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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT erred in considering whether the applicant had a Convention reason for his fear of persecution - applicant's case ineffectively presented to the RRT - whether the RRT had a duty to go beyond the applicant's presentation of his case - whether the RRT decision unsafe - recommendation to the Minister that he consider substituting a more favourable decision.

NABW v Minister for Immigration [2003] FMCA 68 (26 February 2003)

NABW v Minister for Immigration [2003] FMCA 68 (26 February 2003)
Last Updated: 17 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABW v MINISTER FOR IMMIGRATION
[2003] FMCA 68



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT erred in considering whether the applicant had a Convention reason for his fear of persecution - applicant's case ineffectively presented to the RRT - whether the RRT had a duty to go beyond the applicant's presentation of his case - whether the RRT decision unsafe - recommendation to the Minister that he consider substituting a more favourable decision.



Migration Act 1958 (Cth), ss.91R, 91S, 417, 474

Applicant A v Minister for Immigration (1997) 190 CLR 225

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Minister for Immigration v Yusuf [2001] HCA 30

Applicant:
NABW



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INIDGENOUS AFFAIRS



File No:


SZ1137 of 2002



Delivered on:


26 February 2003



Delivered at:


Sydney



Hearing date:


26 February 2003



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr T Lee

Terence Lockyer Lee & Associates



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $4,500.

NOTE

(1) The Court recommends that the Minister consider substituting a more favourable decision for the decision of the Refugee Review Tribunal.


FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1137 of 2002

NABW


Applicant

And

MINISTER FOR IMMIGRATION &MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. The ex tempore judgment relates to a decision of the Refugee Review Tribunal ("the RRT") handed down on 17 September 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The relevant background to the application to the RRT is set out in the decision and reasons of the RRT in the court book at page 291. The applicant is an Argentine national. In 1994 the applicant's brother was involved in a street quarrel with two other men. One of the men fell and hit his head on the kerb and died three days later. The father of the deceased was in the Army, apparently retired, and was a well known person with influence in the applicant's town. The father of the deceased allegedly obtained false evidence with the intention of having the applicant's brother charged and sent to gaol over the death. The applicant's brother was arrested and gaoled for three months. It is apparent that the applicant's brother was charged with manslaughter under Argentine law and was initially placed in remand.

2. The applicant's brother claimed to have been physically mistreated while in prison. The applicant told the RRT that after three months his brother was released on bail. Subsequently he was convicted and lost an appeal. He left Argentina and travelled to Australia while on bail. When the applicant's brother applied for residency in Australia he also applied for a police clearance certificate from Argentina. The Argentine authorities sought his extradition because he had fled Argentina following his initial conviction and unsuccessful appeal.

3. The applicant's brother was arrested in Australia and remained in detention while the extradition proceedings were decided. On 12 April 2000 the Minister for Justice decided not to extradite the applicant's brother to Argentina. A number of documents were included in the court book relevant to the decision of the Minister for Justice, although it seems that the Minister for Justice did not give reasons for her decision. It is apparent that a significant factor in the Minister for Justice's decision would have been the risk of torture faced by the applicant's brother should he have been extradited to Argentina.

4. The applicant told the RRT that the father of the deceased was very disappointed. He did not accept that his son had died as a result of an accident. He wanted revenge. The applicant said that he was harassed and beaten by people paid by the father of the deceased. In the beginning, these people wanted to know the brother's whereabouts so that the brother could allegedly be killed. The intimidation, beating and harassment started because the applicant refused to provide information. The applicant said that he moved to another part of town, but the people pursuing him found him.

5. He said that he was unable to lodge a complaint because the father of the deceased was well known and had influence with the local authorities. The applicant said that he moved to the countryside to live and work with a relative. His intention was to get away from his persecutors. He failed in that attempt and his house was vandalised. He lived in hiding with his uncle in the countryside almost until the time that he came to Australia.

6. The RRT accepted the factual matters put forward by the applicant. The presiding member said, on page 294 of the court book:

In my view the applicant gave evidence in a clear, frank and straightforward manner. There is no suggestion that he exaggerated or embellished his claims. I have no hesitation in accepting that the applicant was a truthful witness.

