SZFSH v Minister for Immigration

[2005] FMCA 1546

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFSH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1546

MIGRATION – Refugee – Notice of motion for summary dismissal – no reasonable cause of action – Tribunal’s failure to consider the social group “women at risk” – Ministerial intervention pursuant to s.417 – no reviewable error.

Migration Act 1958, s.417
Federal magistrates Court Rules 2001, rr.13.10(a), 21.02(2)(a)

Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 677
Xie v Immigration Department [1999] FCA 365
Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708
Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455
Yo Han Chung vUniversity of Sydney and Ors [2002] FCA 186
Kosi vMinister for Immigration [2003] FMCA 340
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25
Queen v Australian Broadcasting Tribunal ex parte Fowler & Ors (1981) 31 ALR 565

Applicant: SZFSH & ANOR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 368 of 2005

Judgment of: Nicholls FM

Hearing date: 30 September 2005

Date of Last Submission: 30 September 2005

Delivered at: Sydney

Delivered on: 30 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. B. Griffin

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent in these proceedings.

2. The application is dismissed in upholding the respondent’s Notice of Motion pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001.

3. The applicants pay the first respondent’s costs set in the fixed amount of $2750 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 368 of 2005

SZFSH & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. I have before me an application filed in this Court on 10 February 2005 seeking a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 September 1997 and notified to the applicants by letter dated 3 September 1997, to affirm the decision of a delegate of the respondent Minister made on 5 December 1996 to refuse protection visas to the applicants. The Tribunal is joined as the second respondent in these proceedings.

2. The matter has come before me today by way of Notice of Motion filed by the first respondent seeking that the proceedings be dismissed pursuant to rule 13.10 of the Federal Magistrate Court Rules 2001 (“the Rules”) as no reasonable cause of action is disclosed in relation to the proceeding or claim for relief. I also have before me:

   1)The affidavit of Brook Marie Griffin, a solicitor in the employee of the respondent’s solicitors, affirmed 20 September 2005.

   2)A Notice of Objection to Competency filed by the first respondent on 16 February 2005.

   3)Written submissions on behalf of the respondent filed on
   26 February 2005 in support of the Notices of Objection to Competency and Motion filed in these proceedings.

3. Before me today the applicant wife appeared unrepresented. She was the primary applicant before the Tribunal. Before me she was assisted by Mr. Laba Sakis, a “friend” who is a migration agent and who stated that he had assisted the applicant before the first respondent’s Department. The applicant wife pursued the application on her own behalf and that of her husband. The applicant wife and husband are both Philippine nationals. The applicant wife arrived in Australia on
   26 November 1986. The applicant husband had previously arrived on 16 June 1984. They and their two adult sons applied for protection visas on 9 January 1996. The application for a protection visa is at Court Book (“CB”) 1 to CB 39. The applicant wife is described as applicant “number 1”, and the applicant husband as applicant “number 2”. Only the applicant wife and husband are applicants before this Court. The applicants’ claims were that the applicant wife's brother was a member of the Communist New People's Army (“NPA”) in the Philippines and he was captured by authorities sometime in 1970 and released 2 years later, but continued to be harassed by the NPA and the authorities, who wanted information from him about the NPA. Eventually he left for the United States in 1981, but after his departure the applicant wife and her family were harassed by the Philippines military who wanted information about her brother. The claim was that the military called almost every week, sometimes in the middle of the night, seeking information and although they did not harm anybody the family felt frightened by the visits. After some time they decided to come to Australia.

