VXAB v Minister for Immigration
[2006] FMCA 857
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VXAB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 857 |
| MIGRATION – Review of RRT decision – convention ground not expressly argued but squarely raised on evidence – membership of a particular social group – religion – law of general application enlivened for a convention reason. |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2) [2004] FCAFC 263 |
| Applicant: | VXAB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG753 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 15 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read, “Minister for Immigration and Multicultural Affairs”.
The decision of the Refugee Review Tribunal dated 30 March 2005 be set aside.
The matter be remitted to the Refugee Review Tribunal (differently constituted) to be determined according to law.
The first respondent pay the applicant’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG753 of 2005
| VXAB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) with the Federal Court on 18 May 2005. That application was transferred on 17 June 2005 to this Court for determination.
The grounds for review and the applicant’s contentions, both in the written contentions of fact and law and in verbal submissions at the hearing, centred on a pivotal issue. That issue was whether the Tribunal failed to consider a claim not expressly argued by the applicant before the Tribunal, but one which the Tribunal should have considered as having been squarely raised by the evidence presented to it (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2) [2004] FCA FC263) (NABE). The applicant contends that the Tribunal failed to consider whether the applicant qualified as a refugee because of his membership of a “particular social group” or because of “religion”.
Background
The applicant is a citizen of Sri Lanka who is a member of the
Sri Lankan Army band holding the rank of Corporal. He came to Australia as part of the Sri Lankan Army band’s traditional dancing troupe on 10 February 2004.
He is the only child of a family renowned in Sri Lanka for traditional drumming and drum making and the performance of traditional dance. Because of those skills, when he joined the Sri Lankan Army in 1995 he was assigned to the Army band and has only ever served in that unit.
Whilst in Australia he was requested by the Sri Lankan High Commissioner to Australia to perform for guests at a time he was tired and jet lagged. He initially resisted the request and in so doing engendered the anger of the High Commissioner who threatened him with disciplinary action.
As a consequence, the applicant sought refuge with members of the
Sri Lankan community in Australia. He has now been classified by the Sri Lankan Army as a deserter.
On 20 February 2004 the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs an application for a protection visa. A delegate of the first respondent refused the visa on 15 September 2004. On 20 October 2004 the applicant lodged with the Tribunal an application for review of the delegate’s decision.
On 22 April 2005 the Tribunal handed down its decision dated
30 March 2005, which affirmed the delegate’s decision to refuse to grant the applicant a protection visa.
The applicant claimed that he had been the victim of persecution in
Sri Lanka by his military superiors when he had expressed his dissatisfaction with their expectation that he perform for one or other of the leading political parties in Sri Lanka.
He objected to performing, as he described, his “sacred dances” for politicians and criminals, as he saw them, and believed that the dance and tradition, because they are sacred, should be performed in sacred and important places.
He also claimed that as a consequence of performing for one party, the opposing party made threats to his family with the intention of dissuading him from continuing in those performances.
It is fair to say that he saw his traditional skills being exploited for political gain.
As a consequence of his stand on these issues, he claimed that he was subjected to military punishments, one example of which is continuous marching with a full pack in heat without water until he collapsed.
The tribunal’s decision
In its decision the Tribunal canvassed in some detail the nature of the claims made by the applicant. Relevantly, for the purposes of this judgment, the Tribunal canvassed the history given by, and the claims made by the applicant concerning his involvement in performing for politicians during elections and the applicant’s dislike at doing so.
In particular the Tribunal acknowledged that the applicant was
“…disappointed …[because] [h]is father had taught him the art of dancing to perform at sacred and important places and not in places where corrupt politicians were active or not up to standard”.
The Tribunal acknowledged the applicant’s claim that he objected to performing at political functions because his dances “…were traditional dances taught to him by their elders and were generally performed at sacred places or to evoke the blessings of the Gods”.
