FEDERAL COURT OF AUSTRALIA WAHB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 299 MIGRATION – judicial review – protection visa – well-founded fear of persecution – particular social group – family – family member persecuted – not for Convention reason – whether Tribunal should have considered possible Convention reason for persecution – whether Tribunal should have considered possible membership of particular social group – "young teenage girls" in Afghanistan. Migration Act 1958 (Cth) Judiciary Act 1903 s 39B NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24 Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 cited Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 cited WAHB v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS W10 OF 2003 FRENCH J 3 APRIL 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W10 OF 2003 BETWEEN: WAHB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: PERTH DATE OF ORDER: 3 APRIL 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W10 OF 2003 BETWEEN: WAHB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: PERTH DATE: 3 APRIL 2003 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The appellant is a national of Afghanistan. He arrived in Australia without lawful authority in August 2001. He lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) on 14 November 2001. A delegate of the Minister for Immigration, Multicultural and Indigenous Affairs refused his application on 21 March 2002. On 25 March 2002, the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision. On 21 May 2002, the Tribunal affirmed the decision not to grant him a protection visa. He applied to the Federal Court on 4 June 2002 for judicial review of the decision of the Tribunal. The application was transferred to the Federal Magistrates Court on 8 July 2002. On 11 December 2002, Hartnett FM dismissed the application for review with costs. 2 On 22 January 2003, the appellant lodged an application for an extension of time to file and serve a notice of appeal. Time was extended on 7 February 2003 and a direction made that the notice of appeal exhibited to the appellant's affidavit of 22 January 2003 would stand as the notice of appeal as if filed on that day. By an order made on 14 March 2003, the Chief Justice directed that the appeal be heard by a single judge. The Factual Background 3 In support of his application for a protection visa, the appellant lodged a statement, dated 13 November 2001, in which he said he is of Tajik ethnicity. His religion is Sunni Muslim. Before leaving Afghanistan to travel to Australia he had lived all his life in Kabul. He had seven years schooling and had worked for five years as a spray painter in a motor works. He said that prior to his departure from Afghanistan the Taliban, who were then in power in that country, conscripted young Tajik men near where he lived to fight on the frontline against the Northern Alliance. A year earlier his elder brother had been taken by the Taliban from the panel beating shop in which he worked. His family had heard nothing of his brother since that time. 4 According to the appellant, on 19 June 2001, when he was leaving for work at about 8am, Taliban people came in a vehicle, stopped him and asked him if he were Pashtoon or Tajik. He told them he was Tajik. They forced him into their vehicle. They took him to a Taliban base in Hawza. In common with a number of other young men already there he was given a weapon. He was told to wait as a car was coming to take them to the front line. He said they waited for about three hours when a message came over the two-way radio and most of the Taliban departed. The remaining Taliban told him and his companions to leave their weapons and go to prayers. It was while at prayers that he slipped out of the room and escaped from the Taliban premises. He ran to his uncle's house. He remained there for about nine days. He then left and, with his uncle, travelled to the border with Pakistan. There his uncle bribed Pakistani guards to let them cross. He caught a bus to Peshawar. A maternal uncle had arranged a smuggler to get the appellant out of Pakistan. A false passport was organised. The appellant said he then flew to Karachi and left from Karachi airport for Malaysia. There he met a people smuggler who organised for him to travel to Indonesia. The trip, he said, was financed by the sale of his father's car and by his maternal uncle who provided some money. 5 On 15 February 2002, following the fall of the Taliban in Afghanistan, a further submission was put to DIMIA on behalf of the appellant stating why he continued to face persecution. The appellant's advisers submitted that it was too soon to expect their client willingly to return to a situation in which the effectiveness of an interim government was still to be tested and the success of which had already been threatened by age-old tribal rivalries in relation to particular territories. 