SZGRW v Minister for Immigration - [2006] FMCA 814

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGRW & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 814

MIGRATION – RRT decision – Indian fearing persecution by creditors – protection withheld by state authorities – Tribunal found no Convention nexus – rejection of claimed membership of a “particular social group” – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(1)(a), 424A(1), 430, 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

SGNB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 192
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

First Applicant:

SZGRW

Second Applicant:

SZGRX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1788 of 2005

Judgment of:

Smith FM

Hearing date:

25 May 2006

Delivered at:

Sydney

Delivered on:

25 May 2006

REPRESENTATION

Counsel for the Applicants:

Mr T Silva

Solicitors for the Applicants:

Silva Solicitors

Counsel for the First Respondent:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1788 of 2005

SZGRW

First Applicant

SZGRX

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL 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 orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 May 2005 and handed down on 14 June 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicants.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and the Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to 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 applicants’ refugee claims should be believed, nor whether they qualify for protection visas, or any other permission to stay in Australia.
The applicants are a husband and wife who arrived in Australia in April 2004 on one month visitors’ visas. An application for protection visas was lodged with the assistance of a migration agent on 12 May 2004. Only the applicant husband claimed to be a refugee, and put forward circumstances to establish that status. As did the Tribunal, I shall refer to him as “the applicant”.
The history upon which he sought protection in Australia against return to his country of nationality, India, was briefly described in answers to questions in the application form:
40Why did you leave that country?
I [the applicant] and my wife arrived in Australia on 15/4/2004. We decided to seek refugee in Australia due to the problems and life threats we receive in India constantly.
I purchased a petrol station through Indian oil corporation in 1998 in my staff’s name offering him 20% working partnership. The investment was created and paid to an agent through financial institutions and friends. Before any deal was done, the agent turned out to be a con and ran away with all the money.
After spending all my life investments and my loan from various sources, I was left with neither the business nor the money. The lenders started threatening as I could not return back the money. I was caught and beaten on the streets several times. Things got worse when they started knocking on my door at odd hours and demanding money. I complained to the authorities without any success. These people coming from rough background started to threaten my life which made me and my wife to leave the country.
41What do you fear may happen to you if you go back to that country?
Due to the high corruption within the police and political system, the private institutions in [location] have their own way to recover debts with the borrowers. They hire people with criminal background and would go to any extent to recover money.
If I go back to India, they would use all kinds of resources to find me and get me killed. They have a reputation in dealing with their victims this way. After receiving all the threats I did back in India, I fear they might come true.
Since 1999 I have been trying to move around constantly and even left the country with the hope that these people will let me go. But every time I go back. I find I am in deeper trouble.
42Who do you think may harm/mistreat you if you go back?
The private finance institutions who borrowed money would find and kill me. They have strong political support and are supported by the police. Having no fear of the authorities, they will not spare my life, if I go back.
43Why do you think this will happen to you if you go back?
Unable to return money I borrowed to these mafia type people, I will not be spared if I go back. Having all the political and police support, they command authority in the town and have connections through out the country. These people have hurt a lot of people and killing someone is no big deal for them. After being constantly threatened and beaten up several times, I am afraid the worst will happen if I go back.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
These financial institutions spend a lot of money on political parties and corrupt police with regular funds. Even after complaining to the authorities, I failed to get their attention. The threats and torture was increasing by the day and the authorities were unwilling to act on my complaints which does not surprise me. I had to leave the country to secure mine and my wife’s life.
No further information or material was presented to the Department, and a delegate refused the application on 27 May 2004. In short reasons, the delegate said:
In essence, the applicant claimed that he was threatened by the private finance institutions from which he had borrowed money. The threat is a criminal matter in nature. It does not fall into any of the Convention reasons.
