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[2001] FCA 1823
Federal Court of Australia
2001-12-19
Carr J, Kiefel J, Hely JJ, Sackville J
Original judgment source is linked above.
REASONS FOR JUDGMENT SACKVILLE J: 1 I have had the advantage of reading the draft judgment prepared by Kiefel J. I agree that the orders proposed by her Honour should be made. I wish, however, to state briefly my own reasons for reaching this conclusion. 2 The primary claim made to the Tribunal by the respondent (the applicant in the proceedings at first instance) was that he feared persecution for reasons of political opinion, through his and his family's association with the former communist regime in Afghanistan. The respondent made no claim to have been at risk of persecution by reason of his ethnic origin, presumably because he, like the Taliban, was a Pashtun. Recent events in Afghanistan demonstrate how rapidly circumstances can change, for better or worse, in countries from which asylum-seekers have fled. At the time the Tribunal and the primary Judge made their respective decisions, the Taliban was firmly in control of all but a small portion of Afghanistan. By the time the appeal was heard, the most recent war in Afghanistan had commenced. This judgment is being delivered at a time when it appears that Taliban forces have been defeated, although the future course of events in Afghanistan is doubtless very difficult to predict. If the orders made by the primary Judge were to stand, the Tribunal would be required to reconsider the respondent's case having regard to circumstances very different from those prevailing at the date of the original decision. Be that as it may, the only question on the appeal is whether the primary Judge erred in concluding whether the matter should be remitted to the Tribunal for further consideration according to law. 3 The definition of "refugee" in Article 1A(2) of the Convention relating to the Status of Refugees ("Convention") is any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 4 The respondent's legal representatives made detailed written submissions to the Tribunal on his behalf. In those submissions, no claim was made that the respondent feared persecution by reason of his membership of a particular social group in Afghanistan. While the submissions made some references to forcible recruitment of young men and arbitrary detention of individuals by the Taliban, these occurred in the context of the respondent's claim that he was particularly at risk of forcible conscription or other harm because of his perceived political affiliations. It is therefore not surprising that the Tribunal did not make clear findings as to the nature and extent of forcible conscription in Afghanistan. The limited extent of its findings on the question of forcible conscription can be seen from par 10 of its reasons, set out in the judgment of Kiefel J. 5 In these circumstances, the issue raised by this appeal is not whether a group identified as "able-bodied Afghan men" can ever constitute a "particular social group" for the purposes of the Convention. It is whether the learned primary Judge was correct in holding that, in the light of the material before the Tribunal, it was obliged to consider, inter alia, whether able-bodied Afghan men comprised a "particular social group" of which the respondent was a member. 6 The primary Judge did not formulate a test to be applied in determining whether a Tribunal is bound to consider an issue not explicitly put to it by or on behalf of an applicant. However, in Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411, in which the primary Judge followed his own decision in the present case, he formulated the test as follows (at [26]): "whether…it could fairly be said that sufficient facts were placed before the Tribunal as to require it to consider whether there existed a particular social group, being able-bodied Afghan men and whether the applicant, as a member of that particular social group, had a well-founded fear of persecution if returned to Afghanistan". This test does not make it entirely clear how the "sufficiency" of the facts is to be ascertained. In Applicant S, his Honour seemed to interpret the test as meaning that if the material before the Tribunal was sufficient to support (although not necessarily compel) a finding that the respondent feared persecution by reason of his membership of a particular social group, the Tribunal was bound to address the issue, regardless of whether a submission or claim to that effect was made by or on behalf of the applicant. 7 I am prepared to assume, without deciding, that a test in these terms is appropriate to determine whether the Tribunal erred in law or committed a jurisdictional error: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, at 22, per McHugh, Gummow and Hayne JJ. It should be noted, however, that on one view such a test may be more favourable to the respondent than the true test. In Abebe v Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ said (at 576) that: "[t]he proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out". (Emphasis added.) On the other hand, there is authority in this Court supporting the proposition that the Tribunal's inquisitorial procedures or inquiries are not limited to or by the materials, evidence or arguments presented to it. In particular, in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, at 63, Merkel J said that: "the [tribunal] is not to limit its determination to the 'case' articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented." See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 294, per Hill J. The approach in Paramananthan is very close to that implicitly adopted by the primary Judge in the present case. 8 Taken at its highest, the material before the Tribunal suggested that young men in some areas of Afghanistan were at risk of being caught up in the Taliban's forcible recruitment drives. The material did not indicate that all "able-bodied" males in Afghanistan, particularly older men, were at risk of being forcibly conscripted, although presumably those conscripted by the Taliban to fight their enemies (as distinct from victims of extortion or punishment) would generally be "able-bodied". More importantly, the information did not address the question of how able-bodied males were perceived by Afghan society generally or (given the fragmented character of Afghan society) by particular sections of that society. 