SZJDH v Minister for Immigration
[2007] FMCA 1561
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1561 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 Applicant S v Minister for Immigration& Multicultural Affairs [2004] HCA 25 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 |
| Applicant: | SZJDH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2125 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 26 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Tamil interpreter |
| Solicitors for the First Respondent: | Ms N Nanson of Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on the 3 August 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2125 of 2006
| SZJDH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJDH”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 3 August 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 June 2006 and handed down on 11 July 2006, affirming a decision of the delegate of the first respondent made on 28 February 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant seeks an order that the first respondent show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrate Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for a final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 24 August 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of Mr S Norman, reference N06/53306, provides the following background information:
The applicant, who claims to be a citizen of Malaysia, arrived in Australia on 15 December 2005. On 24 January 2006 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 28 February 2006, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 14 March 2006 the applicant applied for review of that decision.(CB 128)
Application for review of the Tribunal’s decision
The applicant’s claims are set out in the decision record under the heading “Claims and Evidence”:
On 24 January 2006, the applicant lodged a Protection Visa application with the Department. The male applicant claimed to be from a ‘middle class family’ and to have tertiary qualifications in ‘computer science’. In 1999 the applicant commenced his own ‘computer sales and service business’. A ‘close friend’ assisted the applicant in this business; ‘almost like [the applicant’s] business partner.’ I understand that at or around the time the applicant commenced the business he had moved from his family home. I also understand that at some stage, the applicant borrowed money (for the business) from a local money lender. As the applicant had problems with his business he also borrowed further money from ‘loan sharks’; and though his business ‘grew’, so did his debts.
The applicant (by bribery) eventually managed to secure a loan from a bank; however the amount he was given access to was substantially less than he initially understood. He was required to make payments on his outstanding loan shark debts by selling a motor vehicle and using his credit cards. The applicant’s family, who did not wish him to commence the business, refused to assist him financially. The applicant claimed a loan shark threatened to kill him. He claimed not to be able to report the threats to police as the loan sharks were ‘interlinked’ with the police. The loan shark confiscated the applicant’s home property and threatened to kill him if he was not able to repay the loan. He also claimed he could not ‘run any where in Malaysia cause all the loan sharks have big inter link every where’. The applicant then travelled to Australia where he is seeking refugee protection.(CB 130-131)
On 3 August 2006, the applicant filed an application for review under s.39B of the Judiciary Act. In accordance with orders made at the first Court date on 30 August 2006, the applicant was granted leave to file an amended application by 2 November 2006. On 26 June 2007, the applicant filed an amended application which contained the following ground:
Ground one
The Refugee Review Tribunal (“Tribunal”) erred in law, with the error being a jurisdictional error, in that it took the wrong approach in decision the application.
Particulars
The Tribunal failed to discern the relevant Convention reason, with that reason being persons affected by Loan-sharks in Malaysia.
Submissions and reasons
In accordance with orders made at a directions hearing on 16 November 2006, the applicant filed written submissions prior to the final hearing on 4 June 2006. That document indicates that the applicant appeared before the Tribunal without legal representation and put his claims to the Tribunal. The applicant states that there is no requirement in the visa application to specify the relevant Convention reason under which it is made. The applicant indicates that he is relying upon establishing his membership of a particular social group and refers to Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 which is referred to in the Tribunal decision.(CB 135) The following characteristics of a particular social group were identified by the High Court as:
a)the group must be identifiable by a characteristic or attribute common to all members of the group;
b)the characteristic or attribute common to all members of the group cannot be shared fear of persecution;
c)the possession of the characteristic or attribute must distinguish the group from society at large.
The applicant acknowledges the statement of Dawson J in Applicant A that a group that fulfils the first two propositions but not the third is merely a social group and not a “particular social group”. The applicant argues that the particular social group to which he belongs is “persons of Tamil origin affected by loan sharks”. However, the applicant conceded that it is not necessary to include his Tamil origin and refined the particular social group to “persons who had dealings with loan sharks”.
The applicant then argues that there was evidence before the Tribunal that persons who had dealings with loan sharks in Malaysia were persecuted. He referred to articles that he provided to the Tribunal during the hearing on 8 May 2006 as follows:
a)“Police to act tougher against aggressive loan sharks” from Utusan Online, 1 May 2006;(CB 63)
b)“Loan shark going for toddler” from The Star Online, 3 April 2006;(CB 66-67)
c)“The Long and Short of the “Along” Problem” from Johore Bar Peguam-Peguam Johor, 30 May 2003;(CB 74-79)
d)“Asian Criminal Enterprises” from the US Department of State.(CB 102-105, in particular CB 104)
The applicant submits that these new sources were reputable and available to the Tribunal.
