance while membership of the latter group can, by implication, be acquired and lost. Importantly, both of these groups are distinguishable from the group “slaves in Niger”, whose characteristic feature is not membership of a caste recognised by Nigerien society but by the power which masters have over slaves, described by the Tribunal as “control”.
The Tribunal’s finding at para.52 that the applicant is “of servile descent” or “of slave status” was no more than anticipatory and reflective of its conclusion at para.83 that the applicant is a member of the particular social group of “people born into servitude”. In this connection, the expression “slave status” which the Tribunal used in para.52 of its decision should be understood to have the same meaning as the expression “slave caste” which it used in para.83. This group appears to share the bottom rung of the Nigerien caste system with the “people of servile status” while having the additional distinction of being an inherited condition. Consequently, although the two groups appear to have much in common, the Tribunal was able to distinguish between them. That being so, there was no illogicality in the Tribunal finding that the applicant is “of servile descent” and “of slave status”, i.e. one of the “people born into servitude” and in it also finding that he is not one of the “people of servile status”.
Additionally, the submission that the Tribunal erred in concluding that the applicant is not one of the “people of servile status” invites the Court to review one of the Tribunal’s factual findings, which is something it cannot do. In any other respect, this submission is disposed of by the conclusion reached in [49] above.
Finally, the suggestion that the Tribunal relied on its finding that the applicant is not a “slave in Niger” when determining whether he is a member of the particular social group “people of servile status” misunderstands the Tribunal’s reasoning. Relevantly, what it said was:
For the reasons set out above in relation to the finding the applicant is not a slave in Niger, the Tribunal finds the applicant’s advantages, history, and future good prospects in Niger society mean he is not a member of the particular social group “people of servile status”. (para.86)
In that passage the Tribunal was not explaining that it relied on its finding that the applicant is not a “slave in Niger” to reach its conclusion that he is not one of the “people of servile status”. Rather, it was saying, by reference to the same evidence of the applicant’s advantages, history and future prospects in Nigerien society which it had considered in relation to his claim to be a “slave in Niger”, that it found the applicant not to be a member of the group “people of servile status”.
For these reasons, I conclude that the Tribunal’s consideration of whether the applicant is a member of the particular social group “people of servile status” in Niger was not affected by jurisdictional error.

The Tribunal failed properly to consider whether the applicant was a member of a particular social group, the “Bellah”

