FEDERAL COURT OF AUSTRALIA

SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs     [2005] FCA 771

MIGRATION – appeal from Federal Magistrate – application for judicial review of decision of Refugee Review Tribunal – appellant feared persecution by individuals for reasons involving revenge for the appellant exposing their criminal activities – claim that State protection not available to the appellant because he was not pro-Syrian – meaning of political opinion – whether Tribunal had made a jurisdictional error by failing to ask whether persecutors had imputed a political opinion to the appellant by reason of his opposition to their illegal activities where the claim was not raised by the appellant – whether Tribunal constructively failed to exercise jurisdiction by not considering whether persecution of appellant for a private reason satisfies the definition of “refugee” in the 1951 Convention Relating to the Status of Refugees where State protection is not available because the appellant does not hold pro-Syrian views – appeal allowed.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 – cited

Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184 – referred to

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 – applied

NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 – considered

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 - applied

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 – considered

V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 – referred to

VNAY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 96 – referred to

SZBZJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

N 1745 OF 2004

HILL J

10 JUNE 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The order of the Federal Magistrate be set aside and in lieu thereof it be ordered:
1. That a writ of certiorari be issued to quash the decision of the second respondent dated 13 October 2003; and
2. That a writ of mandamus be issued to the second respondent, differently constituted, to review the decision of the first respondent refusing to grant to the appellant a protection visa in accordance with law. 
3. The first respondent pay the appellant’s costs of the appeal and of the proceedings before the Federal Magistrate.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HILL J

1                     The appellant appeals against a decision of a Federal Magistrate dismissing his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

2                     The appellant is a citizen of Lebanon.  Shortly after arriving in Australia, he applied for a Protection (Class XA) Visa.  His application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).  He then applied to the Tribunal to review the delegate’s decision.

3                     It is a criteria of the grant of a protection visa that the applicant for that visa be a person of whom the delegate, or in the event of a review by the Tribunal, the Tribunal, is satisfied that he is a person to whom Australia has protection obligations.  Generally speaking, it may be said that Australia has protection obligations to a person who is a “refugee” within the meaning of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (herein the “Convention”).  That Article defines a “refugee” to be a person who:

“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or 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 Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations and accordingly affirmed the decision of the delegate not to grant to him a protection visa.  The appellant then sought judicial review of the Tribunal’s decision.

5                     The appellant’s case in the Tribunal can be briefly stated as follows: in October 2002, the appellant had subcontracted with a company known as “Tajj” to execute the water supply to the villages in the Bekaa from Lake Yammouneh in Lebanon.  The water pipes passed through an area known as Dar-El-Wasaa, controlled by the Jaafar family.  While carrying out the work he met Sheik Mahmoud Dehayni, a member of the Hezbollah, which organisation was in power in the area.  He reached agreement with Sheik Dehayni that the latter would ensure the appellant’s safety and that of his crew, as well as the safety of the job in the area, in return for donations to the Hezbollah.  He needed, as well, the permission of the Jaafar family to carry out the work.  For this, he also sought Sheik Dehayni’s help.  An agreement was reached.  Apparently, Sheik Dehayni required in return for the assistance he was to give that the appellant obtain information about drug plantations owned by the Jaafar family. 

6                     It took some months for the work to be completed and in that time the appellant gave the requested information about the drug plantations.

7                     After some three months, it seems that there was a big drug bust in the area, which resulted in the destruction of plantations belonging to the Jaafar family and the confiscation of drugs belonging to that family.  In this bust, Mr Jaafar and some of his gang were captured.  The appellant understood that the Lebanese army was involved in this operation.  The Sheik told him that the Hezbollah was not.

8                     A Mr Houssein Hammieh, who also belonged to the Jaafar gang, investigated what had happened.  Mr Hammieh’s brother was, so the appellant said, also a member of the Hezbollah.  The appellant claimed to fear that members of the Jaafar family/gang would harm him.  They were seeking, so he claimed, revenge for the loss of their drug plantation and the produce thereof.  He said that the authorities could not protect him because Lebanon was a small country and everyone had connections with the police, army officials, secret service and political parties. 

9                     Prior to the hearing, the appellant elaborated on the claims he had made originally.  In particular, he is reported to have made the following complaint:

“The applicant claims that the Lebanese government is pro-Syrian and that if you are not pro-Syrian then you will be denied any kind of help.  He claims that he is not pro-Syrian.  He claims that if a person makes any protest against Syria then that person could be killed.   The applicant claims that  he left Lebanon because of his fear.”

