SZGRW v Minister for Immigration and Multicultural Affairs
[2006] FCA 1518
•22 NOVEMBER 2006
FEDERAL COURT OF AUSTRALIA
SZGRW v Minister for Immigration and Multicultural Affairs [2006] FCA 1518
Migration Act 1958 (Cth) s 424A
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Dranichnikov v Minister Immigration and Multicultural Affairs (2003) 197 ALR 389SZGRW AND SZGRX v MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1147 OF 2006JESSUP J
22 NOVEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1147 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGRW
First AppellantSZGRX
Second AppellantAND:
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
22 NOVEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the costs of the first respondent fixed by consent in the sum of $3500.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1147 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGRW
First AppellantSZGRX
Second AppellantAND:
MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE:
22 NOVEMBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These are appeals from a judgment of the Federal Magistrates Court given on 25 May 2006 dismissing applications pursuant s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari, mandamus and prohibition in relation to a decision of the Refugee Review Tribunal made on 26 May 2005, and handed down on 14 June 2005. By that decision, Tribunal affirmed a decision of a delegate of the respondent Minister, made on 27 May 2004, to refuse to grant protection visas to the appellants pursuant to the Migration Act 1958 (Cth) (‘the Act’).
The appellants are husband and wife from India who arrived in Australia on 16 April 2004 on visitor visas which allowed them to remain until 9 May 2004. On 12 May 2004, the husband applied for a protection visa. His wife applied as a member of her husband’s family unit. As only the husband made specific claims under the Refugees Convention, I will refer to the husband as the appellant. His wife’s appeal depends on the success of his own.
In his application for a protection visa, the appellant relied upon events in India which, he claimed, followed upon his attempt to purchase a petrol station with borrowed funds in 1998. The appellant claimed that, having borrowed the money from particular lenders (two individuals, as he later claimed), he paid the money to the person who had mediated the loan but, before the purchase was finalised, that mediator absconded with the funds. Thus the appellant was left with neither the business nor the funds, and was subsequently pursued by the lenders for the outstanding debts. He claimed that he was threatened and beaten, but was unable to obtain protection from the authorities due to the lenders’ apparent influence, both politically and within the police organisation. The appellant also claimed that, since 1999, he had attempted to relocate both within and beyond India, but each time he returned to India he was in ‘deeper trouble’. He claimed to have a fear that, should he now return to India, the lenders would find him and kill him.
The appellant’s application was refused by the delegate of the respondent Minister. The appellant sought review by the Tribunal, and a hearing was held on 18 October 2004. On 18 November 2004, the Tribunal affirmed the decision of the delegate, but the Tribunal’s decision was set aside, by consent, by the Federal Magistrates Court on 16 March 2005. The appellant’s application for review was remitted to the Tribunal.
A hearing was held by differently constituted Tribunal on 16 May 2005. About three weeks before that hearing, the appellant’s solicitor made further submissions in writing to the Tribunal, and enclosed a statutory declaration of the appellant. In that document, the appellant claimed that he borrowed money from two ‘loan sharks’, who threatened to kill him when he defaulted on payment, and caused him ‘a lot of harm’. He stated that, although he made complaints to the police, nothing was done about the matter. While trying to obtain further loans in January 2004, the appellant claimed that he met about seven other people who were experiencing similar problems (ie having borrowed money, having defaulted on repayment, and being threatened by thugs sent by the lenders, and the like). One of these other people apparently organised a meeting with a member of parliament, but the meeting was cancelled at the last minute. The applicant said that this other person told him that he had heard from someone close to the member of parliament’s office that financiers had exerted a lot of pressure upon the member not to meet with the appellant and the others.
Before the Tribunal, the appellant’s case was that he was a member of a ‘particular social group’, being one or more of the following:
·Debtors owing large sums to private financial institutions in Ahmedabad and who were defaulting on payments;
·Business-persons owing large sums to private financial institutions in Ahmedabad and not making further payments;
·Businessmen whose creditors had bribed police not to provide them with protection;
·Businessmen-debtors whose creditors had bribed police not to provide them with protection.
The appellant said that he had a well-founded fear of persecution, and Mr Silva, his solicitor, who represented him before me, made it clear that the persecution in question was the denial of police protection with respect to the criminal conduct of those from whom the appellant had borrowed money, and their agents.
