FEDERAL COURT OF AUSTRALIA MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 MIGRATION – protection visa – fear of persecution for reason of membership of particular social group or political opinion – imputation of political opinion – whether Refugee Review Tribunal applied too narrow test – whether Tribunal must decide whether person is a member of a particular social group when the reason for the person's fear of persecution is not related to membership Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 cited Balbin v Minister for Immigration and Multicultural Affairs (Lindgren J, 7 December 1998, unreported) cited Canada v Ward [1993] 2 SCR 689 discussed Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 distinguished Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 cited SZEGA v Minister for Immigration & Multicultural & Indigenous Affairs[2006] FCA 1286 cited Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670 cited MZXDQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL VID 644 of 2006 FINKELSTEIN J 28 NOVEMBER 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID644of 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXDQ Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL Respondents JUDGE: FINKELSTEIN J DATE OF ORDER: 28 NOVEMBER 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The name of the first respondent be amended to read "Minister for Immigration and Multicultural Affairs". 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 644 of 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZXDQ Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL Respondents JUDGE: FINKELSTEIN J DATE: 28 NOVEMBER 2006 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant claims to be a Convention refugee but his application for a protection visa was rejected by a delegate of the Minister and that rejection was affirmed by the Refugee Review Tribunal. Subsequently, the decision of the Tribunal was set aside and the matter was remitted. The Tribunal again affirmed the decision not to grant a protection visa. The application to have this second decision by the Tribunal set aside by the Federal Magistrates Court was dismissed. This is an appeal from that court. 2 The grounds of the appeal are that the Federal Magistrate erred in failing to find that the Tribunal misunderstood and/or misconstrued the tests for refugee status on the grounds of a well-founded fear of persecution due to (a) imputed political opinion; and/or, (b) membership of particular social group. I will deal with each of these contentions in turn. 3 In support of his application for a protection visa, the appellant claimed that he was a citizen of Ukraine, that he had lived in Lviv and that he had had various occupations including television commentator and journalist. He said that he was a member of the Social National Party of Ukraine (SNPU) and that because of his affiliation with that party he was mistreated both physically and emotionally. He claimed that he also suffered persecution and threats from law enforcement agencies for his commentary on protests that had taken place in Lviv. This persecution allegedly included a savage beating by the militia and having a dog set on him. He also claimed that the militia had broken into his house, terrified his family, and confiscated tapes of him making speeches at meetings and protests. Those that attacked him, he said, told him to forget about his party and work as a journalist. His attempts to bring his attackers to justice were unsuccessful and he claims it is futile to seek help because of the corruption in Ukraine. 4 When the matter came before the Tribunal, the appellant made additional claims in his oral submissions. He claimed that he had been involved in the investigation of an oil substitution racket that resulted in some criminals being exposed and that, as a result, his son had been beaten by people involved in the racket. He also claimed that he feared these people would harm him if he returned to Ukraine. 5 The Tribunal made several findings of fact adverse to the appellant. It did not accept that he was a journalist as he had claimed. It also did not accept that he was a member of the SNPU party. As a result, the Tribunal held that if, as he claimed, the appellant was assaulted and attacked by a dog in late 2001, this was "neither because of any political affiliation he had at that time, [n]or because of any activities as a journalist covering political events." 6 The Tribunal's findings were more favourable to the appellant with respect to his claim to involvement in the exposure of the oil racket. Both grounds of appeal depend on the Tribunal's finding that he, in the course of his employment, "was responsible for uncovering an oil substitution racket and that his efforts resulted in some criminals being apprehended and charged" and that "these criminals may have been able to escape proper punishment and that they resent the [appellant] for causing disruption to their criminal enterprise" and that they "may wish to harm him as revenge for what he did." Imputed political opinion 7 The key finding of the Tribunal with regard to "imputed political opinion" is as follows: "The [appellant] claims that he will not be protected by the authorities because of his political opinions. However, the Tribunal has found that the [appellant] was neither a member of the SNPU, nor a political journalist/commentator. The Tribunal therefore concludes that he has no publicly identified political opinions in the party political sense. The Tribunal has considered whether the [appellant's] actions in exposing the criminal activities of the gangsters might have reflected some political opinion on his part, or have given rise to him being imputed with such an opinion. Such a situation could arise in particular cases of people campaigning against political corruption, for example. However, the Tribunal has concluded that the [appellant's] actions were taken as part of his employment and it is of the opinion that these actions, in this instance, would not give rise to any perception of him as having a 'political opinion' within the meaning of the Convention." 8 The appellant submitted that the Tribunal erred: (a) by taking a too narrow view of political opinion as being confined to campaigning against official corruption; and, (b) by concluding that because the oil racket was exposed in the course of the appellant's employment, this precluded any imputation or perception of him having a political opinion. 