6 The submission was accompanied by a further statement from the appellant. In that statement he referred to the resurgence of the Northern Alliance, which had supplanted the Taliban as the governing power in Afghanistan. He said that commanders who had been in power in the Mujahideen government were again in power. They had been very ruthless and cruel when previously in power. They looted people and raped women. The appellant referred to an incident in which the Mujahideen had forced a pregnant woman to deliver her baby so they could see how a woman delivers a baby. Relevantly to his own position, the appellant referred to events involving his brother and sister before the Taliban regime came to power. His brother had been in love with the daughter of a man who was a Commander with the rank of Brigadier under the Mujahideen regime. This Commander was also the brother-in-law of a man who is now a Minister in the Northern Alliance Government. The appellant said that unbeknown to his brother the Commander's daughter was in love with someone else. She had sexual activity with that other person. Her lover escaped from Kabul and the young woman accused the appellant's brother of having had sex with her. 7 Following that incident, according to the appellant, in 1995 or early 1996, the Commander confronted the appellant's brother with the allegation that he had had sex with his daughter. The brother denied the allegation but his denial was not accepted. The Commander then said that the brother must marry his daughter and added a condition that their sister, who was then 13, must marry him. The appellant said: "In Afghanistan it is very important according to our culture if someone has illegal sexual activity it is unacceptable for the families and many people are killed over such allegations. My brother did not want to marry the daughter now as she had, had sex with another man, and my sister was only 13 we did not want her married to a 45 year old man. We discussed with him that our sister is younger than his daughter how could she marry him, he was very cruel and a bad person he warned us that if the marriages do not take place then the whole family would be killed." (sic) The appellant said that a week later his brother was engaged to the daughter and three months after the engagement the Commander came and asked their sister to marry him. He said he would wait until she matured and then he would marry her. However a few days later he came back wanting to marry the sister in a week's time. She did not want to do this. The whole family then fled to Jalalabad. After they fled the Commander looted their house in Kabul and told their neighbours that if anyone gave their family shelter they would be killed. According to the appellant, the Commander ordered his men to find them and kill the whole family immediately. The family spent six months in Jalalabad. Then the Taliban came to power and the appellant's uncle sent a message that the Commander was not in power any more and that it was safe to return home. The appellant went on: "Now they have power again in Kabul, my brother is not alive any more, I do not know if my family have fled Kabul because of the Commander, if I go back he will kill me. I cannot go anywhere else, I do not know of the fate of my family; I do not even know if they survived the Taliban let alone now survive the Commander." His brother, it will be recalled, had disappeared under the Taliban regime. The appellant added that people travelling from Kabul to Jalalabad are at risk of being attacked by Taliban who are still operating on the roads. He said it is not safe to travel anywhere. There are thousands of Taliban still free. 8 In May 2002, the appellant's advisers made a submission to the Tribunal. It repeated the claims made earlier and referred to a witness, a relative of the appellant whose father had hidden the appellant's family in his home in Jalalabad after they fled from Kabul. In her statement, attached to the submission, she said that the appellant and his family were in fear of their safety and could not return to Kabul and that her father had told her that following the defeat of the Taliban and the return of the Northern Alliance to power, the Commander had gone to the appellant's house and that his father and brother had been taken and not heard of since. The witnesses' father had been unable to find out whether the appellant's father and brother were still alive. She said that the appellant would face execution if forced to return to Afghanistan. She had not told the appellant of his family's plight as she believed that such news would be too distressing for him to hear taking into account his fragile mental state and the fact that he was in detention. 9 The advisers' submission offered explanations for the failure of the appellant to mention the incident involving the Commander at initial interviews. He had fled Afghanistan due to the Taliban. He did not believe they would be defeated and so his most pressing claim was the threat from the Taliban. He did not believe that the Northern Alliance would come into power again. 10 It was submitted to the Tribunal that the appellant's difficulties with the Commander derived from "the imputed political opinion that has been given to the [appellant] due to the [appellant] and our client's family's disobedience of the authority of the Mujahideen Brigadier…". This it was said would cause the appellant to be persecuted because of the Commander's position of authority and his links to a senior member of the interim government. 