MZXCL v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a young Yemeni man who has been refused a protection visa. So far his case has received attention by a delegate of the Minister, by the Refugee Review Tribunal ('the RRT') (three times) and by the Federal Magistrates Court of Australia ('the FMCA'). Apparently there were procedural errors made in connection with the first two decisions of the RRT because each was set aside by consent and remitted for further hearing. On each occasion the RRT affirmed the decision of the delegate but it is only the last decision that is now relevant. 2 In order to secure yet another consideration of his case by the RRT the appellant must show that the RRT made a jurisdictional error which provides grounds to set its decision aside. He failed to persuade the FMCA that a jurisdictional error had been made. 3 One of the appellant's claims for a protection visa is that if he is returned to Yemen he will be persecuted by the sheik of a particular tribe and his family because the appellant's uncle had a sexual relationship with the sheik's daughter and later the uncle, when the subject of a revenge attack, killed one of the sheik's sons and another man. The appellant claims that his father was later arrested by another son of the sheik (head of the police department) and was killed in custody. The appellant says that he also was apprehended when he returned to Yemen after hearing of the death of his father but escaped and fled again to Australia where he had for some months resided as the holder of a student visa. 4 Apart from fearing that his life would be taken in revenge for the death of the sheik's son the appellant also claimed to fear persecution due to the inferior ('haik' or servant) status of his family. 5 Originally, the appellant's claims rested on his stated fear of retribution for the conduct of his uncle. A delegate of the Minister dealt with his claim for a protection visa on this basis, saying the following: 'His claims relate to a blood feud that has developed between his family and the Al Khabani tribe following an illicit relationship between his uncle and the daughter of the head of the Al Khabani tribe and a subsequent altercation which led the [sic] death of the Sheik's son. … The applicant's claims stem from his uncle's dispute with members of the Al Khabani tribe after his relationship with the daughter of the head of the Al Khabani tribe was discovered. As a result of an altercation the applicant's uncle killed the Sheik's son and this led to a blood feud between the two families. I do not accept that there has been any information put forward to support a finding that the reason for the altercation was related to the political or religious beliefs of the participants nor related to their ethnicity or nationality. I consider that there is no Convention category that can be regarded as the essential and significant reasons for any future mistreatment of the applicant or his family members. Rather, I consider the essential and significant reason to be that the Al Khabani tribe was seeking the applicant's uncle because of his relationship with the Sheik's daughter. The reason the applicant and his family members are claiming to be at risk is because his uncle killed the Sheik's son during an altercation. Both the applicant's claims and country information regarding blood feuds makes it clear that the reason the applicant's uncle was being pursued, and in turn the family of the applicant's uncle, is because of the perceived offence, not the applicant's uncle's political religious views, his ethnicity nor nationality. For the purposes of establishing whether the applicant has a well founded fear of persecution in Yemen, pursuant to S91S and given my findings above, I must disregard the harm feared or suffered by the applicant and his family members in relation to the alleged blood feud. I make this finding because it is my opinion that this blood feud, which the applicant fears may result in harm to himself, is motivated for a non-Convention reason, that being the perceived offences committed by the applicant's uncle. … The applicant states that he is at risk of harm because the Sheikh's oldest son has swore revenge on his whole family, he states his father was arrested in January 2001 and died in prison in March 2001. He stated at interview that his mother and sisters are not at risk of harm because they are female and his brother is only four years old. The applicant claims he returned to Yemen in May 2001 and was arrested on 2 July 2001 but managed to escape from prison on 22 August 2001 and fled Yemen. I have some concerns about aspects of the applicant's story regarding the blood feud and serious concerns about his claimed arrest and method of escape from prison in Yemen as well as the authenticity of the documentation provided. In any case, pursuant to S91R and S91S I find that the applicant does not have a real chance of Convention related persecution in Yemen.' 6 When the appellant sought a review of the delegate's decision, the deficiency identified by the delegate was addressed. His claim contained additional aspects. In submissions made on his behalf by his representative, Mr Gelev, on 30 May 2005 the following was advanced on his behalf: '… His uncle would not have been targeted, and an attempt made on his life, had he been from a (more) "prestigious tribe". In that sense the applicant's uncle was himself the subject of persecution for a Convention reason: membership of a particular social group. Ostensibly the reason for the persecution was the act of adultery; in reality the persecution was because of what the Al Khabani family saw as humiliation for which they had to exact revenge. … The applicant is at risk of persecution as a Khadem and as a member of the family of his uncle. … It is submitted that if the applicant was not from an Akhdam family his uncle would not have been persecuted. … The main and significant reasons for the applicant being persecuted in Yemen are his being a Khadem and a member of his uncle's family, both particular social groups.' 