9 A close reading of the Tribunal's decision demonstrates that it did not take an overly narrow view of political opinion. The Tribunal did not confine 'political opinion' to people campaigning against official corruption. It merely mentioned that group as an example of one group on to which a political opinion might be imputed in order to contrast with the position of the appellant on to whom, in the Tribunal's opinion, such an opinion could not be imputed. 10 It has been held in several cases that the exposure of corruption can lead to the imputation of a political opinion: C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366; Klinko v Canada (2000) 184 DLR (4th) 14; Guzman v Minister of Citizenship & Immigration (1999) 93 ACWS (3d) 733; Berrueta v Minister for Citizenship & Immigration (1996) 109 FTR 159; Grava v Immigration & Naturalization Service 205 F 3d 1177 (2000). In Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670, Merkel J reviewed these authorities and said (at [33] – [34]): "It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than any form of opposition to, or defiance of, state authority or governance. A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution…In each case the question of whether the nexus has been established is a question of fact for the RRT." 11 The Tribunal, in deciding that no perception of the appellant having a political opinion within the meaning of the Convention would have arisen as a result of his actions, was making a finding of fact. The Tribunal made clear that it considered whether the appellant's activities would have given rise to such an imputation and concluded that they would not. This conclusion was open to the Tribunal and there is no reason to disturb it. The fact that the activities were undertaken as part of the appellant's employment was clearly an important factor in the Tribunal's reasoning but there is no indication, nor any reason to infer, that the Tribunal considered that this precluded an imputation of political opinion. The use of the words "in this instance" in the final sentence of the passage quoted above confirms this view. 12 For these reasons, the appeal on the ground of "imputed political opinion" fails. Particular social group 13 The appellant asserts that the Tribunal misconstrued or misunderstood the test for evaluating the existence of a particular social group or, alternatively, failed to consider whether the appellant belonged to a particular social group. 14 In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 394 (per Gummow and Callinan JJ, Hayne J agreeing at 408, Kirby J to similar effect at 402-404), the High Court set out a series of steps that the Tribunal must follow when determining whether an applicant fell within the Convention definition of refugee (Article 1A(2)) by reason of a well-founded fear of persecution due to membership of a particular social group: "First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason." 15 The appellant claimed to have a well-founded fear of persecution by reason of membership of a group described as "journalists or politically-active citizens (such as members of non-ruling parties, including the SNPU) who are prepared to expose corruption." As I have already mentioned, the Tribunal found that the appellant was neither a journalist nor a member of the SNPU. The only way that the appellant could fall within the group to which he claimed to belong was by his involvement in the exposure of the oil racket. 16 However, the Tribunal held that these circumstances do "not relate to the Convention." It found: "The criminals' desire for revenge is not motivated by anything other than what [the appellant] has done. It is not because of any political opinion, for example. The Tribunal has asked itself whether the Convention motivation of 'particular social group' may have come into play, but has concluded that it has not. The [appellant] has not claimed, for example, that all employees or all 'inspectors' of the 'Lviv Committee of Citizen Rights Protection" are being targeted by criminals. Not is he claiming that those criminals are targeting any wider hypothetical social group such as 'people exposing criminal actions' or 'people exposing corruption.' Rather, it is clear that the revenge the applicant fears is directed specifically at him because of his actions in uncovering their criminal activities. It is therefore not necessary to deal with the question of whether or not such hypothetical groups exist in Ukraine as 'particular social groups' within the meaning of the Convention." 17 This passage makes clear that the Tribunal considered that the issue of whether the appellant belonged to a particular social group for the purposes of the Convention did not arise because the reason for the appellant's fear of persecution was not related to membership of a particular social group. That is, the Tribunal considered that even if the appellant did belong to a particular social group within the meaning of the Convention, membership of that group is not the reason for his fear of persecution. Accordingly, the Tribunal concluded that it was unnecessary to follow the steps set out in Dranichnikov. 18 The appellant contended before this court that this was an impermissible line of reasoning. He argued that the steps set out in Dranichnikov must be followed even if the Tribunal is of the view that the applicant's fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently skip over more difficult questions if the main issue can be determined from the answer to a simpler later question: in the law of negligence, there is no need to ask whether there was a duty of care if it is obvious that there has been no damage. In this case, moving to the last step in Dranichnikov was quite proper. 19 That question was whether the membership of a particular social group is the essential and significant reason (s 91 R(1)(a) of the Act) for the appellant's fear of persecution. The Tribunal answered that question in the negative, holding that "the revenge the [appellant] fears is directed specifically at him because of his actions in uncovering their criminal activities." 