10                  The Tribunal found that the appellant was “generally credible”.  However, it considered that, following the adverse decision by the delegate of the respondent Minister, he had exaggerated the involvement of the Hezbollah in order to enhance his claims.  The original claims had stated that his persecutors were members of the Jaafar clan, not the Hezbollah.  This was supported by the statements of his family given in January 2002, which predated the delegate’s decision made in October 2002.  After the delegate’s decision, the appellant claimed that the Hezbollah was also involved in persecuting him.  The Tribunal preferred the original version of his claims.  It accepted that if the appellant returned to Lebanon he could be seriously harmed by either the member of the Hezbollah, Hussein Hammieh or members of the Jaafar family/gang.  The Tribunal was of the view that the harm faced by the appellant was sufficiently serious to constitute persecution.  The Tribunal, however, was of the view that such serious harm as the appellant faced was not for one of the reasons enumerated in the Convention.  It noted that s 91R(1)(a) of the Migration Act 1958 (Cth) (“the Act”), stipulated that a Convention reason or reasons must constitute at least the essential and significant reason for the persecution.  The Tribunal continued:

“Having considered the facts of this case the Tribunal is of the view that the reason the applicant could be harmed by either Hossein Hammieh or members of the Jaafar family is revenge for the belief that the applicant exposed the criminal drug activities to the authorities leading to the arrest and death of some members of the Jaafar family/gang and the loss of drugs.

Fear of revenge does not come within the scope of the Refugees Convention unless it can be shown that the revenge or retaliation is linked with race, religion or political opinion or other Convention reason.  In the circumstance of this case, the persecutors are not concerned with the applicant’s race, religion, political opinion or any other personal attribute other than the fact that they believe that he is responsible for exposing their criminal activities leading to the death of some of their people.  It is clear form the applicant’s own evidence that they are concerned with exacting some form of retribution form him for this reason and not for any other reason.  Even though one of the persecutors is a member of the Hezbollah which is a political and fundamentalist religious party and is pro-Syrian and the applicant claims that he is not pro-Syrian, the Tribunal is of the view that the essential and significant reason for the persecution is revenge for the belief that the applicant exposed their criminal activities.  There is no evidence before the Tribunal that the applicant’s political views or opinions are of any interest to his persecutors.

It is the Tribunal’s view that the applicant’s fear has no connection with any one of the Convention reasons.”

11                  In the Federal Magistrate’s Court it was submitted that the reasons of the Tribunal demonstrated jurisdictional error such that the decision was not a decision at all and in consequence not a privative clause decision such as would not be reviewable by the Court.  It was said that the Tribunal’s decision was no decision at all for two reasons.  The first was that the Tribunal had failed to exercise its jurisdiction to consider whether the appellant’s fear of persecution was on the basis of political opinion.  In connection with that ground, it was said that the Tribunal had erred in construing the meaning of the term “political opinion” in Article 1A(2) of the Convention.  The second basis of complaint was that the Tribunal had failed to consider and address the appellant’s claim that he would not be afforded State protection by the Lebanese authorities because he was not pro-Syrian. 

12                  The learned Federal Magistrate was of the view that the Tribunal had addressed the question of political opinion adequately, in that the appellant’s fear of harm did not arise for a Convention reason.  The Tribunal had found that the persecution feared by the appellant arose as a result of revenge on the part of the Jaafar family for the exposing of their criminal drug activities and had no connection with any matter referred to under Article 1A(2) of the Convention.  Although the Tribunal noted the second matter, namely that State protection was not available to the appellant because he was not pro-Syrian, the learned Federal Magistrate did not address it.  It would appear that the argument was overlooked by his Honour.

13                  I shall deal with each of the two matters in turn.

Political opinion

14                  As I understand the appellant’s case, it is put in the following way:

1)             The expression “political opinion” as used in Article 1A(2) of the Convention has as broad meaning.  It is not limited to support for political parties.  Rather, it relates to any aspect of society in which government may have an interest, including repression of criminal activities and the bringing of criminals to justice.

2)             The revenge, of which the Tribunal spoke, may well have arisen from the view formed by the Jaafar gang that the appellant had informed the relevant authorities of the illegal activities of the gang in cultivating and distributing illegal drugs.

