Minister for Immigration & Multicultural Affairs v Applicant Z [2001] FCA 1823

Minister for Immigration & Multicultural Affairs v Applicant Z [2001] FCA 1823

The material before the Tribunal, taken at its highest, showed only intermittent Taliban recruitment or conscription of some young local men and the possibility of paying to avoid recruitment. It did not show that able-bodied Afghan males, or young able-bodied Afghan males, had any common unifying attribute setting them apart as a recognisable social group, or that Afghan society perceived them as a distinct social unit. To the extent the proposed group was defined by fear of conscription or recruitment, it was impermissibly defined by the feared persecutory conduct. The Tribunal was therefore not required to consider that able-bodied Afghan males constituted a particular social group,...

Jurisdiction
Australia
Judgment Date
19 December 2001
Procedural Posture
Migration Protection Visa Judicial Review Appeal / Appeal From a Judge of the Federal Court of Australia Against Orders Remitting the Matter to the Refugee Review Tribunal
Outcome
Appeal allowed; orders of Carr J set aside; application dismissed with costs; respondent ordered to pay the Minister's costs of the appeal.
Legal Topics
['protection Visa' 'particular Social Group' 'forcible Recruitment or Conscription' 'well Founded Fear of Persecution' 'causal Nexus' 'jurisdictional Error' 'refugee Review Tribunal']
['migration Law' 'refugee Law' 'administrative Law'] ['protection Visa' 'particular Social Group' 'forcible Recruitment or Conscription' 'well Founded Fear of Persecution' 'causal Nexus' 'jurisdictional Error' 'refugee Review Tribunal']

Case Brief

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Procedural Posture

Migration Protection Visa Judicial Review Appeal / Appeal From a Judge of the Federal Court of Australia Against Orders Remitting the Matter to the Refugee Review Tribunal

Legal Issues

  1. 1 ['Whether the Refugee Review Tribunal was required to consider whether able-bodied Afghan males constituted a particular social group for the purposes of Article 1A(2) of the Convention relating to the Status of Refugees.' 'Whether a general policy of recruitment or conscription by the Taliban directed at young or able-bodied Afghan males could amount to persecution for reasons of membership of a particular social group.' 'Whether the proposed particular social group was impermissibly defined by reference to the feared persecutory conduct.' 'Whether there was material before the Tribunal showing that Afghan society perceived able-bodied Afghan males as a distinct social group.' 'Whether the Tribunal fell into jurisdictional error within s 476(1)(e) Migration Act 1958 (Cth).']

Ratio Decidendi

The material before the Tribunal, taken at its highest, showed only intermittent Taliban recruitment or conscription of some young local men and the possibility of paying to avoid recruitment. It did not show that able-bodied Afghan males, or young able-bodied Afghan males, had any common unifying attribute setting them apart as a recognisable social group, or that Afghan society perceived them as a distinct social unit. To the extent the proposed group was defined by fear of conscription or recruitment, it was impermissibly defined by the feared persecutory conduct. The Tribunal was therefore not required to consider that able-bodied Afghan males constituted a particular social group,...

Court Disposition

Appeal allowed; orders of Carr J set aside; application dismissed with costs; respondent ordered to pay the Minister's costs of the appeal.

Orders

  • ['The appeal be allowed.' "The orders made by Carr J on 11 July 2001 be set aside, and in lieu thereof, order that: (a) the application be dismissed; (b) the applicant pay the respondent's costs." "The respondent pay the Minister's costs of the appeal."]