SZIJC v Minister for Immigration
[2006] FMCA 1874
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIJC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1874 |
| MIGRATION – Review of a Refugee Review Tribunal decision – legal submissions not accepted from a person not holding a current practising certificate. |
| Migration Act 1958, ss.414, 415, 420 Judiciary Act 1903 s.55B |
| Applicant: | SZIJC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 492 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 22 November 2006 |
| Date of Last Submission: | 22 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Mr Smith |
| Solicitor for the Respondents: | Ms E Palmer of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,700.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 492 of 2006
| SZIJC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 15 February 2006 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”). That decision affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 7 July 2006 .
The applicant was born on 10 July 1974 and claims to be from India and of Punjabi ethnicity and Sikh faith (“the Applicant”).
The applicant was married in Badhni Khurd, India on 23 January 2002. His wife remains living in India, as does the applicant’s only child, a daughter who was 11 months old at the time his protection visa application was filed.
The applicant arrived in Australia on 1 August 2005 on a visitor’s visa, which had been issued in New Dehli on 19 July 2005.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 25 August 2005. In this application he claimed he had been hired as a taxi driver to take three men from the town to another village some 15 kilometres away. On their way to the town, they encountered a police roadblock, and whilst the applicant claimed to be unable to recall precisely what ensued, he was able to say that there was a gun shot, and a policeman had been wounded. He fled the scene, but the police later came to his home, at which time he claims he was questioned and beaten for being a witness who could identify the three men who had been involved in the incident. A few days later two other men also apparently came to the applicants home and threatened to kill him and his family if he assisted police. The applicant alleged that it was his fear in relation to this incident which caused him to flee India. The applicant claimed to be fearful of returning to India, saying in his application that, as he has no money or connections, he would be powerless were the police to continue harassing him.
This application for a protection visa was refused by a delegate of the first respondent on 20 September 2005.
On 17 October 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 22 December 2005, at which time he maintained the claims made in his original application for a protection visa.
On 19 January 2006 the Tribunal handed down its decision, dated
11 January 2006, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found:
The applicant claims that the Police in India will harm or kill him if he returns to India because he was a witness to an incident where a Policeman was injured. He was also threatened by some men who he had witnessed shoot and injure a policeman.
The Tribunal accepts that the applicant was a witness to an incident when three men injured a Policeman. The Tribunal finds that the applicant has exaggerated his experiences in India in relation to the interest of the Police in him. The Tribunal does not accept that after the Police questioned him for three days about the incident, that they would have continued to harass him for information for a further nine months, or that they would continue to harass him when he returned from Australia. The Tribunal does not accept that the Police continued to harass his family to find out more information about the three men who were involved in the incident.
The Tribunal accepts that the men involved in the incident may have threatened him not to provide information to the police. The applicant did not claim that he feared further threats or harassment from these men if he returned to India. In any event they were threatening him not to provide further information to the police and it is clear that there was no further information that the applicant could provide and he did not intend to give further information to the police. The Tribunal finds that there is no real chance that the applicant would be threatened or harassed by these men in the reasonably foreseeable future if he returned to India and any fear of persecution for this reason is not well-founded.
To be a refugee within the meaning of the Convention the applicant must fear persecution for a Convention reason, that is he must fear persecution for reasons of his race, his nationality, his religious beliefs, his political opinions or his membership of a particular social group. The Tribunal finds that the harm the applicant fears is not for reasons of his nationality, his race, his religion or his political beliefs. The applicant has made no claims based on these Convention grounds and gave evidence to the Tribunal that he had no fears for any of these reasons. Therefore the applicant does not have a well-founded fear of persecution for reasons of his race, nationality, his religion or his political beliefs.
The Tribunal has considered whether the applicant’s fear of persecution is for reasons of his membership of any particular social group.
The meaning of the expression “for reasons of…membership of a particular social group” was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
…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"…
Whether a supposed group is a “particular social group” in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person’s membership or perceived membership of a particular social group: Applicant A per Dawson J at 340. As Burchett J said in Ram v MIEA & Anor (1995) 57 FCR 565 (at 569):
“When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is fitting use of language to say that it is ‘for reasons of his membership of that group.”
Although at the hearing the applicant did not postulate any particular social group he was a member of, he claimed in his initial visa application he was a member of a particular social group of poor people and this was why he could not obtain protection from the actions of the Police. The Tribunal notes that poor people as a group are identified by a characteristic or attribute that is common to all members of the group. That attribute distinguishes the group from society at large. The Tribunal accepts that poor people are a particular social group within Indian society. However, the persecution the applicant fears must be for reasons of his membership of a particular social group. Further, according to Section 91R of the Act, membership of this group must be the essential or significant reason for the persecution. The Tribunal finds that the essential or significant reason that the applicant feared persecution was because he was the bystander or witness to a criminal act. The Tribunal does not accept the fact that he was a poor person, was an essential or significant reason for the persecution feared. Therefore, his fear of persecution is not for reasons of his membership of this particular social group.
