NACQ of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 535

FEDERAL COURT OF AUSTRALIA

NACQ of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 535

Migration Act 1958 (Cth) s 36(2), 414, 426, 474 Judiciary Act 1903 (Cth) s 39B Applicant A & Anor v MIEA & Anor (1997) 142 ALR 331 cited Dolan v AOTC (1993) 42 FCR 206 cited Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) HCA 11 cited W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 distinguished NACQ OF 2001 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO. N1587 OF 2001 BEAUMONT J 11 APRIL 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1587 OF 2001

BETWEEN: NACQ OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 11 APRIL 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed, with costs. 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 N 1587 OF 2001

BETWEEN: NACQ OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 11 APRIL 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT BEAUMONT J:

INTRODUCTION 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 11 October 2001, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The application for an order of review was filed on 4 December 2001, and therefore falls within "the privative clause" regime.

THE GROUNDS OF THE APPLICATION 2 The amended application for an order of review, brought under s 39B of the Judiciary Act 1903 (Cth) seeks, in essence, writs of certiorari and mandamus directed to the Tribunal. 3 The grounds of the application are as follows. "1. The … Tribunal … committed jurisdictional error of law. Particulars a. The decision was not a bona fide attempt to exercise the Tribunal's power. b. The Tribunal failed to address a substantial claim before it, being whether the applicant had a well-founded fear of persecution for reason of membership of a particular social group, being his family. c. The Tribunal failed to take into account a relevant consideration, being the claim that the applicant feared persecution for reason of membership of a particular social group, being his family. d. The Tribunal breached an imperative duty or inviolable limitation or restraint imposed by s 414 of the Migration Act 1958, in that it did not conduct a "review" as mandated by that section. e. The Tribunal breached an imperative duty or inviolable limitation or restraint imposed by s 36(2) of the Migration Act, in that it did not decide whether the applicant had a well-founded fear of persecution according to law."

Background 4 The applicant is a twenty-five year old man who claims to be a citizen of Palestine. He arrived in Australia on 23 October 2000. On 27 November 2000 he lodged an application for a protection visa and on 12 March 2001 a delegate of the Minister refused that application. On 22 March 2001 the applicant applied for review of that decision. 5 The applicant was born in Arabouna, Palestine, and resided in Jenin in the West Bank. He worked in a factory from 1994 to 1997 and carried on business as a fruit and vegetable wholesaler from 1997 to October 2000 when he left Palestine. 6 The Tribunal had before it a written statement of the applicant. In it, the applicant claimed that in April 2000 he went to Salem Crossing (approximately fifteen kilometres from Jenin) in order to obtain a permit to enter Israel for the purpose of purchasing fruit and vegetables for his business. He filled in his application and was asked to return the next day. On the next day, he returned and was told that his application had been rejected and that he was not allowed to enter Israel. On his way home, however, the applicant met a man called Sati Al-Sharqawl, who offered to obtain a permit for him, but on the condition that he worked for the Israeli Intelligence. The applicant refused, and a fight ensued in which the applicant was beaten by Mr Al-Sharqawl and some of his friends. When the applicant returned home after the fight, he discussed the fight with his father, who suggested to him that Mr Al-Sharqawl had accosted and beaten him because the applicant's brother had been involved in arresting and interrogating Mr Al-Sharqawl's group of Israeli agents. 7 The applicant stated that, following this conversation with his father, he realised that the real reason behind his fight with Mr Al-Sharqawl was that he and his family were supporters of the Palestinian Liberation Organisation ("the PLO") and the Palestinian Authority. 8 The applicant also stated that his brother was one of the leaders of a group of a National Committee which was established during the first Infitada of the Palestinians against Israel and that the applicant himself was outspoken about the rights of the Palestinians to have their own independent state. 9 The applicant claimed that in June 2000 a similar violent incident occurred with Mr Al-Sharqawl in which the applicant beat Mr Al-Sharqawl. 10 The applicant further claimed that in July 2000, his car, which was parked in front of his home, was burnt out. The offender left graffiti which read "Today is your car and tomorrow is you". The applicant reported this incident to the police and requested that they arrest Mr Al-Sharqawl; however, the police refused. 11 In July 2000 the applicant also claimed that several shots were fired on his home. The police advised the applicant that the bullets were those used by the Israeli Army. 12 In September 2000, the applicant claimed, a car drove towards him at high speed and shots were fired at him. Following this incident, as has been mentioned, in October 2000 the applicant left Palestine.

