Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: applied
The Tribunal came to the view that the suggested group uses the persecution feared, ie victimisation by guerrillas, to define the group, and that this was not permissible; reference was made to Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 (" Applicant A") per Dawson J at 242, McHugh J at 263-4 and Gummow J at 285-6. 18 At [16] the Magistrate considered the test of determining a particular social group, for the purposes of the Convention, as stated by the High Court in Applicant A which was considered and clarified in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 206 ALR 242. 27 The appellant seeks to distinguish Applicant A , upon which the Tribunal relied in reaching its decision, on the grounds that there, the harm feared came from the State, and the persecution feared defined the group; this fear being the only characteristic defining the group. 30 Applicant A is authority for the proposition that an applicant for refugee status under Article 1A(2) of the Convention must demonstrate that the form of persecution that he or she fears is not a defining characteristic of the "particular social group" of which the person claims membership; see at 242 per Dawson J, 263 per McHugh J and 285-286 per Gummow J. That is to say, the common characteristic or element that defines the particular social group cannot be a shared fear of persecution. 34 A formulation of the particular social group in the present case as "victims of guerrilla groups" would not satisfy the test stated in Applicant A because the defining characteristic is people who have a shared fear of harm. 36 However, if the failure of State protection is not motivated by a Convention reason and is merely because the group is one that the State cannot protect, that is simply an aspect of the fear of harm. It is true that the fear is more potent. But the group is defined by its common fear of harm. It is therefore not a particular social group within the test stated in Applicant A . 37 Mr Archibald submitted that the harm which was feared was stated more broadly. He pointed in particular to the portions of his statement which I have emphasised in the passage set out at [4] above. He submitted that the words "being for political or other reasons" were referrable to the inability of the State to protect him. If that were so, the failure of protection would be for a Convention reason. 46 The appeal fails because the harm that the appellant fears was aimed at him as an individual and not for a Convention reason. As McHugh J said in Applicant A at 257, such a claim is not within the Convention definition of a refugee, "no matter how terrible its impact on that person happens to be". 47 Here the Tribunal seems to have accepted that the appellant was the victim of extortion threats by guerrillas and that the State is unable to protect against such threats. It may therefore be that this is an appropriate case for the exercise of discretion by the first respondent under s 417 of the Migration Act 1958 (Cth). I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 16 February 2006 Counsel for the Appellant: Mr Archibald Solicitor for the Appellant: Michaela Byers Solicitor Counsel for the Respondent: Mr Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 February 2006 Date of Judgment: 16 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/92.html