BRGAE of 2008 v Minister for Immigration - [2008] FMCA 1554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRGAE OF 2008 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1554

MIGRATION – Protection visa – fear of persecution due to membership of a particular social group – whether the Refugee Review Tribunal misdirected itself in identifying the relevant social group – whether it is necessary for Tribunal to make determination on membership of particular social group when the applicant has failed to establish a well-founded fear of persecution – whether tribunal addressed itself correctly in determining whether there was a well founded fear within the meaning of the Refugee Convention.

Australian Broadcasting Tribunal v Bond (Bond Media Case) (1990) 170 CLR 321
Canada (Attorney-General) v Ward (1993) 2 SCR 689
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Drainichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632

Applicant:

BRGAE OF 2008 & BRGAF OF 2008

Respondent:

MINISTER FOR IMMIGRATION & ANOR

File Number:

BRG 144 of 2008

Judgment of:

Burnett FM

Hearing date:

29 May 2008

Date of Last Submission:

29 May 2008

Delivered at:

Brisbane

Delivered on:

19 November 2008

REPRESENTATION

Solicitors for the Applicant:

Davidson James & Associates

Counsel for the Respondent:

Ms Amelia Wheatley

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 144 of 2008

BRGAE OF 2008 & BRGAF OF 2008

Applicant

And

MINISTER FOR IMMIGRATION & ANOR

Respondent

REASONS FOR JUDGMENT

Introduction

On 21 March 2007 the applicants visited the Australian High Commission in Colombo and sought visas for travel to Australia. They claimed to be visiting Australia to stay with the brother-in-law of the applicant wife. He had gifted the trip to Australia for each of the applicants as a wedding present following their marriage in the preceding year.
The applicants voluntarily travelled to Australia arriving on 7 May 2007. On 21 May 2007 they sought refugee asylum by applying for a Protection (Class XA) Visas. The Convention ground claimed was a well-founded fear of persecution because of their membership of a particular social group and being outside their country they were unwilling to avail themselves of the protection of their country because of such fear. In this instance the social group they claimed membership of was that group comprised of wealthy and middleclass citizens or businessmen. It was alleged that their country, Sri Lanka would not protect them from abduction or other harm.
The applicants’ anxiety concerning these matters was particularly highlighted because of events alleged to have occurred between about 6 and 11 April 2007 and subsequently on 7 May 2007.
Upon initial assessment the applicants’ application for protection visas were refused. They sought a review of that decision by the Refugee Review Tribunal. That application was determined against them by a decision dated 31 January 2008 and delivered 14 February 2008. They now apply to this Court for a review of that decision.

Grounds for Review

In their application filed 10 March 2008 the applicants advanced five grounds. At the hearing grounds 1 to 3 were abandoned. Grounds 4 and 5 were combined and argued as one ground. An additional ground, ground 6 was advanced.