11 The Tribunal held a video conference hearing in Sydney on 14 May 2002. It referred in its reasons to the appellant's claims and also to evidence from the witness referred to earlier. The Tribunal's Reasons 12 The Tribunal indicated that it had some difficulty with the belated manner in which the claim about the Mujahideen Commander emerged, including the appellant's failure to mention it in response to questions about the post-Taliban situation which were posed at interview in November 2001. This suggested that the issue did not then present itself to the appellant as a matter of great current significance or concern. Nevertheless the Tribunal was satisfied that the original circumstances did occur as set out in late 1995/early 1996 and proceeded to consider the claims on the basis that the Commander in question is again in a position of authority in Kabul and that he may already have acted against one or more members of the appellant's family and that the appellant also may therefore be at risk from him. The Tribunal identified the remaining fundamental question as the identification of a Convention reason for the appellant's fear of persecution. The Tribunal said it was satisfied that the Commander's original threats and demands to the appellant's brother and his father in late 1995 or early 1996 were "deeply personal". The Tribunal did not accept that the evidence suggested that the appellant's actual or imputed political opinion would be any part of the Commander's real reason or motivation for persecuting him. The appellant's adviser had suggested that the Commander may have justified his actions to others in terms of the family members having defied or disobeyed him and therefore for imputed political reasons. The Tribunal however, was quite satisfied that the imputed political opinion speculated upon was not the essential and significant reason for the persecution. In this connection it referred to s 91R(1)(a) of the Act. 13 Although it was not argued the Tribunal considered whether the appellant might have a well-founded fear of persecution by reason of his membership of a particular social group. It said: "Although the persecutor's original motivation to harm the [appellant's] brother arises in relation to the persecutor's perception of family honour and revenge (or even, simply, the personal abuse of power), it might be argued that harm might now be visited upon the [appellant] by that persecutor not for the original reason but as a member of the family, the family then being the particular social group. However, if this were the case s 91S of the Act would then apply. Simply put, this provision prevents a person who is pursued because he is a member of his family from using his family as a particular social group to bring within the scope of the Convention persecution that is in the first instance motivated for non-Convention reasons." The Tribunal found that the persecution or harm feared by the appellant from the Commander did not arise for any Convention reason. 14 It went on to consider his original claim in relation to the Taliban and the extent and nature of recent changes in Afghanistan. It is sufficient for present purposes to note that the Tribunal was not satisfied that the appellant would face a real chance of persecution from the Taliban or others associated with them if he were returned to Afghanistan. It said: "The present authorities in Kabul are themselves largely Tajik and the Tribunal is aware of no credible material suggesting that Tajiks in Kabul now face a real chance of persecution by reason of their ethnicity (or imputed political opinion as Tajiks from Kabul)." 15 The appellant was represented before the Federal Magistrates Court. A contention raised in written submissions by the appellant that the Tribunal had failed to make a bona fide attempt to deal with the subject matter of its decision was not pursued on the hearing and counsel for the appellant formally withdrew that ground. Instead the appellant submitted that s 65 of the Migration Act 1958 (Cth) created an inviolable limitation on the power of the Minister requiring the Minister's satisfaction or want of satisfaction of individual preconditions referred to therein in connection with the grant of a visa. The appellant submitted that the Tribunal failed to consider the issue of whether the appellant fell into any particular social group in Afghanistan. The particular social group proposed on behalf of the appellant was the group defined thus: "People who have relationships before marriage in Afghanistan." Although not asserting that he was such a person, the appellant asserted that his brother was accused of having had sex with the young daughter of the local Commander. The Court noted that the Tribunal had considered whether the appellant faced persecution as a member of the same family group as his brother. The Magistrates Court held that the Tribunal was correct in deciding that the provisions of s 91S of the Migration Act applied so that the Tribunal had to disregard any fear of persecution based upon membership of a family as a social group where another family member was in fear of persecution for a reason other than a Convention reason. The learned magistrate held that it was not for the Tribunal to explore all possible social groups and speculate whether the appellant was or was not a member of a particular social group. The magistrate went on to refer to the decision of the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 in respect of the operation of s 474 of the Migration Act. She said: "In all the circumstances of this case, I must dismiss the application. In summary, the Tribunal did act in a bona fide manner and the decision related to the subject matter of the legislation and was reasonably capable of reference to the power given by the Migration Act to the Tribunal. There has been no breach of an inviolable condition. The applicant must pay the respondent's costs." Grounds of Appeal 16 The grounds of appeal are set out in an amended notice of appeal in the following terms: "2. The learned Magistrate erred in law in holding that the Refugee Review Tribunal did not err in failing to consider whether the Appellant was a member of a political social group. 