The applicant appealed to the Tribunal on 21 June 2004 without appointing a migration agent to act in his behalf. His application repeated, in a more summary way, the claims that had been made in his protection visa.
The applicant attended a hearing on 18 October 2004, and the Tribunal handed down a decision on 18 November 2004 giving the same reason as the delegate. Its decision affirming the delegate’s decision was, however, set aside by consent by order of Driver FM made on 16 March 2005. The material before me does not contain any explanation as to the reason for that remitter, and I am unable to detect what it was.
Following the remitter, the applicants employed their present solicitor, Mr Silva, to assist them before the Tribunal. A hearing held by the Tribunal was reconstituted on 16 May 2005. Transcript of both hearings is in evidence before me, but I was not taken to any passages which I need to extract in this judgment.
Prior to the hearing, Mr Silva forwarded a statutory declaration of the applicant to the Tribunal, the contents of which the Tribunal summarised sufficiently for present purposes:
On 25 April 2005, the applicant’s migration agent made further submissions, enclosing a statutory declaration by the applicant dated 23 April 2005. In that declaration, the applicant said he had borrowed money from “two loan sharks” who threatened to kill him when he defaulted on the payment and caused him “a lot of harm.” He named these two people, identified in these reasons as PT and KJ. He said he had made complaints to police on three occasions and, although they said they would look into the matter, they did nothing. He said that, after he went to police the first time, PT warned him not to do so, saying that police would do nothing against him. The applicant said that PT’s father was a former state minister with strong links to a minister in the national government. He said that, in November 2003, KJ forced him to transfer his house to KJ as part payment of the debt owed to him. He said he had previously provided a copy of the transfer document to the Tribunal, but it was in the Gujarati language and, due to cost, had not been translated. [The Tribunal had told the applicant, in a letter inviting him to the second hearing, that he should bring to the hearing certified translations of any documents previously submitted which were not in English. Immediately prior to the second hearing, the applicant submitted a partial translation of the document in question. The document appears to be some form of contract for the sale of a property by the applicant and his wife to KJ.]
The applicant said that, in January 2004, when he was trying to obtain loans from other financiers to help him settle his debts to PT and KJ, he met two other people (and later five more) who had similar problems to his own. They tried to see a local politician, but the scheduled meeting was cancelled at the last minute, and the applicant heard that financiers had exerted pressure on him not to see them. He said that KJ and other financiers contributed funds to the MP in question and to other MPs. The applicant said his only option was to run away.
Mr Silva’s submission to the Tribunal sought to establish a Convention nexus from the above claims:
Please note that the applicants’ case is that they fall within the definition of a “particular social group” and thus they meet the requirement of a refugee.
This “particular social group” is any one or any combination of the following:
(a)Debtors owing large sums to private financial institutions in [location] and who are defaulting on payments
(b)Business‑persons owing large sums to private financial institutions in [location] and not making further payments
(c)Businessmen whose creditors have bribed police not to provide them with protection
(d)Businessmen‑debtors whose creditors have bribed the police not to provide them protection.
Mr Silva referred the Tribunal to Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 (“Khawar”), and submitted:
In the current matter there are two forms of persecution. One involves persecution by the private financial providers in [location] of those people owing large sums of money and defaulting on the payments. In the Applicant’s case the persecutors were PT and KJ.
The persecution that comes from police involves denying protection to debtors owing money to private financial institutions in [location] because [the] institutions have paid bribe to the police to turn the other way when the debtors are harmed.
Looked at this way the Applicants would fall into two particular social groups which would then take him under the Convention.
The above particular social groups are not defined by persecution. Therefore the requirement as stated in Applicant A is also being met.
The Tribunal also received further documents, and a further opportunity for a submission was given subsequent to the hearing.
The Tribunal, as reconstituted, in its decision affirming the delegate’s decision, gave what was accepted by Mr Silva, who also represented the applicants before me, to be two independent reasons for affirming the delegate’s decision.
The first assumed the truth of all of the applicant’s factual claims, as ultimately relied upon by him, and found that they did not establish any Convention nexus for the harms which he feared if he returned to India. I shall address the Tribunal’s reasoning in relation to this reason further below.