First Contention – Grounds 4 and 5

The particular social group

The applicants contended that the Tribunal committed jurisdictional error by failing to deal with an integer of the claim and consider the claim by failing to consider whether the applicants were part of a particular social group, being wealthy middleclass businessman, in the Convention context. That is said to have mislead and misdirected the Tribunal to ask itself the wrong question thereby resulting in its failure to consider a relevant consideration.
The particular matter alleged under this contention concerns the Tribunal’s finding that because of the male applicants’ membership of the particular social group, that being wealthy, middleclass businessmen, he had a remote chance of suffering abduction or harm. It was asserted that the Tribunal’s finding of remoteness was premised upon independent country information that related to a different group based on ethnicity, namely Sinhalese and not the group in question. The applicants contended the male applicant would not face a risk of abduction on the basis of Sinhalese ethnicity but rather because of his past association with Tamil groups and military officers (the source of potential harm) and his attraction to them as a potential hostage because of his wealthy middle class background and social connections with members of the Tamil community. The applicants contended that the Tribunal’s findings ignored evidence of the male applicant’s frequent visits to regions and relationships which the male applicant had with persons antagonistic to those groups. The effect of the applicants’ submission was that the failure by the Tribunal to deal with the evidence of the frequent visits to Tamil areas and military bases and Tamil groups and the evidence that such matters then put the applicants at a higher risk of harm indicated a failure by the Tribunal to consider a relevant consideration, which if considered may have given rise to a contrary result.
The applicants submit this is demonstrated by two findings in its reasons.
a)At CB55.4 the Tribunal found the relevant social group to be wealthy middleclass businessman. However in making that finding it is said the Tribunal relied upon country information which included material concerning ethnicity. It was contended the Tribunal found the male applicant was at risk of abduction because he was Sinhalese, not because he was a wealthy middleclass businessman. It was contended the Tribunal had confused the basis for fear and reached its conclusion based upon an irrelevant consideration, namely risk of harm to Sinhalese persons and not by risk of harm to wealthy middleclass businessmen.
b)At CB56.1 after stating that the risk of harm to the applicants’ class was remote the Tribunal said it found “this to be the case in spite of his past association with the Tamil people and military officers”. The applicants submitted the effect of this passage in the decision was to demonstrate that the Tribunal had misdirected itself on the issue to resolve and permitted its decision to be contaminated by irrelevant considerations. As the applicants observed in their outline in reply at [5], “the Tribunal was, quite simply, distracted by the applicants’ ethnicity and the independent country information directed towards ethnicity.”
It was submitted this error was highlighted by the approach mandated by the High Court in Drainichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, which listed the steps a Tribunal is required to undertake when examining a case of this kind including as a first step the need to identify the relevant social group.
They further submitted that consistent with that approach the Tribunal was required to then consider, inter alia, whether the applicant, as a member of the defined social group, had a well-founded fear of persecution. It was contended that the Tribunal did not do this because it did not first consider whether the correct social group faced a real chance of harm. On the applicants’ submission that was to be inferred because the Tribunal misdirected itself in identifying the relevant group.
The respondent in its submissions submits that the Tribunal did appear to consider the applicant’s claim that he was a member of a particular social group, being a wealthy middleclass businessman. It noted that in the course of the application the focus advanced by the applicant was that the male applicant was subject to persecution due to his perceived association and support for the LTTE and particularly the Katunayaka Air Base[1]. Without concession the respondent appeared to acknowledge the treatment of the particular social group was clumsily addressed by the Tribunal. In fairness to the Tribunal I think the applicants were the source of this confusion.
[1] In submissions in reply the Applicants’ alleged the Respondents had argued that the focus of the Applicants’ initial submission was that the claimed social group was not the main submission and focus put forward by them. They contended that a substantial, clearly articulated argument relying upon established facts was raised and should be dealt with. The issue put by the Applicants appeared to have been variously expressed. In submissions addressed on their behalf to the Tribunal the class alleged was ‘wealthy middle class businessman, mainly of Tamil ethnicity but also of Sinhalese and Muslin ethnicity persecuted by reason of their association with Tamil groups’ [CB 154] or simply ‘wealthy middle class citizens’ [CB 197].
However the respondent submitted that in any event, in this instance, a determination on the issue of membership of a particular social group was not necessary because the applicant failed to establish, in a factual sense, that he had a well-founded fear of persecution.
That submission was premised upon a determination by the Tribunal that the applicant’s accounts of events which he alleged occurred between 6 April and 7 May 2007 lacked creditability. It submitted that it followed that because this matter could not be established there was no need to consider the “possible” Convention reason. So much was said to be consistent with an approach to Drainichnikov v Minister for Immigration and Multicultural Affairs (supra) as considered by Finkelstein J in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632.
In that case His Honour examined the High Court’s decision in Drainichnikov v Minister for Immigration and Multicultural Affairs (supra) and noted at [18]:
“…(the appellant) argued that the steps set out in Drainichnikov must be followed even if the Tribunal is of the view that the applicant’s fear is unrelated to the membership of any such group. This is plainly incorrect. Courts will frequently step over more difficult questions if the main issue can be determined from the answer to a simpler later question…”
