SZKCG v Minister for Immigration - [2007] FMCA 903

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKCG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 903

MIGRATION – Visa – protection visa – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant the applicant a visa – applicant is a citizen of Thailand claiming fear of persecution for reasons of being a member of a particular social group – credibility – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 425A, 474(2)
Migration Regulations 1994 (Cth), reg.4.35(d)

APPLICANT A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205

Applicant:

SZKCG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 262 of 2007

Judgment of:

Scarlett FM

Hearing date:

31 May 2007

Date of Last Submission:

31 May 2007

Delivered at:

Sydney

Delivered on:

31 May 2007

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,800.00 and I will allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 262 of 2007

SZKCG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal handed down its decision on

4^th January 2007. The Tribunal decided to affirm the decision of a delegate of the Minister not to grant the applicant a protection

(Class XA) visa.
The applicant filed an application and an affidavit on 29^th January 2007. In his application he asks the Court for judicial review of the Tribunal decision. In particular he asks that the decision be set aside and that his application be remitted to the Refugee Review Tribunal for determination according to law.
The background to this matter is that the applicant is a citizen of Thailand. He arrived in Australia on 23^rd March 2005 and he applied for a protection (Class XA) visa on 21^st March 2006. His application for a visa was refused on 11^th April 2006. The applicant applied to the Refugee Review Tribunal for a review of that decision on

14^th September 2006.
The Tribunal, after clearing up an administrative problem about an application on the incorrect form, invited the applicant to attend a hearing on 13^th November 2006. The letter inviting him to the hearing was dated 11^th October. On 13^th October the applicant sent a response to hearing invitation to the Tribunal. He said that he wished to attend the hearing but would need an interpreter in the Thai language.
The applicant attended the hearing on 13^th November 2006 and an interpreter in the Thai language was available to interpret for him.

The Tribunal decision or a copy of it can be found in the Court book at pages 112 through to 121. At pages 115 through to 117 the Tribunal summarised the applicant's claims and the evidence before it.