3. The learned magistrate erred in law in construing the operation and effect of s 474 of the Migration Act 1958 (Cth). 4. The learned magistrate erred in law in holding that the Tribunal had not erred in applying the provisions of s 91S Migration Act 1958 (Cth) to the facts of the matter." The Statutory Framework 17 The Act authorises the Minister to grant a non-citizen permission, to be known as a visa to travel to and enter Australia and/or remain in Australia (s 29). There are prescribed classes of visas (s 31). The protection visa is one of those prescribed classes (s 36). 18 The criteria for the grant of a protection visa include that set out in s 36(2), namely that the applicant for the visa is: "(a) A non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol…" 19 Article 33 of the Convention Relating to the Status of Refugees done at Geneva on 18 July 1951 gives rise to a primary obligation upon States that qualifies as a protection obligation for the purposes of s 36(2) of the Act. The Contracting States, by that Article, undertake not to expel or return a refugee to the frontiers of territories in which his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group, or political opinion. There are two elements of the obligation: "1. It operates in respect of refugees. 2. It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason." A refugee is defined in Article 1A(2) of the Convention as any person who: "… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Statutory Framework – The Jurisdiction of the Court 20 The jurisdiction of the Federal Court in relation to decisions under the Migration Act derives primarily from s 39B of the Judiciary Act 1903 (Cth) which provides, in the relevant parts: "39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. 39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." The Migration Legislation (Judicial Review) Amendment Act 2001 created a class of decision called a "privative clause decision". Such decisions are defined in s 474(2) thus: "474(2) In this section: "privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." Section 474(3) defines "decision" in broad terms which it is not necessary to enter into at present. It is not in dispute that the decision of the Tribunal, the subject of review in this case, is a "privative clause decision" within the meaning of s 474(2). 21 Section 474(1) provides: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 22 This provision has been construed by the High Court in Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24 to be constitutionally valid on the basis that it does not, properly construed, preclude judicial review on the basis of jurisdictional error which would support the grant of prerogative relief or the issue of constitutional writs under s 75(v) of the Constitution. Statutory Framework – Membership of a Particular Social Group 23 Section 91S of the Migration Act is directly relevant for present purposes. It 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 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 or 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." The Contentions of the Parties 24 It was contended on behalf of the appellant that the scope of judicial review available in the exercise of the jurisdiction of the Federal Magistrates Court and of the Federal Court in relation to decisions of the Tribunal is now governed by the decision of the High Court in Plaintiff S157/2002. The decision of the Full Court in NAAV, relied upon by the learned magistrate, had been overtaken by the judgment of the High Court. The question posed on behalf of the appellant was, in effect, whether there was any jurisdictional error on the part of the Tribunal which had not been considered by the Federal Magistrates Court because of the decision in NAAV. 25 It was submitted that the Tribunal had fallen into jurisdictional error reviewable by the Magistrates Court. The Tribunal was said to have erred in its application of s 91S of the Migration Act. That section applies to exclude reliance upon family membership as a political social group where another member of the family is persecuted for some reason other than a Convention reason. It was submitted however, that on the material before the Tribunal the appellant's sister was arguably being persecuted for a Convention reason. 26 When determining whether another member of the appellant's family had been persecuted for a Convention reason it had failed to consider the evidence before it in relation to the acts of persecution against the appellant's sister. It chose to focus only on the appellant's brother. The sister, it was submitted, was arguably being persecuted for a Convention reason. This argument arose out of the following circumstances: (a) The Tribunal noted that the sister was 13 years old and was being forced to marry a 45 year old. She had said that she would rather die than marry a cruel man. (b) The family feared persecution because of the threats of retribution against the family for the sister's failure to marry the Commander. That is to say, the family's fear of persecution did not arise until such time as the sister refused to marry the Commander. (c) The sister feared deprivation of her liberty and ill treatment. (d) The sister may be viewed as a member of a social group of young teenage girls readily identifiable in any society. (e) This approach to the identification of a particular social group accords with that outlines by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 where it was noted that a particular social group may be identified by reference to the actions of persecutors. 