SBBN v Minister for Immigration & Multicultural & Indigenous Affairs - [2002] FCA 816 - FCA 2002 case summary — Zoe

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SBBN v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 816

Federal Court of Australia|2002-07-03|Before: Mansfield J

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Source facts

Court

Federal Court of Australia

Decision date

2002-07-03

Before

Mansfield J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

INTRODUCTION 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to have declared as invalid a decision of the Refugee Review Tribunal (the Tribunal) given on 11 January 2002. The Tribunal affirmed a decision of a delegate of the respondent of 13 August 2001 refusing to grant the applicant a protection visa for which he had applied on 27 May 2001 under the Migration Act 1958 (Cth) (the Act), following his arrival in Australia on 18 April 2001.

[2]

The claims and the Tribunal's reasons 2 The Tribunal appears to have accepted the applicant's claims about his background and his reasons for leaving Afghanistan. He is a young man born in 1983, in the village of Korga, in the Shahrestan District of the Oruzgan Province of Afghanistan. He is an ethnic Hazaran and his religion is Shi'a Muslim. He had some years of primary school education, but has not since been formally employed although he has assisted an aunt working on her farming property. 3 His father was a commander in the Hezb-e-Wahdat, and was killed fighting the Taliban in August 1998. His mother, three of his four brothers and his two sisters are missing. He does not know whether they are still alive. His remaining brother lives in Afghanistan. Due to fighting in his region following the Taliban's arrival in 1998, he left the Oruzgan Province for a time but then returned there. Upon his return, the Taliban was still forcibly conscripting young men, to force them to fight at the front, but for two years he managed to avoid being conscripted by the Taliban partly by bribery from relatives and partly by hiding when the Taliban came seeking young men. After a time, it became apparent that he would no longer be able to avoid their approaches. With the assistance and support of a maternal uncle, he fled Afghanistan, arriving in Australia on 18 April 2001. He fears returning to Afghanistan because the Taliban would impute to him the political opinion of a supporter of the opposition forces because of his father's role, and because of his ethnicity and religion. 4 The Tribunal accepted much of his claims. It found: "I accept that the applicant incurred the enmity of the Taliban by reason of an imputed political opinion against the Taliban because of his father's allegiances, and that he feared forcible conscription into the Taliban forces. I accept that the applicant feared persecution by the Taliban by reason of his ethnicity and his religion. Such experiences and fears are consistent with information about the Taliban regime which was known to have been merciless to perceived enemies and to have been implicated in widespread human rights abuses."

[3]

5 The Tribunal then turned to address the consequence of the defeat of the Taliban forces in Afghanistan, the dispersal of its regime, and the elimination of its leadership from positions of power or influence in Afghanistan including in the Interim Authority. It found that the Taliban is no longer in a position to harm the applicant as it was before his departure from Afghanistan when it controlled Afghanistan. 6 The Tribunal sought the applicant's response to the collapse of the Taliban regime. He said that he maintained his fear of returning to Afghanistan, despite the fall of the Taliban, because he feared its re-emergence. There were some alternative outcomes which, he claimed, led him to having the same fear of persecution if he were to return to Afghanistan. The applicant claimed that one possibility is the emergence of a Pashtun backed government which would persecute him because of his Hazara ethnicity and his Shi'a religion. Another is the emergence of a Tajik/Pashtun government, those groups forming the majority of the Northern Alliance which defeated the Taliban, which similarly would persecute him because of his Hazara ethnicity. A further possibility he fears is that Afghanistan would descend into a state of anarchy and lawlessness in which the Tajik and Pashtun people would have considerable defacto power and would persecute him, again by reason of his Hazara ethnicity. 7 The Tribunal referred at some length to independent country information about events which have occurred in Afghanistan subsequent to the fall of the Taliban. It did not accept that the Interim Authority, dominated by Northern Alliance members, would impute to the applicant any political opinion other than opposition to the former Taliban regime, or that he would be targeted for persecution by reason of any such political opinion. It also did not accept that the Interim Authority would persecute the applicant by reason of his ethnicity or religion. It noted that there are a number of Hazara and other Shi'a cabinet members in the Interim Authority, and that the stated intent of the formation of the Interim Authority was representation of all major ethnic groups, as has occurred. There was no information to suggest that any episodes of persecution of Hazaras or Shi'as by the Northern Alliance or by the Interim Authority had occurred since the collapse of the Taliban. It concluded: "I am satisfied that the applicant's fear of harm by the Northern Alliance, or the Interim Authority, whether by reason of an imputed political opinion or ethnicity or religion or for any other Convention reason, is not well-founded."

