SZIHU v Minister for Immigration
[2006] FMCA 1226
•15 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1226 |
| MIGRATION – RRT decision – Pakistani feared harm from family of girlfriend or arising from family land dispute – Tribunal found no Convention reason – applied s.91S – no jurisdictional error found. |
Acts Interpretation Act 1901 (Cth), s.23(b)
Migration Act 1958 (Cth), ss.91S, 474(1), 476, 476(1)
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration & Multicultural & Indigenous Affairs v SVBB [2005] FCAFC 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
STCB v MIMIA & Anor [2006] HCATrans 435
STCB v MIMIA & Anor [2006] HCATrans 436
STXB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 1
| Applicant: | SZIHU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG414 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 15 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr R Bromwich |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG414 of 2006
| SZIHU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 9 February 2006 under s.476 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 3 January 2006 and handed down on 24 January 2006. The Tribunal affirmed a decision of the delegate made on 17 October 2005 refusing to grant a protection visa to the applicant.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to grant relief unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
The applicant arrived in Australia on a three month business visa in August 2005. On 27 September 2005 he lodged an application for a protection visa without any apparent assistance by an agent. A brief statement attached to the application explained why he sought protection in Australia against return to his country of nationality, Pakistan. His statement said:
I am a college student. In my college a girl also study with me. Her name is A. When we are studying that time we felt love each other. I decided to marry her. I want to do the arrange marriage but the girls parents did not agree with the love and marriage. After that we decide to go to the court marriage.
Regarding Our decision we want to go to the court marriage. Her parents informed by the source. Her father is a powerful politician of my area. They send some people to attack me. I was injured by their attack. My family brought me in the hospital. After that I report to the police. But police did not take any action against them. I came from a poor family. They filed a false FIR against me. Police threatened me and send me in the custody. After that I paid some bribe to the police and I got realized from the custody. At that time police told me leave this area, if not we will arrest you again. After that the next day I attacked again I was badly injured. My village people safe me for treatment in the hospital. Her parent informed that I was safe. They give money to the police to kill me in cross fire when I got that information & I quit that place to save my life. They flow me. My family tried to compromise this.
Her family agree on that. And my family tell to return back. When I came back for compromise. Her parent people ask police to arrest me and I run away. I talk with brocker to organize visa to leave the country. The brocker arranged an Australian visa. I came to Australia and, loging protection visa.
No further material was sent to the Department, nor to the Tribunal prior to its hearing. The Tribunal conducted the hearing by video conference between Sydney and Griffith on 16 December 2005. In the course of the hearing the applicant gave some more details of the claims made in his protection visa, including claims that the police had been bribed to cause harm to him and a suggestion to the Tribunal that he had been assaulted twice in the course of the dispute with the girl’s family.
The Tribunal said that at the end of the hearing it drew the applicant’s attention to the five Convention reasons for persecution which were required to be addressed. The Tribunal said:
I noted that all this had happened because he had wanted to marry a girl and her family had not wanted him to marry her. The Applicant agreed but he repeated that his life was in danger.
The applicant then maintained that his life was in danger and “said that he had some documents including the FIR”, and the Tribunal gave him time to produce them to it.
The applicant then posted to the Tribunal documents, which in my opinion it accurately described:
·an English translation of an FIR lodged on 29 October 1999 by the Applicant’s uncle in relation to a fight which allegedly took place on 27 October 1999 arising from a dispute over the boundary to his land and in which the Applicant allegedly suffered a serious injury to his head;
·an English translation of an accompanying medical report indicating that the Applicant was found on examination on 27 October 1999 to be suffering lacerations and contusions;
·an English translation of an FIR lodged on 26 December 1999 by someone identified as the Applicant’s father‑in‑law in relation to a fight which allegedly took place that day arising from a dispute over land (said to be before the courts with the next hearing due on 13 January 2000) in which the same persons responsible for the attack on 27 October 1999 attacked him and the Applicant ‘came on front’ and was injured; and
·an English translation of an accompanying medical report indicating that the Applicant was found on examination on 26 December 1999 to be suffering various injuries.