Relying principally upon Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, the Tribunal held that none of the groups proffered on behalf of the appellant was a ‘particular social group’ within the meaning of the Refugees Convention. The Tribunal relied particularly upon a passage in the judgment of Dawson J (at 241) and a passage in the judgment of McHugh J (at 264-265), although it mistakenly set them out sequentially as though they constituted successive passages in the judgment of the latter. The Tribunal continued:
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.
The Tribunal then moved to what I consider to be an additional, or alternative, basis upon which it regarded the appellant as not falling within the terms of the definition in the Refugees Convention. Here the Tribunal focussed upon the reason for the putative persecution which the appellant feared. It said:
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.
Specifically with respect to the appellant’s complaint as to a lack of police protection, the Tribunal said:
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.
The Tribunal summarised its assessment of the appellant’s concerns as being about the money that he claimed to owe the lenders, rather than about himself as such. It said that, if the appellant’s claims were genuine, they would not fall within the definition in the Refugees Convention.
The Tribunal held further, however, that the appellant’s claims were not genuine. In short, it did not believe the appellant’s story at all. It noted several respects in which different statements made at various times by the appellant were such as to justify the conclusion, which it drew, that the appellant was not to be believed. In the result, the Tribunal did not accept that the appellant was being pursued for his debts by the money lenders he had identified, and did not accept that those money lenders had used political influence and/or bribes to ensure that the police would not protect the appellant. One of the important contradictions existing as between different versions of the facts which the appellant had stated at various times was identified by the Tribunal in the following passage:
In his protection visa application to the Department, the applicant claimed that the events which led to his difficulties took place in 1998. He repeated that claim in his application to the Tribunal. The applicant told the Tribunal at the second hearing that someone had translated back to him the details written in English on his behalf. It was not until the first hearing, in October 2004, that he claimed the relevant events took place in 2003. The Tribunal considers that this contradiction is a significant one, and one which undermines the applicant’s credibility.
In the circumstances, the Tribunal affirmed the decision of the delegate.
In his application for judicial review in the Federal Magistrates Court, the appellant relied upon the following four grounds:
(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.
(2)The Tribunal made jurisdictional error as it made a finding without evidence which is one of the critical findings based on which the Tribunal refused to accept the applicants claims.
Alternatively
It was unreasonable to make a critical finding without evidence to support it.(3)Tribunal was affected by jurisdictional error in that it failed to ask itself a critical question before determining that the appellant was not entitled to a protection visa.
(4)The Tribunal made jurisdictional error as it breached s424A(1) since it failed to provide adverse information that it was required to provide to the applicants in writing, for their comments.
As Mr Silva explained it to me in the appeal in this court, the first ground related to the Tribunal’s finding that, even if the appellant’s claims were genuine, they did not fit within the definition in the Refugees Convention, and the remaining three grounds related to the Tribunal’s rejection of the appellant’s evidence and its finding, as a result, that the appellant’s claims were not genuine.
As to the first ground, the Federal Magistrate referred to the passage in the Tribunal’s reasons where the Tribunal had relied upon the judgments of Dawson and McHugh JJ (still mistakenly treated as both being part of the judgment of McHugh J) and observed that Mr Silva, who then represented that appellant, relied upon a more recent judgment of the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387. His Honour referred to par 36 in the joint judgment of Gleeson CJ, Gummow and Kirby JJ, in which their Honours stated their conclusions as to ‘particular social group’, as follows:
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 ((1997) 190 CLR 225 at 241), 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 (see eg Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1099 [72]; 197 ALR 389 at 404, per Kirby J).
The Federal Magistrate then referred to par 68 and par 69 from the judgment of McHugh J in Applicant S, and held that the Tribunal’s reliance upon his Honour’s judgment in Applicant A did not give rise to error. His Honour said:
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.
The Federal Magistrate set out an extract from the written submission filed by Mr Silva, on behalf of the appellant, in the following terms:
(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 Federal Magistrate held that the reasoning of the Tribunal, though brief, did not show any misconception of the law which the Tribunal was obliged to apply, nor involve any finding of fact which was not open to it on the evidence. Any inadequacies in the Tribunal’s reasons, he held, would not constitute jurisdictional error. In essence, the Federal Magistrate held that the resolution of the question by the Tribunal whether any of the four groups identified by the appellant was ‘a particular social group’ within the meaning of the Refugees Convention was a question of fact which the Tribunal was authorised to decide, and that nothing disclosed by the reasons of the Tribunal demonstrated failure to exercise its statutory jurisdiction. In particular, his Honour held that there was nothing in the activities of the eight persons (including the appellant) who made an appointment to see the member of parliament as gave that group a distinguishing characteristic within society at large as required by the third criterion in par 36 of the joint judgment in Applicant S.