7 These submissions subordinate the prospect of revenge killings to the proposition that the active reason for feared persecution is bound up with membership of an inferior social group. Further elucidation was advanced as follows: 'As a Khadem the uncle should not have dared to touch a girl from another caste. Had the applicant been from an equal or higher caste, the Al Khabanis would have tried to arrange a marriage. When it comes to blood feuds and questions of honour, there is no rule that adultery is always punishable by death. If the man who has a relationship with an unmarried girl is considered a good match, there would be no reason to kill him and destroy the girl's life. The fact that the relationship began prior to the couple being married would be forgotten. … There would have been no murders because the uncle would not have had to defend himself. There would have been no need for revenge to be exacted on the whole family. Even after the murders of the members of the Al Khabani family, if the applicant's family was rich or influential he would not have been at risk of persecution because the Al Khabanis would have been scared to do anything or the Al Azzanis could have bought their way out.' 8 In later submissions by Mr Gelev, on 30 March 2006 the same matters were emphasised. It was submitted: 'We submit that the sole reasons why the applicant would suffer persecution are Convention reasons. While the loss of honour is a significant issue, whether the person is a tribesman or not, we submit that the sheikh would not have attempted to kill the applicant's uncle if he were not an al haik. Were the offender (the applicant's uncle) a tribesman the sheikh and his daughter's lost honour could have been recovered through marriage or through material compensation (money, cattle, etc). Because the uncle and the applicant are considered inferior - racially and socially - the sheikh could not accept either marriage or compensation. We submit that if the applicant was not of different ethnicity or different social group to the sheikh, he would not face the risk of "serious harm" as defined in the Act. As such, the punishment given to his family would not have amounted to persecution. Therefore, the essential and significant reasons for the persecution are Convention related.' 9 The appellant's claim for a protection visa was nevertheless rejected by the RRT. The appellant's grounds for the present appeal to this Court, state the suggested jurisdictional error by the RRT (and the alleged error by the FMCA) in the following way: '1. His Honour erred in not finding that the Refugee Review Tribunal ("the Tribunal") misunderstood or misconstrued a criterion under s36 of the Migration Act 1958 about which it had to be satisfied for the purposes of s65 or failed to consider the case as put or an issue going directly to the question whether that criterion was satisfied or a central element of the applicant's claim. 2. His Honour erred in not finding that the Tribunal failed to consider and failed to make findings expressly, impliedly or at all upon the seminal issue and claim of the uncle's illicit affair with the sheikh's daughter and the claim of the uncle's persecution for reasons of membership of a particular social group (ie lower caste or tribe) and thus the risk of harm to the applicant by reason of his being a family member of his uncle's family.' 10 The essence of the complaint which the grounds reflect is that the RRT made no specific finding whether or not the illicit affair relied upon by the appellant had actually occurred. Counsel for the appellant argued that this demonstrated that the RRT overlooked the significance of the issue. The argument proceeds, in the written submissions, from that foundation to suggest that the RRT might, if it had dealt with the issue, have taken a 'more flexible and liberal view of what it perceived as fatal flaws in the Appellant's story'. In a similar vein counsel submitted orally that the RRT, if it had addressed the question of the illicit affair directly 'could have looked at what happened later in a different light'. 11 There can be no doubt that the RRT was aware of the claimed foundation for the appellant's fear of persecution. In the course of explaining the discussion that took place during the hearing before it the RRT said: 'The Tribunal asked the Applicant to describe his fears of returning to Yemen. The Applicant replied that he feared two main threats. First, he feared being killed for revenge, for the shame that his uncle had brought upon his tribe. Second, as a haik, he would be subject to insults and degrading behaviour.' 12 At the outset of its statement of Findings and Reasons the RRT said: 'It is the Applicant's claim that he fears persecution from in Yemen from members of a dominant tribe in his area, who represent the local authority, and their agents ("a mafia group"). His uncle had an illicit affair with the daughter of the local sheikh, and killed the sheikh's son and another person in an ensuing gunfight. The sheikh's eldest son imprisoned and killed the Applicant's father. On his return to Yemen, the Applicant too was imprisoned, but managed to escape. He fears prospective harm because of his membership of his uncle's family. He states that the harm he fears also arises because of his membership of a particular social group (eg. The Haik, a servant class):- the dispute would be amenable to a monetary or other negotiated settlement if it were not for the fact of the Applicant's inferior social standing as a member of this group. He also contends that, even if the Tribunal were not satisfied that such harm is Convention-related, the fact that the local authorities consist of the rival tribe means that they would deny him protection from such harm as might befall him, because of his inferior social standing.' 