I accept that the applicant was beaten on a number of occasions. I accept that he was threatened and that his house was vandalised. I accept that this occurred because the father of a person who had died after he was involved in a fight with the applicant's brother wants to seek revenge for his son's death.

I accept that the applicant was targeted because his brother was in Australia and therefore unavailable to the person concerned.

I accept that the father of the deceased is a military man with connections to and influence with the authorities. I accept that the applicant's failure to report the attacks on him to the local authorities was understandable in light of the experiences his brother had. (These experiences include torture in prison and are set out in the folder of material relating to the brother's extradition proceedings which the applicant provided to the Tribunal).

I accept that the applicant moved from the town to the countryside in an attempt to avoid being harmed. I accept that the applicant's location was discovered and his house was vandalised. I accept that the applicant fears that he will again be harmed if he returns to Argentina and that because of his connections the father of the deceased will be able to find the applicant even if he moves further away from [his home town].

I am of the view that there is an objective basis to the applicant's subjective fear of harm and that it is possible that the applicant could face serious physical harm if he returns to Argentina.

7. The crux of the matter is that, notwithstanding these findings, the RRT affirmed the decision not to grant the applicant a protection visa because the presiding member concluded that the applicant did not fear persecution for a Convention reason. In fact, the applicant had made an admission against interest before the RRT in indicating that he did not think that there was a Convention reason for the persecution he feared. The applicant attended without representation at a hearing before the RRT. The presiding member said this at page 293 of the court book:

I asked the applicant how he thought that his claims were connected to the Convention. The applicant stated that he did not know. He indicated that his adviser had explained to him the problem with his case was that the harm he feared was not for a Convention reason. However, he stated that he had to tell me the truth. The applicant was visibly distressed towards the end of the hearing.

8. The significant part of the presiding member's reasoning commences in the second half of page 294 of the court book. The quote is lengthy, but it is necessary to understand clearly the reasoning of the presiding member. The presiding member said:

As noted above, persecution involves an element of motivation for the infliction of harm. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution and the objective sought to be attained by it. The reason for the persecution must be found in the singling out of one or more of the five Convention reasons. In addition, although the persecution feared need not be solely attributed to a Convention reason, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.

9. The presiding member referred to s.91R(1)(a) of the Migration Act 1958 (Cth) ("the Migration Act"). The presiding member went on:

The applicant does not claim to fear persecution for reasons of his race, his religion, nationality, or his political opinion. I have considered whether the harm the applicant fears is for reason of his membership with a particular social group. In the applicant's case, the only particular social group which is suggested on the evidence before me is membership of his family. However, where the social group relied upon his membership of a family, it is necessary to have regard to section 91S of the Act, which provides:

"For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:

(a) disregard any fear of persecution or of any persecution that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear of persecution is not a reason mentioned in article 1A(2) of the Refugees Convention, as amended by the Refugees Protocol, and

(b) disregard any fear of persecution or any persecution that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

10. The presiding member went on:

Pursuant to this provision a person who is pursued because he or she is a relative of a person who is targeted for a non-Convention reason, does not fall within the grounds for persecution covered by the Convention.

The Explanatory Memorandum to the Migration Legislation Amendment (No 6) Bill 2001, explains that this does not prevent a family per se being a member of a social group for the purposes of establishing a Convention reason for persecution. But it prevents the family being used as a vehicle to bring within the scope of the Convention persecution that is motivated for non-Convention reasons.

11. Then the presiding member concluded:

The evidence before me does not indicate that the applicant's brother was harmed in Argentina because of his race, his religion, his nationality, his membership of a particular social group, or his political opinion. The applicant's evidence is that his brother was targeted because the father of the person who was killed wanted revenge for his son's death, and because the father did not believe that his son's death was accidental. In the circumstances, I am of the view that section [91S] applies in this case and the applicant's fear of being harmed does not fall within the Convention grounds.