The Tribunal noted that on several occasions the applicant claimed to have expressed to his superiors his displeasure in having to perform traditional dancing and drumming in front of politicians “especially since such performances were not part of his military service duties and he disliked being taken out of work to perform at such functions”.
The Tribunal also noted that the applicant claimed to have told his officer in charge that “dancing and drumming could not be performed as they wished as it was a sacred art form that should not be performed to gain political point scoring and favours”.
Having recited the above, the Tribunal found that:
a)the applicant came from a family of drummers and drum makers who are famous in Sri Lanka for traditional drumming and dancing;
b)the applicant started learning dancing from his father when he was 10 years old and followed his family’s tradition;
c)the applicant was made to perform at political functions;
d)the applicant was unhappy in the army because he had to perform at functions which he did not feel were appropriate to display his traditional art forms;
e)the applicant was opposed to dancing at these functions because:
i)dancing and drumming were meant to be performed at sacred places or to evoke the blessings of the Gods and not for political gain;
ii)he felt that he was being exploited and was not given any leave, even when he was sick;
f)his opposition to performing at these political functions was not due to any political opinions that he held;
g)the applicant voiced his objection to performing at these political functions to his commanding officer and others;
h)the applicant was punished for his reluctance to follow orders that he perform at these political functions;
i)
the applicant did not object to these performances on account of “his political opinion or any other Convention reason”.
Rather, the applicant’s objections stem from “his feelings of being exploited and objection to traditional dancing and drumming being used for purposes other than what it was intended”;
j)although the applicant may have been made to perform pack drills and other punishments in the army because of his attitude to performing at such functions, this punishment occurred as a result of his failure to carry out orders without questioning them;
k)the applicant was punished just like any other member of the army who did not carry out his or her duties or consistently disapproved of the commands they were given;
l)
the punishments, such as pack drills, were “physically gruelling and may have caused him some pain and discomfort”.
However, the punishments did not constitute persecution within the meaning of the Refugee Convention (as amended by the Refugee’s Protocol) and were not exacted for a Convention–related reason;
m)the Sri Lankan High Commissioner would have been embarrassed that the applicant was attempting to defy his orders and, as a result, would wish to see him punished;
n)the applicant left the dancing troupe because he feared the reprisals which he would receive upon his return to Sri Lanka;
o)the applicant has a strong subjective fear of returning to Sri Lanka due to the punishment he might receive for deserting the army;
p)the applicant did not desert the army for any Convention related reason and he would not be perceived to have done so for any Convention related reason;
q)the applicant’s desertion was because of:
i)his unhappiness and feelings of exploitation due to the demands on him to perform tasks he believed were outside his duty;
ii)his objection to performing the art of dancing before corrupt and criminal politicians;
iii)the applicant’s fear that should he return to Sri Lanka he would be punished in accordance with the Sri Lankan laws regulating desertion and these laws were laws of general application.
r)any penalty which the applicant might receive for his act of deserting the army would not be “influenced by his caste or because his conduct would cause the army to perceive him as anti-government or supportive of a political view opposed to the government”.
The Tribunal concluded that:
“In considering the applicant’s claims individually and cumulatively, the Tribunal is satisfied the applicant does not face a real chance of persecution for a Convention reason. It accepts he may face prosecution on return to Sri Lanka for his act of deserting the Sri Lankan Army when he left his troupe in Australia. It also accepts that he may be dealt with more severely because he has embarrassed the Sri Lankan government, the
Sri Lankan High Commissioner in Australia and the army by his actions of absconding whilst in Australia and overstaying in the country. The Tribunal is not satisfied that any punishment the applicant would receive on return to Sri Lanka would be exacted because of a Convention reason.”
Contentions and findings
As stated in the introduction, the pivotal issue in this review is whether the Tribunal failed to consider a claim that, although not expressly articulated, it was squarely raised by the applicant in his evidence before the Tribunal. The applicant contends that the Tribunal was obligated to, in effect, examine the situation of the applicant through the prism of his membership of a particular social group or religion, namely, membership of a group described as traditional drummers and dancers who practice a sacred art.
