MZYFM v Minister for Immigration

[2009] FMCA 1276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYFM v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1276

MIGRATION – Refugee Review Tribunal – whether Tribunal addressed claims as put – whether the Tribunal misunderstood or misapplied the test for determining whether a group is a particular social group within the meaning of the Convention – whether any error in the consideration of the particular social group claim made a difference to the decision.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Paramananthan v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: MZYFM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 916 of 2009

Judgment of: Riley FM

Hearing date: 25 November 2009

Date of Last Submission: 25 November 2009

Delivered at: Melbourne

Delivered on: 21 December 2009

REPRESENTATION

Counsel for the Applicant: T. A. Fernandez

Solicitors for the Applicant: T. A. Fernandez

Counsel for the first Respondent: Brian Wee

Solicitors for the first Respondent: DLA Phillips Fox

Counsel for the second Respondent: No appearance

Solicitors for the second Respondent: DLA Phillips Fox

ORDERS

1. The application filed on 20 July 2009 and amended on 4 November 2009 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 916 of 2009

MZYFM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to review a decision of the Refugee Review Tribunal.  The applicant is a Sinhalese citizen of Sri Lanka.  He arrived in Australia on 25 July 2005 on a student visa.  On 16 January 2009, he applied for a protection visa. 

2. The applicant claimed that, for six to eight weeks, he had assisted victims of the tsunami that struck Sri Lanka in December 2004.  He said that he mostly assisted Muslims and people who secretly supported the Tamil Tigers.  He said that the JVP also assisted victims of the tsunami.  The applicant’s father said that he received threatening telephone calls from the JVP from mid-2008, while the applicant was in Australia.  The callers said that the applicant had only helped Muslim and Tamil tsunami victims, and had thus denied relief to Sinhalese people. 

3. The applicant’s solicitor, in a letter to the Tribunal dated 21 May 2009, said that the applicant was a member of a particular social group, being:

   those people of diverse backgrounds who shared a common and uniting characteristic namely to provide succour to the people affected by the 2004 tsunami that devastated much of Sri Lanka.

Ground 1

1. The first ground of review in the amended application filed on

   
   

   4 November 2009 is:

   1.The Convention ground that the applicant claimed he belonged to is that of a particular social group.  In finding that the convention ground is that of political opinion, the Tribunal not only erred in assessing the applicant under a Convention ground that he had not claimed, but in so finding the Tribunal did not have any evidence for its finding.

2. The Tribunal found at paragraph 47 of its reasons for decision that the applicant claimed persecution on the grounds of imputed political opinion and then rejected that claim.  The Tribunal considered at paragraphs 48 and 49 of its reasons for decision the claim that the applicant faced persecution by reason of his membership of a particular social group and then rejected that claim.

3. The Tribunal was obliged to consider both the claims that the applicant made expressly and the claims that implicitly arose from the materials before it: Paramananthan v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514. I consider that the Tribunal was correct to consider that there was an implicit claim in the materials that the applicant faced persecution by reason of an imputed political opinion that he preferred Tamils and Muslims over Sinhalese. The materials contained evidence which suggested that the applicant faced persecution for that reason. There was no error in the Tribunal considering that implicit claim. Indeed, there would have been an error if the Tribunal had failed to consider the question of imputed political opinion.

4. However, even if the claim of imputed political opinion had not implicitly arisen from the materials, the Tribunal’s consideration of that issue would not have warranted the decision being set aside, provided that the Tribunal had considered the claims that had expressly and implicitly arisen on the materials.  The Tribunal did consider the express claim that the applicant faced persecution by reason of his membership of a particular social group.  The applicant did not suggest that there were any implicit claims that the Tribunal failed to consider.  This ground of review is not made out.

Ground 2

1. The second ground of review is:

   2.The Tribunal erred in saying that “Tsunami helpers group does not constitute a particular social group. The Tribunal’s interpretation of applicant A vs The Minister reported in 217CLR 384 was in error, for it was not alleged that the group is not one cognisable for being a group through persecution. Besides, the applicant has made a sur place claim.