I have already found that the applicant has a genuine subjective fear of being seriously harmed if he returns to Argentina. I am of the view that there is an objective basis for the applicant's fears. I accept that the applicant has been seriously harmed in the past, because of the incident in which his brother was involved.

I consider that it is possible that the applicant could be harmed again in the future. If the father of the deceased believes that the applicant's brother was responsible for his son's death and wants revenge, it is unlikely that the passage of time will reduce his motivation to make the applicant's brother - and in his absence - the applicant, suffer. However, I cannot be satisfied that the harm the applicant fears, is for a Convention reason. Humanitarian considerations appear to operate in this case, but this is not something I [can] take into account in making a decision on the application for review.

12. In this application before the Court, Mr Lee, for the applicant, contends that the RRT erred in law, that the decision is not protected by the privative clause in s.474 of the Migration Act and that a declaration and prerogative relief should be granted. The further amended application filed in court this afternoon contends the decision of the RRT is so unreasonable that no reasonable person in the respondent's position would have made the decision. The following particulars are provided. The RRT reached a conclusion on the question of whether the applicant's fear of persecution was for reasons of his membership of a particular social group without first identifying the relevant social group, and in particular having found that:

a) the applicant had suffered harm in Argentina;

b) the applicant had an objective basis to his subjective fear of harm, including serious physical harm should he be returned to Argentina;

c) the applicant's harm did not fall within the 1951 Convention and the 1967 Protocol relating to the status of refugees;

the RRT acted unreasonably in failing to consider whether:

d) the applicant and his brother were members of a particular social group subject to abuses from the military and/or police controlled upper class in Argentina;

e) the applicant was in those circumstances, a person to whom Australia owed protection obligations under the Convention.

13. During the course of argument I put to Mr Lee that he was setting a very high bar for himself because, in pursuing the claim purely on the basis of Wednesbury unreasonableness, he would need to satisfy me that the decision of the RRT was so unreasonable that no reasonable person could have made it. I put to Mr Lee my interpretation of the decision of the High Court Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2, that if it could be established that the RRT committed an error of law going to its jurisdiction of the kind identified in Minister for Immigration v Yusuf [2001] HCA 30, that the privative clause would not operate to protect the decision and that it would be open to me to grant the relief sought in the application.

14. In the light of that exchange, Mr Lee orally amended the application to submit that the RRT erred in law going to its jurisdiction in failing to properly identify the social group to which the applicant's brother and hence through family association, the applicant, belonged. Mr Lee relied on written submissions filed on 19 February 2003 and restricted himself in oral argument to responding to the respondent's written submissions filed on 24 February 2003.

15. In substance, the case put by Mr Lee is that the applicant's brother was the victim of state sponsored persecution. He was arrested allegedly on false charges, placed in prison pending trial and suffered torture at the hands of the Argentine police. The circumstances were sufficient to cause the Minister for Justice to refuse an extradition request from Argentina for the return of the applicant's brother.

16. Mr Lee took me to materials submitted to the Minister for Justice indicating that a number of groups within Argentina, including the poor and underprivileged, especially young persons, homosexuals and others were particularly at risk of abuse while in gaol.

17. Mr Lee postulated that the applicant's brother was a member of a particular social group, namely a socio-economic group of poor and oppressed people liable to abuse from the military and/or police controlled upper class in Argentina. He submitted to me that there are well-documented reasons for fear of persecution by a member of that group.

18. I put to Mr Lee that a difficulty with that formulation is that the group is defined by reference to the risk or the fear of persecution faced by members of the group. As was made clear by the High Court in Applicant A v Minister for Immigration (1997) 190 CLR 225, a particular social group cannot be defined by reference to the fear of persecution. Mr Lee submitted to me that the group that he was postulating of poor and underprivileged or lower class persons was readily identifiable and could be construed without reference to any particular fear of persecution.

19. In response, Mr Reilly put to me that the applicant's case must fail because the conclusions reached by the presiding member were reasonably open to him in terms of the case presented to the RRT. Mr Reilly submits that the case now sought to be presented is a different one from the one that was put to the RRT. It is true that the applicant was self-represented before the RRT and made an admission against his interest when, in response to a question from the presiding member, he disclosed advice that his application would fail on the basis of an absence of persecution for a Convention reason.