The Federal Magistrate also recognised, as I have, that the Tribunal’s reasons, when properly understood, identified another basis upon which the appellant’s circumstances did not fit the definition in the Refugees Convention, namely, that any ‘persecution’ to which he may potentially be subject in India was not by reason of his membership of a group (however that group may be identified) but ‘by reason of idiosyncratic circumstances of his particular indebtedness’. The Federal Magistrate pointed out that Mr Silva had submitted that, in this respect, the Tribunal misunderstood the nature of the appellant’s case. The appellant’s case was not that the money lenders were persecuting him: it was that the state authorities, including the police, were persecuting him by consciously withholding protection from the dangers presented by the money lenders. In dealing with this submission, the Federal Magistrate expressed the opinion that the Tribunal did not misdirect itself in this regard, and referred to its finding that, if protection were denied by the police, it was as a result of the political and financial influence of the money lenders rather than because of anything specific about the appellant.
Because the Federal Magistrate ruled against the appellant on his first ground, he did not need to rule, and he did not rule, upon the remaining three grounds, which related to the factual genuineness of the appellant’s case.
In his appeal to this court, the appellant advanced grounds which corresponded closely with the four grounds which he had taken before the Federal Magistrate. In order to succeed on his appeal, the appellant is required to demonstrate error on the part of the Federal Magistrate. This Mr Silva sought to do by way of comprehensive written and oral submissions made to the court on 2 November 2006.
Mr Silva submitted that the Tribunal failed to take into consideration ‘the persecution flowing from denial of state protection when considering whether there is a particular social group in existence’ or, as he put it in his written submissions, the Tribunal ‘failed to look at the viability of particular social group based on the persecution resulting from the failure on the part of police to provide protection.’ He submitted that the Tribunal decided whether a particular social group existed by taking into consideration only the alleged persecution flowing from the money lenders themselves. As Applicant S makes clear, the common characteristic or attribute by which a group is identified cannot be the members’ shared fear of persecution. However, their Honours in the joint judgment in that case appeared to have had no difficulty with the proposition adumbrated by McHugh J in Applicant A that a pattern of persecutory conduct by authorities may, over time, give identification, if not definition, to the group in question (217 CLR at 396-397). In so far as this submission by Mr Silva was a reference to the possibility which McHugh J left open, and which their Honours in Applicant S appeared not to exclude - that a history of a particular pattern of persecution had become so ingrained, and so notorious, as to assist in the process of distinguishing the group from society at large - the point would, in my judgment, be sufficiently answered by the circumstance that, on the facts and in the way the matter was put to the Tribunal, the present case did not fit that template. I can find no evidence that the present case was put before the Tribunal in those terms; neither is there any evidence that there had in fact been, over a considerable period, an established pattern of persecution – constituted by the denial of police protection – sufficient to distinguish members of any one or more of the four groups upon which the appellant relied from members of society at large.
Like the Federal Magistrate, I do not consider that any aspect of the way in which the Tribunal dealt with this question of denial of state protection disclosed any failure to exercise jurisdiction on its part.
Mr Silva next referred to the three-part test established by the joint judgment in Applicant S. The second part of that test was that the characteristic or attribute by reference to which the social group may be identified cannot be the shared fear of persecution. Mr Silva submitted that this required the Tribunal to identify the particular persecution by reference to the shared fear of which the group must not be identified. He said that, in the present case, the Tribunal failed to note that the source of the persecution alleged was the withholding of state protection, with a view to instructing itself that it must not treat that circumstance as the common characteristic or attribute by reference to which the group might be identified. When outlined in these terms, Mr Silva’s point does appear curious, for which reason I took pains, in the course of his submissions before me, to ensure that I understood it correctly. He left me in no doubt but that he intended his submission to be understood in the sense I have outlined above. I have no hesitation in rejecting that submission. Indeed, the very point made by their Honours in the joint judgment in Applicant S is that the shared fear of persecution cannot be the characteristic or attribute by reference to which the group is identified, in which circumstances it simply does not make sense to seek to introduce a requirement that the Tribunal, in identifying the group, make reference to a source of persecution for no other purpose than to declare it to be irrelevant to the process of identification.
