SBDG v Minister for Immigration
[2007] FMCA 2041
•9 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBDG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2041 |
| MIGRATION – Judicial review of Refugee Review Tribunal decision – application refused. |
| The Constitution, para. 75(v) Migration Act 1958, ss.91R, 91S, 474, 476, 501 Convention Relating to the Status of Refugees, Art.1A(2) |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | SBDG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 220 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing date: | 9 November 2007 |
| Date of Last Submission: | 9 November 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 9 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondents: | Mr C. Floreani |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application for judicial review filed on 6 August 2007 do stand dismissed.
The Applicant do pay the First Respondent’s costs of, and incidental to, these proceedings fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 220 of 2007
| SBDG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings relate to an application pursuant to s.476 of the Migration Act 1958 (“the Act”). The applicant seeks orders by way of judicial review. This Court has the same original jurisdiction in relation to judicial review of migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution of the Commonwealth of Australia. None of the provisions of s.476 of the Act, which deals with the circumstances in which the Court cannot exercise the jurisdiction apply. In particular the decision is not a primary decision.
Section 474 of the Act however does apply. The decision, the subject of this application, is a privative clause decision and must be regarded as final and conclusive unless the decision can be demonstrated to have been vitiated by jurisdictional error as that concept was explained in relation to the provisions of the Act relating to migration decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 and more generally as the concept was explained in cases such as Craig v State of South Australia (1995) 184 CLR 163.
The applicant is contending that he is a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees (the “Refugee Convention”) and the Protocol Relating to the Status of Refugees (the “Refugee Protocol”). Article 1A(2) of the Refugee Convention defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country; or who, not having a nationality and being outside the country of former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act bear upon the interpretation of that definition and I will come to those sections in a moment. The applicant is a citizen of the United Kingdom. He arrived in Australia in 1980. Upon his arrival he was granted a permanent entry permit and subsequently, pursuant to some reforms of the Migration Act in 1994, was taken to have become a transitional permanent class of BF visa holder and that was in 1994.
He was convicted of numerous criminal offences in the period 1983 to 2004. In June 2005, the Minister cancelled his permanent visa upon the basis that he did not pass the character test under s.501 of the Act. He applied to the Administrative Appeals Tribunal. That Tribunal affirmed the decision of the Minister. In September 2005 he filed an appeal in the Federal Court seeking a review of the Administrative Appeals Tribunal decision and in January of this year Besanko J dismissed that appeal.
In June of this year, he made his application for the protection visa to which I referred. That was refused by a delegate of the Minister and he made application to the Refugee Review Tribunal (the “Tribunal”) for a review of that decision but on 17 July 2007 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and that led to his application in this court filed on 6 August 2007. The grounds of his Application identified on page 2 of that document are as follows:
(1)That the Tribunal erred in interpreting s.91R and s.91S of the Migration Act 1958.
(2)That the Tribunal erred in interpreting the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.
The substantive arguments or contentions underlying those grounds are not identified in the Application document itself and have not been elucidated in any subsequent document filed by or on behalf of the applicant. In particular he has not, for the reasons he explained to me at the outset of today’s hearing, filed a Summary of Argument or Notice of Contentions in relation to those grounds.
Section 91R of the Act provides that Article 1A(2) of the Refugee Convention, to which I previously referred, “does not apply in relation to persecution for one of the more reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution;
(b)the persecution involves serious harm to the person;
(c)the persecution involves systematic and discriminatory conduct.
Sub-section (2) of s.91R of the Act then goes on to instance “serious harm” and sub-section (3) makes certain provisions in relation to the disregarding in determining applications for refugee status and certain conduct.