2. At paragraphs 48 and 49 of its reasons for decision, the Tribunal said:

   48.The Tribunal does not accept that being a person who helped others during the 2004 Tsunami constitutes a “particular social group”.  There was such a diverse group of people assisting sufferers of the Tsunami, while it can describe a large group of people, it does not in itself constitute a particular social group.  As McHugh J states in the case of Applicant S, “the members of a particular social group must be recognised as such by some persons at the very least by the persecutor or persecutors – as sharing some kind of connection…”. (Applicant S v MIMA (2004) 217 CLR 387).

   49.The group of Tsunami helpers is so wide, and also includes the group (the JVP) the applicant claims is the group persecuting him.  The claim of being a Tsunami helper as a particular social group, the Tribunal finds is in the category McHugh J described in the case of Applicant A or being more equivalent of the group of “left handed men”, as instanced by the Judge. (Applicant A & Anor v MIEA & Anor, (12997) 190 CLR 225).  The Tsunami helpers group is not one cognisable for being a group through persecution.

3. In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36], Gleeson CJ and Gummow and Kirby JJ in the High Court explained the concept of a particular social group as follows:

   Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand - #. (citations omitted)

4. McHugh J said in Applicant S at [62] to [64] that:

   62.To qualify as "a particular social group", the group must be a cognisable group within the relevant society, but it is not necessary that it be recognised as a group that is set apart from the rest of that society. In Applicant A, Dawson J said…:

   "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; the element must unite them, making those who share it a cognisable group within their society." (emphasis added, footnote omitted)

   63.This passage indicates that, for a group of persons to be "a particular social group", it must be cognisable within the society in which the group exists. Nothing in the statement of Dawson J suggests, however, that the relevant society must itself recognise that the group is a group that is set apart from the rest of that society.

   64.A number of factors points to the necessity of the group being cognisable within the society. Given the context in which the term "a particular social group" appears in Art 1A(2) of the Convention, the members of the group, claimed to be a particular social group, must be recognised by some persons - at the very least by the persecutor or persecutors - as sharing some kind of connection or falling under some general classification. That follows from the fact that a refugee is a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group". A person cannot have a well-founded fear of persecution within the meaning of Art 1A(2) of the Convention unless a real chance exists that some person or persons will persecute the asylum-seeker for being a member of a particular class of persons that is cognisable - at least objectively - as a particular social group. The phrase "persecuted for reasons of ... membership" implies, therefore, that the persecutor recognises certain individuals as having something in common that makes them different from other members of the society. It also necessarily implies that the persecutor selects the asylum-seeker for persecution because that person is one of those individuals. But it does not follow that the persecutor or anyone else in the society must perceive the group as "a particular social group".  (emphasis added)

5. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 McHugh J said at 256-7:

   Defining the group widely increases the difficulty of proving that a particular act is persecution "for reasons of ... membership" of that group. Thus, if the social group in the present case is defined to mean parents with one child, any involuntary sterilisation of the appellants (which is the relevant persecutory act) would not be "for reasons of ... membership" of that group because, even on the most favourable view of the appellants' case, it would be the particular refusal of the appellants to undergo voluntary sterilisation or to comply with government policy - not their membership of the group of parents with one child - that would lead to action against them.

6. Later in Applicant A, at 264, McHugh J said:

   Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group. (emphasis added)

7. In its reasons for decision, the Tribunal did not set out the test for determining whether a group of people is a particular social group within the meaning of the Convention.  Rather, the Tribunal stated that those who helped others during the 2004 tsunami did not constitute a particular social group, and offered certain reasons for that conclusion.  Those reasons were somewhat garbled.  However, it is clear that the Tribunal accepted that the large size of the posited group did not necessarily mean that it could not be a particular social group.  That is correct. 

8. The Tribunal said that, “The tsunami helpers group is not one cognisable for being a group through persecution.”  It is very difficult to know what this sentence means.  The first respondent initially submitted that there had been a typographical error, and the word “through” should be read as “subject to”.  However, the first respondent withdrew that submission at the hearing.  Giving the sentence cited above a beneficial interpretation, it seems to me that the Tribunal probably meant that a group is not a particular social group within the meaning of the Convention solely because its members fear persecution; to be a particular social group, the group must have some other cognisable, uniting characteristic.  That is correct.

