MZXBC v Minister for Immigration
[2006] FMCA 819
•8 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 819 |
| MIGRATION – Protection visa – Refugee Review Tribunal – member of a social group – member of ‘UNP supporting family’ or ‘unaccompanied elderly women in Sri Lanka’– whether jurisdictional error – whether failure to follow ‘steps’ set out in Dranichnikov. |
| Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 CLR 389 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | MZXBC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 990 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 9 May 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 8 June 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr A.L. Hands |
| Counsel for the Respondents: | Mr P. Gray |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Amended Application dated 26 September 2005 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 990 of 2005
| MZXBC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an Amended Application dated 26 September 2005 seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 29 June 2005. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
Background
The Applicant is a citizen of Sri Lanka who arrived in Australia on 26 April 2003. On 30 May 2003 the Applicant applied to the Department of the First Respondent for a protection visa. A decision was made by a delegate of the First Respondent on 8 August 2003, refusing the application for a protection visa. That delegate's decision was the subject of an application for review before another Tribunal on 14 August 2003 which handed down a decision on 30 April 2004, affirming the decision under review (the first Tribunal decision).
The first Tribunal decision was subject to an application for judicial review in the Federal Court, remitted to the Federal Magistrates Court and set aside by consent. The result was a re-consideration by a differently constituted Tribunal and delivery of the decision which is now under review in these proceedings and dated 29 June 2005.
The applicant's claims
Relevantly for the present purposes, the Applicant claimed that she feared political opponents of the United National Party (UNP) and in particular the Janatha Vimukthi Peramuna (JVP) by reason of her family's support for the UNP. She relied upon having refused a request to assist JVP neighbours in 1971, by hiding her son from authorities and by reason of her husband's involvement in the UNP together with her own involvement in supporting the UNP. She also claimed a fear of persecution by reason of her membership of a particular social group, namely, “unaccompanied elderly women in Sri Lanka”.
The key issues of concern arising from the Tribunal's detailed analysis of the claims made by the Applicant arise in relation to her claims based upon membership of a particular social group, the first being a person "from a UNP-supporting family" and the second being "an unaccompanied elderly woman in Sri Lanka”.
The amended application
The Amended Application raises what might be described as narrow grounds for review whereby it is claimed the Tribunal has committed jurisdictional error.
The court was assisted by pro bono counsel who succinctly put the submissions both in writing and before the court, focusing on what is claimed to be jurisdictional error arising out of the manner in which the Tribunal dealt with the claims based upon membership of the particular social groups referred to earlier in this judgment.
The particulars set out in the amended grounds for review are as follows:
“The Tribunal failed to consider two implied claims by the Applicant; namely:
(a)that the applicant feared persecution because of political opinions imputed to her by her persecutors;
(b)that the Applicant feared persecution because of her membership of two particular social groups - UNP‑supporting families and elderly unaccompanied women.”
The Amended Application also claims the Tribunal failed to consider "an integer of the applicant's claim, namely, that she was a member of a particular social group, being elderly unaccompanied women", and otherwise failed to follow "the procedures required by the Migration Act".
Applicant's submissions
The Applicant relied upon the High Court decision of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 CLR 389 and in particular reference was made to paragraph 26 of the joint judgment of Gummow and Callinan JJ where their Honours state the following:
“26. At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention[2]. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.”
It was submitted that in this instance the Tribunal failed to follow the steps set out by the High Court in Dranichnikov. To understand the submission made for and on behalf of the Applicant it is relevant to note the specific findings made by the Tribunal in relation to the particular social group. In dealing with the question of the Applicant being "from a UNP-supporting family," the Tribunal at Court Book page 115 made the following finding:
“The Tribunal accepts the applicant is a member and supporter of the UNP. It accepts her family were also members of the party, including her grandfather and father. The Tribunal is unable to be satisfied the applicant’s grandfather and father were anything but ordinary members and supporters of the UNP. It notes the applicant stated neither held any official position within the party and that she was actually not aware how either her grandfather or father assisted the UNP, apart from her father permitting the party use their land to hold meetings. From this information, the Tribunal does not accept that the applicant’s grandfather or father had a high profile within the party. It therefore does not accept the implied claim the applicant was persecuted at any stage in the past or that she continues to face a real chance of persecution by reason of her membership of a particular social group, ‘from a UNP supporting family’. The Tribunal also finds that the applicant did not claim that her family had ever experienced any trouble or problems in the past because they were UNP supporters. As discussed below, the Tribunal does not accept the applicant has been subjected to harm amounting to persecution for reasons of her support or membership of the UNP. It similarly is satisfied, on the basis that her family were not high profile members of the UNP and were not subjected to any harm from either the PA or JVP or any other political party, the applicant does not face a real chance of persecution because of her belonging to a UNP supporting family.”