I believe, although I do so without great confidence, that Mr Silva’s next point was, in effect, that the Tribunal had made the same mistake as was made by the Tribunal in the facts leading to the judgment of the High Court in Applicant S, namely, that it treated the absence of a perception of the relevant group on the part of other members of the society as fatal to the appellant’s assertion that members of the group were in fact distinguished from society at large. In his written outline, Mr Silva referred to a section of the Federal Magistrate’s reasons in which his Honour set out passages from Mr Silva’s written submission before that court (which I have reproduced at par 12 above), and continued:
The second and third errors made by the Tribunal were either applying the wrong test or recklessly not applying any test at all in finding that (i) there are no common attributes in the groups advanced (ii) that the evidence of the group of eight do not demonstrate that such groups are distinguishable from the society at large. The test that should have been applied is what McHugh [sic] explained in [62]-[69] of Applicant S and most specifically in [69].
Mr Silva was not able to provide any satisfactory reason why I should consider that ‘the test’ was to be found in the judgment of McHugh J in Applicant S, rather than in the joint judgment of three members of the court, but, however that may be, he appeared to contend that the distinguishing characteristic in the present case – the circumstance that the appellant and seven others had discussed their common problem and made an appointment to see a member of parliament – was ignored by the Tribunal, which thereby fell into an error of the kind identified by the High Court in Dranichnikov v Minister Immigration and Multicultural Affairs (2003) 197 ALR 389. The first difficulty with this submission, in my view, is that, as Mr Silva informed me, the activities of this group of eight persons, including their attempt to see the member of parliament, had not been proposed as a distinguishing circumstance for the purposes of the third leg of the test in Applicant S. The facts upon which the appellant relied in this regard were, of course, before the Tribunal, but the particular point which Mr Silva now says the Tribunal overlooked, and which he claims led to an error of jurisdiction, was not advanced. The second difficulty with the point is that the present case is quite different from Dranichnikov. In that matter, Gummow and Callinan JJ (with the assent of Hayne J) said (at [26-27]):
At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov’s membership of a social group, namely, of “businessmen in Russia” was a reason for his persecution and relevantly nothing more. The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
In other words, the jurisdictional error made by the Tribunal in Dranichnikov was a failure to decide, one way or the other, whether the group relied upon by the then applicant was capable of constituting a social group for the purposes of the Convention. In the present case, by contrast, the Tribunal did turn its mind to the four alternative social groups upon which the appellant relied, and decided that none of them met the criteria, established by the High Court in Applicant A, relevant to the expression ‘particular social group’ in the Convention. I should add that Mr Silva quite correctly refrained from any suggestion that the extracts from the judgments in Applicant A upon which the Tribunal relied were no longer good law.
Turning to the reasons of the Federal Magistrate, Mr Silva submitted that his Honour ‘failed to look at the way the Tribunal decided whether any of the groups put forward by the appellant satisfy the conditions of being a particular social group.’ With respect to Mr Silva, I consider this to have been a hopeless submission. The very point of the case before the Federal Magistrate was to examine the way the Tribunal decided the matter of a particular social group. The Federal Magistrate addressed that question in detail.
Mr Silva next submitted that the Federal Magistrate erred –
… by not accepting that the Tribunal only focussed on the alleged harm caused by the money lenders when considering the existence of the particular social group and it did not consider whether the persecution flowing from the refusal of protection by the police when considering the existence of the particular social group.
From the terms of the Magistrate’s reasons, it is not by any means clear that it was ever put to him that the Tribunal made a jurisdictional error of the kind alleged in this passage. For my own part, I am inclined to think that, had the Tribunal taken into account the persecution which flowed from the refusal of protection by the police for the purpose of deciding whether a particular social group existed, it would thereby have contravened the second part of the three-part test propounded in Applicant S. If the present submission by Mr Silva involves a point of greater subtlety than this, it is sufficient for me to say that I am quite unpersuaded that any error on the part of the Tribunal is thereby indicated, much less a jurisdictional error.
Mr Silva next submitted that the Federal Magistrate had erred in the following (concluding) paragraph of his reasons:
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.
Mr Silva submitted that, in this paragraph, the Federal Magistrate rejected the submissions which he had made, and which I have set out in par 12 above, ‘without any reasoning’. The Federal Magistrate, however, was not concerned to provide his own reasoned analysis of the strengths and weaknesses in the Tribunal’s decision. The Federal Magistrate was concerned only to consider whether the Tribunal failed to exercise its jurisdiction. Mr Silva’s case, properly understood, was that there was a Dranichnikov-like error here, constituted by the failure of the Tribunal to consider the essential defining criteria of a social group within the meaning of the Convention. It should not be thought that the paragraph in the Federal Magistrate’s reasons which I have set out above, followed immediately upon a setting out of the submissions made by Mr Silva, as set out in par 12 above. To the contrary, about a page of written reasoning fell between the two. In the course of that reasoning, the Federal Magistrate said:
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.
