SZERX v Minister for Immigration - [2005] FMCA 1732

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERX & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1732

MIGRATION – RRT decision – Indian fearing persecution by creditors – Tribunal found no Convention reason – no obligation to address whether persecuted by reason of membership of particular social group.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A, Pt.8

Applicant S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387
Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695

First Applicant:

SZERX

Second Applicant:

SZERY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3334 of 2004

Judgment of:

Smith FM

Hearing date:

10 November 2005

Delivered at:

Sydney

Delivered on:

10 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr T Silva

Solicitors for the Applicant:

Silva Solicitors

Counsel for the First Respondent:

Ms M Allars

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3334 of 2004

SZERX

First Applicant

SZERY

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 September 2004 and handed down on 20 October 2004. The Tribunal affirmed a decision of a delegate who refused to grant protection visas to the applicants.
The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction gives power under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a refugee visa.
The applicants have in the course of these proceedings gained the assistance of a solicitor, who filed a further amended application giving particulars of a single ground of review and abandoning other grounds which were raised in previous pleadings. He is to be congratulated for focusing upon the best argument that could be found for the applicants.
The ground contends that a jurisdictional error was made by the Tribunal of the type identified most recently in the decision of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”), where at [63] their Honours said:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
Their Honours also said at [68]:
A judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
Allsop J has also emphasised this in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
A practical and common sense approach to everyday decision‑making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In the present case the applicant, as I shall describe the first‑named applicant husband, came to Australia from India fearing harm from criminal elements employed by his creditors to extract payment of debts owed by him. He claimed that his creditors would be able to influence corrupt police officers into withholding protection against these criminals.
At no point in his dealings with the Department or Tribunal did he articulate in analytic terms how his claimed fear of persecution related to the Convention definition nor, in particular, how it revealed a fear of persecution for one of the defined “reasons”.
The applicant’s solicitor today argued that within the history put before the Tribunal, and which it accepted or assumed, there was an “unarticulated claim” which should have been considered by the Tribunal. This was a claim to fear persecution “by reason of … membership of a particular social group”.
The situation, it was argued, was comparable with Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411, where at first instance Carr J at [42]‑[48] identified elements in the material before the Tribunal and the findings of the Tribunal which suggested that the harms feared by the claimant would occur by reason of his shared characteristics with a group of other Afghani men, so as to require consideration by the Tribunal of whether that group was a “particular social group” within the Convention definition.
On appeal in the High Court, it was accepted that:
the facts presented the potential for such a case, and thus the Tribunal should have considered whether able‑bodied young men (or possibly able‑bodied young men) with the financial means to buy‑off the conscriptors comprised a particular social group within the meaning of the Convention. (See Applicant S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 (“Applicant S”) at [13] and [50]).
In Applicant S, the debate in the Full Court and in the High Court concerned whether the identified group was capable of being found to be a “particular social group” within the meaning of the Convention.
However, in the present case, I do not think that this issue arises at all, since I have concluded that the history put to the Tribunal and its findings on that history did not raise even “a potential” for a particular social group case to be considered by the Tribunal. To explain that conclusion it is necessary for me to describe the way the applicant made his claims to the Tribunal.
The applicant arrived in Australia in January 2004 and applied for a protection visa on 6 February 2004 assisted by a migration agent. He was also assisted by the agent when appealing to the Tribunal from the adverse decision of the delegate made on 7 May 2004.
In his visa application, the applicant said:
40.“Why did you leave [India]?
I was a share sub‑broker for 13 years in Ahmedabad stock exchange in India. My business was doing alright till 2002. I have seen many ups and downs in the stock market. My clients were all up to date with the payments. I made good money of the business. I bought a house a couple of years, borrowing half of the money from the bank. I also had some personal loans for my business up to AUS$100,000.
In 2002, Ahmedabad stock exchange was superseded and the security and exchange board of India took over. As the stocks in India broke, some of my clients went bankrupt and started to deny paying for the shares I bought on behalf of them.
