SZAFC v Minister for Immigration - [2003] FMCA 380

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFC v MINISTER FOR IMMIGRATION

[2003] FMCA 380

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant fearing harm at the hands of creditors in India – whether the applicant abandoned written claims of persecution in favour of oral claims made at the RRT hearing – whether the RRT erred in concluding that the applicant did not fear persecution by reason of membership of a particular social group.

ADMINISTRATIVE LAW – Jurisdiction – whether the Federal Magistrates Court has jurisdiction to review a migration decision under the Administrative Decisions (Judicial Review) Act 1977.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth)

NAAM v Minister for Immigration [2003] FMCA 55
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24

Applicant:

SZAFC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ220 of 2003

Delivered on:

5 September 2003

Delivered at:

Sydney

Hearing date:

5 September 2003

Judgment of:

Driver FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:

Mr M Wigney

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ220 of 2003

SZAFC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 9 January 2003 and handed down on 5 February 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India. She arrived in Australia on 30 July 2001 on a business visa, having previously travelled to Australia in February 2001. The applicant applied for a protection visa on 13 June 2002.
I should say at the outset that at the hearing today the applicant told me that she had difficulty in dealing with or renewing her business visa. She told me that she was advised by her migration agent to apply for a protection visa on the basis that this would give her time to sort out the problems with her business visa. The applicant told me this from the bar table and it was not sworn evidence. Nevertheless, the applicant, I believe, gave me this information honestly and sincerely. That information itself casts serious doubt on the genuineness of her application for a protection visa. Nevertheless, that information alone is not a reason for me to refrain from reviewing the decision of the RRT.
The applicant relies upon her application filed on 24 February 2003. In that application she stated that a detailed submission would be filed later but no submission was filed. The applicant told me that she had been unable to prepare written submissions. The application states the following grounds for the review: first, that the RRT decision is incorrect and is liable to be set aside; and secondly, that the decision maker has not considered all the material facts on the file while making the decision. The application was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). Mr Wigney, for the Minister, submitted that the Court has no jurisdiction to review a migration decision under that Act. I rejected that submission on the basis of the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 at [97], and my own decision in NAAM v Minister for Immigration [2003] FMCA 55 at [5] – [7].
If a decision of the RRT is vitiated by jurisdictional error, the decision is not a privative clause decision. The task of the Court is to decide whether the RRT has committed any jurisdictional error. It is only if there is no jurisdictional error that the decision of the RRT is a privative clause decision for the purposes of the Migration Act 1958 (Cth) (“the Migration Act”) and the ADJR Act. The exclusion of rights of review under the ADJR Act does not apply if the decision under review is not a privative clause decision. I find that the Court has jurisdiction to entertain an application under the ADJR Act in respect of a migration decision for the purpose of determining whether there is any jurisdictional error.
I invited the applicant to tell me what was wrong with the decision of the RRT. She was initially unable to do so. She explained the circumstances of her problems with her business visa and her advice from her migration agent. In his written submissions filed on 3 September 2003, Mr Wigney submits that there is no error apparent in the decision of the RRT let alone any jurisdictional error. I raised two issues with Mr Wigney. The first was whether the RRT erred in failing to consider all elements or integers of the applicant's claims of persecution.
In her application for a protection visa, the applicant made the following claims. Her husband was a union leader. In 1991 he was involved in a union dispute which led to threats being made against him. After this her husband was so frightened that he took compulsory retirement. He has been missing since then. The applicant assumed her husband had been killed by opposition union leaders or management of the company where he worked. The applicant stated that she came to Australia to explore the possibility of doing business in Australia. While she was here her company suffered disputes at the management level which led to it being closed down. No funds were available to be transferred to Australia and another company which she launched here failed. Management of the company in India blamed the applicant for the closure of that company and have threatened her. Management of her company have links with the BJP political party in India and activists in that party and also the Telgu Deshan Party, and those people could harm her. The applicant stated that she feared persecution for those reasons.
This amounted to a claim of a fear of persecution for imputed political beliefs or possibly through the applicant’s family connection with her husband, who was a trade union leader. At the RRT hearing the applicant's claims changed. On page 66 of the court book the presiding member says this:
I asked the applicant what she feared would happen to her if she returned to India. The applicant stated that she can't go back to India because people believe that she earned a lot of money in Australia and will “blackmail” her. When I asked the applicant which people she was referring to she stated that she meant people from the union that her husband belongs to. They have asked her for money to pay her husband's debts. The applicant also indicated that other people in her area think that she has made a lot of money. When I asked the applicant what she meant when she said that she would be blackmailed, the applicant stated that the union people would say that she is still having a relationship with her husband and that her husband will be killed if she does not pay them money.
The presiding member pointed out that there were conflicts between what the applicant was then telling the presiding member and what she had put in her original application. The applicant asserted the truth of what she said at the hearing. She could not explain the conflicts. She stated that her company in India was still in business although it had been making losses. She also stated that in 1991 her husband went off and was living with another woman.