In relation to membership of a particular social group namely, "unaccompanied elderly women in Sri Lanka” the Tribunal made the following finding which appears at pages 123-124 of the Court Book as follows:
“The Tribunal also does not accept the applicant would face a real chance of persecution for reasons of her being an unaccompanied elderly woman, even if it accepts unaccompanied elderly women are a particular social group for the purposes of the Convention. The Tribunal notes the applicant returned to Sri Lanka in 1995 and 2003 as a single woman. Although she claimed she was not aware of being divorced, the fact that she was and she was not living with her husband at the time. The applicant also has two daughters in Sri Lanka, both of whom are educated and hold good jobs. One daughter is married with a child and the other is still living with her father. Despite the fact the applicant claimed her married daughter was living with her in-laws and her other daughter was with her father and they would not accept her, the Tribunal finds the applicant would not be alone if she returned to Sri Lanka. The Tribunal is also satisfied the applicant would not be of any interest to the JVP. Therefore, the Tribunal does not accept she would face a real chance of persecution for this reason.
On the basis of the above findings, the Tribunal is satisfied the applicant does not have a real chance of persecution if she were to return to Sri Lanka, for reasons of her political opinion, imputed political opinion, membership of a particular social ‘unaccompanied elderly women’ or any other Convention reason. It therefore does not accept the applicant has a well-founded fear of persecution.”
It is noted that the Applicant gave oral evidence to the Tribunal on 20 June 2005 with the assistance of a migration agent and a Singhalese interpreter. She otherwise relied upon detailed facts set out in a statutory declaration (Court Book pages 24-29) and submissions (Court Book pages 75-86). It was submitted that the integers which the Tribunal failed to consider include political opinions imputed to the applicant by reason of her family connections to the UNP and further that she was a member of one or both of the social groups referred to earlier in this judgment.
The arguments in relation to these issues, it was submitted and I accept, were clearly articulated and raised by the Applicant. I further accept that they were articulated as separate claims before the Tribunal. It was submitted by the Applicant that the Tribunal is required to consider all the claims so raised by the material before the Tribunal.
The Applicant noted that the Tribunal had undertaken what was described as a "painstakingly careful analysis" of the claim. However, in relation to the membership of a particular social group it was submitted that the Tribunal had failed to follow the steps set out by the High Court in Dranichnikov.
Reliance was further placed upon the High Court decision in Applicant A v MIEA (1997) 190 CLR 225 (Applicant A) and in particular the decision of Dawson J at 241 where his Honour states:
“ … The adjoining of "social" to "group" suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word "particular" in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element[29]; the element must unite them, making those who share it a cognisable group within their society.
I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group. Nor is there anything which would suggest that the uniting particular must be voluntary. To the extent that Sanchez-Trujillo v INS[30] suggests the contrary I do not think it is persuasive. Furthermore, the significance of the element as a uniting factor may be attributed to the group by members of the group or by those outside it or by both.
However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution. There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention "completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa)"[31]. That approach would ignore what Burchett J in Ram v Minister for Immigration[32] called the "common thread" which links the expressions "persecuted", "for reasons of", and "membership of a particular social group", …”
Reference was also made to the decision of McHugh J in Applicant A where His Honour at page 264 states as follows:
“ … Only in the "particular social group" category is the notion of "membership" expressly mentioned. The use of that term in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. …”
As I understand it, the criticism made of the Tribunal's decision is that it did not undertake the "stepped approach" required by the High Court in Dranichnikov.
