Mahuroof, Mursith v The Minister for Immigration & Multicultural Affairs [1998] FCA 209

FEDERAL COURT OF AUSTRALIA IMMIGRATION LAW - Migration Act 1958 (Cth) - review of decision of Refugee Review Tribunal - whether applicant had a real chance of suffering persecution in Sri Lanka by reason of his membership of a particular social group - relevant groups alleged to be those comprising Sri Lankan business people and the applicant's family - meaning of "a particular social group".

Migration Act 1958 (Cth), ss 475, 476 "Applicant A" v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, followed Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, cited MURSITH MAHUROOF v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 517 of 1997 BRANSON J SYDNEY 13 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 517 of 1997

BETWEEN: MURSITH MAHUROOF

Applicant

AND: the minister for immigration and multicultural affairs

JUDGE(S): BRANSON J

DATE OF ORDER: 13 MARCH 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 517 of 1997

BETWEEN: MURSITH MAHUROOF

Applicant

AND: the minister for immigration and multicultural affairs

JUDGE(S): BRANSON J

DATE: 13 march 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT INTRODUCTION This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a judicially-reviewable decision, namely a decision of the Refugee Review Tribunal (see s 475 of the Act). On 6 June 1997, the Refugee Review Tribunal ("the Tribunal") affirmed a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant the applicant a protection visa. For practical purposes, a person is entitled to a protection visa if the Minister is satisfied that he or she is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention").

Australia has protection obligations under the Refugees Convention to a person who: "[O]wing 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; 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." The grounds of the application are as follows: "1. The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal, namely: (i) in finding that the persecution claimed by the Applicant is not Convention based; (ii) in not finding that the persecution claimed by the Applicant is by reason of his political opinion and membership of a social group; (iii) in not finding that the persecution claimed by the Applicant is by reason of his religion; (iv) in finding that the Applicant does not face a real chance that he would suffer persecution for any of the five Convention reasons should he return to Sri Lanka. 2. The Tribunal ought to have concluded on the facts found by it that the Applicant had a well-founded fear of persecution owing to the Convention reasons were he to be returned to Sri Lanka." Ground 2 is not to be understood as adding anything to ground 1. Standing alone, it is not a ground of review authorised by s 476 of the Act. BACKGROUND The applicant is a Sri Lankan citizen. He entered Australia on 11 March 1997 when he was detained and taken to the Villawood Detention Centre. On 21 March 1997, he lodged an application for a protection visa. On 28 April 1997, a delegate of the Minister refused the applicant's application for a protection visa. The decision of the Tribunal to affirm the decision of the delegate is the subject of the present application for review. In his application for a protection visa the applicant stated that he feared that if he returned to Sri Lanka his life would be forfeited or that he would be kidnapped and ransomed. He asserted that this harm would arise because of his Muslim faith and because of allegations concerning his, and his family's, support of the Liberation Tigers of Tamil Eelam ("LTTE"). He identified the parties likely to harass him, should he return to Sri Lanka, as - "- TELO/Government Alliance - PLOTE - LTTE". TELOis an acronym for a pro-government Tamil group, Tamil Eelam Liberation Organisation. PLOTE is an acronym for a government-backed Tamil organisation, the People's Liberation Organisation of Tamil Eelam. Annexed to the applicant's application for a protection visa is a written statement made through an interpreter. By this statement the applicant asserted that he had been successfully running a shop in a Muslim township, Iranailupaikulam. He stated that, in March 1996, security forces arrested him and detained him for three weeks during which time he was interrogated and subjected to savage beatings and threats. He expressed the belief that the security forces had come to believe, contrary to the fact, that he was delivering supplies to the LTTE. The applicant's statement asserts that he was released from detention after his father made corrupt payments to the security forces. Thereafter, according to the applicant's statement, it was necessary for him to cease trading with Tamil customers and his business was lost. Moreover, only a week after his release, he was captured by PLOTE members and again tortured until his father was again able to achieve his release by the payment of a large sum of money. Thereafter,TELO made demands on the applicant's family and the applicant fled, eventually travelling to Australia on forged documents. The delegate of the Minister did not accept the story put forward by the applicant in his application for a protection visa and in his statement. The delegate found that the applicant's claims of successive persecution by various Tamil groups was "so far-fetched as to be fanciful". The delegate concluded that the applicant does not face a real chance of persecution if he returns to Sri Lanka. Before the Tribunal, the applicant gave evidence which was somewhat different from the evidence in his earlier statement. The extent to which this difference might result from difficulties of translation is unclear. Before the Tribunal the applicant gave evidence as follows. He went into business with his father supplying a store in an area controlled by the LTTE. The truck taking goods to this store passed through an army post. Bribes were paid to the Sri Lanka Defence Forces ("SLDF") soldiers at the post to enable the truck to pass through. Goods described as "protection gifts" were included by the applicant in the load carried by the truck for the benefit of the LTTE. The LTTE would stop the truck and take portion of its load. The above arrangements ceased when the Sri Lankan Criminal Investigation Department ("CID") mounted a special operation at the army check post. The CID learned of the applicant's operations. The applicant was detained until he was able to bribe his way out of custody. Shortly after his release from custody, the applicant was visited by the PLOTE who held him for two weeks until his father paid a large sum of money to obtain his release. Shortly after that, the applicant learned that TELO was looking for him. He fled. It appears that before the Tribunal, the applicant did not maintain his earlier allegations of having been tortured whilst in custody. The applicant gave evidence before the Tribunal that in Sri Lanka, Tamils who were detained and then bribed their way out of custody went back to areas controlled by the LTTE, Singhalese went to areas controlled by the SLDF, and Muslims went overseas because there was no safe area where they could live.

