SXGB v Minister for Immigration
[2005] FMCA 1182
•26 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SXGB V MINISTER FOR IMMIGRATION | [2005] FMCA 1182 |
| MIGRATION – Refusal of protection visa by Refugee Review Tribunal – Application for judicial review – whether the Tribunal constructively failed to exercise its jurisdiction – application dismissed. |
| Migration Act 1958 (Cth), ss.39B, 36(2), 91R, 91R(1), 91R(1)(a), 91(R)(1)(b), 91R(1)(c), 91S Judiciary Act 1903 (Cth) |
| Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476 MIEA v Wu Shan Liang (1996) 185 CLR 259 Prahastono v MIMIA (1997) 77 FCR 260 MIMIA v Kord (2002) 67 ALD 28 NABE v MIMIA (No 2) [2004] FCAFC 263 NACM of 2002 v MIMIA (2003) FCA 1554 |
| Applicant: | SXGB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | ADG 33 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 16 August 2005 |
| Date of Last Submission: | 16 August 2005 |
| Delivered at: | Adelaide |
| Delivered on: | 26 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robertson |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Australia Inc |
| Counsel for the Respondent: | Mr K Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application for judicial review dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 33 of 2005
| SXGB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under section 483A of the Migration Act1958 (Cth) ("the Act”).
Under s.483A, this Court has "the same jurisdiction as the Federal Court in relation to a matter arising under this Act". That jurisdiction in relation to matters such as the present is the jurisdiction under s.39B of the Judiciary Act1903 (Cth), subject to limitations under Pt VIII of the Act. As interpreted in Plaintiff S157/2002 v Commonwealth (2002) 211 CLR 476, those limitations require this Court to identify jurisdictional error in the proceedings, or Reasons of the Tribunal, before the Court has the power to set aside the Tribunal decision and remit the matter for rehearing.
The application was filed on 26 November 2004 and, in its original form, sought three orders. The orders sought were:
(1)that the Refugee Review Tribunal exceeded its jurisdiction in making its decision to affirm the respondent's decision;
(2)that the Tribunal constructively failed to exercise its jurisdiction in arriving at its decision; and
(3)that the Tribunal erred in failing to find that the applicant's claim of persecution was well founded, given his particular circumstances both at the time of the decision and into the future.
At the hearing before me, the applicant was represented by Mr Robertson of counsel. He made it clear at the outset that the claim that a jurisdictional error could be found in the Tribunal exceeding its jurisdiction had been abandoned. The application was pursued only as it related to the constructive failure to exercise jurisdiction.
I received in evidence an affidavit of Thea Joy Birss, solicitor, which exhibited the transcript of the hearing before the Tribunal. I have read that transcript carefully and I have had regard to all of the submissions put by Mr Robertson and by Mr Tredrea, who appeared on behalf of the Minister.
The applicant is 20 years of age. He comes from Kirkuk, which is a region in northern Iraq. He is a Turkoman by ethnicity and his religion is Islam.
In his region in northern Iraq, tensions have historically existed between Kurds and Turkomen.
The applicant's immediate family consists of his mother and sisters. They are in Iraq.
The applicant's father owned a business in Kirkuk, hiring and selling videos. His father was arrested by the Baathist regime of Saddam Hussein in June of 2001 and was in detention for nine months. He was executed in March of 2002. The execution occurred against the background of a policy of "Arabisation" of the Kirkuk region by the Baathist regime.
The applicant describes an allegation made by the Baathist regime that his father was associated with the Turkoman Party, but the applicant asserts there was no truth in this accusation.
The applicant was arrested two days after the arrest of his father.
He was detained for a week and then released. He says that he was severely injured by way of bashings sustained during the course of that arrest, which left him with permanent injuries to his left hand and spinal cord.
The applicant says that he had continuing problems with the Baathist regime, especially following the execution of his father in March 2002. He took upon himself the running of his father's business following his father's execution.
