SZBPV v Minister for Immigration
[2005] FMCA 943
•12 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPV v MINISTER FOR IMMIGRATION | [2005] FMCA 943 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misdirected itself as to the particular social group of which the applicant claimed to be a member – whether Tribunal took into account irrelevant considerations or failed to take into account relevant considerations. |
| Migration Act 1958 (Cth), s.91R |
| Dranichnikov v Minister for Immigration and Multicultural Affairs; Ex parte Sergey Dranichnikov [2003] HCA 26 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v MIMIA (No 2) [2004] FCAFC 263 |
| Applicant: | SZBPV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2136 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 21 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Mr M. Jones |
| Counsel for the Respondent: | Mr S. Lloyd |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2136 of 2003
| SZBPV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 September 2003 affirming a decision of a delegate of the respondent not to grant him a protection visa.
The applicant, a citizen of Lebanon, arrived in Australia on 28 April 2002. On 3 June 2002 he applied for a protection visa. In a statement accompanying his protection visa application he claimed that he was “born as a dwarf” and that he was the only such person in North Lebanon. He claimed that he had not been able to continue proper education, was emotionally and psychologically harassed and victimised, that he had worked as an actor but had been abused and underpaid by his employer. He claimed to fear facing more insults and ridicule if he returned to Lebanon. He claimed that the authorities in Lebanon could not protect his human rights, that the police would not show him any respect and treated him as a nobody. Girls showed no interest in marrying him. He claimed:
In Lebanon we have no authorities protecting disabled people or defending their rights, especially in my case, I cannot receive any attention because I previously spoke with officers of the Police Station and they call me “Abu Toul” which means “the tall man” which is indeed an insult although I was facing increasing insults and ridicules to an extent which is threatening my life in Lebanon.
He claimed that he had been prejudiced and disadvantaged as a member of a social group of “dwarfism”.
In a statement attached to his application to the Tribunal the applicant claimed that he had suffered significant economic hardship having been underpaid because he had no other skills and that employers took advantage of his physical characteristics as a dwarf. He claimed that the way he was treated in Lebanon was a gross violation of his human rights. The applicant attended a hearing before the Tribunal on
19 August 2003.
In its reasons for decision the Tribunal summarised the applicant's claims that he had been continually harassed and victimised because of being a dwarf (the only dwarf in North Lebanon) including his claim that the Lebanese authorities did not give rights to disabled people or protect them. It recorded that at the Tribunal hearing the applicant had repeated and elaborated upon his claims and said that Lebanese were “arrogant, ignorant and uncaring of the concerns of disabled people such as himself”. He had reiterated his claim that he was underpaid by his employer and humiliated by people in Lebanon. He advanced a new claim to the effect that on one occasion a policeman had made him accompany him to a house where the policeman had arrested three men on charges of counterfeiting money. He claimed that the men (who had been tried and convicted) had thought that he had tipped the police off about them and had issued threats to him both from gaol and after their release from gaol two months before the applicant came to Australia. He first said that he had not asked the police for help because he had wanted to stay in the criminals’ good books, then that it was because the police had made fun of him in the past, such as when he complained to them that he was poorly paid.
The Tribunal also recorded that in the course of the hearing independent evidence on the situation of handicapped people in Lebanon was put to the applicant for comment. He had responded that organisations just provided some food and care but not much more and that societal attitudes to people like him were what caused him dread.
In the findings and reasons part of its decision the Tribunal noted that the applicant's claims of discrimination "over being a dwarf" did not fall easily into a Convention category. However it accepted that the applicant could be a member of a particular cognisable social group in Lebanon but it did not accept that he had a well-founded fear of persecution over his membership of such a group.
The Tribunal considered first the "economic" claims of the applicant in determining whether he had experienced or had a well-founded fear of persecution involving serious harm within section 91R of the Migration Act 1958 (C'th). It found that he had not been denied access to basic services in a manner that threatened his capacity to subsist (as he had received an education, had freedom of movement including the ability to travel abroad and had been able to live independently in Lebanon). He had not complained of a denial of basic services. The Tribunal found that on his own evidence the applicant had not been denied a capacity to earn a livelihood of any kind in such a manner as would threaten his capacity to subsist. Nor had he faced significant economic hardship, as he had been in continuous employment and been able to maintain himself independently in the absence of family members, despite the fact that he may not have been paid as much as he wanted and had only a limited choice of roles.