In NABE the Full Federal Court (Black CJ, French and Selway JJ) said:
“A judgment that the Tribunal has failed to consider a claim not expressly advanced is as I have already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.”
Their Honours went on to say that:
“The Tribunal is required to deal with the case raised by the material or evidence before it.”
The Court further stated:
“The Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from materials before it.”
I accept the first respondent’s contention that in NABE the Court emphasised that caution needs to be exercised where there has not been an express statement of a particular claim made by an applicant and, where that has not occurred, it is necessary for the claim to clearly emerge from the material that has been put before the Tribunal.
It is to be noted in this particular case that the Tribunal largely accepted the factual sub–stratum of the applicant’s claims. However, in accepting the factual sub–stratum the Tribunal found that it did not give rise to any Convention nexus.
In my view, the accepted facts as set out above by the Tribunal clearly should have alerted an inquisitorial Tribunal to the potential claim under the Convention based upon the applicant’s membership of a particular social group and expressed religious belief.
In my mind that particular social group of which the applicant was a member, and which can be distinguished from society at large, is the group described as traditional drummers and traditional dancers.
The material before the Tribunal clearly establishes that the applicant was a member of such a group whose membership is traced through heritage and cultural indoctrination. It is clearly his membership of this particular social group that qualifies him for inclusion in the
Sri Lankan Army band and for exploitation of his skills both by the army, and at direction of the army, by politicians of both major political parties in Sri Lanka.
It was accepted by the Tribunal that the way the applicant saw his skills in respect of drumming, the circumstances in which he obtained those skills, the values he placed upon those skills and where and in what context they should be exhibited, related to the applicant’s assessment of them as being “sacred or to evoke the blessings of the Gods”.
It was incumbent upon the Tribunal, in my view, having regard to the history of the applicant, his particular and peculiar qualifications and the clear reference to the cultural and religious context in which he practiced his skills, for it to consider and explore whether or not he qualified as a member of a particular social group and suffered persecution because of that membership or because of a religious belief.
In my view, it is evident that the Tribunal, when considering the question of a nexus between the claimed persecution by the applicant and the Convention, only focussed on determining whether that nexus was political. The Tribunal found that there was no political nexus. The applicant takes no issue with that particular finding.
The first respondent contended that the Tribunal’s finding that there was no political nexus for the persecution or “any other convention reason” should satisfy me that the Tribunal had considered and determined whether the applicant was a member of a particular social group or that he feared harm on the basis of his religious beliefs.
I am not persuaded by this argument. It is evident from a fair reading of the Tribunal’s decision that it did not address issues clearly raised on the material before it in respect of a nexus with the Convention arising from membership of a particular social group or because of the applicant’s religious beliefs. It was incumbent upon the Tribunal, in my view, to have more fully articulated its reasons in respect of these other obvious Convention grounds and it is not sufficient to merely try to encompass them by such a glib statement.
Having regard to the above, I am of the view that the Tribunal failed to give proper consideration to the claims arising under Convention grounds that were squarely raised on the material before the Tribunal. Consequently, the Tribunal has made an error going to jurisdiction.
In light of my finding, it follows also that the Tribunal’s findings in respect of the likely persecution of the applicant should he return to
Sri Lanka may not be as a consequence of having laws of general application being applied. Although the applicant will be treated as a deserter and subjected to the military law applying to deserters, the basis of his desertion might arguably be founded in persecution arising out of a Convention ground. Although the applicant will be subject to the law associated with desertion, which law is of general application for deserters, in the applicant’s case that law of general application may well be enlivened for a Convention based reason.
Conclusion
In light of the above, I intend to set aside the decision of the Tribunal made on 30 March 2005. The matter should be remitted to the Tribunal for determination according to law.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 30 June 2006
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