3)             It was therefore incumbent upon the Tribunal to consider whether the Jaafar gang had imputed to the appellant opposition to the illegal activities, that is to say, whether they imputed to him a political opinion.

4)             By failing to ask that question, the Tribunal had constructively failed to exercise its jurisdiction. 

15                  For the Minister, it was submitted that there was no jurisdictional error for two reasons: 

(i)                  The appellant had not sought to raise a case of imputed political opinion and hence the failure of the Tribunal to consider that case could not involve a failure to exercise jurisdiction.

(ii)                The Tribunal found, as a fact, and it was open for it so to do, that the revenge which the Jaafar gang was seeking to extract was unrelated to political opinion but rather revenge for the exposure by the appellant of the relevant criminal drug activities.

Accordingly, there was no jurisdictional error.  Nor was there a failure to construe the words “political opinion”.

16                  There is much to be said for the view submitted for the Minister that there can be no jurisdictional error in the Tribunal failing to consider a claim that is not raised by the applicant before it.  Indeed, this would seem to be established by the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1, in that part of their Honours’ decision as relates to what was said to be a constructive failure by the Tribunal to exercise jurisdiction by not determining that the first prosecutor’s spouse had held a temporary protection visa and was an applicant for a permanent protection visa.  If that matter was found favourably to the prosecutors, their application for a protection visa would have been successful.  Their Honours said at [31]-[32]:

“None of the prosecutors relied upon the position of their husband and father as the main applicant to found a claim that they fell within the second category [ie a matter that they were a family unit of which one person was owed protection obligations and had been granted a protection visa].  The reasons why they did not do so are apparent, at the least, from their then state of knowledge respecting his whereabouts.  The Tribunal was required to review the decision of the delegate who, in turn, had been required (by s 47) to consider the application and the criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis…  There is no obligation imposed by s 65(1) to reach a state of satisfaction (or otherwise) representing criteria which the prosecutors did not advance.  There was no misapplication of the relevant criteria by the Tribunal and no jurisdictional error.”

17                  For the appellant it was submitted that the case of Applicants S134/2002 was distinguishable in that the case was concerned with the question of failure on the part of the Tribunal to find a relevant fact.  With respect, it seems from the passage which I have quoted above that the High Court’s decision was more widely expressed than that. 

18                  In principle, there is something rather illogical in saying that a Tribunal erred in failing to exercise its jurisdiction by considering a claim it was not asked to consider.  On the other hand, there is no system employed in the Tribunal which identifies the issues the Tribunal is to decide.  Rather, the Tribunal exists to review the Minister’s adverse decision in the factual circumstances which it finds exist. 

19                  It was submitted further by the appellant that there was authority to the contrary of the Minister’s submission.  Reference was made to the decision of a Full Court of this Court in V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 and Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184.  Both of these cases, however, predate Applicants S134/2002 and to the extent that the latter case is a decision of the High Court, it may be seen as overruling the two Full Court decisions to which reference has been made.  The same may be said of the Full Court decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs  (2003) 75 ALD 630, a case decided after the decision of the full High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 but before that Court’s decision in Applicants S134/2002.

20                  In Applicant WAEE, the Full Court of this Court said at [47]:

“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.”

21                  NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 was a decision of the Full Court decided after Applicants S134/2002.  There is a discussion in the judgment of Black CJ, French and Selway JJ of the question whether there will be a constructive failure to exercise jurisdiction if the Tribunal does not address a claim not in fact advanced: see paras [58]-[63]. While the Full Court accepted that there is no obligation on the Tribunal to deal with a claim not advanced, the view is taken that there will be a review obligation on the part of the Tribunal when it is apparent on the face of the material before the Tribunal that an applicant to it has sufficiently raised the relevant issue.  No doubt, in reaching this conclusion the Full Court was conscious of the fact that many applicants before the Tribunal are unrepresented and indeed that lawyers, not being also migration agents, have no right, without leave, to make submissions to the Tribunal.  There is no system of pleadings in the Tribunal which define the issues which the Tribunal – an inquisitorial Tribunal – must decide.  The conclusion reached by their Honours that there will be a constructive failure on the part of the Tribunal to exercise jurisdiction, in a case where an applicant’s claim is apparent on the face of the material before the Tribunal, even if the claim is not expressly or distinctly raised by the applicant for decision would seem consistent with the requirement that the Tribunal give justice to those who apply to it.  It is not necessarily inconsistent with Applicants S134/2002.