The second reason given by the Tribunal was that it was also “not satisfied that the applicant’s claims are genuine”. In support of that adverse finding as to the credibility of the applicant’s evidence, the Tribunal referred to various contradictions in his evidence, which it is unnecessary for me to describe.
The further amended application filed at the hearing and addressed by Mr Silva, contained four grounds.
The first ground challenged the first of the Tribunal’s reasons for affirming the delegate’s decision, being the lack of Convention nexus.
Grounds 2, 3, and 4 challenged aspects of the Tribunal’s reasoning when rejecting the truth of the claims. Ground 4 contended that the Tribunal’s reasoning revealed a failure to comply with its duties under s.424A(1), evidenced by reference by the Tribunal to information obtained in the applicant’s protection visa application to the Department. It is contended that the Tribunal drew information from that document which it gave as a reason for finding an inconsistency in the applicant’s evidence, and ultimately for finding against his credibility. I was inclined to accept that submission, but did not hear full argument, and, as I shall explain, it is unnecessary for me to reach conclusions upon it.
Grounds 2 and 3 did not appear to me to have substance, but I do not need to arrive at conclusions on those grounds either. This is because, as Mr Silva conceded, it is necessary for the applicant to establish jurisdictional error in the first basis of the Tribunal’s reasoning and to succeed on Ground 1, before I would be able to give the relief sought in the application (c.f. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [233]).
For the reasons which follow, I find against Ground 1. It was framed in the further amended application:
(1)The Tribunal made jurisdictional error as it misunderstood the requirements an applicant needs to meet to come within the membership of a particular social group. It thus held that the Applicant husband has not been persecuted because of membership of a particular social group.
The Tribunal’s reasoning relevant to this ground started with a description of the applicant’s claims at their broadest, in a way that was not criticised in submissions to me:
Even if the applicant’s claims were to be accepted at face value, the Tribunal would have to determine whether the harm he claims to fear might be inflicted for one of the five Convention reasons. In brief, his claim is that he borrowed “black money” (to use a term he used at the hearing) in order to establish a new petrol distributorship, using someone else’s name in order to get around a rule which prevented him having a second distributorship. He claims that, when this money was stolen by an intermediary, and he was unable to repay it, the lenders made threats against him, arranged to have him beaten up and eventually took his house and business. He claims that he was forced at gunpoint to sign over his house, but that the consideration mentioned in the transfer document was deliberately understated to reduce the amount of stamp duty payable. He claims that the lenders, PT and KJ have political influence, and have bribed police so that they can act illegally against the applicant without fear of the police.
On their face, these claims disclose no link with the Convention. The applicant’s claimed fears arise because he borrowed money from unscrupulous lenders and was then the victim of some form of embezzlement by an intermediary. The lenders, he claims, have used questionable tactics to recover some of their money, but are still insisting that he repay the rest, and threatening harm if he continues to default. At the hearing, the applicant sought to link these claims to the Convention because the lenders, he said, had “political” connections and even constituted a political group themselves. Even if that were true, that does not indicate that their alleged threats and actions arise for reasons of political opinion. The applicant has made no claim that any action was taken against him by PT and KJ, until he defaulted on the repayment of the loans. Indeed, the fact that PT and KJ were allegedly prepared to lend him money to acquire a second business, even though he would have to do this unofficially through a nominee, would indicate that there was no prior animosity on the part of PT and KJ towards him. Moreover, the applicant has made no claim that PT and KJ would continue to pursue him, in the event he were able to find the money still owing and repay it.
The Tribunal then referred to the four possible descriptions of a group, presented to the Tribunal by Mr Silva. It instructed itself as to the relevant law, by saying:
A particular social group, within the meaning of the Convention is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society (Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 (“Applicant A”) per Dawson, McHugh and Gummow JJ). It was stated in Applicant A (by McHugh J, at 264‑265) that:
The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.
The use of [the term “membership”] in conjunction with “particular social group” connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group. Those indiscriminately killed or robbed by guerillas, for example, are not a particular social group.
Mr Silva pointed out that the High Court gave further consideration of this element in the Convention definition in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 (“Applicant S”). He referred me to [36] in the joint judgment of Gleeson CJ, Gummow and Kirby JJ:
Conclusions as to ‘‘particular social group’’
[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.