The applicant particularised in the following terms his allegation that the Tribunal failed properly to consider whether he is a member of the particular social group known as the “Bellah” and whether he has a well-founded fear of persecution by reason of his membership of that group:
(i)The Second Respondent accepted that Bellah are a particular social group and that the Applicant was a member of that particular social group. However, the Second Respondent found no causal link between the Applicant’s Bellah status and the potential for the Applicant to suffer persecution (paragraph 73 of the decision) because not all Bellah are slaves (paragraph 73 of the decision) and not all Bellah are servile or have masters (paragraph 77 of the decision).
(ii)The Second Respondent failed properly to consider whether Bellah suffer persecution, because they are Bellah, for reasons beyond that of slavery or enslavement. This was despite country information before the Second Respondent that members of Bellah suffer persecution and systematic discrimination in Niger including exclusion from education, exclusion form political decision making processes; prohibitions on owning land and the right to leave their property to their children upon death.
At the outset it should be noted that the Tribunal did consider whether the applicant is a member of the particular social group known as the Bellah. It specifically found that he is. The real issue presented by this allegation is whether the applicant has a well-founded fear of persecution by reason of his membership of that group. Determination of this question will depend on findings on the matters raised by the second paragraph of the particulars.
Relevantly, what the Tribunal said was:
The Tribunal accepts that Bellah are a particular social group and that the applicant is a member of that particular social group. The applicant has claimed that Bellah suffer serious harm. Whilst the Tribunal accepts that there may be some Bellah in Niger who suffer the harm claimed by the applicant, they do not suffer that harm because they are Bellah. They suffer that harm because they are slaves… (para.73)
The applicant submitted that the Tribunal failed properly to consider whether the Bellah as a group suffer persecution because they are Bellah and, in particular, that they may do so for reasons beyond the slavery or enslavement of particular members of the group. The applicant also submitted that the Tribunal’s decision involved an assumption that members of the Bellah who are not slaves but are descendents of slaves are not harmed “because they are not slaves” even though there was no evidence to support such an assumption and the Tribunal made no express finding to that effect. He went on:
That members of Bellah are harmed by reason of being members of the group of slaves does not preclude that members of Bellah may also be harmed by reason of being members of Bellah.
He also submitted that the Tribunal assumed that only those Bellah who are slaves suffer harm although there was country information that all Bellah suffer harm.
The applicant further argued that the Tribunal had assumed that there could only be one Convention reason causing the harm suffered by members of the Bellah notwithstanding that s.91R(1)(a) of the Act contemplates the possibility of there being more than one Convention reason for a person’s persecution.
When considering these submissions, it should not be forgotten that the applicant’s claim to fear persecution was based on his allegations that he is a slave, that he is a slave because he is a member of the Bellah particular social group and that all Bellah are slaves:
a)in his application to the Minister’s department reproduced in para.19 of the Tribunal’s decision, the applicant said:
Indeed, I belong to a social group very discriminated, the Bellah ethnical making object of slave system in these modern times … we continue to exist as a tangible property (inheritance) of the Touareg ethnic group (powerful and armed) under the indifferent of the national authorities.
In his evidence to the Tribunal as first constituted, the applicant said that the situation of the Bellah was worse than that of a group of white-skinned people known as the Imaham who were called free, even though the Tuaregs still had the right to make them do what they wanted, because the Bellah were not free; they had no rights at all (para.21, CB 510);
b)at the hearing on 20 August 2008 the Tribunal, as secondly constituted, put to the applicant that it needed to think about whether he would suffer persecution because, even though it might accept that he was Bellah, the applicant was saying that it necessarily followed that he had slave status and he would suffer because his masters would want him to return. In response, the applicant’s adviser told the Tribunal that the applicant’s masters still exerted control over him. The applicant said that he was at risk of persecution from his master because of his social status in that he belonged to the slave caste and would be targeted for punishment as an example to other slaves (para.40). The Tribunal also put to the applicant’s adviser that there seemed to be an assumption that if a person was Bellah then they were a slave but the Tribunal might not accept that the second proposition followed from the first. The adviser put to the Tribunal that there was evidence that the applicant is a slave (para.45); and
c)in his response to the Tribunal’s s.424A notice of 22 August 2008, the applicant’s adviser observed that in most writing on the subject, there is minimal explanation of the relationship between Bellah ethnicity and status as a slave. Even so, it was submitted that the relationship between the two appeared to be accepted and well understood locally. The applicant’s adviser submitted that the term “Bellah” refers to many of those enslaved by Tuaregs and even former slaves. It was submitted that most of the slavery in neighbouring Mali takes place between Berber-descended Tuaregs and the indigenous Bellah people and that although the applicant comes from Niger he would be subject to a power relationship with his masters similar to the situation described in relation to Mali (CB 529).
Therefore, the claim which the Tribunal was called upon to consider was the applicant’s claim to fear the slavery allegedly inherent in his membership of the Bellah particular social group. It did this. When it said:
Whilst the Tribunal accepts that there may be some Bellah in Niger who suffer the harm claimed by the applicant, they do not suffer that harm because they are Bellah. They suffer that harm because they are slaves … (para.73)
the Tribunal expressly stated that it had considered the allegations made by the applicant concerning the consequences of being a member of the Bellah particular social group. Whether the Bellah might suffer harm of a different sort was not relevant to the Tribunal’s review. Its concern was to determining whether the applicant has a well-founded fear of persecution for a Convention reason in terms of the claim he made. This claim was based on him being a slave.
The submission that the Tribunal’s decision regarding the Bellah particular social group involved a factually unsupported assumption that the descendents of slaves are not persecuted because they are not slaves themselves must be rejected. Although an inference can be drawn from the Tribunal’s finding that those Bellah who are not slaves, including those who are the descendents of slaves, do not suffer relevant harm, that does not mean that the Tribunal was required to, or did, make such a finding or that its decision was based on an assumption to that effect. The Tribunal was not required to do more than set out the material findings of fact grounding the reasons on which its decision was based. This it did. The Tribunal’s decision was based on its satisfaction concerning why certain individuals suffered particular harm. Relevantly, the evidence satisfied it of nothing more and relevantly nothing more should be read into its decision.
As already noted, the applicant also submitted that the Tribunal misapplied s.91R(1)(a) of the Act by assuming, contrary to the contemplation of s.91R(1)(a), that there could only be one operative cause of the claimed harm suffered by the Bellah. Section 91R(1)(a) provides:
(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; …
The essence of this submission is that the Tribunal failed to consider that a person may be persecuted because he or she is a member of the group “slaves in Niger” as well as being persecuted because he or she is a member of the Bellah. This is no more than a reformulation of the question concerning whether being a member of the Bellah generates a real chance of persecution. The answer to the applicant’s submission is that the Tribunal did consider whether being Bellah would, itself, be a reason for the applicant having a well-founded fear of persecution and answered the question in the negative at that part of para.73 of its decision quoted above at [60].
Finally, as the particulars of this allegation concerning the Bellah particular social group reveal, the allegation is, in reality, no more than a challenge to the findings of fact which the Tribunal made concerning whether the applicant has a well-founded fear of persecution by reason of his membership of the Bellah. The findings which the Tribunal reached on this question were open to it and thus do not support a finding of jurisdictional error.
Jurisdictional error is not disclosed by any of the matters alleged by the applicant in connection with the Bellah particular social group.

