SZGAL v Minister for Immigration

[2007] FMCA 1016

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGAL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1016

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – Tribunal generally accepting applicant’s factual claims but finding that the applicant was not persecuted in the past and could access state protection to avoid the risk of future harm – show cause application defective in that no jurisdictional error alleged – Minister raising additional issue – whether the Tribunal should have dealt with a particular social group claim considered – Tribunal decision supported by independent finding on state protection – application dismissed.

Applicant S v Minister for Immigration (2004) 217 CLR 387

Applicant: SZGAL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG17 of 2007

Judgment of: Driver FM

Hearing date: 29 June 2007

Delivered at: Sydney

Delivered on: 29 June 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG17 of 2007

SZGAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 16 November 2006 and was handed down on 7 December 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts concerning the applicant’s arrival in Australia, his protection visa claims, his review application and the decision of the Tribunal are conveniently summarised in the Minister’s written submissions filed on 21 June 2007.  I adopt as background for the purposes of this judgment, paragraphs 1 through to 15 of those submissions:

   The applicant is a citizen of India (court book “CB” 83.8).  He arrived in Australia on 7 August 2004 and applied for a protection visa on 30 August 2004.  On 23 November 2004, a delegate of the then Minister for Immigration and Multicultural Affairs (“the Minister”) refused to grant the applicant a protection visa (CB 77.2).

   On 17 February 2005, the Tribunal affirmed the Minister’s delegate’s decision.  That decision of the Tribunal was set aside by order of this Court on 7 August 2006 and the matter remitted to the Tribunal (CB 77.3).

   By decision signed on 16 November 2006 and handed down on 7 December 2006, the Tribunal, differently constituted, again affirmed the Minister’s delegate’s decision not to grant the applicant a protection visa (CB 76, 85).

   By application filed on 3 January 2007, the applicant applies to this Court for review of this most recent decision of the Tribunal.

   Applicant’s claims

   The applicant’s claims may be summarised briefly.

   The applicant claimed to have suffered harm (“torture”) in late 2001 at the hands of the Kerala State police who questioned him in relation to the Applicant’s connection, through his business as a travel agent, with a man the police suspected of being a member of the People’s War Group, a satellite group of the Naxalites which is a Maoist organisation (CB 80.4-7, as qualified in relation to date at CB 82.2).

   The applicant further claimed that he had been visited by the police seeking further information on at least six occasions in the period between January 2002 and 2004 (CB 80.8-81.1).

   The applicant also claimed to have suffered harm at the hands of extortionists believed to be associated with the Naxalites, to whom he had made three payments (CB 81.2-6).

   Review before the Tribunal

   The hearing

   The applicant attended a hearing before the Tribunal on 16 October 2006 (CB 53-54, 80.2) at which the Tribunal questioned the applicant in relation to his claims and the availability of state protection (CB 80-82).

   Tribunal’s findings and reasons

   With respect to the first group of claims, the Tribunal:

   a)accepted that the applicant was questioned by police (CB 83.9);

   b)said that the applicant’s use of the word “torture” to describe his treatment was a “huge exaggeration” (CB 83.10);

   c)acknowledged that the questioning by police may have been lengthy and uncomfortable for the applicant (CB 84.1);

   d)noted that the applicant was able to leave the police station (CB 84.1);

   e)noted that the authorities did not prevent the applicant’s subsequent travel outside India (CB 84.2).

   Accordingly, the Tribunal found that the actions of the police towards the applicant did not constitute serious harm or harassment (CB 84.2).  Further, the Tribunal was not satisfied that the police actions were motivated because they had imputed to the applicant the political opinions of his associate (CB 84.3).

   The Tribunal also found that there were no claims nor evidence to suggest that the police harassed (let alone persecuted) the applicant when they visited him subsequently on six occasions (CB 84.5).

   With respect to the second group of claims, the Tribunal accepted that the applicant had paid money to the extortionists between May 2002 and early 2004 (CB 84.6).  However, the Tribunal found that the victims of the extortion racket were chosen because of their wealth and not for any Convention reason and that the harm suffered (financial loss) was not Convention-related (CB 85.2).

   The Tribunal was not satisfied that the applicant could not access State assistance to deal with the harm posed by the extortionists.  Significantly, the Tribunal found that the applicant had chosen not to do so, by refusing to give information to the police (CB 85.2).

   Thus, the Tribunal did not find that any serious harm had befallen the applicant for a Convention reason and found that the chances of such harm befalling him in the reasonably foreseeable future were remote (CB 85.5).