He says that for two years following the execution of his father, matters were relatively quiet but that in March of 2004 a combination of persons, being ex-Baathists and fundamentalist Muslims, visited him at his video business and warned him that he should stop renting videos. It was put to him that the renting of videos - particularly western videos - was immoral and contrary to Islam. He describes a series of visits over a course of days by various persons. Eventually, seven or eight people came to the shop and, after ordering him to leave the shop, fired bullets into it. Police attended. There was a gun battle between the police and the persons laying siege to the shop.
The applicant claims that two of the Muslim extremists were killed during this exchange and another was wounded and arrested. At one stage during the course of his dealings with the Minister's department, he said that this exchange resulted in the deaths of police officers rather than Islamists, but the Tribunal did not consider this discrepancy to be of any great significance.
Following this incident, the applicant escaped to his uncle's home. He says that his mother then embarked on finding a strategy for getting him out of Iraq. He says that the mother sold the family home and one of her kidneys to raise money for his departure. He made his way to Turkey. From there, he went to Holland, then to Singapore, to New Zealand and eventually to Australia. He entered Australia on a false passport.
The Baathist regime was, of course, expelled from Iraq following the allied intervention in March of 2003.
Before the Tribunal was a quantity of country information. That information is described in the Tribunal's Reasons and was the subject of specific questioning before the Tribunal, as evidenced by the transcript.
At p 12 of the transcript, the applicant is asked to describe the persons who were involved in the attack upon his shop, and he said as follows:
“They would say that they are the Islamists, Islamist people in Iraq, and, "What you are doing is illegal." These people, the Islamists, they have been there for a while and they are from the, they are Bahtsi (sic) Baht's (sic) Party, and they would say, "We are here to" - they actually tried to brainwash people and they say, "We are here to protect the country from the enemy." From the United States. They have all kinds of weapons and the current government have no control over these people”.
At p 16, he is asked what would happen to him if he were to return to Kirkuk and he says:
“I think that they would kill me. Simple as that. When I came to Australia, I was so scared. Do I need to change my name? Would I be harmed here? I have no idea about the freedom or the law here in this country. (inaudible) and I see them in my dreams at night. I have nightmares seeing them coming to detain me or coming to kill me and then I will feel, I would hear a noise and someone would open the door and I wake up frightened. Even my dreams. I had a dream that they were here in Australia and I was terribly scare (sic) that they could even be here in this country. Honestly, (inaudible) memories of this thing of all the time”.
It is then put to him that country information emanating from Iraq indicates that there is no systemic approach to the killing of Turkoman people, and the applicant responds:
“But these people. They hate me. They are planning to kill me”.
A Tribunal member then asks him:
“So it's you in particular. Is that what you're saying?”
He replies:
“Yes. Why would I do all this? Why would I sell my house? Why would I cross seas and go all that way? Because of the fear that I am ...”.
Country information available to the Tribunal, and also reproduced in the court book before me, indicates a raising of tension in the Kirkuk region as Kurds attempted to reclaim their former homes.
The country information was summarised by the Tribunal on p 11 of its Reasons (CB82):
“The tribunal refers to information cited above which indicates that there is now friction between Kurds and other ethnicities in northern Iraq over the fate of the city of Kirkuk in anticipation of new constitutional arrangements. This information does not lead to the conclusion that Turkomen face a real chance of persecution by reason of their ethnicity in the reasonably foreseeable future.
Even if the tribunal were to assume the worst case scenario for the Turkomen of Iraq and postulate the Kirkuk area would form part of a Kurdish region, this would not, per se, indicate a real chance of persecution for the applicant. The tribunal is cognisant of the obvious subjective fear which the applicant has, derived also from the Arabisation program of Saddam Hussein, however it finds that his fear of persecution on the basis of his ethnicity is not well founded”.
The Tribunal accepted the account of events the applicant gave as to the attack upon his shop and also accepted that the motivation for this attack was the dissemination through the video store of material considered to be immoral in the eyes of the person who perpetrated the attack. The Tribunal placed some weight upon the circumstance that the applicant was advised to get out of his shop before bullets were fired into it. The Tribunal regarded this action on the part of the perpetrators as an indicator of their intention to make some public point about the unsatisfactory nature of the business conducted by the applicant but their lack of interest in inflicting any physical harm upon him.