4. The application for the protection visas was refused and the applicant wife sought review by the Tribunal. The applicant husband and the two sons were included in this application. The application is reproduced at CB 69 to CB 72. On 30 July 1997 the Tribunal wrote to the applicant wife as the principal applicant and advised her that on the material before it, it was unable to make a favourable decision. The Tribunal invited the applicant to a hearing of the Tribunal to give evidence (CB 74 to CB 75). The Tribunal's decision record is at CB 79 to CB 86. The Tribunal's decision record noted that the applicant wife was nominated as “applicant number 1”, and that the claims that the family put forward were all centred on the applicant's wife's claims of the harm arising out of her brother's activities. The applicant wife attended a hearing before the Tribunal conducted by video link on 29 August 1997. The Tribunal records that while the applicant and her family members claimed to fear persecution from the Philippines authorities because of her brother's membership of the NPA, that at the hearing with the Tribunal the applicant wife admitted that she was really seeking “humanitarian consideration” (CB 84.8). The Tribunal found at CB 85.1 that the applicant wife was a credible witness and while being sympathetic to the applicant's situation found that the unwillingness to return to the Philippines bore “no relation to the Convention” (CB 85.3). The Tribunal correctly identified the test that it had to apply as being whether there was a real chance of persecution facing the applicant or her family were they to return to the Philippines. The Tribunal (making its decision in September 1997) found that the applicant wife’s brother was released from custody in the Philippines in 1972, and had not been sought by the authorities for any offence since then. It recorded that the applicant wife had agreed at the hearing before it that the authorities had sought him only to obtain information, and that he was not actually a member of the NPA after being released from custody (CB 85.5). The Tribunal also noted that the applicant wife had stated that neither she nor any member of the family had been physically harmed at any time by the Philippines military, or any other group, and that while the nocturnal visits of the military may have been frightening the Tribunal could not consider that this amounted to persecution. It further found that if the applicant wife were to now return to the Philippines after such a long lapse of time that there would be no reason for such visits to continue. On this basis the Tribunal found that the applicant and her family members did not face a real chance of persecution in the Philippines presently or in the reasonably foreseeable future for any Convention reason (CB 85.9). On that basis it could not be satisfied that the applicant and her family were refugees and thereby affirmed the decision not to grant protection visas to them.

5. The application to this Court relies on four grounds:

   “1) The Refugee Review Tribunal failed to assess the country information on NPA (New Peoples Army) and the consequences of any action or behaviour affecting the visa applicant should she be compelled to return to the country of origin.

   2)The Refugee Review Tribunal, in finding that the applicant and her family members do not face a real chance of persecution in the Philippines now or in the foreseeable future for any convention reason, failed to have consideration that the applicant belongs to a social group and that the claim is convention related.

   3)The Refugee Review Tribunal’s decision even though have taken sympathetic consideration failed to justify why the applicant and her family would be targeted and the serious condition she will face upon returning to the Philippines.

   4)The Minister for Immigration’s failure to consider the matter under humanitarian grounds acted in bad faith contrary to the guidelines for ministerial intervention and disregarded the fact that the [applicant] family do not have anyone in the Philippines and have two children in Australia and grandchildren who are all Australian citizens. The Minister also failed to understand that in 1995 Mr. [applicant husband]’s application for Class 816 was solely declined because at that time he did not have an application for refugee lodged.”

6. Ms. Griffin appeared for the respondents. She pressed both the Notice of Objection to Competency and the Notice of Motion. The applicant wife appeared unrepresented. I note that the applicants did access the Court’s Legal Advice Scheme and consulted a lawyer on the panel of that scheme on 2 May 2005 and were given oral advice on that date and subsequently were given written advice on 21 July 2005. The applicant wife’s stated claim before me was really a complaint that the Minister for Immigration was in error in failing to “meet” the “compassionate and extreme circumstances” presented by the applicants by refusing to intervene (s.417 of the Migration Act 1958 (“the Act”)) and grant visas to the applicants. Mr. Laba Sarkis on the applicant’s behalf emphasised the compassionate and humanitarian aspects of this case and sought:

   1)That the Court find failure on the part of the Minister for Immigration to intervene.

   2)That given the humanitarian elements the Court should intervene because the “applicants unwillingness to return home” is “understandable and warrants sympathetic consideration”.

   3)The Tribunal did not consider the applicant’s claims as coming within a member of a social group being “women at risk”.

   4)That the Tribunal failed to ask the applicant “the proper question” regarding being a woman at risk. Mr. Laba Sarkis sought to argue that she was a “female who suffered – who was the subject of domestic violence”.