Their Honours’ conclusion was given after an examination of the various judgments in Applicant A, and in particular a close consideration of the judgment of McHugh J, including the passage which the present Tribunal extracted, which included his reference to the perceptions of the group by people in the relevant country.
As Applicant S established, McHugh J did not intend his reference to the perceptions of people to be a necessary test, but rather suggested it as evidentiary of whether a suggested group had characteristics or attributes which distinguished its members from society at large. McHugh J himself clarified this in his judgment in Applicant S:
[68]To require evidence of a recognition or perception by the society that the collection of individuals in that society comprises ‘‘a particular social group’’ is to impose a condition that the Convention does not require. A ‘‘particular social group’’ may exist although it is not recognised or perceived as such by the society in which it exists. For example, those who form the ‘‘particular social group’’ may be perceived by the society in which the group exists as aberrant individuals and may even be described by a particular name, yet the society may not perceive these individuals as constituting a particular social group. Nevertheless, those living outside that society may easily recognise the individuals concerned as comprising a particular social group. No doubt such cases are likely to be rare. That they exist, however, is shown by cases such as Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs. The evidence in those cases suggested that Bangladesh society prefers to deny the existence of homosexuality within that society. On the other hand, there was evidence that police, hustlers and others in that society singled homosexuals out for discriminatory treatment amounting to persecution because they were homosexuals. Both the Tribunal and this Court accepted in Appellant S395/2002 and Appellant S396/2002 that homosexuals in Bangladesh are a particular social group. Objectively, homosexuals in Bangladesh society comprise ‘‘a particular social group’’, whether or not that society recognises them as such.
[69]Thus, although the group must be a cognisable group within the society, it is not necessary that it be recognised generally within the society as a collection of individuals which constitutes a group that is set apart from the rest of the community. To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle. As I have indicated, it is not necessary that the persecutor or persecutors actually perceive the group as constituting ‘‘a particular social group’’. It is enough that the persecutor or persecutors single out the asylum‑seeker for being a member of a class whose members possess a ‘‘uniting’’ feature or attribute, and the persons in that class are cognisable objectively as a particular social group. (citations omitted) (emphasis in original)
However, I do not consider that the present Tribunal’s reliance upon McHugh J’s judgment in Applicant A gave rise to error. Its reasoning applying McHugh J’s judgment was:
In the Tribunal’s opinion, the formulations put forward by the applicants’ agent fail to satisfy the criteria described above. The applicant has not demonstrated how members of such purported groups are distinguished from society at large, and has not indicated how they have any “internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals.” The Tribunal finds that the groups suggested by the applicant’s agent and other groups which might be defined in similar terms are not “particular social groups” within the meaning of the Convention.
Further, any harm feared by the applicant is because of particular financial relationships alleged to exist between him and either PT or KJ. He does not allege that PT or KJ seek to harm any businessman who owes money to someone and has defaulted on payments, but that they seek to harm him because he owes money to them and has failed to pay them. The “essential and significant reason” (see s.91R(1)(a) of the Act) for the harm he claims to fear is not that he is a member of any group. Rather, it is that, because he himself was robbed, he is unable to repay money to particular people who are prepared to resort to threats and violence to recover it. The Tribunal considers that this case is analogous to the example of people indiscriminately robbed by guerrillas mentioned in the passage from Applicant A just cited. (emphasis in original)
Nowhere in this discussion can I find the Tribunal giving incorrect emphasis to a test of the perceptions of society in relation to the claimed social groups presented to it. Rather, in my opinion, the Tribunal applied the tests suggested by McHugh J in Applicant A, which were endorsed clearly by him again in Applicant S at [69], and which were consistent with the judgment of the majority judgment in that case.
The Tribunal’s reasoning I have extracted above gives two reasons why the applicant’s claims did not bring him within the Convention definition. The first was that the groups to which he claimed to belong were not “particular social groups” within the meaning of the Convention. The second reason was that even if there were such particular social groups to which he belonged, the immediate persecution of the applicant by his two creditors would not be reason of a characteristic common to a group but by reason of idiosyncratic circumstances of his particular indebtedness.
Mr Silva accepted that the latter reason did not show error, and that the Tribunal’s opinion that the immediate persecution would not be for a Convention reason. However, he sought to identify a flaw in the Tribunal’s subsequent reasoning, when it came to consider whether a Convention reason could be found in the reasons for the withholding of effective protection of the applicant by state authorities. In this respect, I was referred to the need to address that issue arising from passages in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at [29]‑[31], [84], [115] (see also SGNB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 192 at [32]‑[35]).
The Tribunal, in my opinion, showed that it was alive to the need to address that issue, and it did so in the following reasoning:
