SXNB v Minister for Immigration
[2005] FMCA 1458
•4 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SXNB v MINISTER FOR IMMIGRATION | [2005] FMCA 1458 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – fear of persecution alleged on grounds of political opinion – person convicted of people smuggling – other person convicted on his statements – fear not convention based. |
| Migration Act 1958, ss.36(2), 91R, 91S, 232A, 483A Judiciary Act 1903 (Cth) |
| SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 24 Plaintiff S157 of 2002 v Commonwealth (2002) 211 CLR 465 Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor [1997] HCA 418 Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) HCA 18 |
| Applicant: | SXNB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | ADG 42 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 2 June 2005 |
| Delivered at: | Adelaide |
| Delivered on: | 4 November 2005 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Mr K Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application filed on 13 December 2004 be and the same is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 42 of 2005
| SXNB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks a review of a decision of the Refugee Review Tribunal (hereinafter the "Tribunal") made on 27 October 2004. By that decision, the Tribunal found that the applicant was not entitled to a protection visa. The Tribunal's decision resulted from an application to review a decision of the delegate of the respondent made on 8 September 2004 refusing the applicant a protection visa.
Consistent with the recent decision of the High Court in SAAP and Anor v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, I join the Tribunal as a party to these proceedings.
As indicated above, on 8 September 2004, a delegate of the Minister refused to grant a protection visa, and on 13 September 2004, the applicant sought review of that decision with the Tribunal. The Tribunal on 27 October 2004, affirmed the decision of the delegate not to grant a visa. The applicant filed his application for review on 13 December 2004 in the Federal Court of Australia. On 14 February 2004, Lander J transferred the proceeding to this court.
I should mention that an earlier refusal of the delegate of the minister to grant the applicant a protection visa of 22 July 2003 was the subject of a successful appeal to the Administrative Appeals Tribunal.
In this matter the Tribunal conducted a hearing on 21 October 2004. The applicant appeared by videolink, his adviser attended by telephone, and a witness for the applicant also gave evidence. The Tribunal had before it the department's file, which included the protection visa application, and a record of the delegate's decision, as well as the Administrative Appeals Tribunal decision, and relevant extracts from the District Court of Western Australia relating to the applicant's being sentenced in that Court.
The sentencing arose on account of the fact that upon his arrival in Australia, the applicant was charged pursuant to s.232A of the Migration Act 1958 with facilitating the bringing into Australia of a group of five or more people, knowing those people to be unlawful non-citizens. On 31 August 2001, in the District Court of Western Australia, the applicant pleaded guilty to that charge and on 19 September 2001, he was sentenced to a term of three years and six months' imprisonment with a non-parole period of one year and nine months. The applicant was released from prison on 28 January 2003 and sent to a detention centre.
The Tribunal sets out in some detail the various accounts the applicant has given of his circumstances as they relate to his application for a protection visa since his arrival in Australia. Those accounts include correspondence with the Australian Federal Police, statements given to the Australian Federal Police, correspondence from his sister in Sri Lanka, correspondence from a co-offender, information provided in the protection visa application form itself, a statutory declaration dated 2 April 2003, the submissions of the applicant's then adviser on 21 May 2003, and a further statutory declaration of 24 September 2003. The applicant's new adviser made a further written submission dated 8 July 2004, and on 18 October 2004, a further written submission was received from the applicant's then current registered migration agent. In addition to these matters, the applicant also had his evidence given before the Tribunal, and had the evidence, as noted above, of his witness.
The Tribunal indicates where inconsistencies have arisen in these various accounts (CB page 155), but ultimately the Tribunal did not rely upon any inconsistency in assisting it in determining the application adversely to the applicant. This I take to be the meaning to be ascribed by the Tribunal's reference to the fact that it "leaves aside" these inconsistencies. Certainly they are not relied upon on the course of the Tribunal's reasoning.
The Tribunal accepted that the applicant contacted the Australian Federal Police in January 2002 and that he gave a statement to them in March 2002, and in addition soon afterwards gave a statement to the Sri Lankan CID. The Tribunal also accepted that as a result of these statements, a person described as DR was gaoled for seven months in Sri Lanka. The Tribunal further accepted that another person, known as MNF, an organiser with DR of the people smuggling operation in which the applicant was involved, verbally abused the applicant and threatened the applicant in gaol because he had given evidence against MNF.
MNF was imprisoned in Australia following the information being provided by the applicant.
The applicant's claim centred upon his apprehension that he would be harmed or killed by MNF or DR or persons acting on their behalf if he returned to Sri Lanka. The Tribunal accepted that his apprehensions in this regard were genuine.