REASONS OF THE TRIBUNAL The relevant findings of the Tribunal are contained in the following paragraphs of its reasons for decision: "The Applicant knew from the outset that what he was getting involved in was a commercial operation which carried with it a high risk of apprehension and extortion from one or other of the players involved. The Applicant and his family took advantage of trading opportunities created by hostilities between the LTTE and the SLDF. They calculated the risks involved in terms of the LTTE and SLDF; they decided in advance that if anything should happen to the Applicant, he would go overseas. They do not appear to have calculated on having to pay off the bandit groups of the PLOTE and TELO. Nonetheless, they did pay them off and apparently the Applicant's father continues to give them money. The persecution claimed to be feared by the Applicant is not Convention based. The Applicant took certain assessed risks on a commercial basis. His aim was to make money and profit from an uncertain political situation. He dealt on a commercial basis with the LTTE and he paid bribes and extortion money to other organisations cited above in order to be able to continue that business. The Applicant claimed that he left Sri Lanka in order to prevent the family business from going broke. This would occur, he said, if TELO or PLOTE put further demands upon his father to pay bribes; however, the Applicant told the Tribunal that his father continued to pay a monthly bribe or tithe to both PLOTE and TELO. ... The fears that the Applicant claims are related to his commercial activities. He did not claim fearing harm with respect to his Islamic beliefs. There is not a real chance that the Applicant would suffer persecution for any of the five Convention reasons should he return to Sri Lanka." SUBMISSIONS OF THE APPLICANT As I understand the submissions made on behalf of the applicant, they were that, on the facts as found by the Tribunal, the Tribunal made an error of law in not concluding that there was a real chance that if the applicant were to return to Sri Lanka he would suffer persecution by reason of his membership of a particular social group. The written submissions of the applicant conclude as follows: "The social group is in this particular case two social groups: 1. The commercial group - if the applicant were to return to Sri Lanka as a businessman, he would suffer persecution - note that his father in business is also persecuted and that it would be readily implied that the Tribunal has so found (that there is commercial persecution) and that there is a well founded fear that it will occur if the applicant returns to Sri Lanka. 2. The applicant is also a member of a family which it should be found is being persecuted even to this day in Sri Lanka. By being a member of this family, a social group no matter how small, there is a well founded fear that persecution would occur to the applicant if the applicant were to return to Sri Lanka. Further for anyone in the country who has had serious contact with the government and who is able to escape further persecution or contact at that time by means of bribery - has limited options. If a Tamil or Singhalese they can relocate to their own controlled areas and be relatively safe from further persecution. However, if you are a Muslim there are no safe areas for relocation and you must leave the country to escape. If the applicant were to return to Sri Lanka, he would have a real chance of being persecuted by the government forces. His religion would not in itself cause the persecution, however. But, due to his religion, he would be unable to relocate to a safe region to avoid persecution."