My broker took all the money for the shares I sold on behalf of my clients and started demanding the rest of the amount I owed him for buying shares on behalf of my clients. As my clients went broke and the stock market crashed, I could not pay the broker. The pressure of all this made us run from the place.
41.What do you fear may happen to you if you go back to [India]?
The broker I have to repay hired a few people to physically harass me and my family. I was beaten up a couple of times. The threatening phone calls and the harassment increased with time and we feared for our life.
The police have been bribed by the concerned people and wouldn’t do anything about the complaints we lodge. As these people have political influence they are capable of doing anything and get away with it.
42.Who do you think may harm/mistreat you if you go back?
The broker who I owed money has threatened to have me and my family killed and hired people who beat me up a couple of times.
43.Why do you think this will happen to you if you go back?
These people will kill me and my family if I go back.
44.Do you think the authorities of that country can and will protect you if you go back? If not, why not?
The police is not ready to do anything as they have been bribed. This person has a lot of political influence and is capable of getting me killed.
No further material was put to the delegate nor to the Tribunal. The applicant’s claims were framed in writing in only one place on the application for review form, being in answer to the question: “Please tell us why you consider yourself to be a refugee”. The applicant said:
I worked as a share broker for 13 yrs in Ahmedabad stock exchange in India. In 2002, due to changes in the board and circumstances which were not in our control, the share market crashed. Some of my clients went broke and denied to make payments for the shares I bought for them.
My broker started demanding money I owed him for buying shares on behalf of my clients. As I could not repay the money due to my clients’ inability to return my money, the broker started using other kinds of pressures like threatening me and my family.
I went to the police for help but for no avail.
These brokers have political influence and the police are corrupted. The threats started increasing and I got beaten up a few times. I left the city for a few months in the last year. But found the hired men were keeping track of me and were waiting for the right moment to harm me. I had no option but to run from the country to save mine and my wife’s life as these people are capable of taking lives easily.
The applicant attended a hearing before the Tribunal on 3 September 2004 and the Tribunal gave a description of his evidence in its statement of reasons. A transcript is also in evidence before the Court, but the applicant’s solicitor accepted that the Tribunal’s summary was accurate and sufficient for the purposes of his submissions. It records the applicant telling the Tribunal about his background as a sub‑broker, and explained:
The Tribunal asked the applicant about the political affiliation of the broker he claimed he had problems with. The applicant replied that “they” have political contacts, that Mr M and the police also know “them” very well as the police came to “them” to collect the money. The Tribunal sought clarification about who the applicant had problems with as in his protection visa application he had only referred to problems with a broker. The applicant said that he had problems with the broker, Mr M, and four finance people who were more dangerous than Mr M. The applicant claimed that he had borrowed money from these finance people, half of which was to cover losses he had incurred personally and the rest was to pay for money his clients owed for shares the applicant had bought on their behalf. The applicant said that the finance people used criminals to get their money back and wanted to cause him problems because he had not repaid the money he had borrowed from them.
The applicant said that he had only paid half the amount he owed Mr M and Mr M told the applicant that if he did not pay the other half of the amount owed, Mr M would not let the applicant live peacefully. The applicant said that the “private individuals” would come to the applicant’s home to collect the money, they had good relations with the police and the police came to the applicant’s house two or three times to collect the money. The applicant claimed that the police told him that if he did not repay the money owed to the finance people the police would involve him in another case. Asked to explain what that meant, the applicant stated that the police could come to his house and involve him in drugs, he could go to gaol for 14 years and could not be bailed out. He said that the private financers could kidnap his son. The Tribunal noted that according to his protection visa application, he did not have any children. The applicant replied that he had two children, a boy and a girl, and that his children had visas to come to Australia but he did not have much money so he came alone with his wife. Asked why he would leave his children behind if they could be kidnapped, the applicant replied that his children live somewhere else and he had not told anyone where they lived.
