NBHW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1270

FEDERAL COURT OF AUSTRALIA

NBHW v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1270

NBHW V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD226 OF 2005

BENNETT J
15 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 226 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBHW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
AND:	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	15 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed
2. The appellant pay the respondents’ costs in the fixed sum of $3500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 226 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NBHW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
AND:	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	15 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Lloyd-Jones on 28 January 2005.  His Honour dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal determined that the appellant was not entitled to a protection visa under the Migration Act 1958 (Cth). The appellant alleges that the Tribunal made a jurisdictional error when it failed to find that the appellant was a member of a particular social group for the purposes of assessing the appellant’s claimed fear of persecution.

Background

1. The appellant’s wife and son have combined their application with him as permitted by the Migration Regulations 1994 (Cth).Accordingly, I shall refer only to the “appellant”.

2. The appellant is a citizen of Guyana.  He arrived in Australia on 10 March 2003 and made an application for a protection visa on 17 March 2003.  The appellant claimed that he was ethnic Chinese subject to extortion and robbery from local criminals and that the government was unable and unwilling to protect him because it had lost control over the illegal gangs operating in that country.  As a minority group, he said that they did not have a network of support.

3. On 27 March 2003 a delegate of the respondent (‘the delegate’) refused to grant the appellant a protection visa and on 29 April 2003 the appellant made an application to the Tribunal for review of that decision.  The appellant submitted to the Tribunal a large number of copies of news articles relating to the crime situation in Guyana.  The appellant attended the Tribunal hearing held on 13 April 2004 and gave oral evidence in support of his claims.  The Tribunal handed down its decision on 27 May 2004.

The Tribunal’s decision

1. The Tribunal referred to matters set out in the statement that the appellant had submitted with his visa application.  The application to the Tribunal for review of the delegate’s decision included Section D.  In that section, the appellant included the Department of Immigration and Multicultural Affairs file number.  In response to the question: ‘Please tell us why you consider yourself to be a refugee.  Any person included in this application may send a separate statement, if they want to’, the appellant wrote ‘Please see my file at DIMIA’.  In my view that brought the file, together with the appellant’s statement within s 424A(3)(b) of the Act as part of the information that the appellant gave to the Tribunal for the purpose of his application to the Tribunal.

2. From the recitation of facts in the Tribunal’s decision and from the written statement of the appellant, the appellant’s claim was that he suffered persecution as a member of the ethnic Chinese minority of Guyana and as a business man who was perceived to be rich.  In that regard, he referred to the fact that his parents were shopkeepers and that he had opened and run a Chinese restaurant in the town centre.  The appellant referred to the fact that Guyana was dangerous and provided a number of newspapers to the Tribunal to support his claims.  As noted by the Tribunal, those newspapers referred to the activities of criminal gangs and numerous murders.  The reports in the newspapers referred to indiscriminate activities, in the sense that the victims of these activities included Chinese people but largely referred to victims who are not of that ethnic minority.  The reports do, however, cite numerous incidents of attacks against businesses and businessmen.

3. The Tribunal explained to the appellant that the information, including the newspaper articles, did not indicate that criminals targeted the Chinese minority in Guyana and that it was necessary for the appellant to establish persecution for a Convention reason.  The Tribunal accepted that there was a crime problem in Guyana and explained to the appellant that it would need to be satisfied either that 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’.

4. The Tribunal did not accept that the ethnic Chinese minority has been targeted by criminals for reasons of ethnicity.  The available information, including country information, suggested to the Tribunal that most of the victims of crime are Indo-Guyanese (or West Indians) and that this is attributed to their proportionally greater affluence.

5. The Tribunal then said: ‘I do not accept that the race of [the appellant] 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 of the persecution they fear.’  The Tribunal’s conclusion was that the criminals in Guyana extracted money from suitable victims and that their activities are “disinterestedly individual” (citing Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569).

6. So far as the action of the police is concerned and their failure to protect the ethnic Chinese minority or shopkeepers or business owners, the Tribunal concluded from the evidence, including the newspaper reports produced by the appellant, that any failure on the part of the police to provide protection is due to inadequate personnel, training and salaries or corruption.  Citing Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, the Tribunal did not accept ‘that there is a 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.’

7. To the extent that the appellant’s claim is based on his ethnicity, the Tribunal made a finding that the persecution that he cited and the evidence that he provided (his oral and written account and the written material), did not establish that the criminals targeted members of the Chinese minority.  That finding was open on the evidence, to which the Tribunal referred.

8. To the extent that the appellant’s claim is based upon his membership of a particular social group, being business persons who are or are perceived to be rich, the Tribunal accepted that those persons were targeted by the criminals but found that there was no discriminatory failure on the part of the Guyanese authorities to protect either the Chinese minority or shopkeepers or business persons.  That finding was also open to the Tribunal on the evidence before it. 

9. The Tribunal affirmed the decision not to grant protection visas.

The decision of the Federal Magistrate

1. In his application for review of the Tribunal’s decision filed under s39B Judiciary Act 1903 (Cth), the appellant challenged the Tribunal’s finding as to the nature of the authorities’ protection of either the Chinese minority or shopkeepers or business persons, asserting jurisdictional error. However the appellant, represented by counsel before the Federal Magistrate, abandoned this ground.

2. Accordingly, the single issue before the Federal Magistrate was whether the Tribunal fell into jurisdictional error in finding that neither the race of the appellant and his family nor their membership of any particular social group was the essential and significant reason for the persecution they feared.  His Honour concluded that the Tribunal had considered but rejected each of the arguments put forward by the appellant within WAEE V Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630.

