S v Minister for Immigration and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Kirby,McHugh,Callinan JJ
• Judgment Date: 27 May 2004
• Neutral Citation: [2004] HCA 25,2004-0527 HCA B
• Docket Number: P52/2003
• Date: 27 May 2004
• Court: High Court

[2004] HCA 25

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ

P52/2003

Applicant S

Appellant

and

Minister for Immigration and Multicultural Affairs

Respondent

Representation:

M D Howard for the appellant (instructed by Minter Ellison)

J Basten QC with P R Macliver for the respondent (instructed by Australian Government Solicitor)

Migration Act 1958 (Cth), s 36(2).

Applicant S v Minister for Immigration and Multicultural Affairs

Immigration — Refugees — Application for protection visa — Well-founded fear of persecution for reason of membership of particular social group — Particular social group identified as able-bodied young men from Afghanistan — Whether member of a particular social group — Whether Afghan society must perceive the particular social group — Whether well-founded fear of persecution — Whether enmity or malignity necessary to establish persecution — Whether facts reveal law of general application — Whether implementation of law of general application can amount to persecution — Whether implementation of ad hoc policy can amount to persecution.

Words and phrases: ‘Particular social group’, ‘well-founded fear of persecution’, ‘law of general application’, ‘legitimate national objective’.

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court made on 21 August 2002 and, in lieu thereof, order that the appeal to the Full Court of the Federal Court be dismissed with costs.

Gleeson CJ, Gummow, Kirby

Introduction

1 This appeal turns upon the provisions of the Migration Act 1958 (Cth) (‘the Act’) respecting the issue of protection visas. It is common ground that the appeal is to be determined by reference to the legislation as it stood before the commencement of the Migration Legislation Amendment Act (No 6) 2001 (Cth).

2 Section 36(1) of the Act provides that there is a class of visas to be known as protection visas. Section 36(2) provides that a criterion for a protection visa is that the applicant for the visa is:

‘a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.

3 If, after considering a valid application for a protection visa, the Minister is satisfied that this criterion and any other requirements spelled out in par (a) (for example, health requirements) of s 65(1) of the Act are met, the Minister is to grant the visa.

4 The expression ‘a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’ picks up the definition of ‘refugee’ in Art 1A(2) of these international instruments (‘the Convention’), which relevantly provides:

‘[Any person who] owing to 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’.

5 The issues in this appeal raise two questions respecting the construction and application of the Convention definition. First, the criteria to be applied in order to determine whether the appellant was a member of a particular social group; and, secondly, whether the appellant could be considered to have a well-founded fear of being persecuted. The second question was raised for the first time by the Minister before this Court.

6 Both questions, but particularly the first, involve consideration of what was decided in earlier decisions of this Court and the grounds for those decisions. The cases are Applicant A v Minister for Immigration and Ethnic Affairs1, Chen Shi Hai v Minister for Immigration and Multicultural Affairs2, Minister for Immigration and Multicultural Affairs v Yusuf3 and Minister for Immigration and Multicultural Affairs v Khawar4. It is necessary to approach the judgments in those cases with an appreciation of the procedural setting in which they reached this Court and the actual outcomes which were achieved.

Facts and litigation

7 The appellant is a married Afghan male of Pashtun ethnicity, from Malizo village of Gizab district in Orozgan province, Afghanistan. The appellant's wife, father, mother and four brothers remain in the village. He was born in 1980, and arrived in Australia on 11 July 2000 by boat.

8 On 25 July 2000 the appellant applied for a protection visa. On 5 September 2000 the Minister's delegate refused the appellant's application. The appellant sought review of the delegate's decision by the Refugee Review Tribunal (‘the Tribunal’). On 4 January 2001, the Tribunal affirmed the delegate's decision 5.