My own reading of the documents is that they showed the applicant being injured on two occasions when coming to the assistance, firstly, of his uncle, and then of somebody who refers to the applicant as “son‑in‑law”, when they were attacked by a group of people involved in a boundary wall dispute with the uncle. As the Tribunal pointed out, the applicant did not present to the Tribunal any explanation relating these documents to his claim that he was injured in the course of a dispute with the family of his girlfriend. Nor did he provide any explanation of how the police action referred to in these documents related to the police action which he said was instigated by the girl’s family against him.
In this situation, the Tribunal attempted to deal with all the conceivable Convention relationships of the factual claims presented by the applicant, both at the hearing and in the documents. It said:
I do not consider it necessary to resolve this conflict in the evidence by holding a further hearing because I do not consider that either version of events provides the basis for the Applicant to claim a well‑founded fear of being persecuted for one or more of the five Convention reasons.
The Tribunal first dealt with the claims which had been made by the applicant in his original visa application and explained at the hearing, that is, that he feared being persecuted because “he wanted to marry a girl and her family objected”. The Tribunal drew the conclusion that the applicant was being “persecuted for reasons purely personal to him, namely his thwarted desire to marry the girl whose parents objected”.
The Tribunal then considered whether, notwithstanding the non‑Convention motivations of the girl’s family, a Convention ground might explain the absence of State protection. It said:
The Applicant said at the hearing before me that his persecutors were involved with the police and in his original application he said that the girl’s father was a powerful politician whereas he himself came from a poor family. However I do not accept on the evidence before me that the failure of the police to protect the Applicant from persecution by the girl’s family is for one or more of the five Convention reasons as required by the High Court in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. Any failure of State protection in the present case would appear to be due to corruption and indeed the Applicant claims that he too was able to bribe the police to be released from custody.
In my opinion its discussion, though brief, shows a proper appreciation of relevant principles.
The Tribunal then dealt with the explanation for the applicant’s injuries which emerged from the documents sent to the Tribunal. It said:
The alternative version of the facts outlined in the documents produced by the Applicant after the hearing suggests that the Applicant was assaulted in October and December 1999 because his family was involved in a dispute or disputes over land with another family in the area. The documents might therefore be taken to suggest that the Applicant was assaulted for reasons of his membership of the ‘particular social group’ for the purposes of the Refugees Convention constituted by his family. However I consider that it is clear that the origins of the matter lie in a dispute or disputes over land and that the Applicant’s fear of persecution is therefore to be disregarded in accordance with section 91S of the Act (set out above) because it is reasonable to conclude that the Applicant’s fear of persecution would not exist if it is assumed that any fear of persecution that any other member of his family has ever experienced for reasons of the land dispute or disputes never existed.
The applicant’s application originally filed in this Court made unparticularised claims that the Tribunal failed to take relevant matters into consideration, and that there was procedural unfairness. However, I am not able to find any substance in these contentions.
An amended application filed after the applicant was referred for free legal advice appears to have been drawn up by a lawyer, but unfortunately the applicant was today neither legally represented nor able to explain the arguments which were presented in the amended application.
It gave one ground: “the Tribunal applied the wrong test”, with two particulars:
Particulars
a.The Tribunal misapplied the provisions of the Migration Act 1958 s. 91S
–The Evidence before the Tribunal was that there was violence feared by the whole family, and actual violence suffered by the Applicant, as a result of a dispute over land.
–The Tribunal applied s. 91S to disregard all fear attributed to all family members.
–The proper application of s. 91S is to disregard the fear of members of a family only in circumstances where the actual fear of persecution is held by a single member of a family and other members of the family have a fear solely because of the fear held by the single family member.
b.The Tribunal failed to consider whether the fear of persecution of the Applicant as a result of his romantic relationship was due to his membership of a particular social group being members of poor families in Pakistan.
I explored with counsel for the Minister the contentions made under particular a., of an error in the application of s.91S. Section 91S provides:
SECT 91S Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b)disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
The amended application appears to challenge the Tribunal’s reasoning in relation to the “alternative version of the facts” in the passage I have extracted above. However, it is difficult to identify the precise error which is argued to have been made by the Tribunal, and where it emerges in the Tribunal’s reasoning.
On one reading of the contention, it is that s.91S only has application where a “single member” of a family can be identified as the person whose immediate non‑Convention‑related fears gave rise to the concerns of all members of the family group.