The Tribunal noted that the applicant had travelled to Australia and spent some time in this country but claims that his family in Thailand had told him that two men had gone to this home and demanded a large sum of money otherwise they would harm him. The applicant said that his parents did not have the money and told him to remain in Australia for his own protection and he said that the people who were out to get him were brutal and the authorities in Thailand, particularly the police, would not be able to protect him.
Curiously enough the applicant claimed that in January of 2005 whilst he was working on a property at Cooma NSW he claims he was shot and in fact spent some five days in hospital. The applicant reported this to police and believes that the shooting was not an accident but was brought about by members of the gang who were seeking to extort money out from him.
The applicant did give oral evidence to the Tribunal and the Tribunal member asked him a number of questions. The Tribunal did put the applicant that his account of the threats that had been put to him seemed highly implausible. However, the applicant reiterated that he would be persecuted and even killed by the people who sought money from him if he had to return to Thailand.
The Tribunal's findings and reasons are set out on pages 117 through to 119. The Tribunal accepted that the applicant is a national of Thailand and noted his passport from that country. The Tribunal accepted a number of the applicant's claims. These included:
a)That organised criminals extorted protection money from him while he was operating a market stall in Thailand.
b)That organised criminals extorted protection money from all of the stallholders.
c)That the applicant had borrowed money from these people.
d)That the criminals were after the applicant to recover that money.
The Tribunal noted the applicant's claims that he was in need of protection for reasons of his membership of a particular social group, being people who are poor and depressed and the Tribunal also noted that the applicant was unable to seek the protection of the police in Thailand because they are corrupt. The Tribunal in its decision considered the question of membership of the particular social group at pages 117-118 of the Court book. At page 118 the Tribunal said:
It may be the case that poor and depressed persons depending on the evidence may constitute a particular social group for the purposes of the Refugees' Convention. It may also be the case that market stallholders and former market stallholders or business owners may constitute a particular social group for the purposes of the Refugees' Convention.
The Tribunal went on to note later on that same page:
The applicant's claim is that members of the organised crime gang wanted to kill him because he did not pay his debt to them, not because he was a market stallholder or was extorted or did not pay the extortion money but because he could not and would not pay his accumulated debt, even though extortion money may make up part of the debt itself. Therefore the Tribunal does not accept that the essential and significant reason for the claimed extortion and the alleged attack on him or the alleged threats against his parents was because he was a member of a particular social group of poor and depressed persons or market stallholders or former market stallholders, or for any other particular social group or Convention related reasons but rather finds that any such threats or attacks were non Convention related criminal behaviour.
The Tribunal did not accept that if the applicant were to return to Thailand he would face harm from organised criminals for the essential and significant reason of his membership of a particular social group. The Tribunal did accept that he may suffer extortion by criminals but took the view that that extortion would be simply motivated by criminal intentions and desire for personal gain on the part of the perpetrators. The Tribunal considered the question of state protection and referred to independent information including a country report from the United States Department of State and accepted that there was widespread reported police corruption in Thailand. The Tribunal accepted that the applicant did not approach the police about extortion threats but did not; however, that country information did not support his claim that the Thai authorities would withhold protection from him because he is poor or that they would withhold protection from the applicant for any other Convention reason.
The Tribunal went on to conclude at page 120 of the Court book that it did not accept that the alleged incidents of extortion and threats were Convention related or that the authorities in Thailand would refuse to act in response to them for a Convention related reason. The Tribunal did not accept that the applicant had suffered past persecution or faced a real chance of being persecuted for a Convention reason if he were to return to Thailand. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant in his application sets out three grounds:
1) The Tribunal failed to give me sufficient notice and opportunity to fully substantial my claims.
2) The Tribunal failed to understand and consider the defining features of the social group I am a member of, poor oppressed market stallholder. It is a social group that is poor with no options but to subject themselves to extortion and manipulation in order to derive a subsistence income.
3) The Tribunal failed to understand and consider that the police and authorities tolerate this type of systemic harassment and extortion of market stallholders. Many police officers being on the take from the extortion gangs to tolerate the criminal activity.
In the applicant's affidavit in support of his application he set out that he did not get a proper hearing.
The applicant set out particulars of his claim stating that if he were to go to the local police station for protection he would be identified by the police to the gang members and would suffer harm. He further claimed that the Tribunal accepted independent information from the United States Department of State Country Report for 2001 but:
As the circumstances of my social group was not listed in the examples it failed to inquire further into my particular situation.
He also set out further that he was poor and unable to pay the extortion money and was unable to derive subsistence income. He claimed:
The point is this systemic crime is tolerated and I have no one to turn to in the police or authorities to save me in Thailand.
The applicant told the Court in answer to the question why he claimed he did not get notice or opportunity to substantiate his claims, that when he went to the Tribunal he was afraid and he did not say much because he was scared. The applicant gave as his reason for being scared the fact that he had not been to any Court before, even though the Refugee Review Tribunal is not a Court.
Whilst one can accept that an applicant appearing before a Tribunal may well be nervous or even feel fear, particularly if an applicant has had negative experiences in their home country, there is nothing before the Court to show that the Tribunal in any way deprived the applicant of an opportunity to give evidence and present his arguments. It is not the fault of the Tribunal that the applicant felt fear and nervousness and did not do justice to his claim. There is no jurisdictional error that can be made out from an applicant who is given an opportunity to present a case, not taken full advantage of it, due to nervousness or inability to communicate.
The Tribunal certainly in its decision record gives examples of the Tribunal member asking the applicant questions about his case and of course the applicant was provided with the services of an interpreter. My examination of the material shows that the Tribunal did comply with its obligations. The Tribunal wrote to the applicant under the provisions of s.425 of the Migration Act1958 (Cth) (“the Act”) and invited him to attend the hearing. The invitation complied with s.425A of the Act and reg.4.35(d) of the Migration Regulations Act 1994 (Cth).
The Tribunal wrote to the applicant on 11^th October inviting him to attend the hearing on 13^th November. This is more than the prescribed notice and the hearing that was offered to the applicant and which he attended was indeed a hearing where he was given the opportunity of giving evidence and presenting arguments. The first ground must fail. As to the second ground that the Tribunal failed to understand and consider the defining features of the applicant's social group, being a poor oppressed market stallholder, I am satisfied that the Tribunal did consider this. The Tribunal sets out at page 115 of the Court book the applicant's claims that he was entitled to protection under the Refugees' Convention by virtue of his belonging to a particular social group, being a group of people who are poor and oppressed.
The Tribunal in its findings and reasons referred to this claim of a particular social group at page 117 of the Court book. At pages 117‑118 the Tribunal considers what is meant by membership of a particular social group and referred to authority from the decision APPLICANT A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225. In my view no error appears in the Tribunal's description of what constitutes a particular social group. The Tribunal went on to say however at page 118:
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 for reasons of a person's membership of the particular social group.
In this case the Tribunal found that the applicant had not shown the nexus between the membership of the social group which he had claimed and the fear of persecution for a Convention reason.

