Applicant S262 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs

Federal Magistrate's Decision 12 The appellant's primary contention before the Federal Magistrate, which bears some relevance to the appeal - though the appellant seeks to rely on a new ground on the appeal - was that the Tribunal erred in that, having made a finding that the appellant was targeted because he was in possession of cash as a result of his business, it considered the appellant's claim as being based on membership of a social group of "victims of guerrilla groups". The appellant contended that the Tribunal ought to have considered the appellant's membership of another social group, that of "businessmen in cash producing businesses exposing them to increased risk of extortion". 13 The Federal Magistrate noted that the parties did not dispute that if there were circumstances in an appellant's case giving rise to the possibility of the appellant being a member of a social group, the Tribunal needs to enquire whether such a group exists, and whether the appellant is a member. 14 The Federal Magistrate carefully considered the appellant's contention about the "businessmen group". At [8] - [9] he documented all the evidence from the appellant which made reference to profits, being a businessman, and the appellant's coffee business. The Federal Magistrate observed at [9] that:- "...There is nothing in the documents to suggest that these elements are combined such that there is a commonality with others who were also targeted, as now put forward. The plain reading is that these were individual circumstances relative to the applicant." 15 Federal Magistrate Nicholls examined the transcript of the hearing before the Tribunal and those portions of the hearing which made reference to being a member of a social group. 16 At [12] the Federal Magistrate observed that the only possible groups arising from the statements of the appellant are, firstly, the group characterised as victims of guerrilla groups and, secondly, members of the Conservative Party, and that the Tribunal addressed each of these issues in its decision. 17 The Federal Magistrate then turned at [14] to consider whether it was incumbent upon the Tribunal to consider the 'businessmen group' claim. Again he observed that:- "…Other than the reference to his friend, who was also involved in the coffee business with him, there is no reference by the applicant, nor is there any other circumstance before the Tribunal to suggest that others were being targeted because they were businessmen in the coffee business with cash." 18 At [16] the Magistrate considered the test of determining a particular social group, for the purposes of the Convention, as stated by the High Court in Applicant A which was considered and clarified in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242. 19 He observed at [17] that these authorities clearly establish that persecutory conduct cannot define a particular group, and that the Tribunal found the appellant was targeted because he had a lot of money in cash as a result of his business. His Honour referred to the comment of Burchett J in Ram at 568-569 that if harmful acts are done purely on an individual basis because of what the individual has done or possesses, the Convention does not apply. The Magistrate stated at [18]:- "There is nothing in the material before the Tribunal to suggest to the Tribunal, or that should have suggested to the Tribunal, that the guerrillas' interest in the applicant was specifically because he was one of a group of business persons whose business generated significant quantities of cash... Clearly, as the Tribunal found, it was that this applicant had cash that was the attractor for the guerrillas. There is nothing to show that the attraction was because the applicant was a member of any wider group. It is this individual characteristic that was the basis for the guerrilla's interest in him…" 20 The Magistrate considered the appellant's submission that the Tribunal did not ask the appellant whether there were others in the same category as him, and observed at [19] that on the appellant's account, anyone with money could be a target of extortion, and there was nothing to indicate that it was specific to businesspersons. He stated at [20] that it was not for the Tribunal to "make an applicant's case for him". 21 In relation to the issue of adequate State protection, Nicholls FM referred to the appellant's reliance on Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 ("Khawar"). The Magistrate distinguished Khawar at [22], observing that:- "In the 'Khawar' case, which was authority for the proposition that even though the applicant was persecuted by private individuals, and in that case it was domestic violence that she feared from her husband and members of her husband's family, if the authorities condone or tolerate such action then it could be said that women who are the objects of such a violence from private individuals in circumstances where this is tolerated or condoned by the authorities, then such women could constitute a particular social group. Mr. Archibald's comment that there is some resonance, in that the harm in that case and in the case before me came from private individuals and not from the government is correct in so far as it goes, but the case before me can be clearly distinguished on the basis that the facts pertaining to Mrs Khawar's case were clearly and plainly before the Tribunal and it was in that context that the High Court said that the Tribunal needed to consider it. Further, there was nothing before the Tribunal in the case before me on the issue of whether the authorities would tolerate or condone any such harm in the way as found to occur in the case of Mrs. Khawar." 22 The Federal Magistrate concluded that none of the grounds pressed by the appellant were made out, and found no jurisdictional error by the Tribunal.