In the hearing before me the applicant disputed the accuracy of the description of what she said at the RRT hearing but she has not produced any transcript of the hearing. She told me that this had not occurred to her. When I put to her the specific passage of the presiding member's reasons on page 66 of the court book, which I have quoted above, the applicant accepted the accuracy of that passage. It was apparent to the presiding member that it was difficult to reconcile the applicant's claims at the hearing with those she made in her original application.
The presiding member appears to have proceeded on the basis that the written claims had been abandoned and the applicant was relying upon her oral claims at the hearing. The presiding member could have made this clearer by specifically asking the applicant if she was abandoning her written claims. It does not appear that she did that but the conflict between the oral and written claims is sufficiently great to have reasonably led the presiding member to the conclusion that the two claims were in large part irreconcilable.
In the circumstances, the presiding member reasonably proceeded to deal with the application on the basis of the oral claims. While the presiding member could have made the situation clearer I see no legal error in the approach taken by the presiding member. On pages 67-68 of the court book the presiding member said:
The applicant did not have any explanation for the differences between her oral and her written claims. However, she insisted that what she had told me during the hearing was true. The applicant impressed me as someone who was trying to be frank, even though her evidence appeared somewhat confused from time to time. Overall, I accept that the applicant's evidence during the hearing was essentially truthful. Where her oral evidence is in direct conflict with her application for a protection visa, I have preferred the oral evidence. I have assessed the applicant's claims against this oral evidence.
While the situation could have been clearer by the presiding member, it is sufficiently clear that the applicant had changed her claims from claims based upon trade union membership and political opinion to a claim based on a fear of harm from creditors.
The presiding member dealt with the claims that the applicant maintained. The claims of political persecution were reasonably regarded as having been abandoned. The presiding member accepted that the applicant had an unhappy marriage. The presiding member also accepted that the applicant had been pressured to pay her husband's debts. The presiding member accepted the applicant's fear as a genuine fear. However, the presiding member found that there was no connection to the Refugees Convention. The fear held by the applicant is not a fear of harm for any Convention reason. The presiding member drew the following conclusion at page 68 of the court book:
The applicant's evidence did not suggest that the harm she feared was for reasons of her race, her religion, her nationality, her membership of a particular social group or her political opinion. Her evidence was that she would be pressured to pay her husband's debts because she would be perceived to have made money in Australia.
In the circumstances, I cannot be satisfied that the applicant fears Convention related harm. I therefore cannot be satisfied that she has a well-founded fear of persecution for a Convention reason.
The second matter I raised with Mr Wigney, based upon this conclusion, was whether the RRT erred in its conclusion that the applicant did not fear harm by reason of membership of a particular social group. The difficulty is that the presiding member made a conclusion but there is no discussion in her reasons as to how she drew that conclusion. I am left to infer what the reasons were. It does not appear that the applicant herself claimed membership of any particular social group. Nevertheless, where the facts and circumstances presented to the RRT require consideration of whether there is a fear of persecution based upon membership of a particular social group, the RRT needs to consider that issue.
The claim made by the applicant at the RRT hearing was that she feared harm from creditors of herself and her husband in India because she would be perceived as having made money in Australia. Two possible social groups present themselves. The first is persons returning to India from Australia. However, that social group, if it exists in India, would not assist this applicant. The applicant was not claiming that she would be persecuted in India simply because she was a person returning from Australia. She feared harm because she would be perceived as having made money in Australia.
A second possible social group might be persons returning from Australia or some other foreign country who were perceived as having made money and who had debts in India. There are a number of obstacles in the way of the acceptance of such a social group. The first is that the claimed debts exist largely through the business activities of the applicant's husband. To the extent that the debts are the husband's debts and he is at risk, he could not claim persecution for a Convention reason and the applicant could not claim through him.
Secondly, the harm the applicant fears arises essentially because of matters personal to her (and her husband). In the circumstances, it would be extremely difficult to construct a particular social group that she could be a member of. Thirdly, a social group of persons returning to India from another country who owed debts and who were perceived as having money would be a social group defined by reference to the fear of harm that such persons might suffer. It is impermissible to define a social group by reference to the fear of harm. In the circumstances, I do not see that it was possible for the applicant to have constructed a particular social group in order to support the claim of persecution. Accordingly, whatever consideration which may have been given to the issue by the presiding member that led to her conclusion, I see no legal error in the conclusion.
The applicant has failed to demonstrate that a legal error has been made by the RRT. No legal error and certainly no jurisdictional error is apparent to me.
In the circumstances, the decision of the RRT is a privative clause decision. I will dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful and the Minister wholly successful, Mr Wigney seeks an order for costs in the sum of $4,000. The applicant tells me that she has no means to pay such a costs order. However, an inability to pay costs is not a reason for the Court to refrain from making a costs order. It is up to the Minister and his Department to decide whether and in what manner the applicant would be pursued for costs. It is appropriate that the Minister receive a costs order consistently with the principle that costs follow the event.
As to the amount sought by Mr Wigney, somewhat less than average preparation was required. The issues appeared quite straightforward up to the point of discussion between me and Mr Wigney during the course of the hearing. The hearing was not lengthened by reason of that discussion. In my view, $3,000 would be adequate recompense to the Minister in this matter. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 September 2003