Section 91S of the Act provides that for the purposes of the application of the Act and the Regulations to the “first person”, “in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugee Convention as amended by the Refugee Protocol; and
(b)disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced ,
(ii)any other member or former member, whether alive or dead of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
I return firstly to ground 1 which avers error without explicating the error but avers error in respect of the Tribunal’s decision in interpreting s.91R and s.91S. Section 91R is discussed by the Tribunal at page 3 of its reasons, that is at CB 88, and I am unable to identify in the discussion of the meaning and purport of s.91R any error into which the Tribunal has fallen, let alone any jurisdictional error.
The application of s.91R to the facts of this particular application are dealt with at page 9 of the reasons, that is set out at CB 94. We find on page 9 the Tribunal setting out the fruits of its consideration of various country information in relation to the United Kingdom.
This consideration of the country information leads to the conclusion, on page 9 of the reasons (CB 94), that although the report, referring there to a report of the US State Department, readily acknowledges some shortcomings with respect to human rights in the UK, there is nothing in the report to suggest that a person such as the applicant would, in the event that he is returned to the UK following visa cancellation on character grounds, encounter for that reason problems of any sort with the UK authorities, let alone persecution for the purposes of s.91R of the Act.
The Tribunal is unaware of any evidence that such persecution occurs or of any formal sanctions which might apply to a person such as the applicant upon his return to the UK in those circumstances. The Tribunal does not accept, therefore, that the UK authorities pose any threat to the applicant upon his return from the country of Australia or that there is a real chance that those authorities would persecute him in the foreseeable future for any reason let alone for a Convention reason.
As I say, whilst the particular complaint in relation to the interpretation of s.91R has not been articulated, either in the application or any subsequent document, I am doing the best I can to consider carefully the way in which the Tribunal has dealt with the applicant’s contention in this regard and in particular with respect to what the Tribunal has to say about s.91R. However, I am unable to identify any error or law or principle let alone any jurisdictional error associated with its consideration of that issue.
The complaint in relation to s.91S can be more quickly dealt with. The section is one that has given rise to various considerations in previous cases. It is not without its complexities, but in this case the Tribunal makes a specific finding that the applicant is a member of the particular social group that he was contending he was a member of and that is to be found on page 8 of the Tribunal’s reasons and in particular in the penultimate paragraph on page 8 which appears at CB 93.
So having accepted his membership of the particular social group the applicant was contending he was a member of, it is difficult for me to apprehend any way in which the Tribunal fell into jurisdictional error in respect of its consideration of s.91S.
Ground 2 is just again a bare assertion of error in interpretation associated with the relevant international convention. And again, even though the particular error has not been articulated, by or on behalf of the applicant, in any document, looking at the Tribunal’s reasons with an eye to the identification of any error involved in its consideration of the applicant’s refugee status, I am unable to identify any such error.
The gravamen of the Tribunal’s findings with respect to the applicant’s contentions is to be found at page 8 of its reasons, CB 93. It will be recalled that the applicant had contended before the Tribunal that he was at risks of harm from members of the Blue Angels Motorcycle Club. This arose because of a dispute with them he had before leaving the UK for Australia and it is the only matter, essentially, to which the applicant referred when given an opportunity by me this afternoon to develop any argument in relation to his Application. That is dealt with by the Tribunal at the top of page 8, CB 93, where the Tribunal says: “this claim is fraught with difficulty”.
Firstly, the Tribunal does not accept that there is more than a remote chance that this group’s adverse interest in the applicant persists. Secondly, it finds no reason why, even in the remote chance that the groups adverse interest in the applicant does persist, it would be able to locate him unless he actively sought them out after all these years. Thirdly, the Tribunal does not accept that the claimed threat is the result of anything more than a personal vendetta and finds therefore that it does not come within the scope of the Refugee Convention.
Having regard to the material that was before the Tribunal in respect of this claim, it might be thought that the Tribunal’s conclusions in respect of that submission were well nigh inevitable. So having scrutinised the Tribunal’s reasons for the purposes of identifying any jurisdictional error in the way the Tribunal went about its task, I am unable to identify any such jurisdictional error and accordingly, the Application will stand dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 6 December 2007
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