The Federal Magistrate also said that it was clear that the Tribunal had been fully aware of the submission that was before it, and addressed that submission with its finding of fact that the groups suggested by Mr Silva, and other groups which might be defined in similar terms, were not ‘particular social groups’ within the meaning of the Convention. The Federal Magistrate did deal with the submissions made to him by Mr Silva, and I am quite unable to perceive any error in the way he did so.
Mr Silva then attacked the following paragraph in the Federal Magistrate’s reasons:
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 submitted that the Tribunal did not consider the case on the basis ‘even if there were such particular social groups to which he belonged’. I do not accept Mr Silva’s characterisation of the Tribunal’s decision in this respect. Although it is true that the Tribunal did not use the particular formulation contained in the précis provided by the Federal Magistrate as set out above, as appears from par 8 above, the Tribunal did find that any harm feared by the appellant was because of the particular financial relationships which he alleged. It said that the harm which the money lenders sought to visit upon him arose because he owed money to them and had failed to pay them. Manifestly, this was what the Federal Magistrate had in mind when he referred to the ‘idiosyncratic circumstances of his particular indebtedness’. Or, to put it within the terms of the Convention itself, if the appellant had a well-founded fear of being persecuted, the Tribunal found that the driver behind the putative persecution would not have been the appellant’s membership of any social group, but would, rather have been the appellant’s own personal indebtedness.
The Federal Magistrate noted that Mr Silva had accepted that the Tribunal’s treatment of the alternative basis for rejecting the appellant’s claim, being the basis with which I have just dealt, did not show error. In his submissions before me, Mr Silva disputed that he accepted any such thing. I have not had the benefit of a transcript of the proceeding before the Federal Magistrate and I am bound, in circumstances, to accept what he said in his reasons as to the course of the submissions before him. As it happened, I consider that the circumstance that Mr Silva accepted, or rejected, the proposition in question is neither here nor there. In what I have set out above, I have dealt with the proposition on its merits, without reference to the way in which Mr Silva conducted his case before the Federal Magistrate.
As I understand Mr Silva’s submissions, the only other point that I would regard as legitimately alleging a jurisdictional deficiency is that the Tribunal, it is said, approached the alternative basis upon which it rejected the appellant’s claim (ie that any harm which he feared was because of his particular financial circumstances, rather than because of his membership of any group) betrayed an assumption by the Tribunal that ‘the persecutors of all members of the group must be the same people’. In this respect Mr Silva referred to so much of the Tribunal’s decision as I have set out in par 8 above, pointing particularly to the observation that the appellant did not allege that the money lenders sought to harm any businessmen who owed money and had defaulted on payments. In my view, this point is without substance. The passage in question provides no support for Mr Silva’s submission. Here, the Tribunal was doing no more than observing that it was not because the appellant was a member of a group that the money lenders were pursuing him; if it had been, the Tribunal appears to be saying, they might likewise be pursuing any businessmen in the same circumstances. This was, I consider, a legitimate, albeit a relatively minor, aspect of the Tribunal’s reasoning in relation to which the Tribunal was operating wholly within jurisdiction.
In Mr Silva’s written submissions, considerable space is devoted to a rehearsal of the factual and argumentative case which the appellant either put, or would wish to be taken to have put, before the Tribunal. In relevant respects, the Tribunal dealt with the merits of the applicant’s case under the definition in the Refugees Convention. Those aspects of the outline neither concerned themselves with jurisdictional questions nor sought to identify errors made by the Federal Magistrate.
For the above reasons, I propose to dismiss the appeal.
In the proceeding before me, Mr Silva also attacked the alternative basis upon which the Tribunal affirmed the decision of the delegate – ie that the appellant’s story was not to be believed, and that his claims were not genuine. Given that he found that the primary basis upon which the Tribunal had affirmed the decision of the delegate was free of jurisdictional error, the Federal Magistrate did not deal with the alternative basis. Any observation which I might make upon the alternative basis would, therefore, be quite gratuitous in circumstances where I have found no error in the way the Federal Magistrate dealt with the matter before him.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 22 November 2006
Counsel for the Appellants: T Silva Solicitor for the Appellants: Silva Solicitors Counsel for the Respondent: A Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 November 2006 Date of Judgment: 22 November 2006
0