3. Counsel for the appellant submitted to the Federal Magistrate that the Tribunal had failed to consider the appellant’s claims that the persecution of the Chinese minority was because they were and were perceived to be wealthy and vulnerable because the attackers believed that they would not complain to the police and that the Chinese minority is powerless.

4. His Honour accepted that the Tribunal did not address the references to powerlessness and vulnerability in its decision but said at [20] that he believed ‘that these two issues were not raised in the same context as the substantive items…but, in effect, arise in the form of explanation or consequence of the substantive issues.’

5. I confess that I do not fully comprehend what his Honour meant by that remark.  However, it seems to me that, as a matter of logic, if the Tribunal did not accept that the criminals specifically attacked the Chinese minority for reasons of ethnicity or race but attacked without discrimination, it was not necessary to consider the reason advanced for such attacks.

6. Counsel for the respondent put it another way, which in my view, makes the same point:

   ‘In light of these findings, the Federal Magistrate concluded that the Tribunal had considered but rejected each of the claims made by the appellant: judgment paragraph [17].  His Honour rejected the argument that the Tribunal’s failure to expressly deal with the perception of vulnerability indicated that it had not considered that claim.  His Honour found that the claim of vulnerability was subsumed in the finding that there was no targeting of the Chinese minority.  This conclusion is clearly correct.  If a person claims to be at risk because he or she is perceived as being vulnerable and that vulnerability arises by reason of that person’s ethnicity then the claim may properly be identified and dealt with as fear of persecution for reasons of ethnicity.  That is how the Tribunal approached the claim, concluding that any fear for this reason was not well-founded.  His Honour was correct in concluding that the Tribunal had dealt effectively with the claim regarding vulnerability.’

The notice of appeal

1. The notice of appeal contains no grounds of appeal.  Pursuant to an order to file an amended notice of appeal, the appellant filed a document entitled “Reasons for Appeal”, filed on 22 March 2005, which I will treat as an amended notice of appeal. 

2. At the hearing, the appellant appeared in person, assisted by an interpreter.  He relied upon the document referred to above and otherwise added that he believed that it was his race that caused the attacks he and his family experienced in Guyana.  He also added that he had not emphasised this in the Tribunal.

Consideration of the matters in the appellant’s “Reasons for appeal”

1. In summary, the appellant raises five matters.  The first is that his migration agent, Mr Jack Meng, was disqualified after the Tribunal hearing which, the appellant says, indicates that Mr Meng was not able to present the appellant’s case appropriately.  It is said that this might have affected the fairness of the Tribunal’s decision.  Mr Smith, who appears for the respondent, submits that it does not follow from the fact of disqualification that the appellant’s case was not presented properly.  In any event, he submits, the skill of Mr Meng does not impact on the question whether or not the Tribunal properly exercised jurisdiction and that the proceedings of the Tribunal was not questioned.  Further, this was not an issue before the Federal Magistrate, where counsel represented the appellant.  I accept those submissions.  This ground does not raise a jurisdictional error.

2. The second ground raises the reliance by the Tribunal on the newspaper reports and country information.  It is said that they are out of date, ignore the relatively small size of the Chinese community in reporting on “large-scale events” and cannot be said to be unbiased.  The information cited by the Tribunal included newspaper reports that had been submitted by the appellant.  Other documents, country information, were about events in Guyana generally and not about the appellant.  The matters cited by the Tribunal by reference to the documents were factual in nature.  No jurisdictional error arising from the use of such documents is established.

3. The third ground is a more specific complaint about the use of the newspapers that had been submitted by the appellant to the Tribunal.  It is said that the media are neither unbiased nor neutral and would not admit discrimination against the Chinese race.  It is stated that the reports reveal uncontrolled violence in Guyana and the appellant states that wealthy minorities usually suffer due to their ethnic group, citing events in Indonesia in 1997.  This ground raises factual matters only.  It seeks to introduce new facts that are not relevant.  It criticises the information submitted by the appellant to the Tribunal.  It does not raise jurisdictional error.

4. The fourth ground asserts that the Federal Magistrate applied the legislation correctly but that his Honour’s decision is unfair in that it is based on the Tribunal’s findings, which are said to be ‘misleading’.  No error on the part of his Honour, other than failing to find error on the part of the Tribunal is asserted.

5. In the fifth paragraph of the Reasons for Appeal document, the appellant refers to his financial circumstances and asks not to be returned to Guyana where he and his family await a “miserable fate”.  Unfortunately, a decision based upon those considerations does not rest with this Court.

6. The Tribunal accepted that there is a crime problem in Guyana and that the appellant and his wife have been victims of crime.  That is, the Tribunal accepted the matters set out in the appellant’s written statement.  As already noted, that statement is information that comes within s 424A(3)(b).  The reason for the Tribunal’s decision for affirming the decision under review was based upon country information that comes within s 424A(3)(a) and newspaper reports that the appellant gave to the Tribunal for the purposes of his application for review, which is information within s 424A(3)(b).  There was no obligation on the part of the Tribunal to provide particulars in writing.  I note that the Tribunal did canvass with the appellant at the hearing each of the matters it relied upon and gave him the opportunity to deal with them.

7. No jurisdictional error on the part of the Tribunal is disclosed or established. There was also no error on the part of the Federal Magistrate.  The appeal is dismissed with costs. The respondent asks for costs in a fixed sum of $3500 and has provided evidence in support of that claim on a party-party basis.  I will award costs in the sum sought.

I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett J.

Associate:

Dated:             15 September 2005

The Appellant appeared in person.

Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 July 2005
Date of Judgment:	15 September 2005