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SZGPJ v Minister for Immigration

SZGPJ v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 19

MIGRATION – Refugee – Article 1(C)5, s.36(3) and Article 1(A)2 correctly interpreted and applied – no irrational or illogical reasoning – Tribunal accepted a particular social group existed – Tribunal found applicant would not be persecuted because of membership of such social group – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(3), 91R.

Applicant:

SZGPJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1670 of 2005

Judgment of:

Nicholls FM

Hearing date:

9 August 2006

Date of Last Submission:

9 August 2006

Delivered at:

Sydney

Delivered on:

31 January 2007

REPRESENTATION

Counsel for the Applicant:

Mr. L. J. Karp

Solicitors for the Applicant:

Legal Aid Commission (NSW)

Counsel for the Respondents:

Mr. S. Lloyd

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1670 of 2005

SZGPJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 28 June 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 3 May 2000 and handed down on 7 June 2005 to affirm the decision of a delegate of the respondent Minister made on 26 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FMCA 19
Decision Date: 31 January 2007

CaseChat Overview and Summary

In the matter of SZGPJ v Minister for Immigration, the applicant, an Iraqi national, appealed against the decision of the Refugee Review Tribunal to deny his application for a protection visa. The applicant argued that he would be persecuted if he were to return to Iraq due to his support for the Coalition forces and his father's outspoken support for the Americans. The primary legal issue was whether the Tribunal erred in its assessment of the applicant's fear of persecution on the basis of his membership in a particular social group.

The Court considered whether the Tribunal correctly identified the relevant particular social group in assessing the applicant's claim. The Court examined the Tribunal's decision in light of the authority in Okere and Applicant S, which emphasised that the identification of a particular social group is crucial for applying the relevant law. The Court also noted that the Tribunal's analysis should be viewed holistically, as the decision record should not be read with an eye to discerning error. The Tribunal had considered multiple pieces of evidence and country information, and its conclusion was based on a thorough assessment of the applicant's claims.

The Court found that the Tribunal did not err in its assessment of the applicant's claims. The Tribunal had considered the evidence that those working actively for the Interim Government or Coalition forces were being targeted, and there was no suggestion that people were targeted for having lived in the west or for voting for the new Iraqi parliament. The Tribunal's conclusion that the applicant's fears were not well-founded was based on the evidence before it and was open to the Tribunal on its merits. The Court dismissed the application and ordered that the costs of $7,500 be paid by the applicant to the Minister for Immigration and Citizenship.

Orders

Orders of the court

The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

The application is dismissed.

The applicant pay the first respondent’s costs set in the amount of $7,500.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr. Karp referred to more recent authority of Okere v Minister for Immigration and Multicultural Affairs (1998) FCA 112 (“Okere”), and to the High Court in Applicant S: 1)In particular at [16]:“The appellant's primary ground of appeal in this Court is that the majority of the Full Court erred in requiring that there be evidence that Afghan society perceived young able-bodied men to comprise a particular social group, before the Tribunal was obliged to consider whether the appellant was a member of that group. The appellant contended that Afghan society's perceptions of whether there is a particular social group is relevant to the question of whether there is such a particular social group, but it is not a requirement. That submission should be upheld. We turn to indicate why this is so.”2)And further, in dealing with how the submission should be upheld at [36]:“Conclusions as to ‘particular social group’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.” Mr. Karp submitted that the Tribunal did not consider whether the applicant, or rather Iraqis returning to that country from abroad, belonged to a particular social group. In his submission this was “an absolutely essential pre-requisite” to the consideration as to whether they would be persecuted for reasons of their membership of a particular social group. He emphasised this point with reference to what was said by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134 (“Sarrazola”). At [21]:“Where an applicant for a protection visa bases his or her claim on a fear of persecution for reason of membership of the relevant social group the first issue to be determined by an Australian decision-maker is that of the identification of the relevant social group.”At [23]:“It is only after the relevant particular social group, if any, has been identified that a decision maker can sensibly give consideration to the question whether the applicant has a well-founded fear of persecution for reason of his or her membership of that particular social group. As was pointed out by Dawson J in Applicant A at p240:‘The words `for reasons of' require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution’.”

Ratio Decidendi

Legal Principle Established

In Mr. Lloyd's submission there was evidence before the Tribunal that those working actively for the Interim Government, or Coalition forces, were being actively targeted, and that there was no suggestion that people were targeted for having lived in the west or in voting for the new Iraqi parliament. Further, that there was evidence that the applicant's home area was firmly under the control of Coalition forces and that his open support, as a moderate Shia, for the government was similar to many other people in his area who had also attended demonstrations where by doing so they had openly shown their support for this same government. Mr. Lloyd emphasised that there may have been another view that could have been open to the Tribunal, but the issue is that the Tribunal's assessment that the applicant’s fears were not well founded was a conclusion reached on its merits and was open to the Tribunal on the evidence before it. But merely having a situation where an alternative conclusion may also have been available does not put this Tribunal decision in the category of capricious, or arbitrary, or that its conclusion was illogical in light of the evidence.Consideration Mr. Karp invited the Court, with specific reference to what the Tribunal said at CB 592 (see paragraph 17 to 19 above), to find that the Tribunal was looking at the applicant's claims that he was in danger of persecution because his father had been outspoken in support of the Americans and that he supported the Americans. He noted that “immediately following” (the sentence that deals with that) the Tribunal said:“As I put to the Applicant in the course of the hearing before me, the evidence available to me suggest that the Islamic extremists in Iraq target Iraqis working for the Interim Government, Western companies or the Coalition forces…”The submission then is that it was the Tribunal itself that sought to answer the applicant's claims to fear harm because of his outspoken support of the Americans and the Coalition when it made reference to evidence that suggested that the Islamic extremists target those working for the Interim Government, Western companies or the Coalition forces. Mr. Karp submitted that this was implied in the way the Tribunal dealt with this claim by drawing on evidence relating to those working for the Coalition government, Western companies or the Interim Government, not about those who supported the Coalition forces in Iraq, and the Americans. Mr. Karp’s submission was that Mr. Lloyd's reference to the “global approach” (holistic reading) to understanding what the Tribunal has done, that is, by going through the relevant parts of its analysis does not really deal with this specific issue which demonstrates the irrationality. I do not agree with Mr. Karp’s invitation to read a Tribunal decision with reference to one specific part of its analysis in its decision record in isolation from everything else that surrounds it. In my view Tribunal decisions, in particular the construction of its thinking and the presentation of its findings, need to be read in a holistic way to reveal a proper understanding of its ultimate conclusion. As the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), a Tribunal's decision record should not be read with an eye attuned to discerning error. Nor on any plain reading of the Tribunal's decision record does this part of its analysis, the basis of this complaint, (at CB 592), stand alone as a distinct and separate finding which, by itself, supports the Tribunal's ultimate conclusion. This is not a decision record in relation to the applicant’s latest set of claims, as is sometimes seen where there are two, or more, distinct and separate bases for the ultimate finding on the disposition of the application for review. That part (albeit integral) of the Tribunal’s decision complained of now is only a part of the Tribunal’s reasons for finding that on his latest set of claims, the applicant does not have a well founded fear of persecution if he were to have returned to Iraq, at the time of its decision, or in the foreseeable future. Plainly, in this case the applicant made a number of claims and the Tribunal's analysis reveals an assessment against a number of pieces of evidence in the form of country information available to it. I agree with Mr. Lloyd that the Tribunal's analysis needs to be viewed as, and understood in, a totality.