The Tribunal was not satisfied that he faced significant hardship. It found no credible reason to assume that basic services would be denied the applicant in the future or that he would be denied a capacity to earn a livelihood.
The Tribunal rejected as not credible and as fabricated a claim that a theatrical entrepreneur had used his Syrian influence and contacts to keep the applicant in his company. It was not satisfied that he faced persecution in relation to his allegedly poor remuneration.
Having found a lack of persecution based on this part of the applicant's evidence, the Tribunal went on to find that:
… the country information before me does not support claims that the applicant faces persecution over his disability in Lebanon.
It found that the country information to which it referred showed that the Lebanese authorities were willing and able to protect the rights of the disabled. It did not accept the applicant's claims that the authorities deny human rights to people with disabilities.
The Tribunal then turned to the applicant's claims of societal discrimination against him as a dwarf. While it accepted that, being a dwarf, the applicant had endured hurtful teasing and taunts, it was not satisfied from his evidence that he had suffered physical harassment or ill-treatment of such a significant level as to amount to persecution. It also found no support for the applicant's claims in independent evidence. In particular such information did not show a significant level of societal discrimination against the handicapped in Lebanon.
The Tribunal continued:
I do not accept, from all the evidence before me, that the applicant faces significant physical ill-treatment or harassment on account of being a dwarf, and I find that even if he were threatened with such harm over his disability he can avail himself of the protection of the authorities in Lebanon who, according to the independent evidence before me, have laws and specific authorities to handle such problems. I am satisfied from the evidence before me that the protection available to the applicant would be reasonable and adequate since despite its varied problems in restoring order and stability to the country after many years of civil war, I find that the Lebanese authorities are making genuine efforts to ameliorate the misfortunes of disabled people in their society.
The Tribunal also addressed the applicant's complaints of an uncaring attitude by police, teasing and the lack of help about his low pay. It did not find that such conduct amounted to persecution or that the police reaction indicated a lack of willingness to protect the applicant against harm. It did not accept that the claim that because of his stature he had found it hard to find someone to marry him constituted serious harm.
The Tribunal rejected as fabricated the claim made by the applicant at the hearing in relation to fearing threats from a gang of criminals. It continued that even if it were to accept the claim as credible, it did not accept that the harm was motivated by a Convention reason and it considered that he could obtain reasonable protection from the authorities in relation to such threats.
The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution under the Refugees Convention in Lebanon in relation to his disability. Nor was it satisfied that he had a well-founded fear of Convention-based persecution in relation to his claim of harm from a criminal gang since that claim lacked credibility and a Convention nexus and because the Tribunal was satisfied that a person in the applicant's claimed situation could obtain adequate protection in Lebanon.
The applicant sought review of the Tribunal decision by application filed in this court on 13 October 2003. His application contains three grounds:
First, it was contended that the Tribunal erred by misdirecting itself as to the social group of which the applicant claimed to be a member. It was said that the Tribunal considered the applicant's claims in relation to a social group in Lebanon which was defined to include all persons with disabilities, whereas in fact the applicant's claims related to his membership of a social group of people affected by dwarfism.
It was contended that the applicant expressed his claims as a claim to fear persecution as a "dwarf" and attributed his mistreatment to that specific physical condition, claiming that in Lebanon there were no authorities to protect disabled people or defend their rights "especially in my case". It was submitted that while the Tribunal rightly treated the applicant's case as being one based on a claimed fear of persecution for reason of membership of a particular social group, it had erred in identifying that group as being "disabled/handicapped people" of whom it said there were about 100,000 in Lebanon. It was contended that none of the evidence relating to the treatment of disabled people in general in Lebanon referred to the specific claims the applicant made about the way he was treated and denied protection because of his specific disability as a dwarf.