The applicants do not accept that Drainichnikov v Minister for Immigration and Multicultural Affairs (supra) supports the respondent’s contention that the requirement of identification of the social group can be subordinated in this case because of the Tribunal’s finding that the applicants had no basis for a well founded fear. They contend the authority could be distinguished on its facts. Further they contend that the statement was an obiter statement premised upon the decision of Canada (Attorney-General) v Ward [1993] 2 SCR 689.
I do not agree. The decisions in both Drainichnikov v Minister for Immigration and Multicultural Affairs (supra) and Canada (Attorney-General) v Ward (supra) demonstrate instances of failure by applicants to properly identify the particular social group in respect of which the Convention reason arose. Those cases illustrate the difficulties occasioned by a failure to clearly identify at the outset the relevant social group.
It seems apparent from His Honour Finkelstein’s J reasons in MZXDQv Minister for Immigration and Multicultural Affairs (supra) that there must be some consideration of the circumstances of persecution against the background of an alleged social grouping. However where persecution can for instance be seen to arise from idiosyncratic individual circumstances due to, for instance, particular individual acts then the specific identification of a “particular social group” is otiose.
Each of Drainichnikov v Minister for Immigration and Multicultural Affairs (supra), Canada (Attorney-General) v Ward (supra) and MZXDQ v Minister for Immigration and Multicultural Affairs (supra) concerned instances where particular individual acts placed the applicant outside the relevant social grouping under consideration. For instance in MZXDQ v Minister for Immigration and Multicultural Affairs (supra) it can be seen from His Honour’s reasons at [17] that both he and the Tribunal had regard to an alleged social grouping. However His Honour noted that the particular social group did not have to be identified unless it was necessary to do so.
In cases where the Tribunal accepted the persecution was established but was “highly individualised” the identification of the “particular social group” was unnecessary. In my opinion that was the import of His Honour’s judgment.
In this case the Tribunal did not accept the applicant had been subjected to persecution in the past. Upon that basis it determined the chances of persecution in the future to be remote.[2] In those circumstances identification of “particular social group” to which the applicant says it belonged, likewise, was not necessary.
[2] Casebook 55
Such an approach is not tantamount to the Tribunal not needing to understand the claim put by the applicant. A global appreciation of the applicant’s complaint can be affected without specific identification of the social group. In this case that occurred. The Tribunal clarified the group at its broadest as “wealthy middle class businessmen”. However despite this broad nomenclature there was no evidence to support the remote prospect of a Convention reason in the absence of the Tribunal accepting the applicants had been persecuted in the past as they alleged. The Tribunal did not accept their allegations so as a matter of fact no Convention reason was evident.
The applicant says the Tribunal was obliged to consider whether there was a real chance of serious harm for Convention reasons by membership of a particular social group regardless of whether it had found there had been any harm suffered in the past and/or whether it had been found the applicant had not been targeted in the past for a different Convention reason. However in this instance the Tribunal did exactly that. It made a finding that wealthy middle class citizens or businessmen constituted a particular social group but irrespective of that matter was not persuaded that the applicants as members of that group were at a “Convention risk”. Ultimately that matter was one of fact for the Tribunal. It made its decision informed by the authorities of Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. Nothing in its reasoning suggests it misapplied the law. While the Tribunal’s global appreciation of the background may not constitute a finding on the issue it is clear there was adequate consideration given to the class of persons in order to inform the Tribunal’s decision whether or not the applicants had a Convention reason. In my view that is consistent with the approach identified in MZXDQ v Minister for Immigration and Multicultural Affairs (supra).
I accept that consistent with the respondent’s submissions it was unnecessary for the Tribunal to identify the particular social group as it found it was not satisfied that the applicant had a well founded fear of persecution.
In the event I am wrong on that matter, the Tribunal in its findings clearly disclosed its conclusions as being premised upon a consideration of the matters the subject of the applicants’ complaint in its first ground. That is to say particularly, matters related to “employment activity” had not led to the male applicant and his wife being subjected to a Convention related persecution or to come to the adverse attention of the Karuna group, the Armed Forces, Paramilitaries or any other group. It is clear from the evidence that “employment activities” clearly included a possible connection between the male applicant’s employment and Tamil persons or travel into Tamil areas such that he might be perceived to be an informant. In my view the later observations relied upon by the applicants provide the contextual setting in respect of which that finding was made.
Although the Tribunal later referred to the country information dealing with persecutions based on ethnicity, reference to that material was clearly for corroborative purposes. It provided a secondary basis to support its earlier determination. I do not accept the applicants’ submissions that the Tribunal was distracted by the male applicant’s ethnicity and the independent country information directed towards ethnicity.
The Tribunal’s reasons could have provided a clearer analysis and finding concerning the applicants’ membership of a particular social group. However I do not agree with the applicants’ contention that it could be open to conclude the Tribunal appears to have misdirected itself by taking into account two factors which ought to have been irrelevant to its conclusion on the issue of the particular social group. The Tribunal clearly identified the relevant group as wealthy middle class citizens or businessman. The matters alleged to be irrelevant such as the country information did not bear upon its determination of that issue.
Unlike the decision in Drainichnikov v Minister for Immigration and Multicultural Affairs (supra) the Tribunal’s findings did not turn on the width of the class. The Tribunal accepted that the broad class contended for was a “particular social group”. Its further observations did not adversely affect the applicants.

