SZDNO v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 443

FEDERAL COURT OF AUSTRALIA

SZDNO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 443

SZDNO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1868 of 2004

BRANSON J
7 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1868 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDNO APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	7 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1868 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDNO APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	7 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant has appealed from a decision of the Federal Magistrates Court whereby his application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) was dismissed.  The Tribunal on 10 December 2002 had affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa.  Although the appellant did not have the benefit of legal representation at the hearing of his appeal, he acknowledged that he did have the assistance of a lawyer in drawing his amended notice of appeal and in preparing his written submissions to the Court.

2. The Tribunal formed a positive view of the appellant’s credibility.  It accepted his claim that he was a professional diver and that in 1996 he was approached by people who were apparently criminals to do private work for them.  It accepted that when he refused this approach he was threatened with death and so moved in 1997 to the United Arab Emirates (‘UAE’).  The Tribunal accepted that the appellant received some telephone threats when he returned to the UAE having been in India for 3 months for his father’s funeral in 1998, but it did not accept that his father’s death was related to the appellant’s refusal to work for the criminals or that the death of a fellow diver was so related.

3. The Tribunal concluded first, that there was no real chance that the appellant would face serious harm if he returns to India, noting that he had in the past faced threats but no actual harm and that he had had no encounters of any kind with the criminals since 1999.  Secondly it concluded that if he were to face harm, it would not be harm for a Convention reason.

   GROUNDS OF APPEAL

4. The appellant’s amended notice of appeal raised the following two grounds of appeal:

   ‘(2)(i)  His Honour the Federal Magistrate failed to hold that the Tribunal failed to consider the applicant under the particular social group and thus made jurisdictional error.

   Particulars

   His Honour failed to consider in detail as to any of the groups stated below are recognizable as a group by the public in India and thus they would form a particular social group.

   (a)Indian citizens who refuse to cooperate with international smugglers who are connected to top officials

   (b)Lawabiding professionals who refuse to cooperate with internationally connected powerful criminals

   (c)Divers who refused to help international smugglers who operate with impunity

   (d)People who refuse to help internationally connected smugglers with connection to police and other security agencies.

   (2)(ii)  His Honour the Federal Magistrate erred in not holding that the tribunal made jurisdictional error as it misunderstood the meaning of “harm” that is necessary to constitute “persecution”.

   Particulars

   In para 7 of the court decision his Honour says:

   “…Further as he had not been harmed in the past, although threatened, the Tribunal did not consider there was a real chance that the applicant would face serious harm if he returned to India. ……”

   An applicant need not be physically harmed to constitute persecution, serious threat is sufficient to constitute persecution.’

   CONSIDERATION

5. In Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 206 ALR 242 (‘Applicant S’) Gleeson CJ and Gummow and Kirby JJ at [36] observed:

   ‘… the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows.  First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. ….’

6. There was nothing before the Tribunal to suggest the existence as an objectively identifiable group of any of the groups referred to in the appellant’s amended notice of appeal.  Nor was there anything before the Tribunal to suggest that the appellant feared persecution in India because of his membership of one or more of those groups, rather than harm at the hands of the criminals for whom he had refused to work because he had refused to work for them. 

7. Moreover, wherever a purported social group is defined by reference to members of the purported group having refused to do something, the likelihood is that any relevant fear that a purported member entertains is a fear of harm because of what he or she has refused to do, not a fear of harm because of his or her membership of a purported group.  That is, the likelihood is that the fear is related to what he or she has done, not who he or she is.  Such is the case, in my view, with the purported social groups identified by the appellant’s amended notice of appeal.  The attribute common to all members of the respective purported groups is a shared fear of harm at the hands of those whom they have refused to assist.  As Applicant S makes plain, such a group does not constitute a ‘particular social group’ within the meaning of Article 1A of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugee Convention’).

8. I reject the first ground of appeal. 

9. Rejection of the first ground of appeal means that the appeal must be dismissed.  The Tribunal concluded that if the appellant were to face harm in India it would not be for a Convention reason.  The only Convention ground upon which the appellant has suggested that he would face persecution in India is his asserted membership of one or more of the particular social groups identified in his amended notice of appeal.  I record, however, that I do not consider that the learned Federal Magistrate erred in not holding that the Tribunal misunderstood the nature of the harm that may constitute persecution within the meaning of the Refugee Convention.  The Tribunal rightly asked itself whether there is a real chance that the appellant will face Convention‑based persecution in the future if he returns to India.  It recognised that it was required to give consideration to the threats that he had received in the past in answering that question.  It observed that he had never been physically harmed in the past.  It placed particular weight on the fact that he had had no encounters at all with criminals since 1999.  It concluded that there was no real chance that he would suffer serious harm if he returned to India.  It is to read the decision of the Tribunal too critically, in my view, to infer from this process of reasoning that the Tribunal overlooked that a well‑founded fear of persecution can be based on threats alone.  I do not so conclude.

10. The appeal will be dismissed.  There will be an order that the appellant pay the respondent’s costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             19 April 2005

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondent:	R Francois
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 April 2005
Date of Judgment:	7 April 2005