2. These proceedings began with a show cause application filed on 3 January 2007.  The case was allocated to the docket of a different Federal Magistrate and no hearing date was allocated.  A registrar dealt with the application in the sense of making other procedural orders on 1 February 2007, on 15 February 2007 and on 8 March 2007.  The matter was subsequently re-docketed to me and I listed the matter for hearing today.  The application is, on its face, defective in that it does not assert any jurisdictional error.  Neither did the applicant state in the application when he was notified of the Tribunal decision.  However, in an affidavit filed on 9 January 2007, the applicant asserted actual notification of the Tribunal decision on 10 December 2006. 

   
   

   The Minister does not dispute that the application was filed within time.

3. Given the failure of the applicant to assert any jurisdictional error, this application might properly have been dismissed at an interlocutory stage of the proceeding.  The applicant was given the opportunity by orders made by Registrar Hedge on 8 March 2007 to file and serve an amended application but he has not taken up that opportunity.  There is no jurisdictional error arising from the application.

4. I invited oral submissions from the applicant today and he confirmed that he was not asserting any jurisdictional error by the Tribunal.  Rather, he seeks consideration of his application on a humanitarian basis.  That is beyond the scope of this proceeding.  As I pointed out to the applicant, any humanitarian consideration is a matter for the Minister. 

5. The Minister has properly addressed another issue that the applicant has not raised.  That issue was addressed in paragraphs 17 to 23 of the Minister’s submissions:

   The First Respondent raises the following matter, notwithstanding that it is not raised in the application for review.

   With respect to the Applicant’s claims concerning the extortionists, it may be arguable that the Tribunal ought to have considered a claim based on the Applicant’s membership of a particular social group (wealthy businessmen in the state of Kerala susceptible to persons associated with the People’s War Group or Naxalites).  For the reasons set out below, the Minister submits that the Tribunal was not obliged to consider such a claim.

   The High Court has repeatedly emphasised that, in claims relating to this particular Convention reason, it is vital to identify accurately the “particular social group”: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at 400 [36] per Gleeson CJ, Gummow and Kirby JJ.

   A group will be a “particular social group” for the purposes of the Convention if it meets three requirements.  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:  Applicant S (at 400 [36] per Gleeson CJ, Gummow and Kirby JJ; see also at 410 [69] per McHugh J).

   In the present case, the Minister submits that the materials before the Tribunal do not provide a factual foundation for the contention that the Applicant was a member of a particular social group, as distinct from being a member of a social group.  That is, even if it be accepted (for arguments’ sake) that the Applicant was a member of a social group (wealthy businessmen), there is nothing in the material to indicate that there was some further characteristic or attribute said to be common to all members which distinguishes that group from the society at large.  That is to say, the Applicant was not a member of a particular social group.

   Accordingly, there was no obligation on the Tribunal to consider a claim based on the Applicant’s alleged membership of a particular social group.

   Moreover, it is important to note that the Tribunal was not satisfied that the Applicant could not access State assistance to deal with this type of harm (CB 85.2).

6. I do not necessarily agree that a particular social group of wealthy businessmen in Kerala could not be accepted as a particular social group for the purposes of the Refugees Convention.  In a society with a marked distinction between rich and the poor, wealth may be a common and distinguishing characteristic.  Such a characteristic does not have any necessary link with a fear of persecution.

7. However, even if such a particular social group could be said to exist and even if the applicant was a member of it, and even if he was targeted by Naxalite extortionist by reason of his membership of it, which on the available material is not known, the Tribunal reasonably and properly found that the applicant had made a conscious decision not to access state protection.

8. Indeed, on the applicant’s own account, the authorities had been most vigorous in pursuing his associate as a Naxalite suspect.  It would have been difficult to understand why a person in the position of the applicant would not have sought state protection from Naxalite extortionists in view of the vigour on the part of the Indian authorities in pursuing them.  The lack of Tribunal satisfaction that the applicant could not access state assistance to deal with the Naxalite extortionists was a finding clearly open to the Tribunal on the material before it.

9. The Tribunal’s decision on the issue of state protection independently and completely supports the decision of the Tribunal even if an error could be identified in relation to the Tribunal’s failure to address the question of whether the applicant was at risk of serious harm by reason of membership of a particular social group. 

10. I dismiss the application.

11. The application having been dismissed, costs should follow the event.  Scale costs in this instance would be $5,000.  The Minister properly seeks a lesser amount of $4,300.  The applicant indicated his understanding of the issues in relation to costs but did not otherwise make submissions.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $4,300.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  5 July 2007