[7]

The grounds of Review 11 The applicant through counsel contended that the Tribunal had committed two jurisdictional errors in its consideration of the applicant's claim, and that those jurisdictional errors entitled the applicant to the relief sought under s 39B of the Judiciary Actnotwithstanding the terms of s 474(1) of the Act. It will only be necessary to address the latter part of that contention if either of the jurisdictional errors asserted are made out. 12 The first jurisdictional error alleged that the Tribunal failed to address whether the applicant had a subjective fear of persecution by reason of his ethnicity or religion or imputed political opinion. 13 It is clear that a "well-founded fear of persecution" under Article 1A(2) of the Convention involves both a subjective element and an objective element: see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389, 397 and 429 - 430; Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22. The reasons of the Tribunal largely address the objective element, that is the element by virtue of which a subjective fear of persecution is determined to be "well-founded". But, in addition, in my judgment the Tribunal also addressed whether the applicant subjectively has an ongoing fear of persecution if he were to return to Afghanistan. And, in my judgment, it accepted that he did have such a fear. 14 In relation to the claim to have a well-founded fear of the Taliban, the Tribunal expressly accepted "that the applicant feared persecution by the Taliban", but concluded further that by reason of the downfall of the Taliban that fear of harm was not at the time of its decision well-founded. It appears also to have accepted the genuineness of the applicant's fear of persecution from those who have, or might come to, power in Afghanistan following the downfall of the Taliban. However, it was satisfied "that the applicant's fear of harm by the Northern Alliance, or the Interim Authority" was not well-founded. Although there is no express acceptance of the applicant's claim to fear persecution from other groups who might come to power in Afghanistan, the Tribunal did not need to make an express finding on that topic. It appears to have accepted that such a fear exists, as it addressed whether such a fear could be well-founded. It concluded that the applicant's fear is not well-founded. 15 In addition, the subjective and objective elements of a well-founded fear of persecution are each necessary elements to qualify as a refugee under Article 1A(2) of the Convention. As the Tribunal found that the applicant does not have a well-founded fear of persecution from any such groups if he returns to Afghanistan, on the basis that any such fear could not objectively be justified according to the test prescribed by the authorities referred to above, any failure on its part to address whether the applicant has a subjective fear of persecution from any such group by reason of his ethnicity, his religion, or political beliefs imputed to him, would not result in a different outcome of his claim. The Full Court in Selliah v Minister for Immigration & Multicultural Affairs [1999] FCA 615 [40] said: "The appellant contended that the Tribunal failed to apply the correct test in that it neither made an express finding as to the appellant's subjective fear nor identified the characteristics of that fear as claimed by him. However, even if it be assumed that the appellant had the relevant fear, the question still remains as to whether the fear was well founded. The Tribunal, in effect, made a finding that any fear which the appellant in fact had was not well founded. Accordingly, the failure to make a finding as to the appellant's subjective fear is of no relevance."

[8]

In my view, those comments apply equally to the Tribunal's approach in this matter. 16 However, for the reasons given, in my view the Tribunal did address the subjective element of the applicant's claim to have a well-founded fear of persecution. It accepted that the applicant fears persecution from each of the groups he identified as actual or potential wielders of power in Afghanistan. It found in each case that fear was not well-founded. I am therefore not persuaded that the Tribunal fell into the first jurisdictional error asserted on behalf of the applicant. 17 The second jurisdictional error asserted on behalf of the applicant is that the Tribunal failed to address his claim that he faced persecution if he were to return to Afghanistan by reason of his membership of a social group. The social group was identified as "young orphan males" in Afghanistan. 18 In the passage of its reasons for decision under the heading "Humanitarian Concerns" referred to at [10] above, the Tribunal expressed its concern that, because the applicant is so young and most of his immediate family are either dead or missing, there were humanitarian considerations relevant to whether he might safely return to Afghanistan. The Tribunal urged the respondent to consider "the applicant's plight" in the context of those humanitarian concerns. It was contended that those findings of the Tribunal recognised the applicant as a member of a particular social group, namely young orphan males, that he has a subjective fear of persecution if he were to return to Afghanistan by reason of his membership of that social group, and that owing to such fear he is unwilling to avail himself of the protection of Afghanistan. Reliance is placed upon what Gaudron J said in Miah [64] - [65] as follows: "However, the concluding words of the Convention definition direct attention not to the question whether the country is able and willing to provide protection, but to whether the individual is unable or his or her fear is such that he or she is unwilling to avail himself or herself of its protection … Hence, the second important matter to be discerned from the Convention definition: because the definition postulates that an individual may be able to avail himself or herself of protection but, because of the nature of his or her fear, be unwilling to do so, the fact that the country concerned is able and willing to provide protection is not necessarily determinative of the question whether an applicant's fear is well-founded."

