SZLBB v Minister for Immigration & Anor - [2008] FMCA 902

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLBB v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 902

MIGRATION – Application for adjournment.

MIGRATION – Review of RRT decision – where applicant claimed membership of a particular social group – where Tribunal concluded no Convention nexus between failure to provide state protection and persecution feared – errors of fact not jurisdictional error.

Migration Act 1958 (Cth), ss.48A, 48B, 424A

Minister for Immigration v Respondent S152/2003 (2004) 205 ALR 487
Minister for Immigration v Khawar (2002) 210 CLR 1

Applicant:

SZLBB

First Respondent:

MINSTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3793 of 2007

Judgment of:

Raphael FM

Hearing date:

23 June 2008

Date of Last Submission:

23 June 2008

Delivered at:

Sydney

Delivered on:

23 June 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr J. Mitchell

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

Application for adjournment declined.
Application dismissed.
Applicant to pay the first respondent's costs assessed in the sum of $4000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3793 of 2007

SZLBB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant has requested that I grant him an adjournment so that he can obtain further evidence to put before me. I believe that this further evidence relates to his claim that information he gave to the Australian Crime Commission (“ACC”) would establish that he was a member of the Triad organisation and thus expose the Tribunal to having made a mistake of fact in its conclusions.
The applicant had subpoenaed records from the ACC, but that subpoena was only issued on 2 June 2008. The applicant told me that he had had trouble in collecting evidence, and whilst I informed him that I would accept that this was possible whilst he was in criminal detention, I did not think that it was very likely whilst he was in immigration detention in Villawood, and the fact that eventually a subpoena was issued would seem to me to establish that fact. The applicant has been in Villawood since April 2007, and has therefore had well over a year in which to do something to establish the facts upon which he made the application to the Tribunal in November 2007, following remission of the decision originally made by the Tribunal on 15 June 2007.
I explained to the applicant that in any event the production of new information at this stage, even if it did establish that the Tribunal had made a factual error in its decision making, would not be of much assistance to him in this court, although I appreciate that it could be of assistance to him in making an application under s.48B of the Migration Act 1958 (Cth) (“the Act”). A factual error is rarely a jurisdictional error, and in this case even if it was established that the applicant was a member of the Triad organisation, this would not necessarily establish the Convention nexus or the risk of persecution, should he be returned to Singapore that were the subjects of the Tribunal's decision. In the circumstances, I declined to grant the application for an adjournment.
The applicant is a citizen of Singapore who arrived in Australia on 10 May 2003 and applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 8 May 2007. On 9 May 2007, a delegate of the Minister declined to grant a protection visa. The applicant sought review of that decision from the Refugee Review Tribunal which affirmed the delegate's decision on 15 June 2007. That decision was the subject of an application to this court and consent orders remitting the matter to the Tribunal to be heard and determined according to law.
The second Tribunal was constituted and held a hearing with the applicant. It also wrote to the applicant a letter pursuant to s.424A of the Act on 19 November 2007. On 28 November 2007, the Tribunal determined to affirm the decision under review and that decision was communicated to the applicant in detention at Villawood.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations originally included a claim that he would be subject to a gaol term if he returned to Singapore because he had failed to complete the requirements of his national service, and also because he would be subjected to the possibility of imprisonment because he left Singapore as a bankrupt. These two claims were abandoned by the applicant, who realised that they had no Convention nexus and were just matters of laws of general application.
There remains the applicant's substantive claim, which was that as a member of a particular social group, he would be subjected to persecution upon his return to Singapore and, upon his being placed in imprisonment because of the national service and bankruptcy problems, would be subjected to persecution, in respect of which the authorities of the country would be unable to provide him with protection.
The applicant claimed that whilst in Australia he became a member of a Triad organisation and involved in criminal activity. He later informed upon this organisation to the ACC. He feared that if he returned to Singapore and was placed into detention in that country for his bankruptcy or national service offences, he would be murdered by Triad members in the prison and the state would be unable to assist him.
The Tribunal acknowledged, as a result of evidence it received from the applicant's legal advisers, that the applicant had provided useful information to the ACC, and that as a result of that information persons had been arrested. The Tribunal was not satisfied that the applicant was himself a member of a Triad, nor could it be satisfied that the information which the applicant gave to the authorities in Australia related to members of a Triad. However, the Tribunal was prepared to consider the applicant’s situation on the basis that he was a member of a particular social group known as “Triad informers”, without necessarily having ever been, or currently being, a member of a Triad itself [CB 199].
The Tribunal concluded that even if the applicant was a member of this particular social group, the independent country information available to it, and discussed with the applicant, did not indicate that the Triads had control of the prison system to an extent that the authorities within the prison would be unable to protect the applicant. It came to an additional conclusion, which was that in any event there was no Convention nexus between the claimed failure to provide state protection and the persecution feared. In other words, the alleged failure to provide state protection did not arise out of the government's views concerning members of this particular social group. The Tribunal applied the decisions of the High Court in Minister for Immigration v Respondent S152/2003 (2004) 205 ALR 487 per Gleeson CJ, Hayne and Hayden JJ [at 26] and also Minister for Immigration v Khawar (2002) 210 CLR 1 per Gleeson CJ at 26 and per McHugh and Gummow JJ at 84-87.
In his application filed in this court on 10 December 2007, the applicant alleges that the Tribunal exceeded its jurisdiction in making the decision and erred in law in arriving at the decision. No particulars of the excess of jurisdiction or the error of law were provided, but I gather from what the applicant has said to me today that he believes the Tribunal made a factual error in concluding that it could not be satisfied that he ever was a member of a Triad, or that he would be set upon by Triad members should he be returned to Singapore and be incarcerated there for the offences under the general law of which he had advised it.
Errors of fact are very rarely jurisdictional errors: see NABE v Minister for Immigration [2004] FCAFC 263 at [53] per Black CJ, French and Selway JJ. In this case it seems to me that the Tribunal proceeded on an alternative basis which allowed it to consider the essential elements of the Convention without there being any concern that the factual base may have been incorrect. The Tribunal did this by assuming that the applicant was a member of a particular social group, even if he was not himself a member of a Triad. The other information concerning the reach of the Triads within the Singapore prison system was based upon evidence that the Tribunal had from independent sources and was certainly sufficient to allow it to come to the conclusion that it did.
The evidence that is available would appear to indicate that the applicant has been of some assistance to the authorities, that information he has given has been instrumental in obtaining convictions of other persons for criminal offences. It may be that the Minister will consider it appropriate that he should allow the applicant a further opportunity to apply for a criminal justice visa and utilise his powers under s.48B of the Act to declare that s.48A does not apply to this applicant in relation to a future application of that type.
I am unable to see how the Tribunal fell into jurisdictional error in this case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 July 2008