FEDERAL COURT OF AUSTRALIA

Mahmoodi v Minister for Immigration & Multicultural Affairs [2001] FCA 1090

MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal – whether the RRT erred in law by not considering whether the applicant, as a member of a particular social group of “able-bodied” Afghan males, might be persecuted by reason of his membership of such a group – whether “able-bodied Afghan males” could amount to a particular social group – laws of general application – conscription – whether conduct constituting persecution – conscription could be reasonably considered to be a legitimate object of the refugee’s country

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied

Gomez v Immigration and Naturalisation Service (1991) 947 F 2d 660 considered

Ram v Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (1995) 57 FCR 565 considered

Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881 not followed

Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190 distinguished

Minister for Immigration and Multicultural Affairs v Khawar (2000) 178 ALR 120 distinguished

SAYED FAISAL MAHMOODI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 126/01

TAMBERLIN J

PERTH

6 AUGUST 2001

THE COURT ORDERS THAT:

The application for review is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) which confirmed a decision of the respondent not to grant a protection visa to the applicant.  The detailed facts and the evidence are referred to in the decision of the RRT and I will not repeat them in any detail in these reasons.  The applicant arrived in Australia in November 2000 and applied for a protection visa on 21 January 2001.  The findings and reasons of the RRT conclude that the applicant is a Tajik from Kabul who was perceived by the decision-maker not to be in danger if returned to Afghanistan in the reasonably foreseeable future on the basis that he might be singled out for punishment or treated differently from anyone else as having committed offences or transgressed the policy of the Taliban in Afghanistan.

2                     The grounds on which the application for review is sought to be made are set out in amended application and are as follows:

“1.       the Tribunal having found that the applicant was likely to be at risk of punishment by the Taliban for having sexual relations with a prostitute, and further finding that there was a reasonable chance of the applicant being conscripted into the army of the Taliban, then erred in law in finding that the laws that imposed these risks on the applicant were laws of general application in Afghanistan.  This amounted to a reviewable error for the purposes of sections 476(1)(e) of the Act;

2.         That the failure of the Tribunal to consider and make findings on whether there was a real chance that the applicant as a member of a particular social group (able bodied Afghan Males) might be persecuted, by reason of such membership, by forcible conscription into the Taliban militia to fight in the civil war, amounted to either an error of law, or Jurisdictional error by the Tribunal.

3.         (the applicants original ground)  The applicant is from Afghanistan of Tajick ethnicity.  He speaks Dari and is a Suni Muslim.  The Taliban caught him on two occasions and shaved his head.  The primary reason why he left Afghanistan was because he was having sexual relations with prostitutes for the past 2 years.  The Taliban wanted to take him to the front line for fighting”

3                     The submissions made on this application for review turn largely on the absence of a finding that the applicant was a member of a particular social group, namely, “able-bodied Afghan males”.  The case is based on the proposition that it was incumbent on the decision-maker to consider the question, not only whether the applicant as a member of a particular racial group might be in danger of persecution for a Convention reason, but also whether the applicant, as a member of a particular social group of “able-bodied Afghan males”, might be persecuted by reason of his membership of such a group.

4                     The argument advanced for the Minister is that it is not necessary in the circumstances of this case for the RRT to take into account whether the applicant is a member of a particular social group.  The reason for this submission is said to be that the group contended for, namely, “able-bodied Afghan males”, is not a group capable, as a matter of law, of being reasonably considered to amount to a “social group” within the meaning of that expression as used in the Refugees Convention as amended by the Protocol definition of “refugee”.  Reliance was placed on the leading case of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, where the Court considered the characteristics of a “social group” in some detail.  The Court on that occasion gave independent decisions but the majority found that the fear of persecution is not a sufficient criteria, in itself, for determining whether there is a relevant social group.

5                     The judgment of Gummow J, who was a member of the majority, cited (at 281), with approval, a United States decision in the matter of Gomez v Immigration and Naturalisation Service (1991) 947 F 2d 660 at 664, where the Court of Appeals for the Second Circuit stated that:

“Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular social group.” 