The Tribunal noted the applicant's own account of the police having been called and having dealt with the disturbance. The Tribunal also noted his having remained in the area of these events following them (his uncle's home was reasonably proximate to the shop). The Tribunal noted that he did not leave the Kirkuk area until approximately three months after the incident.
The applicant sought a protection visa. Section 36(2) of the Act provides that protection visas are available to persons to whom the Minister is satisfied that Australia has protection obligations arising under the status of Refugees Convention 1951 and Status of Refugees Protocol 1967.
A refugee is defined by article 1A(2) of the Refugees Convention as:
“Any person who, owing to a 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 himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it”.
Section 91R and s 91S of the Act qualify, in some respects, that definition. They provide:
Section 91R:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the 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; and
(b) the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
Section 91S:
(b)significant physical harassment of the person
(c)significant physical ill-treatment of the person
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basis services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfied the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
Section 91S:
Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (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 firs person’s family:
(a)any other member or former member (Whether alive or dead) of the family has ever experienced, where the reasons for the fear or persecution is not a reason mention in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(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 if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed”.
The applicant concedes that the Tribunal correctly identified the four key elements of the Convention definition applicable to this case. Firstly, the applicant is outside of his country. Secondly, the applicant must fear persecution. Thirdly, the persecution which the applicant fears must be for one or more of the Convention reasons, that is on account of race, religion, nationality, membership of a particular social group or political opinion. Finally, the applicant's fear of persecution must be well founded.
Section 91R(1) obviously bears upon the issue of persecution and provides that the reason for persecution must be the "essential and significant" reason for the persecution; the persecution must involve "serious harm" to the person; and the persecution must involve “systemic and discriminatory conduct”. Instances of "serious harm" are then provided by s.91R(2), and I will not repeat them.
Section 91S is not dealt with specifically by the Tribunal, nor did it feature in the applicant's submissions before me. I do not think it would apply in any event. The applicant's father's persecution was plainly for a Convention‑related reason, though the Tribunal was not prepared to say it was on account of ethnicity and presumably regarded the father's persecution as being political in nature.
The Tribunal characterised the applicant's claims as those of ethnicity and religion. That is where it is said the Tribunal fell into jurisdictional error. It ought to have characterised them, it is said, as political. Before dealing with that argument, I will consider how the Tribunal dealt with the application under those headings.
As to ethnic persecution, the Tribunal finds:
(a)it was unrelated to his father's persecution and thus, by inference, unrelated to the applicant's persecution on that account. The Tribunal appears to find (CB82) that the applicant's treatment was unrelated, in any event, to the persecution of the father;
(b)the country information does not support the real chance of persecution of Turkomen in present-day Iraq, even if the Iraqi state is transformed into a federal one with Kirkuk part of the Kurdish "region";
(c)the applicant's subjective fears of harm are not related to his ethnicity.
I do not think there is much to complain of in the treatment of the issue of ethnicity as such. The characterisation of the father's execution as unrelated to his ethnicity is curious when seen in the light of the tribunal's apparent acceptance of the applicant's own account of this being at least significantly related to the former regime's policy of Arabisation (CB76). But, as noted above, the Tribunal found, surely correctly, that the father's death was unrelated to the applicant's own persecution in that he operated his father's business without encountering problems from the regime (or regimes) until two years later. By 2004 the regime has, in any event, been superseded.
As to religion, those of the persecutory group who were not Baathists were said to be Islamists. They were the other part of the group who attacked the applicant's shop. They took the view that their religion required them to root out and to make quite significant public statements in relation to what they regarded as the impropriety of the dissemination of western videos, which were an integral part of the applicant's business. The applicant is a Muslim. He can be characterised as fearing persecution on account of his religious affiliation to the extent that its tenets are not adhered to as scrupulously or with the same degree of zealotry as they are by those persons who constituted that part of the group which assailed him. To that extent, he can be understood to have been persecuted for reasons of religion. The Tribunal was entitled to regard this as an aspect of the fears held by the applicant.