Failure of the Applicant to Attend Tribunal Hearing 13 As part of the procedural history only, the following may be noted. 14 On 6 July 2001, the Tribunal wrote to the applicant, advising that it had considered all the papers relating to his application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 August 2001. On 27 July 2001 the applicant's solicitor advised the Tribunal in writing (together with a "Response to Hearing Invitation" form) that the applicant wished to give evidence. However, on 10 August 2001, the Tribunal wrote to the applicant at his residential address, with a copy to his solicitor, advising him that the hearing date had been postponed to 20 September 2001. Further, on 14 September 2001, the Tribunal wrote again to the applicant, with a copy to his solicitor, advising him that the hearing date had again been postponed to 4 October 2001. The applicant did not attend the hearing on 4 October 2001, or contact the Tribunal to explain his absence. In these circumstances, pursuant to s 426A of the Migration Act 1958 (Cth) ("the Act"), the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 15 In the applicant's outline of submissions to this Court dated 2 April 2002, the applicant's counsel explains his failure to attend as due to a "misunderstanding between [the applicant] and his then solicitor". The applicant does not, in any event, seek to rely on this as a ground of review. As has been said, it is of historical significance only. One can only wonder why the applicant did not, before commencing this complex litigation, seek to revive with the Minister, ex gratia, the possibility of giving oral evidence as part of a fresh review process whatever the strict legal position (cf. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) HCA 11 per Gleeson CJ at [14]). 16 For completeness, the background history of the matter should also include a reference to some of the text of the applicant's letter dated 27 July 2001, mentioned above, which letter was before the Tribunal in its consideration of the matter. In their letter, the solicitors said: "It appears from [the applicant's] instructions that he fears being harmed by Israeli spies who are in fact Palestinians benefiting from their collaboration with Israeli intelligence. [The applicant's] antagonist, [Mr Al-Sharqawl], is alleged to be one such collaborator. As has been claimed, [Mr Al-Sharqawl] sought to recruit [the applicant] as an informer. Upon being rebuked [Mr Al-Sharqawl] waged a campaign of violence against [the applicant] and this included a number of attempts to kill [the applicant]. [The applicant] is convinced that [Mr Al-Sharqawl] remains beyond the reach of the Palestinian authorities who, by their own admission, are unable to protect [the applicant]. Their inability to do so is demonstrated by the repeated attacks made upon [the applicant], his home and his motor vehicle. It is respectfully submitted that [the applicant's] fear can be characterised as arising for the Convention reasons of 'political opinion' and 'membership of a particular social group'. In relation to the former, [the applicant] claimed (in his statement which accompanied his primary application) that his brother (Ahmad) was involved in the PLO through his membership of the Social Party, a Palestinian political organisation. This family link to politics lends itself to a political opinion being imputed to [the applicant] by the group he fears will harm him. However, it is also submitted that [the applicant's] support for the PLO amplifies this family link. For example, in his statement [the applicant] claimed: '… the real reason behind my problem was that I and all members of my family had always supported the PLO and later the Palestinian Authority. Mr brother was one of the leaders of a group of National Committee which was established during the first uprising (INTIFADA) [sic] of the Palestinians against Israel. I was also an outspoken person on the rights of our people to have their own independent state and that there is no room among the Palestinian people for traitors. Those persons should be arrested, taken to court and punished.' This statement, although brief, discloses a clear political view held by [the applicant]. It also discloses [the applicant's] membership of a particular social group, one constituted by his membership of a family closely aligned to the PLO, through the activities in particular of [the applicant's] brother, Ahmad. It is also submitted that [the applicant] was intentionally and deliberately targeted for recruitment (initially) and then retribution (subsequently) by [Mr Al-Sharqawl] because of the family's tie to the PLO. In the circumstances presented, [the applicant] fears the actions of Palestinians collaborating with Israeli intelligence and protected by Israel. His fear is that the Palestine Authority is not able to offer protection, notwithstanding that [Mr Al-Sharqawl] himself, and others like him, are of concern to the Palestinian Authority. Cloaked with the clandestine protection of Israeli intelligence, such persons remain beyond the reach of the Palestinian Authority; yet the incursions into areas controlled by that Authority remain virtually unchecked. [The applicant's] genuine belief is that, had he remained in Jenin, he would have been killed."

