SZHPJ v Minister for Immigration
[2006] FMCA 952
•23 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 952 |
| MIGRATION – Visa protection visa Refugee Review Tribunal application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where Tribunal found that any harm feared by the applicant was not Convention related – credibility – no reviewable error. PRACTICE & PROCEDURE Delay – where applicant delayed commencing proceedings for two years and eleven months. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474 |
Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25
Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
| Applicant: | SZHPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3354 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 June 2006 |
| Date of last submission: | 22 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2006 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr McInerney |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3354 of 2005
| SZHPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of the decision of the Refugee Review Tribunal that was made on 29th January 1998. The Applicant seeks relief in respect of that decision, claiming jurisdictional error on two grounds. First that the Tribunal failed to consider a refugee claim based on the Applicant belonging to a particular social group and second that the Tribunal failed to consider an integer of the Applicant's claim impliedly based on imputed political opinion.
The Applicant also seeks relief notwithstanding the fact that there is a delay in bringing these proceedings of approximately two years and 11 months. He has sworn an affidavit in which he sets out his explanation of the delay in instituting these proceedings.
Background
The Applicant is a citizen of Indonesia who arrived in Australia on
24th June 1996. He applied for a protection visa on 12th September that year. A delegate of the Minister refused his application on 24th April 1997. On 26th May 1997 the Applicant applied to the Refugee Review Tribunal for a review of that decision.
The Applicant attended a hearing of the Tribunal and gave oral evidence on 19th January 1998. He claims to have been employed by a family business which was engaged in transport and sawmilling. The government had been attempting to purchase the sawmill for about 15 years, but the owners refused to sell. Eventually a number of police and army officers attended the sawmill, seeking to intimidate the family into selling. A physical confrontation ensued, involving two members of the family and four employees, including the Applicant.
The six men were all arrested and detained. After a week, they were released on bail. The business was closed on the day of the altercation. The Applicant and the other employees, as well as the family members, were all members of a prohibited Islamic group. After the incident with the police, the family and all the employees were banned from attending the local mosque and were ostracised by the local community.
The Tribunal noted independent evidence to the effect that the Islamic group to which the Applicant claimed to belong had been linked to various violent incidents, including the hijacking of an airliner and an attack on a police station in which three policemen lost their lives. The group was later banned by the Indonesian government as a terrorist organisation.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 57 and 58 of the Court Book. The Tribunal noted that the Applicant had travelled to Australia on an Indonesian passport and claimed to be an Indonesian national. The Tribunal assessed his claim as against Indonesia as his country of nationality.
The Tribunal found that the adverse treatment of the Applicant’s employers arose out of their continued refusal to sell their property for redevelopment and their resulting confrontation with the police. The Tribunal found that there was no evidence that the authorities viewed the matter as anything other than a criminal act. The Tribunal went on to find:
This land dispute was simply a civil dispute, and there is no evidence which would indicate that the government could be expected to impute a political opinion to the Applicant. The sole reason why the Applicant and (his employer’s) family were taken into custody following the confrontation in question was because of the altercation over the land dispute. Accordingly, while the Applicant may fear for his safety if he were to return to Indonesia, this fear is solely due to the assaults on police officers which he has on his own admission committed and being a possible accessory in connection with (his employer’s) assault on a police officer, and is not Convention related. Therefore, any harm that would befall him would not be Convention related, and would constitute prosecution, not persecution.[1]
[1] See Court Book at 58
The Tribunal found that the Applicant was not a member of the Islamic group to which he claimed to have belonged. This was due to the fact that the Tribunal did not believe his evidence. The Tribunal went on to find:
However, even assuming that he was a member of the organisation, it is implausible that the authorities would actively corroborate with a member of a prohibited terrorist organisation, allowing him to leave the country without any difficulty. In any event, there was no evidence that the Applicant suffered any mistreatment or hardship at the hands of the authorities due to his membership in the organisation, or that the authorities were interested in him due to such membership.[2]
[2] Court Book at 58
The Tribunal affirmed the delegate’s decision not to grant a protection visa.
Application to the Federal Magistrates Court
In a Further Amended Application, the Applicant sets out two grounds for review:
(a)The Tribunal made jurisdictional error as it failed to consider the refugee claim based on the Applicant belonging to a particular social group as it was open on the materials and evidence before the Tribunal; and
(b)The Tribunal made jurisdictional error as it failed to consider an integer of the Applicant’s claim impliedly based on imputed political opinion.
As to the first ground, the Applicant claims that the particular social group could be described as the owners and employees of the family business located in Arosbaya, Bankalan.
