NBHW v Minister for Immigration
[2005] FMCA 34
•28 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBHW v MINISTER FOR IMMIGRATION | [2005] FMCA 34 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 91R(1), 430(1), 474
Migration Regulations 1994
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Applicant WAEE v Minister forImmigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Rajaratnam v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1111
| Applicants: | NBHW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2720 of 2004 |
| Delivered on: | 28 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicants: | Mr B Zipser |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2720 of 2004
| NBHW |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 May 2004 and handed down on 27 May 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 27 March 2003 to refuse to grant the applicant a protection visa. Only the applicant (“the applicant”) made specific claims under the Refugees Convention as amended by the Refugees Protocol. The applicant’s wife and son claim to be members of his family unit and have combined their applications with his application as permitted by the Migration Regulations 1994.
Background
The applicant and his family claimed to be citizens of Guyana. In his original application, the applicant indicated that he was born on 21 September 1968 and that he was ethnically Chinese (Court Book p.5) (“CB”). The applicant claimed that from 1995 until he left Guyana in January 2003 he owned a business in Georgetown, the capital city of Guyana (CB p.20). In a statement accompanying his visa application, the applicant said that Guyana had suffered from turbulence for a long period of time, that rape, robbery, kidnapping and killing happened frequently and that criminal gangs colluded with the corrupt government demanding money from businessmen for protection. The applicant stated that as a member of the ethnic Chinese minority his family had been amongst the most vulnerable group in Guyana (CB p.40).
The applicant stated in 1995 he opened a Chinese restaurant in the town city and in June 1996 gangs demanded money from him. He said that over time these demands had increased and police had not helped when the applicant had sought protection from them. When the gang became aware he had informed on them to the police, the applicant claimed they set out about ruining his business. The applicant stated that having failed to receive protection from the authorities he then moved his business to another location but wherever he moved the gangs would eventually find him. The applicant stated that after his son was born in November 2001 he felt more unsafe because he was worried his son would become a target. He stated that the government of Guyana had lost control over illegal gangs (CB pp.40-41).
The Tribunal’s findings and reasons
The applicant submitted to the Tribunal a large number of copies of news articles relating to the crime situation in Guyana (CB pp.67-239). The applicant and his wife and son attended a hearing held by the Tribunal on 13 April 2004 and gave oral evidence in support of their claims. The Tribunal accepted that there was a crime problem in Guyana and that the applicant and his wife had been victims of crime. However, it had not accepted that the ethnic Chinese minority had been targeted by criminals for reasons of their ethnicity nor did it accept that the membership of any particular social group such as shopkeepers or business owners was the essential and significant reason for the persecution feared. Rather, it found that the criminals of Guyana were simply extracting money from suitable victims and that their activities were disinterested in the individuals (CB p.262).
The Tribunal went on to consider whether the police in Guyana failed to provide protection in a discriminatory manner however, it rejected that claim and found that the inadequacies in the protection offered (or not offered) by the police was by reason of inadequate personnel, training, salaries or corruption.
Having found that there was no Convention nexus for the fear harmed, the Tribunal concluded that it was not satisfied that the applicants were persons to whom Australia owed protection obligations under the Convention and so affirmed the decision under review.
Application for review of the Tribunal’s decision
On 25 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 14 September 2004 the applicant filed an amended application setting out the following grounds:
“1.The Tribunal found (at page 14.4) that the race of the applicant and his wife or their membership of any particular social group was not the essential and significant reason for the persecution they fear as required by s.91R(1)(a) of the Migration Act. The Tribunal fell into jurisdictional error in making this finding.
2.The Tribunal found (at page 14.10-15.1) that there was no discriminatory failure on the part of the Guyanese authorities to protect the ethnic Chinese minority, or shopkeepers or business owners as a particular social group, from criminal activity. The Tribunal fell into jurisdictional error in making this finding.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
Mr B Zipser of Counsel, appearing for the applicant, filed written submissions prior to the hearing. In those submissions the applicant indicated that he only pressed the first ground and abandoned the second ground.
Mr J Smith of Counsel, appearing for the respondent, filed written submissions prior to the hearing.