Discussion 23 The notice of appeal, filed on 3 August 2005, contains three grounds of appeal. The appellant only seeks to rely on the first ground, which is that "…in the circumstances of the [appellant's] case, these being that:- a. the harm which the appellant fears is from non-State agents. b. the evidence before the Tribunal was that the State was unwilling or unable to protect the applicant from harm for a Convention reason. c. the Convention reason relied on by the applicant was that the applicant is a member of a particular social group. d. the particular social group was 'victims of guerrilla groups'. [FM Nicholls erred in failing to find that]… the authority deriving from Applicant A… is to be distinguished from that deriving from… Khawar… such that the harm which the applicant fears by reason of the failure of State protection is for a Convention reason." 24 The appellant submits that this first ground in the notice of appeal seeks to present from a different perspective matters which were considered by the Federal Magistrate in the court below. To the extent necessary, the appellant seeks leave to rely on this ground. 25 The appellant argues that even if the relevant particular social group is 'victims of guerrilla groups' (as found by the Tribunal and Magistrate), the lack of State protection of this group in the circumstances, and following Khawar, constitutes persecutory conduct for a Convention reason. 26 The appellant submits that the Tribunal misstated the persecution which was feared; that whilst the appellant feared harm from the guerrilla group, the persecutory conduct was the inability or unwillingness of the Columbian government to protect 'victims of guerrilla groups' as a group. The appellant observes that this was submitted by the appellant in his statement supporting his application to the Tribunal. 27 The appellant seeks to distinguish Applicant A, upon which the Tribunal relied in reaching its decision, on the grounds that there, the harm feared came from the State, and the persecution feared defined the group; this fear being the only characteristic defining the group. 28 The appellant draws analogies with Khawar, arguing that the harm which was inflicted otherwise from non-State agents was tolerated or condoned by State authorities in a discriminatory manner, and that the persecutory conduct derives from a failure by the State to protect the group from harm. 29 The appellant submits both the Tribunal and the Magistrate erred in failing to consider this form of persecution, and incorrectly dealt with the application. The appellant submits that the Federal Magistrate erred in distinguishing Khawar in the way that he did, as the appellant's statement in support of his application to the Tribunal went directly to the State's unwillingness to intervene to protect victims of guerrilla groups. 30 Applicant A is authority for the proposition that an applicant for refugee status under Article 1A(2) of the Convention must demonstrate that the form of persecution that he or she fears is not a defining characteristic of the "particular social group" of which the person claims membership; see at 242 per Dawson J, 263 per McHugh J and 285-286 per Gummow J. That is to say, the common characteristic or element that defines the particular social group cannot be a shared fear of persecution. 31 In Khawar, the applicant feared domestic violence from her husband and his family, harm which, in itself, occurred for personal reasons and did not have a Convention nexus. The majority Justices accepted that, if the applicant could establish that the violence was tolerated and condoned by the authorities who selectively enforced the law so as not to provide protection to women, it would then become arguable that she faced persecution as a member of a "particular social group" (ie, women or perhaps married women being in a household which did not include a male blood relation to whom she could look for protection). 32 It follows from the reasons of the majority Justices in Khawar that where an applicant is at a real risk of harm at the hands of a non-State agent who is motivated by non-Convention reasons, but there is a failure of State protection motivated by a Convention reason, the necessary nexus between the persecution and the Convention is established. This is clearly expressed in the judgments of Gleeson CJ at [25] - [26], McHugh and Gummow JJ at [84] - [85] and [87] and Kirby J at [120] - [121]. 33 In reviewing the appellant's claim, the Tribunal was required to consider a claim that was "squarely" raised on the material before it. The claim must be sufficiently apparent on the material. What is or is not clearly raised is not to be determined by an exercise analogous to parsing and analysing a pleading. Nor is the Tribunal required to be constructive or creative in its approach to the material before it; see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1at [55] - [62]. 