The Tribunal accepted this as far as it went. In fact the Tribunal finds that religious persecution, so understood in the context of this case, was the reason for the attack on the applicant's shop. I do not think it can be said, as counsel for the respondent contended, that the Tribunal did not find that the attack upon the shop was for a Convention‑related reason. Rather, the Tribunal finds that (CB83) on account of the conduct of the assailants in first directing the applicant to leave the shop they had indicated an intention not to harm the applicant physically and, when this is taken into account with events after the attack, any fear now held by the applicant is said not to be well founded. The reference to the assistance provided by the police might also suggest a reliance upon s.91R(1)(c) in that it is suggestive of the lack of systemic persecution.
It is not necessarily possible to compartmentalise the Tribunal's findings in this way. The penultimate paragraph of its findings simply says:
“Having considered the applicant's case in its totality, the tribunal finds that he does not have a well‑founded fear of persecution for any convention reason, now or in the reasonably foreseeable future, should he return to Iraq”.
That leaves open whether Convention‑related fear (or fears) exists but is not well founded or are non-existent. I think it is best understood as a finding of "not well founded" in relation to religion and "not convention related" as it relates to ethnicity, for the reasons given above.
Even if one might be concerned that the assailants' treatment of the applicant during the attack is characterised as "not serious harm", that description of the attack is not what matters. The fear must be that which is not well founded, and the reasons the Tribunal gave for that prospective view, as distinct from its evaluation of matters historical, are clear enough.
It is not for me to review the merits of the Tribunal's decision (see MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272). As held by Kirby J at 291-292, the weight to be given to material before a decision‑maker is reserved for that person so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review. He stated at 292:
“The decision‑maker will usually have advantages over the reviewing judge in evaluating evidence in submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material, but there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. Often the decision‑maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts”.
Whether the Tribunal decides that discrimination amounts to serious persecution within the confines of s.1R(1)(b) of the Act is a factual matter for it alone; Prahastono v MIMIA (1997) 77 FCR 260 (Hill J) at 268; MIMIA v Kord (2002) 67 ALD 28 (Full Court Federal Court) at 3 (per Heerey J) 53 to 56 (per Marshall and Dowsett JJ).
As I say, in fairness to the applicant, that is not an argument pursued on his behalf before me. Rather, it is said, the tribunal made an error amounting to a constructive failure to exercise jurisdiction in not dealing with an aspect of the applicant's claims of persecution which arose clearly on the materials before it. That such a failure may amount to a jurisdictional error is clear from the detailed discussion of that topic by the Full Court of the Federal Court in NABE v MIMIA
(No 2) [2004] FCAFC 263 at [55] to [63].
The issue the subject of this failure is said to be the fear of persecution on account of the applicant's political opinions.
What factors in the material before the Tribunal are said to give rise to the need for the consideration of this issue?
I have already noted (at par 35) that the Tribunal somewhat oddly characterised the father's persecution to death as non‑ethnic in nature. It could only otherwise have been seen as political persecution in the light of the material before the tribunal.
The applicant did not say he belonged to a political party. He was not identified by his assailants as promoting a political program. More importantly, his fears are not claimed by him to arise on account of his actual or perceived political opinion. I say "more importantly" because, as discussed by Madgwick J in NACM of 2002 v MIMIA (2003) FCA 1554 at 31, 57 and 63, in considering protection applications it is better to focus on whether the political opinion or activity accounts for the claimant's fears rather than focusing upon the motivation of the persecutor. Here, one part of the assailant group is characterised by their political party's nomenclature (Baathist) but that does not convert the applicant's apprehension, therefore, into a fear of persecution on account of political opinion. The Baathists may have been involved in the attack for all manner of reasons (opportunistic ones perhaps) unrelated to any political opinion of the applicant.
I am unable to identify in the applicant's own accounts or in any other information before the Tribunal anything which would alert it to the issue of the applicant's political opinion being a relevant reason, let alone a significant and essential reason, to use the language of s.91R(1)(a), for the persecution of the applicant or his apprehension in relation to same.
The Tribunal took into account all aspects of the applicant's claim which could be said to arise on the materials before it.
There being no jurisdictional error apparent in the way in which the tribunal dealt with the applicant's claim, the application for judicial review is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
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