The solicitor for the applicant suggested that the situation in this case was analogous with the situation considered by the High Court of Australia in Dranichnikov v Minister for Immigration and Multicultural Affairs; Ex parte Sergey Dranichnikov [2003] HCA 26 where an applicant for a protection visa claimed to fear persecution because of membership of a social group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals, but the Tribunal had decided the case on the basis that it did not believe there was “general persecution of businessmen in Russia”. The majority of the High Court held that the Tribunal had erred. Gummow and Callinan JJ stated (at [26]) that the task of the Tribunal involved a number of steps, the first of which was to determine:
Whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.
Their Honours found that the Tribunal failed to decide this first question, but had decided another question, that being whether Mr Dranichnikov's membership of a social group of businessmen in Russia “was a reason for his persecution and relevantly nothing more” (at [27]).
It was contended that in this case the Tribunal also "decided another question" in considering whether the applicant’s membership of a much wider group of people with disabilities in general was a reason for his persecution. It had asked whether the disabled were discriminated against in Lebanon and found that substantially they were not. It was contended that this led the Tribunal to conclude that the applicant's claims must be exaggerated and that the authorities were doing their best to provide "reasonable and adequate" protection. It was argued that had the Tribunal turned its mind to the case as put by the applicant it may very well have come to a different conclusion.
In oral submissions it was contended for the applicant that the Tribunal's approach in considering very general information about the situation of people with disabilities in general in Lebanon indicated that it was considering such a wider group of people and overlooking the fact that the applicant was not saying that he was a member of a class of disabled persons but rather of the class of dwarfs and treated differently because of this specific handicap.
The particular finding of the Tribunal which is said to demonstrate the error contended for by the applicant is as follows:
I do not accept, from all the evidence before me, that the applicant faces significant physical ill-treatment or harassment on account of being a dwarf, and I find that even if he were threatened with such harm over his disability he can avail himself of the protection of the authorities in Lebanon who, according to the independent evidence before me, have laws and specific authorities to handle such problems.
It was contended that it was apparent from this part of the reasons, the Tribunal’s reliance on “all” of the evidence before it and its consideration of the position in Lebanon according to independent evidence before it, that the Tribunal had not addressed the right question.
I am not satisfied that the Tribunal erred in the manner contended. It has not been established that the Tribunal misdirected itself as to the social group of which the applicant claimed to be a member. Reading the Tribunal decision fairly and as a whole (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) it is apparent that the Tribunal accurately summarised the applicant's claims about past mistreatment “because of being a dwarf - the only dwarf in North Lebanon” and that in Lebanon there are no authorities “protecting disabled people or defending their rights, especially in his case”. Further, when one considers the claims that were actually made by the applicant in the statement accompanying his protection visa application, it is clear that the qualification of “especially in my case” was elaborated upon by his complaint that the police had previously insulted him and hence he could not receive any attention. The Tribunal recognised the nature of this claim in its description of his concerns.
In the findings and reasons part of the Tribunal decision the Tribunal dealt with the applicant's claims of discrimination "over being a dwarf" and accepted that he could be a member of a particular social group. It is clear, not only from this statement but from the balance of the Tribunal reasons for decision, that the particular social group of which it accepted the applicant was a member for the purposes of the decision was the particular social group of "dwarfs". (I note in this respect the Tribunal did not determine the question of whether there could be a group at all given that the applicant was claiming that he was the only dwarf in North Lebanon). The Tribunal made findings on the basis of the applicant’s claim that he was a dwarf (and hence a member of a social group comprised of dwarfs) and in that context its reference to his "disability" is also a reference to his dwarfism, which he himself had characterised in that way.
The passage relied on by the applicant clearly deals with the applicant's claim to have a well-founded fear of persecution as a dwarf (not by reason of being a member of some other particular social group such as disabled persons) and then goes on to make an alternative finding that, if he were threatened with such harm over his disability (which in the context is clearly a reference to his disability as a dwarf), he could avail himself of the protection of the authorities in Lebanon.