9. On the other hand, the Tribunal quoted part of a sentence from Applicant S but left out a significant part of it.  The Tribunal said that Mc Hugh J had said, “the members of a particular social group must be recognised as such by some persons at the very least by the persecutor or persecutors - as sharing some kind of connection …”.   In fact, McHugh J said, “the members of the group, claimed to be a particular social group, must be recognised by some persons - at the very least by the persecutor or persecutors - as sharing some kind of connection or falling under some general classification.” (emphasis added)  Accordingly, it appears that the Tribunal did not consider the application on the basis that, to be members of a particular social group, the members could either share a connection or, alternatively, fall under a general classification.

10. Additionally, the Tribunal appears to have misunderstood the illustration provided by McHugh J of left-handed men.  His Honour said that left-handed men are not presently a particular social group, but they could become one in certain circumstances.  The Tribunal said that those who helped others after the tsunami were “more equivalent of the group of ‘left-handed men’”.  However, the Tribunal did not explain how those who helped others after the tsunami were like left-handed men, who are not presently a particular social group.

11. The Tribunal noted that the people who helped others after the tsunami constituted a diverse group.  The Tribunal then noted the dicta of McHugh J to the effect that the persecutors at least must recognise the members of the posited group “as sharing some kind of connection”.  It seems to be implicit in the Tribunal’s reasons for decision that the Tribunal concluded that the people who helped others after the tsunami were too diverse to share “some kind of connection”.  However, it is obvious that they did share a connection of sorts, namely, that they helped others after the tsunami. 

12. The Tribunal went on to note that the posited group included members of the JVP who were the alleged persecutors.  The Tribunal apparently considered that a particular social group could not include persecutors.  However, that is not necessarily so.  A person may persecute others who belong to his own group.  An example is closet homosexuals who have been alleged to be the worst perpetrators of violence against gay men.  There is also the well-known concept of an Uncle Tom, who is considered to be a traitor to his own race. In theory at least, a particular social group could include alleged persecutors. 

13. For all of these reasons, it appears that the Tribunal may not have correctly understood and applied the test for ascertaining whether an alleged group was a particular social group within the meaning of the Convention.

14. Additionally, the first respondent argued that the group to which the applicant belonged should have been defined as those who helped Muslims and Tamil Tiger sympathisers after the tsunami.  That is probably correct.  As that implicit claim, as it were, emerged from the materials, the Tribunal should also have considered whether that group was a particular social group within the meaning of the Convention.

15. However, the first respondent argued that it did not matter how the Tribunal characterised the claim, or whether it misunderstood or misapplied the test for identifying a particular social group, because the Tribunal rejected the underlying factual matrix on which the claims were based.  I accept that argument.  The Tribunal did not accept that the applicant’s father had received threatening telephone calls four years after the tsunami.  The Tribunal considered that claim to be implausible.[1]

    [1] Paragraph 50 of the Tribunal’s reasons for decision. 

16. Accordingly, I consider that any deficiencies in the Tribunal’s consideration of the particular social group issue could not have affected the ultimate decision.   Therefore, it would not be appropriate to remit the matter to the Tribunal for the reasons advanced in ground 2 of the application.

Ground 3

1. The third ground of review is:

   3.There was no evidence for the finding that “the JVP would not hold a grudge over the applicant for over four years”.

2. This ground concerns a sentence in paragraph 50 of the Tribunal’s reasons for decision, namely:

   The applicant claims that the JVP can long hold grudges, but the Tribunal does not accept that a grudge was held for over four years, against someone with no political involvement at all, who was simply for a short time with others helping Tusanami victims.

3. It can be seen from this passage that the applicant alleged that the JVP held a grudge and the Tribunal did not accept that allegation.  To reject an allegation put forward by an applicant, the Tribunal is not required to have evidence contrary to the allegation.  As Heerey J said in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348, “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.” Ground 3 is not established.

Ground 4

1. The fourth ground of review is:

   4.There was evidence from the applicant for the finding that the State would be unwilling to offer protection to the applicant and /or his father should protection be sought and the Tribunal erred in saying that there was no evidence.