9 Kiefel J has explained that the characteristic or element which unites a "particular social group" in the Convention sense cannot be a fear of persecution: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 242, per Dawson J; at 263, per McHugh J; at 285-286 per Gummow J; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, at 299, per Gleeson, Gaudron, Gummow and Hayne JJ; Islam v Secretary of State for the Home Department [1999] 2 AC 629, at 639-640, per Lord Steyn; at 656, per Lord Hope; at 662, per Lord Millett. 10 The respondent's contention, accepted by the primary Judge, was that the material before the Tribunal was capable of supporting a finding that all able-bodied Afghan men constituted a "particular social group". It is not apparent why the limited material before the Tribunal can be said to have raised a question as to whether the respondent was a member of a particular social group defined as "able-bodied Afghan men". If the material suggested that the applicant belonged to any social group at all, it might be thought that the group would be defined as "Afghan men who fear being forcibly conscripted by the Taliban to fight the Taliban's enemies". Of course, the difficulty with a social group identified in these terms is that it incorporates a fear of persecution as an element in the definition, a course inconsistent with Applicant A. On one view, the reference to "able-bodied" Afghan men, in the respondent's formulation of the "particular social group", is merely a euphemism for Afghan men at risk of forcible conscription by the Taliban. If the respondent's definition of the group is to be seen in this way, it does not avoid the difficulties created by the decision in Applicant A. 11 Even if the particular social group identified by the respondent is taken not to incorporate a fear of persecution as part of the definition, there is nonetheless, in my view, an insuperable obstacle facing the respondent. There was simply no material before the Tribunal that would have justified it in finding that Afghan society, or some clearly identifiable section of it, perceived "able-bodied Afghan men" as a distinct social unit. As McHugh J observed in Applicant A (at 264), the existence of a particular social group "depends, in most, perhaps all cases on external perceptions of the group. The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in the 'particular social group' category is the notion of 'membership' expressly mentioned. The use of that term in conjunction with 'particular social group' connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group." The only relevant material before the Tribunal was to the effect that forcible recruitment by the Taliban took place from time to time and that potential victims of such recruitment sought to avoid the Taliban's recruiters. 12 It is true that McHugh J in Applicant A accepted (at 264) that "while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed could create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group". See also Chen v Minister at 302; Islam v Home Department, at 645, per Lord Steyn. 13 There was, however, nothing before the Tribunal that would have justified it in concluding that the forcible recruitment of some able-bodied men in Afghanistan had created a "public perception" that able-bodied Afghan men had become a distinct social group in that country. There was, for example, nothing to indicate institutionalised discrimination against able-bodied Afghan men independently of forcible conscription. It was evidence of institutionalised discrimination of this kind that influenced the majority of the House of Lords in Islam to hold that women in Pakistan could constitute a particular social group for Convention purposes: see at 644, per Lord Steyn; at 635, per Lord Hoffman; at 658, per Lord Hope. 14 In substance, the respondent in the present case faces the same dilemma as confronted the appellants in Applicant A. McHugh J approached that case on the basis that the Tribunal had identified two separate social groups of which the appellants were members: first, "those who, having only one child…do not accept the limitations placed on them [by the Chinese authorities]" and, secondly, "those who, having only one child…are coerced into being sterilised by the officials of their area of local government". His Honour held that the second group had been impermissibly defined by reference to persecutory conduct and, for that reason, the appellants could not rely on it as a "particular social group". His Honour also held that the appellants could not rely on the first group identified by the Tribunal, because there had been no evidence upon which the Tribunal could have found that it satisfied the requirements of a "particular social group" for Convention purposes. 15 This conclusion does not necessarily imply that "able-bodied men" within a country can never constitute a "particular social group" for Convention purposes. There may be a question as to whether all the reasoning of the majority in Islam will be followed in Australia: see the analysis in the dissenting judgment of Hill J in Minister for Immigration and Multicultural Affairs v Khawar (2000) 101 FCR 501, at 513-518 (judgment is reserved on the appeal to the High Court: S128/2001, heard 13 November 2001). But if the reasoning in Islam were to be followed, it is conceivable, depending on the circumstances of a given country, that able-bodied men could be found to constitute a "particular social group". In Islam, women in Pakistan were held to constitute a particular social group because, as Lord Steyn said (at 644): "they are discriminated against and as a group they are unprotected by the 'State'". Islam decided that the size of a group was not a barrier to its being recognised as a particular social group for Convention purposes, provided that members of the group were discriminated against by reason of a shared characteristic (not being the fear of persecution itself). It was also held not to be a barrier that the group was not "homogeneous and cohesive": see at 640-643, per Lord Steyn. If able-bodied men were discriminated against and unprotected by the State, they might perhaps satisfy the criteria laid down in Islam. 16 It is not necessary to pursue this question further. In my view, the material before the Tribunal in the present case was insufficient to require it to consider whether able-bodied Afghan men constituted a particular social group of which the respondent was a member. It follows that the appeal should be allowed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