9 Both the Minister's delegate and the Tribunal accepted that the appellant's reason for leaving Afghanistan was to avoid the Taliban who were recruiting for military service. The Taliban had tried twice forcibly to recruit the appellant. On the first occasion, the appellant avoided recruitment by paying off the recruiters. On the second occasion, the appellant told the recruiters that he needed to speak to his parents. He then departed immediately from Afghanistan with the assistance of a people smuggler.

10 Although not dealing expressly with whether the appellant had a well-founded fear of persecution, the Tribunal did find that the appellant ‘may face serious harm’ as a result of conscription (it was also accepted that the

appellant had a well-founded fear of harm). This issue was given considerable attention during oral argument before this Court.

11 The Tribunal accepted that many young men in Afghanistan had been recruited by the Taliban. The Taliban practised ad hoc, random, forcible recruitment of young men, where the only apparent criterion for recruitment was that the young men be able-bodied. This was borne out by both the country information accepted by the Tribunal and the fact that the appellant's brother was not recruited because he was not able-bodied. The Tribunal also noted that thousands of young men had left Afghanistan to avoid recruitment by the Taliban.

12 The Tribunal's reasons for rejecting the appellant's claim appear from the following passage 6:

‘The nature of the recruitment process is such that there are no criteria for selection save being able-bodied and, being in the wrong place at the wrong time.

By his own account he was approached in an ad hoc recruitment drive and, I also find that the recruiters in that exercise were not seriously concerned whether he did fight or not as they were equally content with being paid to allow him to avoid the recruitment drive.

When the second group came they took no action when he said he wanted to speak to his parents first and indicated that he may also pay them.

Given the Taliban's rigid approach to compliance this action leads me to conclude they were not concerned about the Applicant who had no skills or any significant value to them apart from his youth and the fact he was able-bodied. No immediate follow-up occurred and he was not required to report to them.

This leads me to conclude that he was not targeted to the extent that he was listed or registered for recruitment by the Taliban but was merely seen as a young man who was available in that area at that time and, in the random manner of such an ad hoc drive he was able to avoid recruitment for a second time.’ (emphasis added)

13 The key to this passage is in the final paragraph, which discloses the Tribunal's conclusion that the appellant was not targeted by reasons of any political opinion or religious beliefs (ie, he was not ‘listed or registered for recruitment’). On review by the Federal Court 7, Carr J (with respect, correctly) understood the reasons to indicate that the Tribunal had not considered whether the appellant was a member of a ‘particular social group’ 8, and whether he was persecuted by reason of his membership of that group 9. His Honour said that the facts presented the potential for such a case, and thus the Tribunal should have considered whether able-bodied young men (or possibly able-bodied young men without the financial means to buy-off the conscriptors) comprised a particular social group within the meaning of the Convention 10. Accordingly, Carr J ordered that the Tribunal's decision be set aside and the matter be remitted to it for redetermination according to law 11.

14 The Minister appealed to the Full Court of the Federal Court (Whitlam and Stone JJ; North J dissenting) 12 which allowed the appeal. Stone J, with whom Whitlam J agreed 13, concluded 14:

‘In this case, however (unlike the position in Khawar), I can find no trace of any evidence before the Tribunal that would support a claim that Afghan society perceived young able-bodied men as comprising a separate group either as a result of the Taliban's recruitment process or for any other reason. In my view there is nothing to distinguish this case from that considered by the Full Court in [ Minister for Immigration and Multicultural Affairs v] Applicant Z.’ (emphasis added)

15 In Applicant Z15, the Full Court (Sackville, Kiefel and Hely JJ) was concerned with an Afghan applicant in a position substantially the same as that of the appellant in this case. Sackville J identified as an ‘insuperable obstacle’ the absence of material before the Tribunal that would have justified it in finding that Afghan society, or some clearly identifiable section of it, perceived ‘able-bodied Afghan men’ as a distinct social unit 16.

16 The appellant's primary ground of appeal in this Court is that the majority of the Full Court erred in requiring that there be evidence that Afghan society perceived young able-bodied men to comprise a particular social group, before the Tribunal was obliged to consider whether the appellant was a...