Well founded fear of persecution

The Tribunal was not satisfied the applicants had a well founded fear of persecution. Concerning “a well-founded fear of persecution” the Tribunal stated at CB55:
“The Tribunal has found, in any event, that the applicant’s past employment activities have not led him or the applicant wife to suffer convention-related persecution or to come to the adverse attention of the Karuna Group, the Armed Forces, Paramilitaries or any other group. In circumstances where neither of the applicants has been imputed with a pro LTTE opinion in the past, the Tribunal finds that there is no real chance that the applicants would face persecution from the authorities the Army, the Karuna Group or anyone else for reason of a perceived association with the LTTE or an imputed pro LTTE political opinion. Looking to the reasonably foreseeable future, the Tribunal finds to be remote the chance that either of the applicants would suffer persecution for such reasons. It finds to be remote the chance that the applicants would suffer persecution at the hands of the Karuna Group, Paramilitaries, the Military or any other groups associated with the Armed Forces.”
As the Tribunal noted at CB55:
“In making this finding (that is that the applicant is unlikely to suffer harm or abduction) the Tribunal has carefully considered all the evidence…. For reasons set out above, the Tribunal does not accept that the applicant has in the past in any way suffered harm at the hands of the Karuna group or any other group accused of involvement in abductions.”
The applicants contend that notwithstanding the above findings the Tribunals findings did not constitute a comprehensive adverse credibility finding and by inference that should leave this court open to interfere with the Tribunal’s decision. The Tribunal’s ultimate determination is not inconsistent with any other finding, even if it be one favourable to the applicants. Irrespective of the manner in which the applicants’ submission is couched, what they seek to do is have the court engage in the impermissible conduct of reviewing findings of fact. It is now well settled that administrative review does not permit review of facts unless some proper basis can be demonstrated. Australian Broadcasting Tribunal v Bond (Bond Media Case) (1990) 170 CLR 321 at 355. No basis for a review of the facts is demonstrated in this instance.
Generally

It was also contended the Tribunal in reaching its conclusion failed to consider the cumulative weight of the evidence in reaching that conclusion. They alleged the Tribunal considered each allegation discreetly. The challenged finding was, that despite the Tribunal largely accepting the affidavit evidence of association of the male applicant with Eastern Province and Tamils Groups, it was persuaded to its conclusion solely by its rejection of the applicants’ claim about events in April/May 2007. Accordingly the Tribunal is alleged to have given no weight to the matters it accepted when measured against one finding upon which it was contended the Tribunal founded its conclusion.
Even were I wrong in my view concerning the social group it still remains the case that a finding as to the precise social group to which the applicants belonged was unnecessary in circumstances where the Tribunal found on the facts that the applicants faced no well-founded fear of persecution within the social group comprising wealthy middleclass persons or wealthy businessmen.
In my view the application must fail on this ground.