34 A formulation of the particular social group in the present case as "victims of guerrilla groups" would not satisfy the test stated in Applicant A because the defining characteristic is people who have a shared fear of harm. 35 Mr Archibald, for the appellant, seeks to add a further layer to the claim by expressing the group as victims of guerrillas whom the State could or would not protect. If the motivation of the State for its failure to provide protection is a Convention reason, the case would fall within the principle stated in Khawar. 36 However, if the failure of State protection is not motivated by a Convention reason and is merely because the group is one that the State cannot protect, that is simply an aspect of the fear of harm. It is true that the fear is more potent. But the group is defined by its common fear of harm. It is therefore not a particular social group within the test stated in Applicant A. 37 Mr Archibald submitted that the harm which was feared was stated more broadly. He pointed in particular to the portions of his statement which I have emphasised in the passage set out at [4] above. He submitted that the words "being for political or other reasons" were referrable to the inability of the State to protect him. If that were so, the failure of protection would be for a Convention reason. 38 However, it seems to me that this contention was not "squarely" before the Tribunal within the principles stated in NABE. The statement in the final paragraph of the passage quoted at [4] shows that what was put before the Tribunal was that, in a practical sense, the State was unable to provide protection. It is true that the appellant refers to the lack of resources, and to membership of a social group, but this serves to emphasise that it is the inability of the State to allocate resources to victims of guerrillas that explains the lack of protection. 39 The claim was not put to the Tribunal as one of singling out a group of people to whom protection would be available because of their common characteristics. It was, as submitted by Mr Kennett, counsel for the first respondent, the recognition of reality that the State cannot protect them. 40 Mr Kennett submitted that in any event the Tribunal rejected the claim on an alternative basis, namely that it would have been reasonably open to the appellant to relocate elsewhere in Columbia. 41 Where a decision of the Tribunal rests on two or more independent lines of reasoning, it is necessary for an applicant to demonstrate error in each line of reasoning in order to succeed on an application for review or on appeal; VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25], [33]. 42 It is true that in the present case the Tribunal's finding on relocation was an independent line of reasoning. It rests upon a finding of fact that the appellant would be able to find safety elsewhere in Colombo from those guerrillas who threatened him with death in his home area. Findings of fact are of course not open to review, but if the Tribunal failed to address an integer of the appellant's claim for protection or misunderstood it, those considerations may infect the approach taken to the question of relocation; see Bhupinder Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 at [30]; see also Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1706 at [10]. 43 Here, I have rejected the appellant's submission that the Tribunal misunderstood his claim. It is therefore unnecessary to decide whether the Tribunal's finding on relocation was flawed.

Conclusion and Orders 44 The argument on appeal was not run before the learned Federal Magistrate. However, the argument had some merit and I would give leave to run it in accordance with the principle stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. 45 The orders of the Court will be that the appeal be dismissed with costs. 46 The appeal fails because the harm that the appellant fears was aimed at him as an individual and not for a Convention reason. As McHugh J said in Applicant A at 257, such a claim is not within the Convention definition of a refugee, "no matter how terrible its impact on that person happens to be". 47 Here the Tribunal seems to have accepted that the appellant was the victim of extortion threats by guerrillas and that the State is unable to protect against such threats. It may therefore be that this is an appropriate case for the exercise of discretion by the first respondent under s 417 of the Migration Act 1958 (Cth).

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Dated: 16 February 2006 Counsel for the Appellant: Mr Archibald

Solicitor for the Appellant: Michaela Byers Solicitor

Solicitor for the Respondent: Australian Government Solicitor