[11]

I respectfully agree with those observations. It is difficult to see how the Tribunal could commit jurisdictional error by failing to address a claim which was not articulated before it in any form. 22 In this matter the applicant's statements in support of his application for a protection visa, and on review to the Tribunal, as well as his arrival interview on 16 May 2001 identified his fear if he were to return to Afghanistan as being a fear of the Taliban. In support of his application to the Tribunal, the applicant through his migration agent in a lengthy submission of 17 September 2001 concluded with the submission that the applicant faces a real chance of persecution if returned to Afghanistan based upon his political connections, his ethnicity and his religion. The applicant's letters to his migration agent of 13 October 2001 and 21 and 28 November 2001 were passed to the Tribunal. The general thrust of those letters is that the applicant fears returning to Afghanistan because of what might happen to him because of his Hazara ethnicity, whether from the Taliban if still in power or if its power is resurrected or from other groups who might be, or come into, power in Afghanistan. That was the claim which the Tribunal identified and addressed. The applicant's migration agent made a further detailed submission to the Tribunal on 30 November 2001, dealing with the consequences of the Taliban no longer being in control in the applicant's province of Oruzgan, and by 6 December 2001 enclosing some further published information about the state of affairs in Afghanistan. That letter conveniently identifies what, in my judgment, was the ongoing claim before the Tribunal: "I consider that these articles further underline the problematic, long term, political situation in Afghanistan. Hazara will not be safe from persecution if returned there. Our submission canvassed the issue of thousands of Taliban members being freed to join their tribes and their warlords who now hold control in many areas in Afghanistan."

[13]

24 I do not think that passage in that letter articulates as a claim to the Tribunal of the nature now contended for. In its context, particularly having regard to the applicant's earlier documents, and those from his migration agent, and the course of the hearing before the Tribunal as it described in its reasons, that passage does not confront the Tribunal with a claim to refugee status on the basis now put. The Tribunal cannot there be found to have committed jurisdictional error by not addressing a claim which it was not called upon to address. In fact, as its recital of the course of the hearing reveals, the Tribunal was at pains to ensure that it fully understood the applicant's claims and addressed them. 25 There are other reasons why, in my judgment, that claim must fail. Firstly, in my judgment, it is doubtful whether the applicant by identifying himself as a young orphan Hazara male brings himself within the meaning of a "particular social group" in Article 1A(2) of the Convention. The persecutory conduct itself cannot define the particular social group for the purposes of the Convention: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, especially per McHugh J at 263 - 264. See also Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14. The social group "young orphan males" in Afghanistan is identifiable only because the applicant fears disadvantage within the Afghanistan community, but there was no material placed before the Tribunal upon which it could be shown that such persons are selectively the subject of disadvantage, compared to any other persons in the community. The applicant's vulnerability, as he expressed it, does not derive from any selective discrimination within Afghanistan of persons belonging to that group. 26 Secondly, it was contended that the relevant persecution was the inactivity or inability of the Afghanistan government to protect the applicant from significant hardship, to provide him with access to basic services, or to provide him with a capacity to earn a livelihood. It was not put to the Tribunal that those detriments, which the applicant might suffer, were as a result of any positive action on the part of the Afghanistan authorities, nor was it shown or asserted that the applicant would suffer those detriments by reason of conduct of a non-state agency which was tolerated or condoned, or the consequence of some systematic discriminatory implementation of the law, by the authorities in Afghanistan. As I understood the contention, it was not put that the feared detriments as expressed by the applicant were a consequence of any active conduct on the part of any person, whether a non-state entity or the state, but were purely the consequence of the feared failure or inability on the part of the Afghani government to protect the applicant from those consequences. However, it was not suggested to the Tribunal, nor is there any material before the Tribunal upon which it could be shown, that even accepting the Afghani government did not have the ability to protect the applicant from those detriments, the state had the motivation of selectively precluding him from such benefits by reason of his membership of a particular social group and that other members of the community received those benefits: cp per Gleeson CJ in Khawar at [31]. There is no asserted motivation on the part of the Afghani authorities, or any other entity, to discriminate against the applicant by precluding him from social and like benefits because of his status as a young orphan male. 27 Indeed, there is no basis upon which the applicant presented to the Tribunal, or could have presented to the Tribunal, a claim that as a member of a particular social group he faces a particular form of persecution by reason of any discriminatory conduct on the part of any person (cp McHugh and Gummow JJ in Khawar at [83]). The applicant's claim about the detriment he might suffer by reason of his position in Afghani society, on his own claims, would be due to an alleged systemic failure of the provision of support services to the community generally, rather than by reason of his membership of a particular social group. 28 Accordingly, I am not satisfied that the second alleged jurisdictional error on the part of the Tribunal is made out. In my judgment therefore the application must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.