22                  I should say that there is no suggestion in the present case that the appellant ever raised the issue whether the motivation of the Jaafar family in persecuting him arose from that family imputing to him political opinions concerning their criminal activities.  Nor is the case one where it can be said to be apparent on the face of the material before the Tribunal that the facts sufficiently raised the issue.

23                  I am accordingly of the view that the present is not a case where there was jurisdictional error on the part of the Tribunal in failing to consider whether the Jaafar family imputed to the appellant a political opinion in the broad sense, concerning drug cultivation and activities which led to the drug bust on the Jaafar plantations. 

24                  I would add that in my mind, even if it were appropriate to find jurisdictional error in a case such as the present, where the applicant to the Tribunal had not in any way raised the issue and where the issue was not on its face readily apparent, the Tribunal’s analysis of the facts involved it finding, inconsistently with the claim of persecution for political opinion, that the revenge targeted at the appellant was not linked to political opinion but rather that any harm he might suffer arose simply from the Jaafar family seeking to exact revenge upon the appellant for allegedly exposing their criminal activities to the army.  On those facts, in my view, the Tribunal correctly found that the fear of persecution did not arise by reason of political opinion.  In so saying, I accept that the words “political opinion” are capable of a wide meaning in the context in which they appear in the Convention.  Like VNAY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 96, the present is a case where there was no error on the part of the Tribunal in its understanding of the meaning of political opinion so far as that expression related to the facts of the present case and there was no jurisdictional error on the part of the Tribunal.

State protection

25                  So far as I understand the appellant’s argument, it can be put as follows:

1)                  The appellant clearly claimed in submissions addressed to the Tribunal that the Lebanese government was pro-Syrian but that he was not.  Being not pro-Syrian, he claimed he would be denied all kinds of help: economic, political and judicial.  He claimed that any protest made would result in the protestor being killed.  Indeed, he claimed that he left Lebanon because of this fear.

2)                  The appellant claimed thus that he could not obtain State protection from the Jaafar gang because he was not pro-Syrian. 

3)                  It followed that the persecution which he feared, namely the harm to him perpetrated by the Jaafar gang, arose as a result of protection from the Jaafar gang being withheld to him for a Convention reason; that being his non pro-Syrian attitude (“political opinion”).

4)                  Despite the claim having been made, the Tribunal failed to address it.

26                  For the respondent Minister, it was submitted:

1)                  That the appellant’s claim depended upon a misunderstanding of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Khawar  (2002) 210 CLR 1.

2)                  Further, it was submitted that the Tribunal, while not expressly dealing with the claim as formulated by the appellant in submissions, actually did deal with the factual underpinning of the claim at least implicitly, in the following way.  Like a claim made by the appellant but rejected by the Tribunal, namely that the appellant feared persecution by the Hezbollah, the present claim, relating to State protection, was made after the decision by the delegate but before the Tribunal heard the application.  The Tribunal found the claim of persecution by the Hezbollah to be exaggerated because it was made after the appellant had had his application refused by the delegate.  In other words, that claim was made in order “to enhance his claims”.  Therefore, by expressly rejecting the claim of persecution by the Hezbollah, the Tribunal implicitly rejected the claim of failure of State protection based on the appellant’s non pro-Syrian views.  In other words, the Tribunal implicitly did not believe the appellant.  It was said to be unnecessary therefore for the Tribunal to say anything more about the claim because it had been rejected on the facts. 

27                  I note that it is conceded by counsel for the Minister that the claim as formulated above was in fact made in submissions to the Tribunal.  It is not altogether clear to me that this concession was correct.  Indeed, on one view of the matter, the claim made by the appellant might be thought to be merely a claim of fear of persecution by reason of the appellant’s non pro-Syrian sympathies.  However, given the concession, I propose to proceed on the basis that the claim was in fact made so that the argument considered earlier, namely, that there can be no jurisdictional error in failing to deal with a claim that was not advanced by an applicant, has no relevance here.

28                  The primary submission on the part of the Minister was that the High Court’s decision in Khawar did not support the appellant’s submission.  It is submitted that the particular factual matrix in Khawar involved the issue of there being a link between the private harm which Mrs Khawar suffered as a wife in a Pakistani family and her inclusion in a social group as a result of State tolerance or State condoning of private harm sustained by women.  It is said that the present is not such a case.  The submission was, as I understood it, that the High Court did not have to consider the question where there was private harm without any link to inclusion in a relevant social group. 