REASONS FOR JUDGMENT KIEFEL J: 17 This appeal raises the question whether the fear, on the part of able-bodied young Afghan male persons, of forcible conscription by the Taliban, can amount to a fear of persecution for reasons recognised by the definition of "refugee" in Article 1A(2) of the 1951 Convention relating to the Status of Refugees, as amended. An affirmative answer to that question requires that a male person, fulfilling that description is a member of a "particular social group". 18 His Honour the primary Judge, Carr J, held that it could and that the Refugee Review Tribunal had not directed itself to that question, which it was required to do, given its findings of fact concerning conscription in Afghanistan at the relevant time. It had therefore fallen into jurisdictional error within s 476(1)(e) Migration Act 1958 (Cth), as discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105, 1121; 180 ALR 1, 22 [84]. His Honour has held to that view in subsequent decisions (Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411, Applicant M v Minister for Immigration and Multicultural Affairs [2001] FCA 1412). In Applicant M his Honour expressed the opinion that "able-bodied males" could describe a social group. It did not matter that it encompassed a major section of the community. A contrary opinion has been expressed by Tamberlin J in Mahmoodi v Minister for Immigration and Multicultural Affairs [2001] FCA 1090, [7], his Honour there holding that there is "no common, unifying element" in the class contended for apart from having a sound body and being male. In his Honour's view it would encompass a major section of the community and it was a transient or fortuitous description which was inappropriate to define a relevant group for Convention purposes. 19 The focus of the Tribunal's decision was upon the respondent's (the applicant in the proceedings at first instance) claim of harassment by the Taliban because his family belonged to a tribal group which was seen by the Taliban as supporters of a political opponent. The Tribunal did not accept that the respondent, his family, or their tribal group were harassed in the way claimed and for the reason he claimed. The Tribunal considered that his story contained major inconsistencies, additions or implausibilities. Those claims of harassment do not remain in issue on this appeal. 20 The finding made by the Tribunal, which his Honour the primary Judge considered required consideration of the question referred to above, was that the Taliban had sought to recruit the respondent for the war effort against the Northern Alliance, but it did not accept that this was because he held a particular political opinion. This finding was made in the background of a report, referred to by the Tribunal in its reasons, confirming the fact of recruitment: "I accept that the Taliban may have come from time to time to recruit people for the war effort against the Northern alliance. However, given that I do not accept that the applicant ever held a political opinion of being a supporter of Dr N or of being a Communist, I do not accept that they sought to recruit him for this reason, or that they would falsely kill him and then indicate to his family that he had been killed at the front. Country information is that the Taliban obtains many of its fighters from Pakistan, and that recruitment of local men is intermittent, and that people may pay to avoid recruitment. (see Hunt, L 1999, 'Afghan Taliban sees offensive as key to total victory', Agence France Presse, 29 July, (Nexis download, and AsiaNow, Time Asia, Afghanistan Frozen in Time, May 29 2000, vol 156 No 21). I have seen no information to support that only Hazara are allowed to make such payments." (pages 13-14, Tribunal reasons). 21 In Carr J's view (at [19]) "the Tribunal had either failed to realise the significance, or decided that there was no significance, in the existence of able-bodied Afghan men as a particular social group". His Honour identified four questions which the Tribunal ought to have addressed (at [18]): "h whether able-bodied Afghan men comprised a particular social group of which the applicant was a member; · whether forcible recruitment by the Taliban of such persons to fight on the Taliban's side against the Northern Alliance amounted to persecution by reason of membership of that particular group within the meaning of the Convention; · whether despite the fact that people may pay to avoid such recruitment, such extortion could amount to persecution within the meaning of the Convention; and · whether there was any evidence that the Taliban were acting pursuant to a law of general application." 22 The Minister's preliminary submission was that the applicant had not made a claim of persecution based upon the Taliban's conscription of young males. In Yusuf's case (ALJR at 1122; ALR at 24 [95]) it was said that a failure to refer to one of the alternative bases for a claim of persecution for Convention reasons will in many cases reveal an error of law. Counsel for the Minister conceded that a question requiring the Tribunal's consideration, might in a particular case, be raised by the evidence and material before it. It was submitted, however, that that was not the case here. 23 The respondent's story, presented to the Tribunal, contained an additional element to the fact of conscription, one which maintained a focus upon his alleged political affiliations. In his statement the applicant had said that he did not wish to fight for the Taliban and because of this he would be regarded as an enemy of the regime and for that reason they would kill him. When asked by the Tribunal member why the Taliban would want to recruit him if they did not trust him politically, he said that they would say they were sending him to fight, but that they would then simply kill him and tell others that he had been killed at the front. The Tribunal's finding, set out above, was directed to that claim. 