Case: Minister for Immigration, Multicultural and Indigenous Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1
Outcome: discussed
In relation to the issue of adequate State protection, Nicholls FM referred to the appellant's reliance on Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 (" Khawar") . The Magistrate distinguished Khawar at [22], observing that:- "In the 'Khawar' case, which was authority for the proposition that even though the applicant was persecuted by private individuals, and in that case it was domestic violence that she feared from her husband and members of her husband's family, if the authorities condone or tolerate such action then it could be said that women who are the objects of such a violence from private individuals in circumstances where this is tolerated or condoned by the authorities, then such women could constitute a particular social group. Mr. Archibald's comment that there is some resonance, in that the harm in that case and in the case before me came from private individuals and not from the government is correct in so far as it goes, but the case before me can be clearly distinguished on the basis that the facts pertaining to Mrs Khawar's case were clearly and plainly before the Tribunal and it was in that context that the High Court said that the Tribunal needed to consider it. Further, there was nothing before the Tribunal in the case before me on the issue of whether the authorities would tolerate or condone any such harm in the way as found to occur in the case of Mrs. Khawar." 22 The Federal Magistrate concluded that none of the grounds pressed by the appellant were made out, and found no jurisdictional error by the Tribunal. 23 The notice of appeal, filed on 3 August 2005, contains three grounds of appeal. The appellant only seeks to rely on the first ground, which is that "...in the circumstances of the [appellant's] case, these being that:- a. the harm which the appellant fears is from non-State agents. b. the evidence before the Tribunal was that the State was unwilling or unable to protect the applicant from harm for a Convention reason. c. the Convention reason relied on by the applicant was that the applicant is a member of a particular social group. d. the particular social group was 'victims of guerrilla groups'. [FM Nicholls erred in failing to find that]... the authority deriving from Applicant A ... is to be distinguished from that deriving from... Khawar... such that the harm which the applicant fears by reason of the failure of State protection is for a Convention reason." 25 The appellant argues that even if the relevant particular social group is 'victims of guerrilla groups' (as found by the Tribunal and Magistrate), the lack of State protection of this group in the circumstances, and following Khawar , constitutes persecutory conduct for a Convention reason. 26 The appellant submits that the Tribunal misstated the persecution which was feared; that whilst the appellant feared harm from the guerrilla group, the persecutory conduct was the inability or unwillingness of the Columbian government to protect 'victims of guerrilla groups' as a group. The appellant observes that this was submitted by the appellant in his statement supporting his application to the Tribunal. 28 The appellant draws analogies with Khawar , arguing that the harm which was inflicted otherwise from non-State agents was tolerated or condoned by State authorities in a discriminatory manner, and that the persecutory conduct derives from a failure by the State to protect the group from harm. 29 The appellant submits both the Tribunal and the Magistrate erred in failing to consider this form of persecution, and incorrectly dealt with the application. The appellant submits that the Federal Magistrate erred in distinguishing Khawar in the way that he did, as the appellant's statement in support of his application to the Tribunal went directly to the State's unwillingness to intervene to protect victims of guerrilla groups. 31 In Khawar , the applicant feared domestic violence from her husband and his family, harm which, in itself, occurred for personal reasons and did not have a Convention nexus. The majority Justices accepted that, if the applicant could establish that the violence was tolerated and condoned by the authorities who selectively enforced the law so as not to provide protection to women, it would then become arguable that she faced persecution as a member of a "particular social group" (ie, women or perhaps married women being in a household which did not include a male blood relation to whom she could look for protection). 32 It follows from the reasons of the majority Justices in Khawar that where an applicant is at a real risk of harm at the hands of a non-State agent who is motivated by non-Convention reasons, but there is a failure of State protection motivated by a Convention reason, the necessary nexus between the persecution and the Convention is established. This is clearly expressed in the judgments of Gleeson CJ at [25] [26], McHugh and Gummow JJ at [84] [85] and [87] and Kirby J at [120] [121]. 35 Mr Archibald, for the appellant, seeks to add a further layer to the claim by expressing the group as victims of guerrillas whom the State could or would not protect. If the motivation of the State for its failure to provide protection is a Convention reason, the case would fall within the principle stated in Khawar.