29                  In my view, the appellant misstates the principle established in Khawar.  Mrs Khawar was a victim of domestic violence perpetrated by her husband and members of his family.  He was, she said, an alcoholic and she was beaten regularly by him.  She said that she had reported the violence to the police but no action was taken by them.  It was found by the Tribunal that the husband was not motivated to harm her because she was a member of a particular social group.  Notwithstanding that the harm to her arose by virtue of the non Convention motivation of the husband (ie it was a private matter of domestic violence), the issue for decision, as stated by Gleeson CJ at [5], was whether the failure of the country of nationality to provide protection against domestic violence to women in circumstances where the motivation of the perpetrator of the violence was private could constitute persecution of the kind referred to in Article 1A(2) of the Convention.  The second issue was whether there could be a particular social group, being women in Pakistan, and if so, whether the matter should be remitted to the Tribunal to decide whether such a particular social group existed.  Mrs Khawar claimed, not merely that the local Pakistani authorities were unable to protect her against the personally motivated violence towards her, but that that violence was tolerated and condoned as an aspect of systematic discrimination against women.

30                  It was held that it would have been open to the Tribunal on the material before it to conclude that women in Pakistan were a particular social group and that the toleration or condonation of the husband’s domestic violence against Mrs Khawar constituted persecution by reason of a Convention ground, that being her membership of a particular social group, if such a group was found to exist.

31                  With respect to the Minister’s submission, to read Khawar as limited to a case involving a linkage between the private harm and a relevant social group is to read the case too narrowly.  It seems to me that it must follow from Khawar that a person in the position of the applicant who suffers private harm which the authorities condone, or where they are unable or unwilling to provide effective protection to him, and that unwillingness or inability arises because of a Convention reason, namely their political opinion (or in Khawar, membership of a particular social group), it will be open to the Tribunal to find that the requirements of the definition of “refugee” will be fulfilled.

32                  The judgment of McHugh and Gummow JJ in Khawar likewise makes it clear that the decision in that case is not confined in the way counsel for the Minister says it is.  Their Honours point out at [86] that victims of domestic violence would meet the Convention definition only by showing more than the harm of which they complained, ie domestic violence.  That additional element in Khawar was failure of State protection or the State condoning domestic violence against women.  It is true in that case that the reference to “women” was a reference to the argument put to the High Court that it was open to the Tribunal to find that women constituted a particular social group for the purposes of the Convention.  However, it follows in my view that Khawar supports the submission that a claim that a person was the victim of harm (in this case, revenge by the Jaafar family) will not, without more, fall within the Convention.  However, where there is an additional element, namely that there was a failure of State protection or a condoning of the actions of the Jaafar family on the basis of the appellant not holding pro-Syrian views, a case will be made out of persecution for a Convention reason.  This was the case which the appellant raised, but which was not considered by the Tribunal.  The failure of the Tribunal to consider it was a constructive failure on the part of the Tribunal to exercise its jurisdiction and thus a jurisdictional error.

33                  The alternative argument that the Tribunal in some way impliedly dealt with the claim by finding against the appellant on the factual basis underlying the claim is, with respect, difficult to follow.  It is hard to see why the finding that the appellant exaggerated his case by suggesting that the Hezbollah as well as the Jaafar family were persecuting him demonstrated that the Tribunal made any finding as to whether State protection was unavailable to those who did not hold pro-Syrian views or, for that matter, about whether the appellant did or did not hold pro-Syrian views.  There was no connection at all between the two matters.  It is not as if the Tribunal found that it could not accept any evidence of the appellant at all.

34                  It follows that the Tribunal failed to consider the appellant’s claim that there had been a failure of State protection on Convention reasons.  Since the Tribunal’s decision thus involved jurisdictional error, its “decision” is not a decision at all and thus not a privative clause decision: Plaintiff S157/2002.   I would accordingly set aside both the decision of the learned Federal Magistrate and the decision of the Tribunal and remit the application to a Tribunal differently constituted for decision in accordance with law.  The Minister must pay the appellant’s costs of the appeal and before the Magistrate.

Associate:

Dated:              10 June 2005