In reaching this alternative conclusion, the Tribunal had regard to the only evidence before it, other than the applicant's specific claims, that being independent country information about the treatment of the disabled in general in Lebanon. It may be said that on the basis that the applicant was the only dwarf in North Lebanon it is hardly surprising that the Tribunal did not have available to it country‑specific information on that particular disability. No error is revealed in its approach, bearing in mind that the applicant himself claimed that the rights of disabled persons were not protected in Lebanon. In those circumstances it was appropriate for the Tribunal to address such claim. The Tribunal considered the applicant's claims as they were presented and did not fall into error in a manner akin to that considered in Dranichnikov as contended by the applicant.
The second ground in the application is that the Tribunal took into account irrelevant considerations, being information concerning the treatment of people with disabilities in general in Lebanon, including accident victims, which was not relevant to the claims made by the applicant concerning the treatment of people affected by dwarfism.
This was said to be an alternative way of putting the case, consistent with the approach of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. It was contended that the Tribunal took into account evidence that was not relevant to the applicant's circumstances and hence was not dealing with the case that the applicant put, but rather measuring his account against more general information and rejecting it because it did to match up to such information.
I am not persuaded that the Tribunal erred in taking into account irrelevant considerations in a manner constituting jurisdictional error. It has not been established that the Tribunal was bound not to have regard to information concerning the treatment of people with disabilities generally in Lebanon by virtue of a restriction arising from the Migration Act 1958 so that it could be said that it took into account irrelevant considerations in such a way as to effect the exercise of power constituting an error of law. The applicant characterised himself as suffering from a disability and it was open to the Tribunal to have regard to information on how Lebanese authorities deal generally with disabled people. In circumstances where no country information in relation to treatment of those with the specific disability suffered by the applicant (dwarfism) was put before the Tribunal and where the applicant's disability was very rare, the Tribunal did not err in having regard to such general country information, not only in finding that there was no support for the applicant's claims in the independent evidence before it, but also in finding that if the applicant were threatened with harm on account of being a dwarf, he could avail himself of the protection of the authorities in Lebanon. The particular country information relied on about the existence of laws and specific authorities to handle threats to the rights of the disabled and to assist them was relevant material on which the Tribunal findings were open. The applicant did claim to be disabled as a dwarf. This is not a case in which the Tribunal has had regard to irrelevant information in the sense that it has addressed information relevant to the wrong question, as occurred in Dranichnikov.
The third ground relied on by the applicant is that the Tribunal failed to take into account a relevant consideration in that it failed to consider whether the treatment of people affected by dwarfism was different to the treatment of people with disabilities in general.
Again, it has not been established that the Tribunal was bound under the Migration Act 1958 to consider this question. It has not been established that the applicant made, or the evidence raised, claims in this respect that were not considered by the Tribunal. (See NABE v MIMIA (No 2) [2004] FCAFC 263. The Tribunal made findings about the level of harm suffered by the applicant (who, as indicated, was apparently the only dwarf in North Lebanon) and in that respect did make findings on the information before it as to the precise nature of harm suffered by people affected by dwarfism. Further, the Tribunal found, irrespective of the information on the availability of protection, that the applicant had not suffered harm serious enough to constitute persecution.
As indicated above the applicant’s claim that there were no authorities protecting disabled people or defending their rights, "especially in my case", was clarified to be a qualification based on the insults and lack of respect that he had received from the police. The Tribunal dealt specifically with this aspect of the applicant's claimed treatment by the authorities, not only in considering whether the teasing by the police amounted to serious harm, but also in finding that even if the police did not help him when he allegedly complained about low pay, it was not satisfied that such a reaction indicated a lack of willingness to protect the applicant against harm as it was generally not the business of police to take action to get people higher remuneration.
There was no evidence before the Tribunal that dwarfs faced persecution or treatment other than what the applicant had claimed and that the Tribunal found was not serious enough to amount to persecution. While minds might differ as to whether or not the treatment the applicant complained of amounted to persecution, such question was a question for the Tribunal. No jurisdictional error has been established in the manner contended. Accordingly, the application must be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Barnes FM
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