2. This ground concerns a passage in paragraph 53 of the Tribunal’s reasons for decision, namely:

   The Tribunal does not accept that the State would be unwilling to offer protection to the applicant should protection be sought, or from the applicant’s father, the recipient of the claimed telephone calls, should he seek such protection.  There was no evidence provided to indicate that the police would not assist the applicant.

3. In view of the Tribunal’s finding that the alleged threats did not occur, it was not necessary for the Tribunal to consider the question of State protection.  Any error the Tribunal made in relation to the question of State protection would not have affected the outcome, and would not provide a proper basis for remitting the matter to the Tribunal for reconsideration. 

4. In any event, the applicant argued that there was evidence before the Tribunal that the police would not assist the applicant in the form of the applicant’s own oral statements to the Tribunal that “the government is not protecting their citizens at the moment”[2]  and “The government it’s going to protect – protecting their people as well at the moment.  I’m Sinhalese but still they don’t protect me …”.[3]

   [2] Transcript page 21 line 28

   [3] Transcript page 23 lime 6

5. It seems to me that when the Tribunal said that there was no evidence that the police would not assist the applicant, the Tribunal meant that there was no evidence other than the applicant’s own assertions.  I do not accept that this ground is made out.

Ground 5

1. The fifth ground of review is:

   5.In giving the applicant’s father’s statement “little weight” the Tribunal has failed to consider the statements from a Convention perspective.

2. In this ground, the applicant is impermissibly seeking merits review.  It is for the Tribunal to give such weight to particular items of evidence as it sees fit. This ground is not made out.

Ground 6

1. The sixth ground of review is:

   6.There was no evidence for the Tribunal’s finding that the police would not withhold protection for Singhalese Buddhist when instead there was evidence to the contrary. (See paragraphs 55 & 56).

2. The Tribunal did not find that the police would not withhold protection.  The Tribunal rejected the applicant’s claim that the police would withhold protection.  This ground has otherwise been addressed in the context of ground 4 above.

Ground 7

1. The seventh ground of review is:

   7.The applicant has made a sur place claim. The findings in paragraph 59 are therefore incorrect and does not reflect a correct assessment of the applicant’s claims. (See paragraphs 59 & 60).

2. Paragraphs 59 and 60 of the Tribunal’s reasons for decision state that:

   59.The Tribunal does not accept that the applicant has experienced serious harm amounting to prosecution (sic) in the past in Sri Lanka on account of his political opinions or as a helper of people affected by the 2004 Tsunami, or for any other Convention reason.

   60.The Tribunal does not accept that there is any real chance that the applicant’s involvement in helping Tsunami victims in December 2004 will result in the applicant being adversely targeted by groups such as the JVP or that he will experience serious harm amounting to persecution as a result.  The Tribunal therefore does not accept the applicant has a well founded fear of being persecuted on account of his political opinion or other Convention reason if he returns to Sri Lanka now or in the foreseeable future. 

3. This ground seems to rest on the supposition that the Tribunal misunderstood the claim by proceeding on the basis that the applicant had claimed to have suffered harm in the past in Sri Lanka.  The applicant did not claim to have suffered harm in the past in Sri Lanka.  He claimed that, because of his past actions in Sri Lanka, consisting of helping victims of the 2004 tsunami, he had been threatened with future harm.  The Tribunal’s reasons for decision show that it understood that the applicant’s claims were as stated in the previous sentence.  I consider that, in paragraph 59, the Tribunal was simply covering all the bases, so to speak.  The Tribunal dealt elsewhere with the claims made by the applicant.

4. The applicant did not have a sur place claim.  He did not claim to have engaged in conduct in Australia that gave rise to a well-founded fear of being persecuted.  He said that his conduct in December 2004 in

   
   Sri Lanka

   led to his father receiving telephone calls in Sri Lanka four years later in which threats were made against the applicant.  This aspect of ground 7 is misconceived.  Ground 7 is not made out. 

Conclusion

1. As none of the grounds of review have been made out, the application must be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  Ashika Kanhai

Date:  21 December 2010