CONSIDERATION The case for the applicant before this Court was that the Tribunal made an error of law, involving an incorrect application of the law to the facts as found by the Tribunal, in that on such facts the applicant plainly had a well-founded fear of being persecuted for reasons of his membership of a particular social group. The meaning of the expression "membership of a particular social group" in the Refugees Convention is not self-evident. It has troubled many courts and jurists. It has recently been considered by the High Court in "Applicant A" v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331. In Applicant A's Case, a majority of the High Court (Dawson, McHugh and Gummow JJ) held that the appellants in that case were not persons to whom Australia had protection obligations under the Refugees Convention. Crucial to the appellants' claim in that case was their contention that they belonged to a "a particular social group" within the meaning of the Refugees Convention. Even amongst those who comprised the majority of the High Court in Applicant A's Case, there is a difference of view as to the meaning of the expression "a particular social group" as it is used in the Refugees Convention. In Applicant A's Case, Dawson J stated at 340-341: "As the Federal Court has recognised, the phrase "particular social group" should be given a broad interpretation to encompass all those who fall fairly within its language and should be construed in light of the context in which it appears. A "group" is a collection of persons. As Lockhart J pointed out in Morato v Minister for Immigration, Local Government and Ethnic Affairs, the word "social" is of wide import and may be defined to mean "pertaining, relating, or due to ... society as a natural or ordinary condition of human life". "Social" may also be defined as "capable of being associated or united to others" or "associated, allied, combined". The adjoining of "social" to "group" suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group ... However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution." McHugh J also took the view that a common fear of persecution could not be a defining characteristic of "a particular social group". At 358-359, his Honour said: "If it were otherwise ... [i]t would mean that persons who had a well-founded fear of persecution were members of a particular group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution." McHugh J went on 359: "The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in the "particular social group" category is the notion of "membership" expressly mentioned. The use of that term in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group." (emphasis original) At 360, McHugh J gave consideration to the issue of the potential size of "a particular social group". His Honour said: "...the association of the term "membership of a particular social group" with race, religion and nationality indicates that "a particular social group" was probably intended to cover only a relatively large group of people. The concepts of race, religion and nationality imply groups of hundreds of thousands, in some cases millions, of people. It is unlikely that, in adding "a particular social group" to the Convention categories, the makers of the Convention had in mind comparatively small groups of people such as members of a club or association." Gummow J in Applicant A's Case approved the following passage from the judgment of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569: "There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by reason of being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group." Brennan CJ, who was part of the minority in Applicant A's Case so far as the result of the appeal was concerned, said of the term "a particular social group" at 337: "The term should be understood simply to connote a group constituted by those who share a common distinguishing characteristic which is the "reason" for persecution that is feared." Kirby J, who was also in the minority, at 393-394, expressed agreement with the view that courts and agencies should turn away from attempts to formulate abstract definitions of the term "a particular social group". Applicant A's Case can be seen as clear authority for the proposition that a common fear of persecution cannot be a defining characteristic of "a particular social group" within the meaning of the Refugees Convention. There would not appear to be general support in the High Court for the view expressed by McHugh J in Applicant A's Case that "a particular social group" must encompass a large number of individuals. However, following Applicant A's Case, it does appear that the members of "a particular social group" must share some characteristic or element which makes them a cognisable group within the society in which they live. As the written submissions of the applicant make plain, it is his contention that he has a well-founded fear of persecution for reason of his membership of a particular social group, namely, Sri Lankan business people, or alternatively, his own family. It may be open to doubt that business people are perceived in Sri Lanka as a cognisable group within society. That which they share in common, having regard to the nature of Sri Lankan society, might be thought to be too general to bind them together as such a group. Be that as it may, it is plain that the persecution feared by the applicant is not persecution by reason of his being seen as a business person. It is not suggested that all Sri Lankan business people, or even all Sri Lankan Muslim business people, are subject to persecution in Sri Lanka. There was nothing before the Tribunal which suggested that the applicant's family is perceived in Sri Lanka as a cognisable group within society. In any event, the Tribunal did not find that the threats to the applicant's well-being in Sri Lanka arose by reason of his membership of his family. They arose, as the Tribunal found, by reason of his commercial activities and the aftermath of such activities. There was plainly evidence before the Tribunal on which it was entitled to make such finding. To the extent that the applicant seeks to identify "a particular social group" of which he is a member by reference to a common fear of, or vulnerability to, persecution, the majority judgments in Applicant A's Case show this approach to be illegitimate. The applicant has failed to identify any error of law in the reasons for the decision of the Tribunal. The application will be dismissed.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: Counsel for the Applicant: R. Lee

Solicitor for the Applicant: Messrs Belen Oag, Solicitors

Counsel for the Respondent: R. Henderson

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 4 March 1998

Date of Judgment: 13 March 1998