The applicant then referred to information about state protection and indicated that the Tribunal had information before it that the authorities in Malaysia were corrupt and ill-treated inmates. He relied on an Amnesty International Malaysia report covering events from January to December 2005.(CB 84) The applicant, in his written submissions, without specifically formulating the claim, suggests that the Tribunal erred in its decision-making process by failing to accept the contents of these reports, which were directly relevant to his claims. Therefore, the applicant says, the Tribunal should have found in his favour.
At the commencement of the Court hearing on 26 June 2007, the applicant sought leave to file a document identified as “Applicant’s Additional Submission”. No objection was raised and leave was granted. That document states that the applicant had previously claimed that Malaysians of Indian Tamil origin were mistreated by loan sharks. However, persons other than Tamils have also been threatened and mistreated by loan sharks in Malaysia. The applicant maintains that it was for the Tribunal to make the formulation that persons who had dealings with and were persecuted by loan sharks were particular social group. The applicant sates that Dranichnikov v Minister for Immigration and Multicultural Affairs; re Minister for Immigration [2003] HCA 26 states that the Tribunal in that case made a mistake by not identifying the particular social group which that applicant belonged to. The applicant claims that the Tribunal in this case made a similar mistake. The applicant claimed that this mistake was made despite the evidence and other information from various sources which he provided to support his claim. The applicant argues that the only basis on which he could claim refugee status was membership of a particular social group. Despite asserting during the hearing that Tamils in Malaysia were mistreated at the hands of loan sharks, it was very clear from the evidence before the Tribunal that there were in fact others who suffered from mistreatment by loan sharks.
Ms Nanson, in her written submissions, submits that the Tribunal did not limit its consideration of a particular social group relevant to the applicant’s history in the way claimed. Ms Nanson referred to the part of the Tribunal decision which considered the definition of membership of a social group for the purposes of the Refugees Convention as determined in Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 at [36]. The High Court in that case stated:
Conclusions as to "particular social group"
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], 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.
Ms Nanson submits that the Tribunal considered a range of possible social groups not limited by the ethnicity of the applicant. The Tribunal next considered relevant country information in relation to the activities of loan sharks in Malaysia. After carrying out this review, the Tribunal then concluded:
Accordingly, none of the country information that I have seen would satisfy me that a social group similar to those suggested above, would be ‘identifiable by a characteristic or attribute common to all members of the group’, or that the relevant ‘characteristic or attribute would distinguish the group from society at large’ in order for them to be a social group for the purposes of the Refugees Convention.(CB 135-136)
Ms Nanson submits that the Tribunal did not err in its consideration of this issue, either by restricting the definition of the group as claimed by the applicant, or by defining it so broadly that he was unable to satisfy the other elements of the Convention: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 at [72] per Kirby J. The claim that ethnic Tamils were particularly subject to harm by loan sharks in Malaysia was a claim specifically made by the applicant and the Tribunal was entitled to characterise a relevant social group in these terms.(CB 123.4)
In respect of the applicant’s submissions under the heading “State protection” and in particular the information before the Tribunal to the effect that “authorities in Malaysia were corrupt and ill-treating inmates”, Ms Nanson submits that the Tribunal found that none of the country information satisfied it that Malaysian authorities would withhold protection from a Tamil person wanted by loan sharks for the reason of that person’s ethnicity. The Tribunal made reference to material provided by the applicant which included the article entitled “Police to act tougher against aggressive loan sharks” and Amnesty International material following the hearing. The Tribunal clearly considered all this, but found that it could not be satisfied that the Malaysian authorities would withhold state protection from the applicant “for at least one of the reasons provided in the Refugees Convention”.(CB 136-137)
Ms Nanson submits that the Tribunal made a finding of fact on the evidence before it, which it was entitled to do. The applicant is now asking the Court to engage in impermissible merits review of the conclusions reached. The Tribunal’s reasons carefully considered the claims made by the applicant and sought further clarification about them from him at the hearing. The Tribunal also disclosed to the applicant its understanding of the applicant’s history and matters adverse to those claims about which it was concerned.
I agree with the submission made by Ms Nanson that the Tribunal findings were open to it for the reasons set out in its decision record. I am satisfied that the Tribunal has fully explored the applicant’s claim of persecution because of his claimed membership of a particular social group. That claim cannot be maintained. Nor can the claim that the Malaysian authorities would withhold state protection from the applicant for any Convention related reason.
The application should be dismissed and the applicant should pay the first respondent’s costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 17 September 2007