20. The arguments put by the applicant to the RRT centred on the fear of revenge that he faced from the father of the deceased which the presiding member took to be a personal matter. There was material before the RRT which indicated that the applicant's brother had been subject to false charges at the instigation of the deceased's father, who was a retired military officer of some standing and influence. The material before the RRT also indicated that the brother had been subject to torture in prison by the police, which provides some State connection to the persecution suffered by the brother, and that persons who are poor or underprivileged in such circumstances are particularly at risk.

21. Nevertheless, the applicant presented his case not so much on the risk that he faced from the State by reference to what happened to his brother, but the risk of revenge he faced at the hands of the father of the deceased which, as I have noted, was treated by the RRT as a personal matter. It is undoubtedly correct that s.91S of the Migration Act establishes that a family relationship cannot be used to demonstrate a Convention reason for a fear of persecution where another family member is not persecuted for a Convention reason.

22. It was a necessary part of the reasoning process engaged in by the RRT that the RRT found that the applicant's brother was himself not persecuted for a Convention reason. That finding is at least questionable. The fact that the applicant was prosecuted at the instigation of the father of the deceased, who was a military man with influence, and was tortured whilst held in prison, would tend to establish that there was some State connection to the brother's prosecution and his treatment following being placed in prison. That in itself does not establish a Convention basis for persecution, but there was material which had been placed before the Minister for Justice, which was available to the RRT, which indicated that persons in Argentina who are dealt with under the criminal law at the instigation of the military might arguably constitute a particular social group.

23. None of this was in any proper way put before the RRT by the applicant who, as I have noted, was not represented before the RRT. The RRT is an inquisitorial body and there is a question about the extent to which the RRT should go beyond the case which is presented to it in order to make its own determination of whether a Convention basis for persecution could be established. It is not apparent to me, from the authorities that I have been taken to by the legal representatives in this case, to what extent, as a matter of law, the RRT could be required to make out a case for an applicant who does not properly articulate his or her own case.

24. I am satisfied that on the basis of the case presented to the RRT by this applicant it was reasonably open to the presiding member to conclude that the persecution of the applicant's brother was not persecution for a Convention reason. Accordingly, the family relationship with the applicant did not establish Convention based persecution.

25. On the basis of the presentation of the case today by Mr Lee there is a real question of whether that conclusion by the RRT is sound. In the circumstances, while I am unable to determine that the RRT made an error of law going to its jurisdiction, there is a real risk that the incorrect result was reached by the RRT. For those reasons, while I will dismiss the application, I will also recommend to the Minister that he consider substituting a more favourable decision for that of the RRT.

26. I will therefore dismiss the application and make that recommendation.

27. In two other matters that I can recall in circumstances where I made the recommendation that I am making in this case I have made no order for costs. In one of those matters the Minister appealed to the Federal Court against the order that there be no order as to costs. That appeal was successful, but not on that basis. In that particular matter, I had also ventured the opinion that but for the privative clause the applicant may well have succeeded, which was another reason for not awarding costs. Following the decision of the High Court on the operation of the privative clause the Federal Court determined that the case would need to be reheard.

28. The Minister has been wholly successful in that the application has been dismissed. Nevertheless, I have expressed concern that if the matter had been better presented to the RRT there may well have been a different result. On the basis of the decision that I have made that is not the fault of the Minister or the RRT. Mr Reilly has submitted to me earlier that the appropriate approach by this applicant, rather than taking proceedings in this Court, would have been to seek the intervention of the minister under s.417 of the Migration Act. In the light of the recommendation I am making, that provision may well be activated. In these circumstances, the Minister has been put to avoidable expense in responding to the application and is entitled to an order for costs. I will therefore make an order. As to the amount, a significant amount of preparation has been necessary for this hearing. The legal arguments and the presentation of the facts has not been simple. The case has involved somewhat more complexity than would ordinarily be the case.

29. I will, therefore, order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I will fix in the sum of $4,500.

certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 March 2003
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