Taylor v Minister for Immigration and Multicultural Affairs

[1999] FCA 661

FEDERAL COURT OF AUSTRALIA

Taylor v Minister for Immigration & Multicultural Affairs [1999] FCA 661

IMMIGRATION - application for review of decision by Refugee Review Tribunal - applicant had been conscripted into a faction subsequently come to power and had "deserted" in action - applicant's credibility doubted by Tribunal - Tribunal nevertheless considered and rejected claim of well-founded fear of persecution for imputed political opinion - whether necessary also to consider whether applicant member of an alleged particular social group

Migration Act (Cth) 1958

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247, applied
Israelian v Minister for Immigration & Multicultural Affairs at first instance [1998] FCA 447, cited
Minister for Immigration & Multicultural Affairs [1999] 1999] FCA 649, cited

TAYLOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 782 of 1998

MADGWICK J
6 AUGUST 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 782 OF 1998

BETWEEN:	DAVID TAYLOR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MADGWICK
DATE OF ORDER:	6 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 782 OF 1998

BETWEEN:	DAVID TAYLOR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MADGWICK
DATE:	6 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an application for the limited form of judicial review available under the Migration Act (Cth) 1958 ("the Act") in relation to a decision of the Refugee Review Tribunal.  The Tribunal upheld a decision by a delegate of the respondent that the applicant is not entitled to refugee status.

2. The applicant's case was that in 1995, during the then civil war in Liberia, which he claimed was his country of nationality, he was forced to join an armed faction known as the NPFL, his father having been shot when he refused to allow the applicant to go with the NPFL's agents who had come to recruit him.  Later, the applicant escaped while the NPLF unit, to which he was attached, was engaged on a murderous mission.  He made his way to his uncle's house.  He and his uncle fled to an island allegedly called "San Pedro" where he stowed away on a ship to Spain.  He played professional soccer in Spain and later in Italy.  He had left Italy to learn more English and to continue to play soccer and for those same reasons he had come to Australia.  He had come here by air on a forged British passport which he destroyed before being interviewed at his point of entry into Australia.  He claimed to have a fear of persecution by his former NPFL colleagues.  Their faction had come to power, they would have been promoted, and they would want to kill him because he had "disappointed them" by running away.

3. The Refugee Review Tribunal had reservations about the applicant's credibility in relation to a number of matters.  The Tribunal did not accept that he was credible in his claims as to his nationality or as to his having been conscripted by the NPFL.  There is ample basis for some (but not, it would seem, other) concerns  of the Tribunal and the matters of concern that have such a basis would, on any reasonable view, tend powerfully against the applicant's credibility.

4. Nevertheless, the Tribunal considered the matter of possible persecution on account of imputed political opinion, assuming it to be true that the applicant had escaped from the NPFL.  Two matters seem to have weighed with the Tribunal.  The first was that independent evidence suggested that the ruling powers in Liberia, as of the date of the latest material available to the Tribunal, were relatively benign to political opponents and the applicant had not been involved politically except for his short period as an NPFL trainee.  The second was that the applicant's fears were of the individual NPFL cadres personally whom he had "disappointed".  Although the latter is a surprising conclusion, there is material in the transcript of the evidence given by the applicant which could support it.  The Tribunal had the irreproducible advantage of seeing and hearing the applicant. 

5. Before me, some evidence not before the Tribunal was sought to be relied on.  This is capable of affecting the Tribunal's conclusion that the applicant was probably not of Liberian nationality.  There is also other later material suggesting that Liberia is again politically unstable and dangerous.  This material deserves to be reconsidered by the Minister to determine whether to exercise his powers under s 417, but it does not enable this court to intervene.

6. Other than criticisms of factual findings made by the Tribunal, the principal submission ultimately made was that the Tribunal had erred in failing to consider whether the applicant might face persecution for reasons of membership of what might be a particular social group of deserters:  see Israelian v Minister for Immigration and Multicultural Affairs at first instance [1998] FCA 447 and on appeal [1999] FCA 649.

7. Where the material before the Tribunal plainly raises issues relevant to the question of whether an applicant should be accorded refugee status, the Tribunal is obliged to consider those issues even if submissions made on behalf of the applicant do not draw them specifically to the Tribunal's attention:  Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247.

8. But here the question of whether deserters might be a "particular social group" was not clearly raised by the material before the Tribunal.  The evidence did not suggest, for example, that there was any law in force, save that of insurgent guns, obliging the applicant to serve in the ranks of the NPFL.  There was no evidence from which any reasonable inference might be drawn as to how people generally in Liberia might perceive those who, having been unwillingly impressed into the NPFL's service, fled from a group of people who were little more than their captors.  There was apparently no evidence that anyone perceived such "deserters" to be a cognisable social group.

9. Further, as indicated above, one of the Tribunal's findings was that the applicant feared merely personal retribution, as distinct from conduct engaged in, tolerated by, or unable to be prevented by those responsible for furnishing the state's protection of its nationals.  Another was that the Liberian regime which grew out of the NPFL was not harsh with opponents.  Those findings were considered enough to discount any real chance that the applicant's fear of persecution for reasons of imputed political opinion was well-founded.  That is a matter of real significance for the present submission.  The political opinion that might have been imputed to the applicant could only be so imputed because he had "deserted" the NPFL.  The applicant could only belong to the supposed particular social group because he had "deserted" the NPFL.  If there were findings sufficient to render ill-founded a fear of persecution based on the authorities concluding that the applicant opposed them politically, then absent positive evidence to the contrary (and there was none), such findings must logically render such a fear, based on mere "desertion", unaccompanied by any official imputation to the applicant of an attitude of political opposition, equally lacking in foundation.

10. Thus, on the Tribunal's findings, it can fairly be said that the Tribunal must have come to the same conclusion, adverse to the applicant, had it addressed the issue of possible persecution for reasons of membership of a particular social group.  In these circumstances of this matter, there was in my opinion no duty on the Tribunal to consider an alternative formulation of a possible Convention reason for the asserted fear of harm arising out of the same ultimate facts.  It was said, by way of qualification, in Sellamuthu (a case concerning "objective" materials which might have supported refugee status, although the applicant's credibility was rejected) that:

    "In many other cases the sole substantial basis for judging whether a person falls within the Convention criteria for a “refugee” will be the information as to his/her supposed history and background furnished by an applicant.  Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status."

11. Likewise, it is not every case in which the Tribunal needs to consider, on its own initiative an unformulated alternative supposed characterisation of an application as a refugee.  Here, for the reasons given above, it would have been a futile exercise.

12. In the result, the application to this Court must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             6 August 1999

Counsel for the Respondent:	D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 October 1998
Date of Judgment:	6 August 1999