24 Whilst the respondent's claims went beyond conscription itself, there was clearly evidence before the Tribunal and the Tribunal accepted, to an extent, that something like that was taking place. The report to which the Tribunal made reference contained a reference to conscription and the alternative of paying a tax to avoid it. Other country information which had been referred to by the Minister's delegate, also reported the conscription as "forcible" but the Tribunal does not appear to have entered upon a debate as to whether that was the case. The word it chose to describe the activity, "recruitment", is somewhat more neutral. 25 The effect of the finding made by it was to deny the respondent an argument that his recruitment was sought because he belonged to a group holding a particular political opinion. Counsel for the Minister accepted that the finding does imply acceptance of recruitment from time to time of young males by the Taliban for the war effort and that it may have come to the applicant's area or village from time to time for that purpose. The question, then, is whether a general policy of recruitment directed at young able-bodied Afghan males can amount to persecution within the Convention definition. In the Minister's submission it cannot for the reasons that persecution cannot itself define a group; and "able-bodied Afghan males" does not refer to a recognisable social group in the sense referred to in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 and Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. 26 The phrase in the Convention definition of "refugee", namely "a well-founded fear of being persecuted for reasons of … membership of a particular social group" is a "compound conception": per McHugh J in Applicant A (at 256). His Honour observed that: "It is therefore a mistake to isolate the elements of the definition, interpret them, and then ask whether the facts of the instant case are covered by the sum of those individual interpretations." 27 As Dawson J pointed out in the same case (at 240), there must be a causal nexus between actual or perceived membership of a particular social group and a well-founded fear of persecution. His Honour (at 242) quoted with approval the judgment of Burchett J in Ram (at 568) where his Honour described the "common thread" which links the expressions "persecuted", "for reasons of", and "membership of a particular social group" as: "a motivation which is implicit in the very idea of persecution, is expressed in the phrase 'for reasons of' and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group." 28 In the view of Dawson J an important limitation, however, is that the characteristic or element which unites the group cannot be a fear of persecution. As his Honour said (at 242): "There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention 'completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa)' [Chan v Canada [1993] 3 FC 675 at 692-693, per Heald JA.]." (See also per McHugh J at 263 and 266.) 29 McHugh J in Applicant A (at 264) observed that, whilst persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or create a "particular social group". Much would depend upon whether they became recognisable in the society as such a group. The example given by his Honour was left-handed persons, which one would not usually think of as forming a social group. If they were persecuted for being left-handed there would be a public perception that they were. Importantly, however "it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group" (McHugh J at 264). 30 The critical feature of a social group which might be seen as persecuted is some shared attribute. McHugh J (at 264) referred to the group comprising a "social unit" which had "internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals". It was however unlikely, in his Honour's view, "that a collection of individuals will or can be perceived as being a particular social group". Gummow J (at 284-285) expressed a similar view. The emphasis, his Honour explained, is upon a "particular social group" and therefore "numerous individuals with similar characteristics" do not comprise such a group. His Honour agreed with the statement in Ram (at 569) that: "There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is 'for reasons of' his membership of that group." 31 Whether one speaks of the Taliban recruiting or conscripting it is plain from the reasoning of Dawson and McHugh JJ in Applicant A, and perhaps Gummow J (see at 284), that such an action cannot define the group. In my respectful view the group to which his Honour the primary Judge must be taken to refer was able-bodied Afghan males who feared conscription or recruitment by the Taliban, or sought to avoid it. If one reduces the description of the group to "able-bodied Afghan males" the difficulty encountered is that they share no common attribute which links them and sets them apart from society as a recognisable group. As Tamberlin J pointed out in Mahmoodi (at [7]) the description is simply of characteristics based on gender or health or fitness, and I would respectfully agree. The description is of a collection of individuals with those characteristics. Members of Afghan society are likely to be aware of the Taliban's policy and some may take action to prevent its success, but awareness of the fact of recruitment or conscription does not in my view amount to a public perception of there being a social group comprising young Afghan males. 32 In my view the appeal should be allowed, the orders below set aside and in lieu there be ordered that the application be dismissed with costs. The respondent should also pay the Minister's costs of the appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
HELY J: 33 I agree that this appeal should be allowed for the reasons given by Sackville and Kiefel JJ. I agree with the orders proposed by Kiefel J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Solicitor for the Appellant: Australian Government Solicitor
Minister for Immigration & Multicultural Affairs
Applicant Z
(1999) 197 CLR 510
(1997) 190 CLR 225
(2000) 201 CLR 293
(2000) 101 FCR 501
(2001) 75 ALJR 1105
(1998) 94 FCR 28
(1995) 57 FCR 565
(1999) 90 FCR 287
(2001) 180 ALR 1