First respondent's submissions
The First Respondent submitted that a proper reading of the Tribunal's decision in relation to the grounds relied upon reveals that the Tribunal did undertake its task free of jurisdictional error. It was submitted that the passages set out earlier in this judgment, where specific findings were made in relation to the question of the Applicant coming from "a UNP-supporting family" that the Tribunal made a favourable assumption whereby the first and second steps referred to in Dranichnikov were decided for the benefit of the Applicant.
Accordingly, it was submitted, there was no need for the Tribunal to then determine those issues specifically, but rather it was entitled in its reasoning process to proceed to determine the question of whether the Applicant has a fear and whether that fear is well-founded, and if it is, whether it is for a Convention reason.
This applies, as I understood the First Respondent's submissions, to the Tribunal's consideration of both social groups including the "unaccompanied elderly women" in Sri Lanka group.
It was submitted that the Tribunal simply proceeded on assumptions favourable to the Applicant in relation to the claims. Accordingly, there was no error. Though not directly relevant, the First Respondent relied upon a decision of the Federal Court in Ignacio v Minister for Immigration and Ethnic Affairs and Anor (1996) 69 FCR 81 per Lindgren J at page 89 where in part his Honour states as follows:
“ … The Tribunal proceeded on assumptions favourable to the applicant in both respects. It was entitled to deal with his application in that way and to determine it adversely to him on the ground on which it did.”
As I understood the submissions made for and on behalf of the First Respondent, the Tribunal in the present case has proceeded to make assumptions favourable to the Applicant in relation to the first two steps set out in Dranichnikov and then made an adverse finding in relation to the further step as to whether the Applicant had a well-founded fear of persecution.
Reasoning
In my view, the Tribunal has properly addressed the relevant integers of the claim raised by the Applicant. In its very detailed analysis it has set out the claim and made appropriate and relevant findings, albeit adverse to the Applicant but in my view free of jurisdictional error.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
In this instance I am not satisfied that the Tribunal has failed to consider what might be regarded as the political opinion imputed to the applicant in relation to views she would possess by reason of her relationship to her family, who are UNP supporters.
A proper reading of the extract of the Tribunal's findings set out earlier in this judgment where it deals with that issue clearly indicates that it has analysed in some detail the role and profile of family members of the Applicant and the Applicant's own profile in the UNP. Having undertaken that appropriate and relevant analysis, it was then entitled to proceed to make the adverse finding that the Applicant does not face a real chance of persecution because of her belonging to a UNP‑supporting family. In doing so, it has analysed the relationship between not only the Applicant and the UNP but also her family's relationship with the UNP.
It did not accept the implied claim that the Applicant was "persecuted at any stage in the past or that she continues to face a real chance of persecution by her membership of a particular social group 'from a UNP-supporting family'". That conclusion was significant, and in the circumstances, by inference follows from what I might describe as a favourable assumption that the particular social group identified could properly be regarded for Convention reasons as a relevant social group and furthermore that the applicant was a member of that group.
Although it has failed to specifically make that favourable finding, I accept, as submitted by the First Respondent, that the Tribunal has effectively made a favourable assumption of fact in relation to the identification of the social group and the Applicant's membership of that group. The Tribunal should not be criticised for then embarking upon what it saw as the more significant issue of whether the Applicant faced a real chance of persecution by reason of membership of that social group as identified.
I do not see any contravention of the principles set out in Dranichnikov by the Tribunal simply making favourable assumptions in relation to the earlier steps required in the process and then proceeding, as it has done in this case, to determine the further step and indeed crucial step as to whether or not this Applicant faced a real chance of persecution because of her membership of a particular social group.
The reasoning of the Tribunal in relation to the membership of both groups identified is free of jurisdictional error, and I do not see in the circumstances how the Tribunal has failed to apply the relevant law in considering the issue in accordance with the principles set out by the High Court in Dranichnikov.
The passages referred to earlier in this judgment in my view clearly indicate that the Tribunal has grappled with the claim made by the applicant and indeed has made assumptions favourable to the Applicant during the course of its reasoning process. It has had regard to the Applicant's role and profile in the UNP and clearly had regard to the Applicant's membership of the social groups which were identified. It has then, in considering the material, clearly analysed any imputed political opinion the Applicant may have as a result of her membership of the first particular social group, namely, belonging to a "UNP supporting family". I can see no error in its approach, and accordingly it follows in my view that the application should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 June 2006
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