The Tribunal has considered whether the applicant is a member of any other particular social group such as: persons who are targeted by criminals, persons implicated in crimes or witnesses to criminal acts. Based on the material before the Tribunal there is no evidence that the legal, social, cultural and religious norms of India indicate that persons who are targeted by criminal or witnesses to criminal acts possess an identifiable characteristic that distinguishes from society at large. Therefore that are not cognisable group within Indian society or identifiable as social units. The Tribunal finds that these are not particular social groups within the meaning of the Convention.
The Tribunal finds that the harm that the applicant fears is not for reasons of any Convention ground and he is not a Refugee within the meaning of the Convention. (Court Book (”CB”) pp.58-60).
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The hearing
At the hearing the applicant sought to tender written submissions by Mr Jayawardena who did not have a certificate to practise as a barrister or solicitor at the time the submissions were prepared. The Court refused to accept these submissions on the basis that only a lawyer with a current practising certificate can act in judicial proceedings. Under s.55B of the Judiciary Act a person who for the time being is entitled to practise in a state Court has a like entitlement to so practise in a federal Court. Therefore, to be entitled to practise in a federal Court, they must for the time being be entitled to practise in a state Court.
As Mr Jayawardena was not entitled at the time to practise in a state court, he was not entitled to practise in a federal court. Producing written submissions for an applicant before the Court, was an attempt to practise in this Court and therefore, the written submissions were not accepted by the Court. However, the applicant was free to make submissions to the Court.
The application
In his application, the applicant set out three grounds as follows:
1)That the Tribunal exceeded its jurisdiction by affirming the decision made by the Delegate of the Respondent on 29th September 2005 on the basis that on the basis of evidence as a whole, the Tribunal was not satisfied that the Applicant was a person who had protection obligations by the Australian Government.
2)Erred in law by concluding that there was no evidence that legal, social, cultural and religious norms in India indicate that people who are targeted by criminal groups or implicated in crimes or being witness possess an identifiable character that distinguishes them from society at large.
3)Misdirected itself by concluding – “Therefore that are not cognisable groups within Indian society or identifiable as social units and the Tribunal finds that these are not particular social groups within the meaning of the Conventions”.
In his amended application, the applicant set out the following two grounds and particulars:
Ground One
a)That the Tribunal failed to carry out the review in a “constructive and articulate manner” because of its conclusion to the effect-
“The tribunal finds that the essential or significant reason that the Applicant feared persecution was because he was a bystander or witness to a criminal act. The Tribunal does not accept the fact that he was a poor person, was an essential or significant reason for the persecution feared”. (Court Book (“CB”) pg 60, paragraph 3, last two sentences).
b)The Tribunal erred in assessing the Applicant’s claims in a manner that was contrary to the applicant’s claims and thereby breached the requirements under sec. 414, 415 and 420 of the Migration Act 1958 relevant to conduct of reviews by the Tribunal.
Ground Two
a)The Tribunal acted ‘manifestly unreasonable’ manner towards the Applicant when dealing with the Applicant’s claims because of its failure to consider the Criteria in Article 1(A)(2) of the 1951 UN Convention relating to the Status of Refugee, when it concluded:-
“The Tribunal accepts that the Applicant was a witness to an incident when three men injured a Policeman. The Tribunal finds that the Applicant had exaggerated his experiences in India in relation to the interest of the Police in him”. (CB page 58 – paragraph 6).
The Applicant submits that it was highly unreasonable for the Tribunal to have concluded that the Applicant was just a witness, while it ignored the fact that the Applicant was the driver of the car that carried the three and therefore the Applicant had either voluntarily or not, aided and abetted the shooting of the Police man by one of those three men. This was a serious omission of fact by the Tribunal and therefore manifestly unreasonable with regard to the claims made by the Applicant was to why he faced fear of persecution.
Conclusions of the Court on the grounds of the application
Ground 1. The tribunal found that:
·The applicant has exaggerated his experiences in India in relation to the interest of the police in him (CB 58.9);
·(It) does not accept that after the Police questioned him for three days about the incident (the shooting) that they would have continued to harass him for information for a further nine months or that they would continue to harass him when he returned from Australia (CB 58.10);
·The Tribunal does not accept that the police continued to harass his family to find out more information about the three men who were involved in the incident;
·The applicant did not claim that he feared further threats or harassment from these men if he returned to India (CB 59.1);
·…there is no real chance that the applicant would be threatened or harassed by these men in the reasonably foreseeable future if he returned to India and any fear of persecution for this reason is not well-founded (CB 59.2);
·…the harm the applicant fears is not for reasons of his nationality, his race, his religion or his political beliefs. The applicant made no claims based on the Convention grounds and gave evidence to the Tribunal that he had no fears for any of these reasons. Therefore the applicant does not have a well founded fear of persecution for reasons of his race, his nationality, his religion or his political beliefs.
