Kim Arlington
The Sydney Morning Herald
DOES trafficking drugs make you a member of a social group?
The question was considered by the Refugee Review Tribunal when a Cambodian man, jailed for smuggling drugs into Australia, applied for a protection visa after he was transferred to a detention centre on parole.
The man was carrying drugs when he was arrested on his arrival in Australia in 2006.
He feared that if he returned to Cambodia, he would be harmed by his co-accused because he informed on them, and that his conviction for drug smuggling put him at risk of harm from the local authorities.
The 1951 United Nations Convention defines refugees as people who are unable or unwilling to return to their home country due to "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion".
The man argued that as a former police officer and deputy governor involved in drug-related offences he was a member of a social group.
The tribunal members accepted that in Cambodia "corrupt officials may tolerate the drug trade, that some of the leaders of the drug-smuggling enterprise have political power in Cambodia, and that some are even government officials themselves".
But they found the man's fears did not fall within the scope of the convention.
"The essential and significant reason for the harm the applicant fears is not his membership of any group, but what he has done - namely involved himself in drug trafficking," they said.
The members concluded Australia did not owe him protection obligations and rejected his visa application.
The man had sought a review of the decision in the Federal Magistrates Court, arguing that the tribunal "erred in law because it failed to see my situation as a human situation". A magistrate, Kenneth Raphael, found the tribunal had made no error and dismissed the man's application.
Previous cases have held that fear of revenge, unless linked with race, religion, nationality, political opinion or membership of a social group, would not normally amount to persecution under the convention.
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