6                     His Honour agreed, at 285, with the statement of the Full Federal Court in Ram v Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (1995) 57 FCR 565 at 569, that:

“There must be a common unifying element binding the members together before there is a social group…”

7                     In the present case, the class contended for – “able-bodied Afghan males” – is a reference to characteristics based on gender and health or fitness.  In my view, neither of these criteria, either taken alone or in conjunction, could amount to a basis on which to find the existence of a particular social group within the meaning of the definition in the Refugees Convention as amended by the Protocol.  The reference to “able-bodied” is a reference which could encompass any Afghan male regardless of age, location and political, religious or social persuasion or beliefs. It would encompass a major section of the community.  Indeed, the characteristic of being “able-bodied” could well be transient or fortuitous and vary from day to day because at any particular time a person may not be “able-bodied” or at a later point in time may become “able-bodied” within the description.  Such a criterion is quite unsatisfactory and inappropriate as a basis for defining and delineating a relevant class or group for Convention purposes.  There is simply no common, unifying element apart from basically having a sound body and being male.

8                     Accordingly, on this aspect of the matter, I am not persuaded that there has been any error of law by the RRT in failing to take into account the question whether this possible description amounted to a particular social group or whether any possible persecution based on that classification could amount to persecution within the meaning of the Convention. 

9                     There is another aspect to the case and that is the reference in the authorities to “laws of general application”.  The RRT considered that because laws relating to conscription in Afghanistan were in substance laws of general application, using the expression “law” in the broad sense of “policy” or “objective”, then there could be no discrimination, the assumption being that the laws would be applied on a general and non-selective or discriminatory basis.  In support of this proposition reference is made to Applicant A, where McHugh J said, at 258:

“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.  A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.  The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.” 

10                  In my view, these principles meet the argument that there has been an error in the conclusion reached by the decision-maker in this case.  The requirement of conscription, on the material before the decision-maker, could be reasonably considered to be a legitimate object of the refugee’s country. 

11                  A further matter relied on by the applicant before the RRT was that he was at risk of punishment by the Taliban for having sexual relations with a prostitute.  Again, it seems to me that the policy, objective or code of morality of the Taliban which prescribes punishment for engaging in such conduct, could be considered to be a general principle of morality, or an objective which those controlling the country might, according to prevalent values in its community, consider to be appropriate in promoting the general welfare of the State and its citizens.  Due allowance must be made for different values and standards in different countries as to the consequences, if any, which ought to properly follow from perceived moral transgressions.  In the case of Afghanistan, punishment for having sexual relations with prostitutes might legitimately be considered to be a matter of general, social or moral regulation which relates to the welfare of the state and its citizens.  In any event, it would apply on a non-selective basis for Convention purposes so that the element of selective harassment is lacking.

12                  In the course of argument, reference was made to a recent decision by Carr J in Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 881.  In that case, his Honour found that there had been an error in a decision of the RRT because it gave no consideration to a number of questions, one of which was “whether able-bodied Afghan men comprised a particular social group” for Convention purposes: at 9.  Other matters which had not been considered and which flowed from that failure were whether conscription by the Taliban amounted to persecution by reason of membership of that particular group and whether there was any evidence that the Taliban were acting pursuant to a law of general application: ibid. 

13                  It appears that the question as to the application of the decision of the High Court in Applicant A was not argued before his Honour.  For reasons given above, I do not consider that it was an issue which the RRT was bound to consider in this case.

14                  Another decision which was referred to was the decision of Branson J in Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190.  In that case, her Honour found that the RRT had made an error of law by reaching a conclusion “on the question of whether the applicant’s fear of persecution was for reason of her membership of a particular social group without first identifying the relevant social group, if any, of which the applicant was a member”: at 197.  This was one of two grounds on which her Honour remitted the matter to the RRT.  That decision is distinguishable from the present because in that case the RRT canvassed a series of possible classifications of social groups, which arguably could be appropriate, but having done so, it failed to make any determination as to which classification of the class or social group applied in respect of the applicant.  Justice Branson’s decision was upheld on appeal by the Full Court in Minister for Immigration and Multicultural Affairs v Khawar (2000) 178 ALR 120.  The critical issue in the appeal was not the definition of a social group but rather whether the absence of state protection for any particular social group was relevant to the causal link required by the words “for reasons of” in the Convention definition of “refugee”: at 148-149, per Lindgren J.  That issue is not central to the present case because the persecution claimed in this matter is said to be carried out by the Taliban itself.

15                  In the present case, in my opinion, the class which was proposed for the applicant, for the reasons which I have given earlier, and particularly in light of Applicant A, could not provide any basis on which a reasonable decision-maker could conclude that the class suggested was appropriate.  Therefore, there was no reviewable error in omitting to consider such a classification.

16                  I am not satisfied that any ground for review has been made out in the present case and I therefore dismiss this application with costs. 

Associate:

Dated:              31 August 2001