This is an application under s.483A of the Migration 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 Act 1903 (Cth), subject to limitations under Part VIII of the Act. As interpreted in Plaintiff S157 of 2002 v The 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 applicant appeared in person before me. The application does not assist in developing the precise nature of the jurisdictional error which the applicant says exists in the Tribunal's determination. Before me the applicant's contentions essentially involved his reasserting those matters which had been put by him to the Tribunal, and which were rejected by the Tribunal as enabling it to reverse the decision of the delegate in relation to the grant of a protection visa. Because the applicant was not represented, I have reviewed the Tribunal's reasons with a view to determining whether they demonstrate jurisdictional error on its part.
The Tribunal rejected the applicant's claim to be entitled to a protection visa because it did not accept that the persecution that he feared if he were to return to Sri Lanka was persecution for a convention reason. Before the Tribunal, the applicant's adviser had attempted to cast the fears expressed by the applicant as fears relating to a political opinion imputed to him by the persons who have been imprisoned, in Sri Lanka and Australia, on account of the statements he made in relation to their involvement in people smuggling. As the Tribunal properly notes, however, all of the evidence available to it in the form of the applicant's statements and correspondence indicate that his fear was associated with his being held responsible by those persons for they having been placed in prison. He also had an apprehension that they, or their supporters, would harm him on account of their expectation that he would give further evidence against them when he returned to Sri Lanka.
The Tribunal quite properly discounted the characterisation of the applicant's fear as a fear that arises on account of his membership of the social group of police informers. Even if they were to constitute a social group within the meaning of the convention in Sri Lanka, the Tribunal properly identified the applicant's fear as arising not from his membership of that group but because of the effect of his evidence upon the two individuals concerned.
Section 36(2) of the Migration 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.
Sections 91R and 91S of the Migration Act qualify in some respects that definition:
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.
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:
(b) a threat to the person’s life or liberty;
(c) significant physical harassment of the person;
(d) significant physical harassment of the person;
(e) significant economic hardship that threatens the person’s capacity to subsist;
(f) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(g) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
For the purposes of the application of this Act and the regulations to a particular person:
(h) 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 Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(i) the person satisfies 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:
“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 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 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 were assumed that the fear or persecution mention in paragraph (a) had never existed.”
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.
It is the third of those elements that was critical to the Tribunal's rejection of the applicant's claim.
As McHugh J noted in ApplicantA and Anor v The Minister for Immigration and Ethnic Affairs and Anor [1997] HCA 418:
When the definition of "refugee" is read as a whole, it is plain that it is directed to the protection of individuals who have been, or who are likely to be, victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution and it must be discrimination that occurs because the person has a particular race, religion, nationality, political opinion or membership of a particular social group.
Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a convention reason, is not within the convention definition of "refugee", no matter how terrible its impact on that person happens to be. The convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by, or with the tacit acceptance, of the government of the country from which they have fled or to which they are unwilling to return.
Persecution by private individuals or groups does not by itself fall within the definition of "refugee" unless the state either encourages or appears to be powerless to prevent that private persecution.
In relation to the expression "for reasons of" in relation to the persecution, Dawson J has this to say at page 8 of the same judgment:
The words "for reasons of" require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well‑founded fear of persecution. The persecution must be feared because of the person's membership, or perceived membership, of the particular social group.
For instance, the appellants in this case are each members of at least one recognised social group - a family, consisting of them and their son - but it is not their membership of that specific family which motivates their prospective persecutors. The question which arises in this appeal is whether the persecution they fear is by reason of their membership of a particular social group consisting of all such families who face persecution. That is not only a question about causal nexus, but about what constitutes a particular social group.
The Tribunal considered carefully the basis of the applicant's apprehensions relating to his return to Sri Lanka and correctly concluded, in my view, that they related to the animosity that would be expressed - even expressed in terms of his being harmed - by those individuals against whom he had given information to the Australian Federal Police and the Sri Lankan CID.
The Tribunal also considered whether adequate state protection was available to the applicant should he return to Sri Lanka. The applicant had concerns that the judicial system in Sri Lanka was, to use his expression, on "the rich man's side", and that the authorities can't even protect themselves, but against that, the Tribunal had the applicant's own evidence that the person DR was imprisoned for seven months in Sri Lanka on account of the information given by the applicant. He perceived that to be a lenient sentence, but there was no information available to the Tribunal which entitled it to characterise the sentence in that way.
It is clear that the Tribunal regarded the issue of state protection as a matter that related to the issue of whether or not the applicant had a fear of persecution for a convention reason, but also as to whether or not his fear was well-founded (see CB 157). I cannot identify any error in the Tribunal dealing with the issue in that way. In fact it is consistent with the analysis of the question of state protection of the High Court in the Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) HCA 18, and in particular the judgment of McHugh J at para 65.
No jurisdictional error is apparent in the Tribunal's reasoning. Accordingly the application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
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