However, if this is the contention, it fails to read s.91S with s.23(b) of the Acts Interpretation Act 1901 (Cth). This provides:
23.In any Act, unless the contrary intention appears:
…
(b) words in the singular number include the plural and words in the plural number include the singular.
Far from finding contrary intention in s.91S that words in the singular should not include the plural, I consider that the evident object of s.91S would not be achieved if it were read as relating only to the persecution of a family derived from the non‑Convention persecution of a single member. In my opinion, the reference in s.91S(a) to “any other member or former member” must be read in the plural as well as the singular. If, in the present case, the fears of two or more members of the applicant’s family resulted from a dispute with their neighbours over a land boundary, the fears of the applicant as a member of their family, which would not exist but for the land dispute, would be properly found to be covered by s.91S.
In my opinion, the reasoning of the Tribunal is open to such interpretation, and I am not persuaded that it made any error in its appreciation of s.91S.
Counsel for the Minister also raised whether the contention in particular a. of the amended application was directed at a distinction identified by Selway J in STXB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 1. At [33]‑[35] his Honour suggested that persecution of a family whose members are identified as an object of persecution by reason of that membership, might not be excluded by s.91S if the perpetrators saw the family unit and all its members as the persons collectively responsible for an action of any one of the individuals in the family, and did not direct their persecution separately at the individual who performed the actions which resulted in the persecution of the family. In such a case, the fears of the individual whose actions produced the persecution of his family would have the same reason as those of his family members, i.e. his membership of that particular social group. Since this would be a Convention reason, s.91S(a) would not apply. His Honour seems to have envisaged cultural and legal situations where this scenario is a possibility.
Counsel for the Minister submitted that there was some doubt about the correctness of his Honour’s opinion, arising from a decision in the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SVBB [2005] FCAFC 12, where the Full Court allowed an appeal from another decision of Selway J. In that case, their Honours appear to take the view that s.91S involves only an inquiry into the origins of the persecution of a family, and applies if its origins were the actions of a member which did not provide a Convention reason explaining the hostile reaction of the persecutors.
It is, in my opinion, unnecessary for me to enter into a further discussion of Selway J’s analysis and the effect of s.91S. I note that this is currently under consideration in the High Court (c.f. STCB v MIMIA & Anor [2006] HCATrans 435 and 436).
It is enough in the present case to find that, on the material which was before the Tribunal in relation to the land dispute, it was clearly open to the Tribunal to take the view that any persecution of the applicant as a member of the family of one or more of the land owners, was secondary to and derivative from the non‑Convention‑related land dispute. The immediate targets of the violent incidents were the landowners and their supporters, and the reason for their targeting was the disputed property claims and not their familial relationships. I consider that it was open to the Tribunal to apply s.91S to the applicant’s fears arising from that situation, and that the reasoning of Selway J could have no application.
I can identify no misconception of s.91S in the Tribunal’s reasoning. It made a clear finding that “the origins of the matter lie in a dispute or disputes over land”. Reading this in the light of the material before it, I consider that the Tribunal found that any fear of the applicant arising from the incidents referred to in the documents would not exist if the member or members of his family who were directly involved in the land dispute had not become involved in that dispute for non‑Convention reasons.
I therefore am unable to find that any jurisdictional error sought to be raised by particular a. is made out.
Particular b. in the further amended application suggests a failure of the Tribunal to address a claim, under well‑known principles discussed by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.
The short answer to its contention, in my opinion, is the applicant never claimed that the family of his girlfriend wished to harm him by reason of his being a member of a poor family, rather than for purely personal considerations, as the Tribunal has found. Nor did he present to the Tribunal such a reason as explaining the failure by the police to give him the protection he wished as being the result of a Convention reason.
In those circumstances, I consider that it was sufficient for the Tribunal to have addressed all issues of Convention nexus in the manner that I have described above. I am unable to accept particular b. as establishing jurisdictional error in the present case.
The applicant attended today’s hearing, but accepted that he could not advance any legal arguments, and had no other submissions to make to me.
He said that he wanted to get more documents to support his refugee claims, but I have pointed out to him that I must assess the validity of the Tribunal’s reasoning upon the material which was in fact presented to it, not the material which he did not present to it.
For the above reasons I have not been able to find jurisdictional error affecting this decision of the Tribunal. It is 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-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 29 August 2006