7. In relation to the respondent’s Notice of Motion, for the applicant's benefit, I note that an application for summary dismissal should be approached with some caution, and that an order summarily dismissing proceedings on the basis that the application for review fails to disclose a reasonable cause of action should only be made where there is no real question to be tried or where the claims are clearly untenable and cannot succeed: Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 677 at [1] per Selway J., Xie v Immigration Department [1999] FCA 365 at [20] per Carr J. and Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708 per Finn J. at [3]-[6]. I also note Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 Drummond J. at 468:

   “A complainant must therefore have at the outset of the inquiry into his complaint sufficient material … to show that he has more than a remote possibility of a well-founded claim, if he is to defeat an application for the summary dismissal of the case that can be made at the start of the inquiry.”

   In circumstances where an applicant is unrepresented, it has been held that a Court should independently consider whether an arguable case, based on the material could be made out by the applicant: Yo Han Chung vUniversity of Sydney and Ors [2002] FCA 186 also Kosi vMinister for Immigration [2003] FMCA 340. Clearly Mr. Laba Sarkis was not acting in any legal capacity.

8. The applicant's first stated complaint is that the Tribunal failed to assess country information on the NPA and the consequences of any action and behaviour on its part affecting the applicant wife should she be compelled to return to the Philippines. First, it should be noted that the applicants did not claim to fear any harm from the NPA. The harm that they originally claimed to fear was from the authorities who were seeking information about her brother due to his prior involvement with the NPA. Second, the Tribunal's decision turned on what the applicant wife herself put to the Tribunal at the hearing that it conducted with her. It found that the harm feared from the Philippine authorities did not amount to persecution. The applicant did not put forward any information on the NPA to claim now that the Tribunal failed to assess any such information. Nor, in the circumstances of this case, was there any need for the Tribunal to have referred to any such information. Further, the Tribunal found that the applicant had admitted that she was really seeking “humanitarian consideration” and that it had put to the applicant that the Tribunal had no power to make a decision on humanitarian grounds. The Tribunal decision was based on the evidence provided to it by the applicant wife. The Tribunal made findings which were open to it on the material before it and gave reasons. These are findings properly for the Tribunal. Further, I should note that the applicants now, who have had the benefit of some legal advice have brought forth no evidence to challenge the Tribunal's account of what occurred at the hearing before it and nor were any assertions to that affect made before me today. In all the circumstances this ground cannot be made out.

9. In various respects Mr. Laba Sarkis sought to argue matters that he claimed had, or may have, occurred at the hearing with the Tribunal.

   1)He stated that the applicant had been “subject to torture”.

   2)That the applicant wife told the Tribunal “what has happened to her” and that it was an error on the part of the Tribunal not to consider her as a member of a social group because she told the Tribunal why she escaped the country and why she is scared to go back because of the torture and harassment at the hands of a family member.

   To the extent that Mr. Laba Sarkis now seeks to rely on what occurred at the hearing before the Tribunal, the applicant has brought no evidence before the Court to contradict the Tribunal’s account of what occurred at the hearing it conducted with the applicant wife. As I put to the applicant and to Mr. Laba Sarkis, the Court must proceed on the evidence that is put before it (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241). Mr. Laba Sarkis submitted that the applicant, presumably by way of explanation as to why a transcript of the hearing had not been put before the Court, had a copy of the tape but she “started crying” when she thought about it and could not listed to the tape. This of course does not explain why others could not have arranged for a transcript to have been prepared on her behalf. In any event nothing said by the applicant or Mr. Laba Sarkis at the hearing before me appeared to challenge what was allegedly said at the hearing before the Tribunal. The issue of what was allegedly said was put forward in this context to show that the Tribunal should have found in the applicant’s favour. The applicant explained that what was meant by “torture” was the repeated harassment by the authorities to reveal her brother’s whereabouts. There was no assertion that the Tribunal was wrong in finding that the applicant and her family were not physically harmed.

10. The applicant's second stated complaint is that the Tribunal failed to consider that the applicant wife belonged to a social group, and that her claim was Convention related. The applicant wife herself made no claim before the respondent’s Department or the Tribunal that she belonged to a particular social group. Nor can I see that any such claim would arise from, or be supported, by any of the material before the Tribunal. While the phrase “membership of particular social group” is indeterminate, it is impossible to define the phrase exhaustively, and pointless to attempt to do so: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”) at 259 per McHugh J. The phrase “particular social group” should be given a broad interpretation. However, in Applicant A this was qualified (Dawson J., at 241 and McHugh J. at 260) to be understood as meaning the category was not intended to provide a general safety net or catch-all to cover any form of persecution. The High Court; Gleeson CJ, Gummow and Kirby JJ. in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 at [36] stated:

    “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.”