The Tribunal put to the applicant that even if his claims were true, it did not seem that they were Convention related but related to his debts. The applicant stated that he feared that he would be killed if he returned to India. The Tribunal put to the applicant that being in danger of losing his life alone did not make him a refugee, and explained that a refugee is a person who would be persecuted for one or more of the Convention grounds. The Tribunal put to the applicant that it did not seem that he would be harmed for one or more of five Convention reasons if he returned to India. The applicant responded by questioning who would be responsible if he was sent back and was then killed. The Tribunal asked the applicant whether he understood what was being put to him. The applicant said that he understood the five reasons. The Tribunal asked him to explain how any harm he faced would be for one or more of the five Convention reasons. The applicant said that political opinion was relevant to his case. Asked how it was relevant, the applicant said that the police would not do anything because the private finance individuals have political contacts and that even if the applicant wrote a letter to political leaders they would not help him. The Tribunal put to the applicant that even if the individuals had political contacts it did not seem that they wanted to harm him for reasons of political opinion but because he owed them money. The applicant agreed that they were after him because he owed money and if he did not owe them money they would not harm him.
The applicant’s solicitor contends that within the material I have set out above, there was raised for the Tribunal’s consideration whether the applicant belonged to a particular social group being:
any one of the following:
(a)Defaulting debtors, of private financiers in Ahmedabad who have bribed the police;
(b)Debtors of Mr M in Ahmedabad, who are defaulting on their payments.
In my opinion, the Tribunal was not obliged to understand from the claims made by the applicant that he attributed the harms he feared to his membership of a group of people in India, however described. In my opinion, his claims were framed in a way which required the Tribunal to address no more than the personal motivations of the creditors whom he was seeking to avoid, the motivations of the criminals they employed, and the motivations of particular corrupt police officials whom he believed would be responsible for the withholding of state protection from the criminals. The Tribunal’s reasoning which I shall set out below did sufficiently address these motivations, and found them to have been personal to the particular circumstances of his indebtedness. The applicant did not suggest that any of these people were motivated to harm him (or to allow him to be harmed) by reason of his sharing a characteristic with other people who comprised a “group” in Indian society. In my opinion, the history he recounted did not raise such a claim, either “clearly” or “tolerably clearly”.
I therefore do not consider it was necessary for the Tribunal to have analysed the situation claimed by the applicant by reference to the element in the Convention definition which applies to a person “persecuted for reason of … membership of a particular social group”. In particular, it was not necessary for the Tribunal to have addressed whether the groups as defined by the applicant’s solicitor, or any other group to which the applicant might be regarded as belonging in India, came within the Convention definition. It was not required to address the questions identified in Applicant S at [36]:
Therefore, 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. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a ‘‘social group’’ and not a ‘‘particular social group’’. As this Court has repeatedly emphasised, identifying accurately the ‘‘particular social group’’ alleged is vital for the accurate application of the applicable law to the case in hand. (citations omitted)
It is clear that the Tribunal, in its brief reasoning for affirming the delegate’s decision, considered that the applicant’s case raised only a personal history in which the motivations of the various actors responsible for his fear of persecution and the withholding of protection were unrelated to Convention grounds. It said:
The Tribunal has doubts about the applicant’s truthfulness because of the inconsistencies in his written and oral evidence as well as the hesitant and, at times, unconvincing manner in which he gave his oral evidence.
In any case, even if the Tribunal accepts that the applicant faces serious harm from Mr M and the people he borrowed money from, the Tribunal finds that the reason for the harm he fears is not Convention related. The applicant claims that of the five Convention grounds, political opinion is relevant in case. The applicant claims that because the people he fears have political connections they could get the police to act on their behalf and take action against him or to refuse to help him, and that politicians would not help him. However, even if it is true that the people the applicant fears have political connections and can use those connections to harm him, that does not mean that political opinion is their motivation for inflicting harm upon the applicant. The applicant has not claimed that he has a political opinion or perceived to have a political opinion by Mr M, the finance people or anyone else. The applicant claims that the reason he had problems in the past and the reason he fears he will be harmed in the future, is that he owes money to Mr M and the finance people. The infliction of harm for a failure to pay a debt is not one of the five reasons enunciated in the Convention.
Therefore, the Tribunal finds that the applicant does not have a well‑founded fear of persecution for a Convention reason.

For the above reasons I am unable to identify in that reasoning any failure by the Tribunal to address a claim for refugee protection as contended by the applicant’s solicitor which it was required to address when exercising its review jurisdiction.
I do not accept the ground he argued, and find that the Tribunal’s decision was not affected by jurisdictional error. The decision was therefore a privative clause decision for which relief is precluded by s.474(1), and I must dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 November 2005