13 Any suggestion that the RRT overlooked an essential element of the appellant's claims immediately encounters the difficulty that the elements of the claim for a protection visa were accurately identified by the RRT. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 75 ALD 630 ('WAEE') a Full Court said (at [46] - [47]): '[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.' (Emphasis added) 14 The appellant submits that a finding about the illicit affair was a necessary first step in any findings to be made by the RRT but I do not accept that is so. The RRT did not believe the appellant in important respects. It did not accept either the account of his father's death or that the appellant himself had been arrested, detained or suffered any harm on his return to Yemen. It stated the effect of these findings as follows: 'The Tribunal does not accept the Applicant's evidence as to the circumstances of his father's death, namely that he was killed in prison by the sheikh's oldest son, head of the Police Department, in revenge for his uncle's affair with the sheikh's daughter and later killing of one of the sheikh's sons and another person. … the Tribunal does not accept the Applicant was arrested in his grandfather's village, and detained in a prison in his home village from 2 July to 23 August 2001, by the sheikh's son, persons acting on his behalf or anyone else. The Tribunal also does not accept that the Applicant was subject to any harm - beatings, attempted sexual assault or anything else - whilst in custody or in any other circumstances.' 15 In short, the RRT concluded that neither the appellant or his father had suffered any of the harm alleged to have befallen them as a result of the alleged illicit affair. This finding made it unnecessary to decide whether, if such harm had occurred, it would establish persecution within the meaning of the Convention. The RRT went on: 'In view of the above findings, it is not necessary for the Tribunal to determine whether the Applicant's now-dismissed claims of past harm establish persecution within the meaning of the Convention, i.e. for the essential and significant reason of his membership of a particular social group (whether his uncle's family, or a group such as Haiks), his political opinion (being imputed opposition to the sheikh's local domination or the tribal values on which it was said to rest) or any other Convention ground.' 16 So far as any question of past harm was concerned, the observations in WAEE which I emphasised above are directly on point. The illicit affair had no independent significance at this point in light of the RRT's rejection of the allegations of harm. Any question about whether the illicit affair had actually occurred was subsumed in more general findings. It was unnecessary to make any findings about it at this point at least. 17 The RRT then went on to give consideration to the claim of fear of future persecution. It said: 'Such factors are relevant, however, in determining whether the Applicant has a well-founded fear of prospective persecution. In his protection visa application, the Applicant referred only to the particular incidents involving his uncle and father, asserting that the sheikh's eldest son had sworn to take revenge on all members of the Applicant's family. At the first Tribunal hearing, he alluded to his tribe not being on the "same level" as that of the sheikh. It was his current adviser's contention that in this comment lay the germ of a more sustained claim, namely that the Applicant was being targeted not merely for his membership of his family (which would be affected by the operation of s.91S of the Act), but that he was a member of particular social group and that he faced both past and prospective harm for reason of his membership of that group.' 18 This passage refers to the way in which the emphasis in the appellant's claims changed progressively. As most recently advanced the appellant's contentions did not rest entirely on fear of revenge for his uncle's behaviour but included the proposition that the appellant would be persecuted nevertheless because he was a member of a distinct social group. This claim was rejected. The RRT said: '… the Tribunal does not accept that the Applicant is a member of any such group (such as Haik) and that he faces a real chance of persecution for reason of such membership, or for any other Convention reason.' 19 It was therefore not necessary at this point either to make a specific finding about the uncle's illicit affair. Whatever might be said about that issue it could not assist the appellant. When the RRT rejected the additional factual element of the alleged inferior status of the appellant's family it became impossible to sustain a claim for a protection visa on the suggestion of a 'blood feud' for the reasons given by the delegate. 20 This approach by the RRT to its analysis of the issues before it is confirmed by the summary it made of its findings: 'The Tribunal has considered the Applicant's claims individually and cumulatively. It is not satisfied that the Applicant has suffered past harm, let alone persecutory harm, in Yemen for reasons of his race, (putative) particular social group, political opinion or any reason at all. On the totality of the material before it, the Tribunal does not accept that there are any other factors - including membership of any particular social group - to indicate that he faces a real chance of prospective persecution. The Tribunal is therefore not satisfied that he has a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Yemen. He is not a refugee.' 21 The RRT, I am satisfied, addressed the appellant's claims as they were advanced. There is no basis to conclude that any relevant factor was overlooked by the RRT. 22 The conclusions I have reached accord with those reached by the FMCA. As no error in the decision of the FMCA has been established and I see no jurisdictional error in the decision of the RRT, the appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.