    In addition to there being no specific claims made by the applicant wife before the Tribunal that she was subject to domestic violence or that she was a woman at risk as part of a group of such women, there is nothing in the material that was before the Tribunal to support a claim that the applicant wife belonged to a social group, let alone one that could be characterised as a particular social group for the purposes of the Refugees Convention. I can see no error in the Tribunal reasons in how it approached the applicant wife’s claims. Nor can I see any necessity for the Tribunal to have a considered specifically the applicant wife’s membership of any social group.

11. The applicant wife’s third stated complaint is that although the Tribunal gave sympathetic consideration, it failed to justify why the applicant and her family would not be targeted, and the serious condition she would face upon returning to the Philippines. I agree with the respondent’s submission that this ground is misconceived. Clearly, the Tribunal needed to be satisfied that the applicant and her family met the definition of refugee arising from Article 1A(2) of the Refugees Convention. It found that the applicant's brother was released from custody in 1972 and had not been sought by the authorities since then. In any event, the authorities were only seeking him to obtain information, and that the authorities’ approaches to the applicant and her family were again for the reason of obtaining information. The applicant herself admitted that neither she nor her family were physically harmed at any time by the Philippine military or any other group. The Tribunal's stated sympathy was in relation to the nocturnal visits of the military, and that this may have been frightening to the applicant and her family. But the Tribunal’s finding was that this did not amount to persecution. In any event, I note as the respondent submits that the applicant admitted at the hearing before the Tribunal that she was seeking “humanitarian consideration”. The Tribunal's findings were all open to it on the material before it, and in answer to the Tribunal's claim, if this is what is meant, that the Tribunal failed to justify the decision that was made, it clearly gave reasons for its decision. This ground also does not succeed.

1. The applicant wife’s fourth stated complaint is not directed to the Tribunal's decision and is therefore not relevant in showing legal error on the part of the Tribunal. In any event, pursuant to s.417 (presumably this is what the applicant means by the Minister's failure to consider the matter under humanitarian grounds) the Minister for Immigration and Multicultural and Indigenous Affairs may substitute a more favourable decision if she (or to the extent that this power is also exercised by the Minister for Censorship and Multicultural Affairs, he) believes that it is in the public interest to do so. The Minister is not compelled to exercise this power. No error can result in the Minister choosing not to intervene. In any event, as I have said, this complaint is not directed to the Tribunal decision in respect of which the relief is sought before this Court.

2. Clearly, the grounds advanced in the application are untenable and it is apparent that the application based on these grounds would fail. The applicant (and her “friend” before me today) has not raised grounds with any prospect of success to challenge the Tribunal’s decision. Nor can I see any other grounds that may have some prospect of success such that the matter should be allowed to proceed to a final hearing. On this basis I uphold the respondent’s Notice of Motion, and the application is dismissed.

3. It is therefore not necessary to deal with the respondents Notice of Objection to Competency. I should note however, for the applicants’ benefit, although not specifically argued by the respondent’s representative, that the application now brought to this Court may also be dismissed on the grounds of unwarrantable delay and that this could be done without deciding the merits of the applicants’ alleged grounds of review: Queen v Australian Broadcasting Tribunal ex parte Fowler & Ors (1981) 31 ALR 565 at 570. In relation to the relief sought by the applicants’ certiorari (and possibly prohibition), delay is a discretionary criterion for denying such relief. The applicants stated that they were notified of the decision that is the subject of this application on
   1 September 1997. The application to this Court was made on
   10 February 2005, some seven years and five months later. The applicant wife before me was unable to provide any explanation for this inordinate and very lengthy delay in bringing the complaint before the Court. Nor is any reference to a request for the Minister to exercise the power pursuant to s.417 of the Act an adequate explanation for such a lengthy delay. The applicant wife was unable to explain why she could not have commenced proceedings in a timely fashion. Because of the length of the delay and the absence of any satisfactory explanation for it, the Court could have, in its discretion, chosen not to entertain the application. In any event the application is refused on the basis of no reasonable cause, evident on what was put before the Court.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  25 October 2005