The particulars of this ground claim that:
The whole issue came about because the police used violence to intimidate the family and the employees to sell the property. They used criminal force for a civil matter and closed the factory. Police detained owner’s family and the applicant and forced them to report to police regularly. When they defended their right not to be manhandled the police assaulted them. Clearly they were a particular social group persecuted for the police.
With respect, those particulars on the face of the document do not establish a Convention ground at all. It matters little whether a group is a particular social group if there is no evidence of persecution for a Convention related reason. If people use criminal force to resolve a civil matter it appears clear that the matter is one for the domestic criminal law of the particular country, and it certainly does not establish a refugee claim.
In the Applicant’s outline of final submissions filed on 7th June 2006, the Applicant reiterates that claim and goes on to refer the definition of “particular social group” in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263.
The Applicant submits that he meets “all the requirements of being a member of a particular social group because he was persecuted by police because he was a member of a particular social group”. This appears to me, with respect, to be a circular argument. Persecutory conduct itself cannot define the particular social group in question for the purposes of Art 1A (2) but the actions of persecutors may serve to identify or even cause the creation of such a group (Applicant A v Minister for Immigration and Ethnic Affairs & Anor (supra)).
In this case, the actions of the police have been characterised as persecution, but the Tribunal found that the dispute arose simply as a result of a civil matter. There is no Convention ground.
The second ground, jurisdictional error by failing to consider an integer of the Applicant’s claim impliedly based on imputed political opinion, rests on the Applicant’s claim that he was persecuted by being banned from attending the local mosque, and all were ostracised by the local community.
The Applicant submits that he was denied the right to practise his religion. In the Applicant’s submission at (18) the claim is made that “The Applicant’s family was one of those persecuted” but there is no evidence to support that claim.
There is no evidence to show that the banning from the mosque arose from any other circumstance than the altercation with the police. There is nothing to show that the banning from the mosque arose from any imputed political opinion. The Tribunal was not obliged to consider a claim that was not argued or that was not apparent on the evidence.
Upon consideration of the matter I am satisfied that the Applicant has not made a case that the Tribunal fell into jurisdictional error, either by a purported failure to consider a claim based on membership of a particular social group or on failure to consider an integer of the claim impliedly based on imputed political opinion.
Delay
The Applicant has sworn an affidavit in which he claimed that after the Tribunal had made its decision in 1998 he instructed a solicitor to act for him to seek the discretionary intervention of the Minister under s.417 of the Migration Act. This application was eventually refused on 4th September 1998.
The Applicant also joined a class action in called the Herijanto class action, which was eventually subsumed into a larger class action. That action commenced in July 1998. The class action was dismissed on
20th June 2003.
It was the Applicant’s evidence that he had no money to commence other proceedings. He had to spend money on medical expenses for his son as the result of an accident and, in early 2004, his wife became pregnant. This pregnancy necessitated frequent medical treatment at considerable expense.
Eventually the Applicant commenced working to obtain money but, as he did not have permission to work, he was apprehended by Departmental officers and detained in June 2005. His wife contacted a solicitor, Michaela Byers, who wrote to the Minister on his behalf. The Applicant was released from detention on a bridging visa on 9th August 2005. When the further application to the Minister was refused, the Applicant commenced these proceedings by filing his application on 16th November 2005.
The Applicant gave oral evidence to this effect and was cross-examined by counsel for the Minister.
Counsel for the Minister submitted that, irrespective of the alleged merit of the two grounds of review relied upon by the Applicant; the Court should dismiss the application in the exercise of its discretion for delay. The Applicant concedes that the total delay is some two years and eleven months. It is appropriate to take into account, as part of a balancing exercise, the substantive merits of the case made by the Applicant (S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [12]-[14]).
In respect of the question of delay, which weighs heavily on the discretionary nature of relief, taking the Applicant's case at its highest, I am not satisfied that he has established an explanation for a delay for a period well in excess of two years. It is well established that inability to obtain legal advice is not of itself an explanation for delay, nor is financial hardship. The Applicant did not commence proceedings whilst he was in Immigration detention from late June to early August 2005, and did not do so when he did have advice from a solicitor. It was not until November 2005, when his approach to the Minister had been unsuccessful, that he commenced these proceedings. In my view the delay in these proceedings is unwarranted and not satisfactorily explained.
In any event, the Applicant has not established jurisdictional error.
It must follow therefore that the application be dismissed. I will make orders accordingly.
I am satisfied that there is no reason why I should depart from the principle that costs follow the event. The Applicant is to pay the First Respondent's costs. The amount of $5,000.00 appears to me to be an appropriate amount within the scale. Those costs are fixed in the sum of $5,000.00.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 23 August 2006
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