Second Contention - Ground 6

The applicants contended the Tribunal misunderstood its task when considering whether the applicants’ fear was “well-founded” in relation to the claimed social group in that it misunderstood what it means to have a “well-founded” fear within the meaning of the Refugee Convention.
It was submitted for the applicants that on the findings it made it should have accepted that the possibility of abduction was not far fetched or remote. They submitted that the Tribunal appears to have equated a low percentage with remoteness. In particular it was submitted that given the country information the Tribunal ought to have accepted the possibility of harm was not far fetched or remote. They contended the fact that the risk of harm to Tamils was greater than it was to Sinhalese ought not to have been taken to diminish the risk.
A fear is well-founded when there is a real substantial basis for it; Minister for Immigration and Ethnic Affairs v Guo Wei Rong (supra) at 572. In Chan Yee Kin v Minister for Immigration & Ethnic Affairs (supra) at 389 McHugh J, with whom the other members of the Court generally agreed[3], stated at 429 that a “well founded fear” requires an objective examination of the facts to determine whether the subjective fear is justified; that the objective facts to be considered are not confined to those which induced the applicant’s fear; and finally the fear will be well founded even if the percentage chance is low, provided the prospect is not “far fetched”. It is not so much a matter of a percentage chance but a question of whether the evidence demonstrates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well founded if it is merely assumed or if it is mere speculation.
[3] Per Mason CJ at 389; Dawson J at 397; Toohey J at 406; and Gauldron J at 413.
The Tribunal found the applicants never had been subject to “serious harm” in the past. In its decision the Tribunal correctly addressed itself as to the test.[4] The Tribunal addressed itself correctly to the requirement such fear be “well-founded” and what that means. In particular it noted:
“…an applicant’s fear of persecution for a convention reason must be a “well founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or unsubstantial or a far fetched possibility. A person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below 50%.”
[4] See CB page 9.
Later in its reasons it discussed the country information. In particular it noted the contents of a letter from the British High Commission in Colombo dated 10 July 2007 which mentioned, inter alia, disappearances and abductions of businessmen and Sinhalese which supported the applicants’ claim. Following its consideration of that material and the other relevant background in the application the Tribunal concluded that there would be a remote chance that the applicant could suffer abduction or other serious harm.
Contrary to the applicants’ submissions the Tribunal’s findings on this point do not appear to be premised upon or expressed in the context of any equation by the Tribunal between a low percentage risk factor and remoteness. The Tribunal simply, as a matter of fact, determined the chance of harm as remote. It concluded “…(it) finds to be remote the chance that the applicants would suffer persecution in Sri Lanka for reason of their ethnicity or for any other Convention reason[5].” The finding was one open to be made upon the evidence particularly given its rejection of the applicants’ claims that they had been subjected to abduction or harm in the manner alleged.
[5] CB page 56
The applicants submit that the information the Tribunal relied upon, especially that information contained in the UK Home Office letter of 10 April 2007 demonstrates that the Tribunal failed to appreciate what is meant by “well-founded fear” as outlined by Courts in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (supra) and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (supra). I do not accept that submission. Ultimately the matter was one of fact. In this case there is no basis to support the submission the Tribunal failed to appreciate the test. It ultimately determined the factual matter of “well-founded fear” against the applicants. It was open for it to do so and on that basis this ground too fails.

Conclusion

The applicants seek to review an adverse determination by the Refugee Review Tribunal on the basis that it reached an inconsistent conclusion on two grounds. First that the Tribunal erred in concluding they were not members of the relevant class. This ground fails because irrespective of the Tribunal’s identification of the class to which the applicants belonged the Tribunal found as a matter of law the applicants had no “well founded fear” of persecution.
Second it was contended the decision was in error because the Tribunal erred in concluding as a matter of fact the applicants had no basis for a “well founded fear”. The Tribunal made finding of fact open to it and then applied the legal test correctly. The finding was open to it on the facts by application of the established legal principles. That decision also is not amenable to review.

Orders

That the application be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 19 November 2008