SZHGM v Minister for Immigration
[2007] FMCA 332
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHGM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 332 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant was a member of a particular social group. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 Migration Regulations 1994 (Cth) |
| Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 |
| Applicant: | SZHGM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2834 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 March 2007 |
| Date of last submission: | 12 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr S. Free |
| Solicitors for the Respondent: | Mr O. Young, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2834 of 2005
| SZHGM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 August 2005 and handed down on 13 September 2005.
The applicant was born on 10 January 1970 and is a citizen of The People’s Republic of China (“the PRC”).
The Applicant and his wife were both applicants before the Tribunal hearing.
The Applicant arrived in Australia on 12 December 2004, having legally departed from the PRC on a passport issued in his own name and a visa issued on 25 November 2004.
On 11 January 2005, the Applicant and his wife lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by reason of his membership of a particular social group, who are threatened and targeted by police.
On 31 March 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 19 April 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided further material in support of the review application. On 13 September 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 4 October 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 18 April 2005, the Applicant’s Migration Agent wrote to the Tribunal identifying the grounds of review.
On 11 July 2005, the Tribunal wrote to the Applicant at his Migration Agent’s address, as the authorised recipient for the Applicant, informing the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter went on to invite the Applicant to attend a hearing.
On 18 August 2005, the Applicant attended a hearing before the Tribunal and gave oral evidence. The Tribunal noted that the Applicant’s wife attended the hearing but did not wish to give any evidence.
In particular, the Tribunal had regard to the claim made by the Applicant’s Migration Agent that the Applicant had “become a member of an unfortunate social group which on the whole was a victim of the system in the society… the incident of the refusal of paying for the meal was just a trigger to the whole series of continuous and planned persecution and harassment to the normal life of him and his family.”
The Tribunal then noted the Applicant’s claims about an incident in April 2004 where two men and two women refused to pay for a meal at the Applicant’s food stall and assaulted the Applicant and his brother-in-law. The Applicant claimed that the Applicant’s wife called the police and one of the assailants turned out himself to be a police officer. The Applicant stated that he, his brother-in-law and wife were taken to the police station and the Applicant told he had to pay a penalty of 30,000RMB, which the Applicant refused to pay. The Applicant and the others were then released.
The Applicant claimed that the following day he attend the police station to give further statements, was not required to pay any money and was released at 4pm. The Applicant claimed he was threatened for offending the police officer.
The Tribunal noted that it put to the Applicant that it was difficult to accept the Applicant and the others were released, particularly, where they had not paid the requested amount. The Tribunal noted the Applicant’s response that after their release they decided to leave and went to a remote country side village. The Tribunal noted that it put to the Applicant that it found it difficult to accept that the Applicant had decided to leave his homeland as a result of this incident.
The Tribunal noted that the Applicant provided a number of documents in support of the claims referred to above.
The Tribunal noted that it put to the Applicant that, even if the Applicant were to accept his claims, there was no Convention nexus.
The Tribunal noted the Migration Agent’s claim that the Applicant is a member of a particular social group. The Tribunal then noted that, on the basis of independent information before it, it would appear that no such social group existed to which the Applicant belonged.
Whilst the Tribunal had doubt about the Applicant’s claims, it gave the Applicant the benefit of the doubt and accepted, as being plausible, the incident of April 2004 and that the police demanded money from the Applicant who refused to pay. The Tribunal also accepted as plausible that the police have pursued the Applicant for money. However, having considered the evidence as a whole, the Tribunal was not satisfied that the harm suffered by the Applicant, or any harm likely to be suffered by the Applicant, is Convention related.
In considering whether a group falls within the definition of particular social group, the Tribunal identified the relevant test of the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 as identified in the joint judgment of Gleeson CJ, Gummow and Kirby JJ at [36]:
“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 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.”
The Tribunal went on to state that whether a group is a particular social group in a society depends on all the evidence, including “relevant information regarding legal, social, cultural and religious norms in the country.” The Tribunal also noted correctly that any persecution must be by reason of that persons’ membership of the particular social group.
The Tribunal found that it was not satisfied that the Applicant is a member of a particular social group. The Tribunal was not satisfied that, in the PRC, there is a particular social group of people who are targeted by the police for offending other police officers.
The Tribunal also considered whether in the PRC there was a particular social group of perceived wealthy shop owners who are targeted by police and found that independent information before it indicated that this was not the case.
On the basis of the evidence as a whole, the Tribunal did not accept that the Applicant suffered any Convention related harm or that there was a real chance of Convention related harm occurring to the Applicant in the reasonably foreseeable future. For those reasons, the Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations and therefore affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that it was the amended application upon which he relied before this Court. Each of the paragraphs of the grounds of the amended application were interpreted for the Applicant and he was invited to make submissions in support of each paragraph.
The Applicant sought to rely on two affidavits.
The first affidavit was affirmed by the Applicant on 27 January 2006. The affidavit was objected to by the First Respondent and was rejected on the basis of relevance. However, a document purportedly written by the Applicant in the nature of submissions and attached to that affidavit was a document received by the Court. The balance of the affidavit was rejected.
The second affidavit was affirmed by the Applicant on 28 January 2007. That affidavit annexed a lengthy statement by the Applicant which primarily restated his claims. The last two and a half pages were capable of being regarded as in the nature of submissions and they were not objected to by the First Respondent. The remainder of the annexures contained material that the Applicant was unable to confirm was or was not before the Tribunal. The affidavit was objected to on the grounds of relevance by the First Respondent and was rejected by the Court.
The Applicant was unable to make any relevant submission in support of the amended application.
The amended application is in the following terms:
“1. The Delegates of DIMIA and RRT have made error in the interpretation of the refugee definition.
2. Both DIMIA and RRT have not applied the definition correctly in my personal circumstances
3. I have new evidence to show the conspiracy and relationship between corruption and persecution”
The grounds make general assertions unsupported by particulars and appear, essentially, to disagree with the findings and conclusions made by the Tribunal. To the extent the grounds refer to the Delegate’s decision, this Court has no power to consider that decision. None of the grounds are made out.
A fair reading of the decision makes it clear that the Tribunal understood the claims being made by the Applicant (see paragraphs 15 to 30 above in these Reasons).
The Tribunal proceeded on the basis that it found the Applicant’s claims to be plausible and identified its concern that any harm may not be Convention related. The Tribunal went on to consider whether the Applicant was a member of a particular social group. Plainly the Applicant could not be a member of the social group identified by the Migration Agent because membership of that group was predicated upon being subject to persecution and was therefore misconceived.
The Tribunal had regard to the proper tests in relation to the existence of a particular social group. The Tribunal properly considered whether a claim arose on the material and evidence before the Tribunal, even though not specifically articulated by the Applicant, that the Applicant was a member of a particular social group. The Tribunal considered whether a particular social group of which the Applicant may be a member. It concluded there was not.
The findings and conclusions were open to it on the material and evidence before it and for which it gave reasons.
Conclusion
The Tribunal otherwise conducted its review, including the making of its decision, in accordance with its obligations under the statutory regime prescribed by the Act and the Migration Regulations 1994 (Cth).
The decision of the Tribunal is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 21March 2007
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