The Tribunal examined the evidence and came to the conclusion that the gang that was at least in the applicant's words "after him" were doing so for matter that related to the repayment of a debt and that their actions were essentially criminal actions and not Convention related persecution.
The applicant has taken issue with that in the Court today but his submissions in that regard were to my mind a challenge to the factual finding of the Tribunal and invited the Court to conduct merits review. It is well known that insofar as the Federal Magistrates Court is concerned it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed (see SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]).
The applicant's second ground about the Tribunal's failure to consider the defining features of the social group of which he was a member to my mind has not been made out. The Tribunal did consider that and no error appears. The third ground relates to the applicant's claim of the failure by the Tribunal to consider not only a lack of state protection but toleration by the police and the authorities of systemic harassment and extortion of market stallholders and people in the applicant's particular social group.
In this regard I accept what has been put to the Court by Mr Johnson counsel for the Minister in his submission where he noted that the Tribunal accepted that there was widespread police corruption in Thailand although not necessarily of the type that the applicant suggested in his evidence. Mr Johnson submitted and I believe correctly that the fact that the Tribunal may not have accepted all that the applicant was saying does not mean that it was not considered. Plainly the Tribunal did appreciate that the applicant is alleging he did not get protection from the police because they were being bribed by the gangs. However, the more important answer to this ground is that the Tribunal's decision was founded upon it not being satisfied as to the Convention reason requirement.
As the Tribunal was not satisfied that the essential and significant reason for any harm faced by the applicant was membership of a particular social group or another Convention reason the applicant could not succeed. In my view that submission was correct and no jurisdictional error has been made out.
I am aware that the applicant is not legally represented although he has had advice from a lawyer on the Panel Advice Scheme. I see from the Court file that a barrister who practices in this jurisdiction accepted a referral and had a telephone conference with the applicant about his case. Nevertheless the applicant was not represented today and I am satisfied that the Court should consider the decision and the supporting documents independently of either the applicant's claims or the Minister's submissions. In order to ascertain whether any arguable case for any jurisdictional error can be made out, whether it is one that has been brought to the attention of the Court by one of the parties or not.
I am unable to discern any jurisdictional error. In my view, therefore, the absence of a jurisdictional error indicates that the Tribunal's decision is a privative clause decision as defined in s.474(2) of the Act. Because it is a privative clause decision remedies in the nature of certiorari or mandamus which are the remedies the applicant is seeking are not available. It follows that the application will be dismissed.
There is an application for costs on behalf of the first respondent Minister in the sum of $4,800.00. This is an appropriate matter for a costs order as the Minister has been successful and the applicant has not been. The amount sought namely $4,800.00 is an appropriate figure. I accept that the applicant is not in paid employment and is not permitted to be in paid employment. I will allow time to pay.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 7 June 2007