The Tribunal has found above that the groups suggested by the applicant’s agent are not “particular social groups” within the meaning of the Convention. It follows from that finding that, any alleged failure on the part of police to protect the applicant from harm inflicted by or on behalf of PT and KJ would not be because of his membership of a particular social group. Rather, the Tribunal finds that, if protection was denied by police, it would have been because of the political and financial influence of PT and KJ, and not because of anything specific about the applicant.
In summary, the applicant’s claims are about the money he claims to owe, and not about himself as such. On the face of his claims, his problems would not exist if he repaid the money, regardless of who he is or what his political beliefs may be. The Tribunal finds that, if the applicant’s claims were genuine, they would not relate to the Refugees Convention.
Mr Silva’s written submission contended that error was shown in this reasoning. He referred to Applicant S at [36], which I have quoted above and to passages in McHugh J’s judgment in that case, and submitted:
(18)Applying the definition stated in [36] of Applicant S the first two groups satisfy those conditions that are required to be met by a particular social group. They are:
(i)The group is defined by their common attribute is that each of them (a) owe a large sum to private financial institutions in [location], (b) they are all defaulting on their payments.
(ii)The group is not defined by persecution. The persecution being alleged is that of the police not providing protection when they are threatened with violence. The group is not defined by the fact that police is not providing protection.
(iii)As to the question whether they are recognisable in society, as discussed in Applicant S & Applicant A referred to above in para. 15–17, Applicant husband and seven others have met as a group who had a common problem. They as a group made an appointment to go and see the Member of the Legislative Assembly (MLA) and the people threatening them at least have put pressure on the MLA not to see them and all this gives a strong indication to the fact that they are perceived by at least the MLA’s office and the perpetrators, as a group.
(19)Similarly applying the same reasoning the last two groups without the part “not to provide them protection” that is, the following two groups also would satisfy the conditions state in Applicant S in [36]:
·Businessmen whose creditors have bribed police.
·Businessmen‑debtors whose creditors have bribed the police.
(20)In relation to the issue of whether the group is recognisable in society, the Tribunal did not look at the possibility that all eight debtors who went to the local MP to seek protection may have constituted a particular social group for that purpose.
The submission went on to refer to the applicant’s statutory declaration, concerning the activities of a group of debtors who attempted to gain official assistance and protection from violence with which they were separately threatened. I referred to the Tribunal’s summary of this evidence above at [10].
In his amplification of this submission, I thought at one point that Mr Silva was submitting that the Tribunal had failed to address a fifth suggested particular social group, being the group of eight people who had engaged in these activities. However, he retreated from such a submission, I think correctly, since the eight people, although no doubt at times being “in a group”, could not themselves be seen to have constituted a particular social group within the Convention meaning (c.f. Dawson J in Applicant A (supra) at page 249).
Mr Silva’s submission was that the Tribunal failed to provide an analysis of the evidentiary significance of the activities of the group of eight in its reasoning, when rejecting the submission that had been made to the Tribunal. Other criticisms of the contents of the Tribunal’s reasons were made, including that it did not address each of the four suggested groups individually, and that it did not give further discussion of the test suggested by McHugh J, to show that it properly understood and applied it.
However, the reasoning provided by the Tribunal, though brief, does not satisfy me that it misconceived the law which it was obliged to apply, nor that it arrived at any finding of fact when applying it which was not open to it on the evidence. Any inadequacies in the Tribunal’s reasons by reference to the requirements of s.430 of the Migration Act would not themselves provide jurisdictional error vitiating the decision to affirm the delegate’s decision (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323).
In my opinion, it is clear that the Tribunal has been fully aware of the submission that was before it, and has addressed it with its finding of fact that “the groups suggested by the applicant’s agent and other groups which might be defined in similar terms are not “particular social groups” within the meaning of the Convention”. If this finding stands, then the Tribunal was logically correct, when concluding that any withholding of state protection by reason of the applicant’s membership of one of these groups could not establish a Convention nexus as contended by Mr Silva.
Mr Silva has not referred me to any evidence which did not allow that conclusion to be arrived at. I do not consider that the evidence of the activities of the group of eight required the Tribunal to accept the applicant’s arguments. Indeed, in my opinion, it is difficult to see how they provided any evidence of the existence of a “particular social group” as claimed. However, this is not a finding of fact that I need to make, since it is not the function of the Court to make findings of fact as to the existence of a “particular social group”, but to decide whether the Tribunal’s findings on that question were open to it. For the reasons which I have given, I consider they were.
I therefore consider that Ground 1 argued by Mr Silva has not been made out, and that the Tribunal’s decision to affirm the delegate’s decision was therefore not relevantly affected by jurisdictional error so as to allow the issue of writs of certiorari and mandamus as sought in this application. The Tribunal’s decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 9 June 2006