THE Tribunal's Decision 17 The Tribunal accepted, as plausible, the applicant's claims that he had had a number of altercations with an individual called Mr Al-Sharqawl. However, the Tribunal could not be satisfied that the applicant's claims were Convention related. The Tribunal said that the applicant had made no claim of fearing persecution on one of the Convention grounds of race, religion, nationality or membership of a social group. Rather, the Tribunal said, he had "made vague reference to his family's support for the PLO". The Tribunal said that, although the applicant had stated that he and his family had "always supported the PLO and later the Palestinian Authority", it was clear from the applicant's own written statement that the reasons for the altercations between the applicant and Mr Al-Sharqawl were other than his support for the PLO. The Tribunal stated that: "It is clear from the applicant's evidence that the harm he fears is aimed at him as an individual and not for a Convention reason. [Mr Al-Sharqawl] is seeking to harm the applicant because he is seeking revenge or retribution against the applicant's brother for arresting his friends." (Emphasis added) 18 The Tribunal went on to say: "As noted by McHugh J in Applicant A & Anor v MIEA & Anor ([(1997) 142 ALR 331], at 354): 'Discrimination – even discrimination amounting to persecution – that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be' 'The Convention was not designed to provide havens for individual persecutions' The Tribunal also notes the comments of Brennan CJ in Applicant A & Anor v MIEA & Anor (Ibid, at 334), who said: 'The persecution must be 'for reasons of' one of [the prescribed] categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms (Tribunal emphasis).' The Tribunal is satisfied that in this particular case, the applicant is being targeted by an individual, [Mr Al-Sharqawl], out of unreasoned antipathy. [Mr Al-Sharqawl] clearly has a vendetta against the applicant as an individual. The Tribunal is satisfied that the applicant's fear of persecution is not Convention related." 19 In the light of this finding, the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason and was, therefore, not a Convention refugee.

The Applicant's Claim For Judicial Review, assuming, for the purpose of the argument, that s 474 OF the ACT has no application here 20 In elaboration of grounds (b) and (c) above, counsel for the applicant points to the statement in the Tribunal's reasons, cited above, that the applicant had made no claim based on membership of a social group. It is submitted that the applicant had, in fact, made such a claim and that the Tribunal's refusal to entertain that claim was an error amenable to judicial review. Reliance was placed upon the decision of the Full Court (Lee, Carr and Finkelstein JJ) in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 where, the applicant's credibility having been questioned, and where there were several accounts of the material events, followed by the Tribunal's refusal to hear "evidence", which refusal was held to amount to an error of law which should be judicially reviewed.

Conclusion on the Applicant's Claim for Judicial Review, Assuming s 474 OF THE ACT has no application here 21 I cannot accept the applicant's argument. In my opinion, the W375/01A Case should be distinguished for present purposes. The position there was, as described by their Honours at [25] and [26] as follows: "Two points can be made about what the appellant said at the first interview. First, none of it appears in the summary of the interview. Perhaps this is not surprising. The notes do not purport to be more than a summary. Second, the similarity between what the appellant said in the initial interview and what he said in his supplementary statement is sufficiently close to show that if the Tribunal had heard the recording of that interview it could not have concluded that the supplementary statement was a 'fabrication' for the reason it gave.

The Tribunal was correct to point out that the appellant had not relied upon his witnessing of official corruption as the 'main reason' for leaving Iran. But that is hardly a relevant point. If the appellant had two reasons for leaving Iran, one a Convention reason and the other not, the appellant's assertion that one of those reason was his main reason for leaving Iran does not lead to the conclusion that the other reason that he feared for his safety if he returned to Iran is not a Convention reason. Put another way, if the appellant relies on all the asserted facts, that he may have mischaracterized some as Convention based does not permit the Tribunal to ignore the others, provided that those facts establish a Convention-based fear of persecution." 22 Their Honours concluded (at [27]) that the Tribunal had erred in law "by not fully listening to the case the appellant wished to put ...". 23 That is not, however, the present case. Here, the Tribunal's offer of a hearing was not acted on. At the same time, the Tribunal plainly took account of all the claims made in the applicant's written statement of claims, which statement was wholly set out in the Tribunal's reasons for its decision. The Tribunal went on to analyse and assess all of the claims in the course of which it characterised the "social group" ground as no more than a "vague reference to his family's support for the PLO". When viewed in this context, that statement should, I think, be seen as no more than part of the Tribunal's assessment of the facts, and raising no question of legal error. In other words, when read in context, the Tribunal is, in form and in substance, saying that the "social group" point is no more than peripheral to the real issues for the Tribunal to decide, and in that sense, it may be put to one side (cf. Dolan v AOTC (1993) 42 FCR 206 per Spender J at 218).

Section 474 24 That being so, I need not address the possible operation of s 474 here.

Orders 25 The application is dismissed, with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate: Dated: 30 April 2002

Counsel for the Applicant: Mr L Karp

Solicitor for the Applicant: Simon Jeans & Associates

Counsel for the Respondent: Mr S Gageler, Mr S Lloyd

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 5 April 2002

Date of Judgment: 11 April 2002