The tribunal then considered whether the applicants fear of persecution is for reason of his membership of any particular social group, and stated:
“The meaning of the expression “for reasons of…membership of a particular social group” was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determining of whether a group falls within the definition of particular social group at [36]:
…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”…
Whether a supposed group is a “particular social group” in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person’s membership or perceived membership of the particular social group: Applicant A per Dawson J at 340. As Burchett J said in Ram v MIEA & Anor (1995) 57 FCR 565 at (569):
“When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group”.
Although at the hearing the hearing (sic) the applicant did not postulate any particular social group he was a member of, he claimed in his initial visa application he was a member of a particular social group of poor people and this was why he could not obtain protection from the actions of the Police. The Tribunal notes that poor people as a group are identified by a characteristic or attribute that is common to all members of the group. That attribute distinguishes the group from society at large. The Tribunal accepts that poor people are a particular social group within Indian society. However, the persecution the applicant fears must be for reasons of his membership of a particular social group. Further, according to Section 91R of the Act, membership of this group must be the essential or significant reason for the persecution. The Tribunal finds that the essential or significant reason that the applicant feared persecution was because he was the bystander or witness to a criminal act. The Tribunal does not accept the fact that he was a poor person, was an essential or significant reason for the persecution feared. Therefore, his fear of persecution is not for reasons of his membership of this particular social group.
The Tribunal considered whether the applicant is a member of any other particular social group such as: persons who are targeted by criminals, persons implicated in crimes or witness to criminal acts. Based on the material before the Tribunal there is no evidence that the legal, social, cultural and religious norms of India indicate that persons who are targeted by criminals or persons implicated in crimes or witnesses to criminal acts possess an identifiable characteristic that distinguishes from society at large. Therefore that (sic) are not cognisable groups within Indian society or identifiable as social units. The tribunal finds that these are not particular social groups within the meaning of the Convention (CB59 & 60).
All of the above findings were properly open to the Tribunal, which then decided that the harm that the applicant fears is not for reasons of any Convention ground and his is not a refugee within the meaning of the Convention.
The Tribunal concluded that, “Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol” (CB 60 & 61).
Those findings are properly open to the Tribunal, and it did not “exceed its jurisdiction” as alleged. The Tribunal had jurisdiction to make the findings it did, and committed no error of law.
The Court rejects this ground.
Ground 2: The Tribunal made the finding that the applicant was a bystander or witness to a criminal act (CB 60.6). It was a finding of fact based on the material before the Tribunal, and was properly open to it. That finding is not reviewable.
The Court rejects this ground.
Conclusions of the Court on the grounds in the amended application
Ground 1, paragraph 1: The applicant challenges the Tribunal conclusion that it “does not accept the fact that he was a poor person… was an essential or significant reason for persecution feared” (CB 60.5). That was a finding of fact properly open to the Tribunal and not reviewable.
The tribunal found that the essential or significant reason that the applicant feared persecution was because he was a bystander or witness to a criminal act. That finding of fact was properly open to the Tribunal.
The above findings of fact are not reviewable.
Ground 1, paragraph 2: alleges the Tribunal erred in assessing “…the Applicant’s claims in a manner that was contrary to the applicant’s claims and thereby breached the requirements under sec.414, 415 and 420 of the Migration Act 1958 relevant to conduct of reviews by the Tribunal”. There is no error of law in assessing claims in a manner which is contrary to the applicant’s claims.
It is alleged that s.414 was breached. S.414 provides:
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Section 414 was not breached.
It is also alleged that s.415 was breached. This section provides:
(1) The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Section 415 was not breached.
It is alleged that s.420 was breached. This section provides:
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
Section 420 was not breached.
The Court rejects this ground.
Ground 2: This ground alleges that the Tribunal acted in a “manifestly unreasonable” manner, when it concluded that it “accepts that the applicant was a witness to an incident when three men injured a Police man. The Tribunal finds that the applicant has exaggerated his experiences in India in relation to the interest of the Police in him” (CB 58.9).
The applicant contends that it was highly unreasonable for the Tribunal to have concluded that the applicant was “just a witness”, and ignored the fact that “he was the driver of the car that carried the three men”, and therefore the applicant had aided and abetted the shooting of the Policeman.
That was a finding of fact properly open to the Tribunal and is not reviewable. In any event, the finding is consistent with the evidence of the applicant reported by the Tribunal in its decision (CB 55.9). The Court rejects this ground.
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 22 December 2006
0