Reasons
The single issue before the Court was whether the Tribunal member fell into jurisdictional error in finding or not accepting that the race of the applicant and his family or their membership of any particular social group was the essential and significant reason for the persecution they feared. Did the Tribunal misunderstand what was meant by the term “for reasons of” in Article 1A(2) of the Refugees Convention, which must be read in light of s.91R(1) of the Act? Was there a misunderstanding and, if so, did it lead to a failure by the Tribunal to properly exercise its jurisdiction by not considering a particular claim made by the applicant and his family? In particular, that they feared they would be persecuted for reasons of their race or ethnicity.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (“Applicant WAEE”) the Full Court considered how it was to be inferred in certain or in any circumstance that a Tribunal did consider a claim properly and distinctly made by an applicant: per French, Sackville and Hely JJ at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Consequently, it is necessary to look at the wholeness of the decision prepared by the Tribunal in accordance with s.430(1) of the Act. The Tribunal set out the background, the legislative framework and then its reasons. The Tribunal set out the evidence given by the applicant and his wife at a hearing held on 13 April 2004. In order to understand that evidence it also set out some of the questions asked by the Tribunal and comments made by the Tribunal to the applicant and his wife in order to give them the opportunity of presenting their case.
In that context the Tribunal then made the following observations:
a)It noted the applicant’s claim that he could not return to Guyana because it was dangerous, that the local people had robbed him because he was carrying on a business and that people felt that his family were rich (CB p.255).
b)It explained to the applicant that in order to come within the definition of refugee the applicant’s fear of being persecuted had to be one or more of the five reasons of the Convention, and indicated to the applicant that there was nothing in the information available to it, including the articles produced by the applicants, which would indicate that the criminals of Guyana targeted the Chinese minority in particular (CB p.256).
c)It put to the applicant information that related to the facts that reports showed that Indo-Guyanese and West Indians were the major targets of crime (CB p.265).
d)It explained to the applicant that what the Tribunal had to look at was whether the claimed fear bore the necessary connection with one of the Convention reasons (CB p.258),
e)It explained to the applicant’s wife that the Tribunal member would have to be satisfied that either the Chinese community was being singled out by the criminals or that the police failed to provide the same protection to the Chinese community as they provided to other people. In order words, that the point of distinction was made in respect to them because of their Chinese ethnicity (CB p.258).
In the Tribunal’s findings and reasons for its decision, the Tribunal accepted that there was a crime problem in Guyana and then made the following statement of finding:
“However, as I put to the applicant in the course of the hearing before me, I do not accept on the evidence before me that the ethnic Chinese minority has been targeted by the criminals for reasons of ethnicity.
…I do not accept that the race of the Applicant and his wife or their membership of any ‘particular social group’ for the purposes of the Convention such as shopkeepers or business owners is the essential and significant reason for the persecution they fear as required by paragraph 91R(1)(a) of the Act.” (CB p.262)
What the Tribunal has done in its findings and reasons is to bring forward from its consideration of all of the evidence, which is clearly set out in its statement of reasons, all the assertions made by the applicant which would support his claims to be a refugee. The Tribunal has rejected those claims. In the expressed terms of s.91R(1)(a) of the Act the Tribunal found them not essential and significant reasons and not within the Convention so s.36(2) of the Act was not satisfied. I accept the submission that in terms of Applicant WAEE the Tribunal considered but rejected each of the arguments put forward by the applicants.
In the applicant’s submissions a few issues were raised, namely the powerlessness of the family and its vulnerability or perceived vulnerability. It was conceded by the applicant’s Counsel that the applicant failed to provide details or explanations as to why he and his family were powerless. However, reference was made firstly to the vulnerability of the Chinese minority, secondly that they are perceived to be vulnerable because the attackers believe they would not complain to the police and thirdly the Chinese minority in Guyana is powerless. In Rajaratnam v Minister for Immigration & Multicultural & Indigenous Affairs per Finn and Doucett JJ at [44]:
“Although Ratnayake's initial default in payment may have been unrelated to the appellant's ethnicity, there is reason to conclude that his subsequent conduct was based upon exploitation of the appellant's vulnerability, which vulnerability was because of his ethnicity.”
It was the applicant’s contention that a similar condition arose in the present case in that the Tribunal made no reference or assessment of the applicant’s claim that a reason the criminals attacked the Chinese minority was because they were perceived to be wealthy. It was submitted that the Tribunal member made no analysis of that issue nor did the Tribunal member make any analysis of the applicant’s claim that the reason the criminals attacked the Chinese minority was that believed that because they did not speak English they would not complain to the police, and to that extent there was a perception by the attackers or the criminals of their vulnerability.
I accept that the Tribunal did not address the references to powerlessness and vulnerability in its decision. However, I believe that these two issues were not raised in the same context as the substantive items raised in paragraph 15(a)-(e) above but, in effect, arise in the form of explanation or consequence of the substantive issues.
Conclusion
For the reasons set out above, it can neither be said that the Tribunal misunderstood the relevant test or the law to be applied in considering the review of the delegate’s decision nor that it misapplied or failed properly to conduct a review by not considering the well articulated and distinct claims made by the applicant in support of his application. For those reasons there is no jurisdictional error in the decision and the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 January 2005
0
0
0