20 The distinction between fears based on membership of a particular social group and fears based on revenge for individual actions is conceptually simple but difficult in practice. Many social groups are defined by the actions of their members: whistleblowers (Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670), informers (Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417), trade unionists, Muslim women who do not wear traditional dress, parents in China (Chan v Canada [1995] 3 SCR 593; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225). If a person from such a group fears persecution, it may be difficult to say whether the essential and significant reason for that fear is their membership of the collective or the individual action which causes them to be identified as a member of the collective. The distinction, according to Dawson J in Applicant A (at 243), "may sometimes be an unreal one." 21 However, it is well established that it will be insufficient for an applicant to demonstrate that persecution is feared solely by reason of some act that a person has done, or is perceived to have done: Morato v Minister for Immigration, Local Government and Ethic Affairs (1992) 111 ALR 417, 420 per Black CJ (with whom French J agreed). The primary focus must be upon what someone is rather than what they have done. This, according to Black CJ, "tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character": (ibid.) It is not permissible to define a "particular social group" by reference to the act that gave rise to the fear of persecution: Applicant A per Dawson (at 243), McHugh (at 263) and Gummow JJ (at 264). 22 Furthermore, a group will not be a particular social group within the meaning of the Convention if the only characteristic members have in common is a fear of persecution: Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387, 400per Gleeson CJ, Gummow and Kirby JJ. 23 While it is vital to accurately identify the "particular social group" (Applicant A at 401), it is often quite difficult to do so. These difficulties have lead applicants and tribunals into error. In Dranichnikov, the Tribunal defined the group as "businessmen in Russia." It concluded that membership of that group did not give rise to a validly held fear of persecution and so held against the applicant. The High Court explained that the correct social group, as the applicant had eventually argued, was "businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals." 24 In Canada v Ward [1993] 2 SCR 689, the applicant was a member of the INLA, a para-military terrorist group committed to the unification of Ulster and the Republic of Ireland. As his first task with the INLA, the applicant was required to guard a group of innocent hostages. On learning that the hostages were to be executed, the applicant allowed them to escape without disclosing himself to his superiors. However, they subsequently learned of his disloyalty and he was captured and tortured. He escaped and fled to Canada with the assistance of the British authorities. His application for refugee status in Canada was partly founded on his membership of a particular social group. However, for a reason that is not clear from the decision, the particular social group pleaded was "members of the INLA" rather than "former members of the INLA who had betrayed the group in order to save innocent lives." The Court concluded (at 744) that "no subsequent disassociation from this group … had any impact on his fear" and that, therefore, it was not appropriate to say that his "fear was based on his status as a former member of the INLA. The fact that Ward might no longer be a member is merely a result of the persecution feared, not its foundation". This reasoning is difficult. It is not clear whether the Court regarded the group under consideration as being "current INLA members" or "current and former members" and, if it included former members, how the applicant could subsequently disassociate himself from the group. If the group were defined as "former members who had betrayed the group" the Court's reasoning would lose much of its force. 25 It is entirely proper to avoid identifying the appropriate "particular social group" if it is unnecessary to do so. Dranichnikov does not demand otherwise. 26 In Ward, the Supreme Court of Canada did not need to address the question of whether the applicant belonged to a particular social group within the meaning of the Convention. The final paragraph on this ground of appeal is as follows (at 745): "Moreover, I do not accept that Ward's fear was based on his membership. Rather, in my view, Ward was the target of a highly individualized form of persecution and does not fear persecution because of his group characteristics. Ward feels threatened because of what he did as an individual, and not specifically because of his association. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation." 27 Similarly, in Balbin v Minister for Immigration and Multicultural Affairs (Lindgren J, 7 December 1998, unreported), where the applicant claimed to fear persecution due to her exposure of corruption within the public service of the Philippines, Lindgren J held that the Tribunal had not erred in finding that the applicant's fears were due to her particular individual acts against the corrupt men rather than her membership of a group of "whistleblowers." 28 Further, in SZEGA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1286, where the applicants (husband and wife) claimed to fear persecution due to being participants in a "mixed marriage", Edmonds J held that "[e]ven assuming that the groups postulated … are particular social groups within the meaning of the Convention, and further assuming that the appellants are members of one or both of these groups, their membership of one or both of these groups is not the essential and significant reason (s 91R(1)(a) of the Act) they fear persecution…" 29 This is the same reasoning as employed by the Tribunal in this case. It held that the appellant's fear is based on his individual action and not on his affiliation with any particular group. Having made that finding, there was no need to address the test set out in Dranichnikov. For this reason, the appeal fails on this ground also. Conclusion 30 For the above reasons, the appeal must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 28 November 2006 Counsel for the Appellant: Mr J Gibson Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr E Heerey Solicitor for the First Respondent: Clayton Utz Date of Hearing: 9 November 2006 Date of Judgment: 28 November 2006