Ground 2: Failure to consider the risk of persecution by non-state agents in the absence of effective state protection

Background

The second allegation made in the application to the Court was based on the High Court’s reasons for judgment in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1. In that case, the High Court held that it was open to the Tribunal to conclude that Pakistani authorities had denied Ms Khawar protection from violent treatment by her husband and his family because she was female. It was held that persecution within the meaning of the Convention would exist where persecution or harm inflicted by persons other than the state, including private citizens, was tolerated or condoned by state authorities in a discriminatory manner. As McHugh and Gummow JJ said:
… the persecution in question lies in the discriminatory inactivity of State authorities in not responding to the violence of non-State actors. Thus, the harm is related to, but not constituted by, the violence. (at 29 [87])

Allegation

The applicant alleged that the Tribunal erred in its application of the test concerning whether he:
a)has a well-founded fear of persecution; and/or
b)is unwilling or unable to access state protection.
The applicant also alleged that the Tribunal failed to take into account:
a)his claim to have a well-founded fear of persecution by non-state actors; and
b)the question of whether the Nigerien state is unwilling or unable to provide protection from such persecution.
The second part of the allegation was particularised in terms which may be summarised as follows:
a)although the Tribunal accepted that the applicant was a member of Timidria, it failed to make any finding in relation to his claim that he had been physically abused by his master because of his membership of Timidria, his anti-slavery activities or his anti-slavery opinions;
b)the Tribunal failed to make any finding on certain country information which disclosed the toleration of slavery by Nigerien state officials and the failure of the Nigerien government to enforce its prohibition on slavery; and
c)the Tribunal failed to consider whether the applicant has a well-founded fear of persecution by his master and the latter’s associates because of his anti-slavery political opinions or his membership of any of the following particular social groups in respect of which adequate state protection was unavailable in Niger:
i)anti-slavery activists or members of Timidria;
ii)the Bellah;
iii)slaves in Niger;
iv)people born into servitude;
v)people of servile status; or
vi)people with a master.

Submissions

Concerning the first part of the allegation, the applicant submitted that the Tribunal failed to apply “the correct Convention test” because, in respect of the persecution which he allegedly fears from non-state actors, it failed to consider whether he is unable or unwilling to seek state protection or whether Niger is unable or unwilling to provide it. The applicant submitted that the Tribunal did not consider whether there is persecution (impliedly of slaves and Bellah) by non-state actors which is tolerated by Nigerien authorities by way of systematic discrimination against slaves or Bellah.
As to persecution by non-state actors, the Minister submitted that in fact the Tribunal did consider the applicant’s position vis-à-vis any “master” but was not satisfied that he continued to have a master or was a member of the particular social group “people with a master”. The Minister submitted that, in any event, the Tribunal found, at least impliedly, that Niger was able and willing to protect the applicant and that this would enable him even if, contrary to the Tribunal’s findings, he had a master and faced harm, to live freely and to not be forced to obey his master or face punishment.
As to the second part of the allegation, the applicant’s submissions dealt with the Tribunal’s alleged failure to take into account a relevant consideration, namely the applicant’s claim to fear persecution from non-state actors in respect of which the Nigerien state was unable or unwilling to provide protection. Here, the applicant referred to the Tribunal’s alleged failure to make any finding in relation to the applicant’s evidence of past physical abuse at the hands of his master because of his anti-slavery activities, his anti-slavery political opinion or his membership of Timidria.
It was submitted that the Tribunal failed to consider whether mistreatment of anti-slavery activists in Niger had been condoned or tolerated by Nigerien authorities in a discriminatory manner or was persecution in respect of which Nigerien state protection was not available. It was further submitted that the Tribunal failed to make findings as to state toleration of, or discrimination concerning, non-state actors’ persecution of the various particular social groups particularised above at [69].
The Minister submitted that the allegation that the Tribunal failed to consider relevant considerations assumed that it had made no finding as to whether the applicant faced any fear of persecution from his master, his former master or the latter’s associates. The Minister submitted that the Tribunal’s consideration of this issue was apparent from its finding that he faced no such persecution. In this regard, the Minister observed that the Tribunal had said that it was “not satisfied he has suffered serious harm in the past [or that he will] suffer serious harm in the future” (para.87) and also that it had not accepted the applicant’s allegations concerning the harassment, threats and punishment which he said had been inflicted on him by his masters (para.66). The Minister also pointed to the Tribunal’s conclusion that it did not accept that there was a real chance that the applicant would suffer any harm, including detention by the Nigerien authorities, should he return to Niger (para.71).
In respect of both parts of the allegation the Minister submitted that the Tribunal had no need to consider the question of state protection because it did not find that the applicant has a well-founded fear of persecution for a Convention reason.