27 In the circumstances it was submitted the Tribunal erred in failing to take into account a relevant issue namely the sister's persecution and therefore failed to ask itself if the appellant was a person to whom Australia owed relevant obligations. 28 By way of reply the respondent contends that the issue now raised on behalf of the appellant was not raised in the hearing before the learned magistrate. The question is therefore whether it is expedient and in the interests of justice to allow the ground now to be argued – Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. The respondent contended that a reason for refusing leave was that there was no substance in the ground. Nevertheless the respondent went on to address the merits of the contention advanced on behalf of the appellant. In the circumstances of this case and having regard to the findings of fact made by the Tribunal, I allowed the ground to be advanced. 29 The respondent said that to avoid the application of s 91S of the Act the appellant would have to establish that the alleged fear of persecution which his sister experienced was for a Convention reason, which now was advanced as her membership of a particular social group, namely "young teenage girls". 30 It was submitted that there was no evidence before the Tribunal that the appellant's sister feared persecution because of her membership of this social group. Any fears of persecution which she may have had were because of the particular circumstances of her family and the actions of the Northern Alliance Brigadier. This was reflected in the findings made by the Tribunal. And in any event, there was no evidence that her membership of the social group of "young teenage girls" was the "essential and significant reason" for persecution feared by her as required by s 91R(1)(a) of the Act. There was no evidence before the Tribunal that "young teenage girls" constituted a group facing persecution in Afghanistan. 31 It was submitted for the respondent that the appellant's argument must fail because of the lack of evidence that his sister was in fear of persecution for reason of any membership of the group of young teenage girls. No question arose therefore whether this matter would have given rise to a jurisdictional error of the sort identified in Plaintiff S157 which would avoid the privative operation of s 474. Whether the Tribunal Erred 32 In my opinion there was no error on the part of the Tribunal. It was not asked to consider whether the appellant might have a well-founded fear of persecution by reason of membership of a particular social group. It nevertheless considered the possibility that he was persecuted because he was of the same family group as his sister but, the persecution itself not being for a Convention reason, the application of the social group ground, was excluded by s 91S. 33 The appellant had been represented before the Tribunal both in respect of written and oral submissions, it was not incumbent upon the Tribunal to consider the varieties of social groups to which the sister might conceivably belong and on account of which it might be said that members of her family were at risk of persecution. 34 Section 91S does not exclude the possibility that a person can claim to be a refugee on account of a well-founded fear of persecution by reason of membership of a family group where the ultimate reason for the persecution is a Convention reason. So if members of a family group are in fear of persecution because of the political opinions of one of their number, that fear of persecution is not to be disregarded by reason of s 91S. If one member of a family is a member of a particular social group otherwise defined and is persecuted on account thereof and where other members of the family are at risk of persecution on account of her membership of the family, s 91S does not apply. 35 In this case it is proposed that the Tribunal should have had regard to the possibility that the sister was a member of the social group defined as "young teenage girls". In my opinion the Tribunal had no such obligation. No such proposition was put to it. In any event the essential connection between such group membership and the risk of persecution was not sustainable on the facts. For as the Tribunal found, the Commander's original threats and demands to the appellant's brother and sister were "deeply personal". 36 The social group ground was in effect the only ground upon which the appellant contended that the Federal Magistrates Court should have granted the relief he sought. The ground cannot succeed. There is no jurisdictional error identified. The appeal must therefore be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . Associate: Dated: 3 April 2003 Counsel for the Appellant: Mr M Rynne (Pro Bono) Counsel for the Respondent: Mr M Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 March 2003 Date of Judgment: 3 April 2003