Consideration

As to the first part of the allegation, it is correct that the Tribunal did not find that the applicant would face a real chance of persecution for a Convention reason from non-state actors. Indeed, as already noted, the Tribunal found that the Bellah are not persecuted because they are Bellah and it also found that the applicant is not a slave or member of a particular social group whose members are persecuted by reason of that membership.
As a consequence, the applicant was not found to have a well-founded fear of persecution in respect of which it was necessary for the Tribunal to consider the issue of state protection.
As to the second part of the allegation, in para.66 of its decision record the Tribunal expressly and generally rejected all of the applicant’s claims to have suffered harm at the hands of his alleged masters. This finding was made in the context of the applicant’s various claims concerning the harm he claimed to have suffered in the past. One of those claims, which is referred to at CB 506 (para.19) and CB 508-509 (para.21) in the Tribunal’s rehearsal of the evidence, was that the applicant’s membership of Timidria and anti-slavery activities attracted the harmful attentions of his masters. However, and expressly in connection with such allegations, the Tribunal found that the applicant’s freedoms had not been restricted by his alleged masters (para.66). Such a finding is inconsistent with the proposition that the applicant’s alleged masters would seek to harm him for participating in anti-slavery activities. Essentially, the Tribunal found that if the applicant did have a master, that person did not object to his anti-slavery activities, which necessarily entails a conclusion that the applicant could have no well-founded fear of persecution at the hands of this person by reason of those activities.
Again, as the applicant was not found to have a well-founded fear of persecution at the hands of his masters, there was no need for the Tribunal to consider the availability of state protection in that connection.

Ground 3: Failure to consider all the integers of the applicant’s claim

The third allegation made in the application was particularised in the following terms:
(i)The Second Respondent failed to consider whether the Applicant had a well-founded fear of persecution by his masters/former masters (or their associates) or by the Niger authorities on the basis of the political opinion possessed by the Applicant and/or imputed to him, by reason of his membership of Timidria or his anti-slavery activism.
(ii)The Second Respondent failed to make any finding in relation to the Applicant’s evidence of past physical abuse by his masters by reason of the Applicant’s anti-slavery political opinion.
(iii)The Second Respondent’s failure to determine the Applicant’s claim based on the Applicant’s actual/or imputed political opinion constituted a jurisdictional error.
The applicant submitted that the Tribunal had failed to address and deal with the claim put by him and that it therefore constructively failed to exercise jurisdiction.
The Tribunal did not fail to consider any of the matters which the applicant particularises in connection with this allegation. Consequently, the allegation cannot be made out on the facts. In this regard, and as already noted above, at para.66 of its decision record the Tribunal expressly rejected the applicant’s allegations to have suffered harassment, threats and punishment by his masters or to have suffered restrictions on his freedom at their hands. Further, in para.71 of its decision, the Tribunal expressly rejected the proposition that there is a real chance that the applicant will suffer harm from the Nigerien authorities on the basis of his membership of Timidria or his past or possible future anti-slavery activities. Moreover, the Tribunal did not accept the applicant’s claim to have a master and was not satisfied that, in the past, he had been under anyone else’s control.
For these reasons, the third ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.

Conclusion

Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 19 August 2009