SZMJX v Minister for Immigration
[2008] FMCA 1096
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMJX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1096 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant was a member of a particular social group for the purposes of the Convention. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 |
| Applicant: | SZMJX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1525 OF 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 July 2008 |
| Date of last submission: | 31 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Mr C. Thorpe, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1525 OF 2008
| SZMJX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 May 2008 and handed down on that day.
The applicant is a citizen of the Netherlands (“the Applicant”).
The Applicant arrived in Australia on 26 July 2006 having departed legally from the Netherlands on a passport issued in his own name and a visitor’s visa.
On 2 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 15 April 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 16 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 21 May 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 13 June 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statutory declaration in support of his protection visa application.
The Applicant stated that he travelled to Australia in July 2006 in order to be married.
The Applicant stated that when he came to Australia he allowed a friend to live in his leased home in the Netherlands and had arranged for his friend to forward his mail to Australia. The Applicant stated that after his marriage in Australia, he contacted his friend and asked him to take over the tenancy in his own name or to give up the tenancy as the Applicant believed he would spend the rest of his life in Australia with his wife.
The Applicant stated that just prior to being detained he became aware that his friend had not taken over the tenancy of the house in the Netherlands nor moved out. The Applicant then stated that he received notice from authorities in the Netherlands that his personal registration that was linked to him living in the house, had been cancelled. The Applicant stated that such cancellation would mean that he would be unable to access social services, would have nowhere to live and would have no means of supporting himself in the Netherlands. Furthermore, the Applicant stated that there would be a “black mark” next to his name due to the problems with the rental house which would hinder his ability to secure a new rental property.
The Applicant stated that he feared that he would be killed because he would be forced to live on the streets. The Applicant stated that there are many illegal immigrants in the Netherlands who are homeless and who have caused many social problems and who have a reputation for being violent. The Applicant stated that he feared that if he were forced to live on the streets such illegal immigrants would seriously harm him. The Applicant stated that he has no family in the Netherlands who would support him.
The Applicant stated that at the end of last year he telephoned his house in the Netherlands and the person who answered the phone confirmed that he now held the lease over the property and that, if the Applicant where to return to the Netherlands, he would kill him because “he was responsible for what had happened in the house.”
The Applicant stated that the Dutch authorities would not be able to protect him.
The Delegate’s decision
On 15 April 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Tribunal’s review and decision
On 2 May 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 20 May 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence.
On 7 May 2008, the Applicant’s lawyers wrote to the Tribunal identifying three reasons for the Applicant’s fear of returning to the Netherlands. They were as follows:
i)“The fact that his council registration had been cancelled by the local authorities, thus removing his ability to get access to social services, accommodation or any means of supporting himself.”
ii)“Given that he fears being forced to live on the streets, he fears that homeless Polish or Russian immigrants may attempt to harm him.”
iii)“After a threatening phone conversation with a person named Shabimore just prior to Christmas 2007, the Applicant fears that this person will attempt to kill him. The Applicant believes that Shabimore holds the Applicant responsible for what happened in the house that the Applicant had formerly occupied in the Netherlands.”
On 20 May 2008, the Applicant gave evidence at the hearing before the Tribunal in which the Applicant expanded upon his written claims.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal identified with particularity the Applicant’s written claims, both in support of his protection visa application and in the Applicant’s lawyer’s letter dated 7 May 2008.
The Tribunal explored the Applicant’s claims with him at the hearing and noted in some detail the exchanges it had with the Applicant about his claims.
The Tribunal stated that despite discrepancies in his claims and evidence, the Tribunal relied only on the Applicant’s oral evidence in assessing his claims and drew no adverse inference from any inconsistencies with his written claims.
In relation to (i) above, the Tribunal accepted that the Applicant was deregistered by his municipality in 2007 for being away from the Netherlands for more than 12 months. The Tribunal also accepted that the Applicant no longer has a valid lease over the rental property he occupied prior to travelling to Australia. The Tribunal found that, in accordance with the Applicant’s evidence, the loss of the valid lease was due both to the Applicant’s deregistration and the behaviour of his friends. In the circumstances, the Tribunal found that the Applicant’s deregistration and its consequences were not Convention related.
The Tribunal noted the Applicant’s evidence that, apart from his financial inability to pay the registration fee, there are no impediments to re-registering himself in any municipality. In the circumstances, the Tribunal found that there was no evidence by the Applicant that his financial difficulties were Convention related.
In relation to (ii) above, the Tribunal considered the Applicant’s claim of a fear of harm from violent immigrants if he were forced to live on the streets. However, the Tribunal was not satisfied that any harm the Applicant may face, in those circumstances, would be for any Convention related reason.
In relation to (iii) above, being the Applicant’s claims of having received threatening phone calls from the Netherlands, the Tribunal found that there was no evidence before it to suggest that such threats were Convention related. The Tribunal noted that at the hearing the Applicant acknowledged that his claims did not give rise to any harm that could be attributed to any Convention reasons.
The Tribunal also found that there was no evidence before it to suggest that the Applicant would not be able to avail himself of state protection for any Convention related reason.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court although had the assistance of a Dutch interpreter. The Applicant has participated in the NSW RRT Legal Advice Scheme.
The Applicant confirmed that he had not filed any further document in support of his application. The Applicant confirmed that the grounds upon which he relied were those identified in his initiating application filed on 13 June 2008 and his affidavit in support also filed on 13 June 2008.
The Applicant informed the Court that he was heavily medicated due to depression and sought to have the hearing today adjourned in order to enable him to obtain legal advice. The Court asked the Applicant if he had a medical certificate or any evidence to support his medication and condition such that he would be unable to represent himself at today’s hearing. The Applicant said that he did not have a medical certificate and had no evidence to provide to the Court. The Applicant referred the Court only to information in the Court Book, marked Exhibit 1R. The Applicant did not identify for the Court the particular information in Exhibit 1R upon which he relied. There is nothing in the Tribunal decision’s record to suggest that the Applicant was unable to participate in the review due to any medical condition. Nor is there any such evidence before this Court today. The Court also noted that the Applicant had received free legal advice on 7 July 2008 from Mr David Prince, of counsel, who travelled to Villawood to meet with the Applicant and provide him with written advice in accordance with the NSW RRT Legal Advice Scheme. The Applicant’s application for an adjournment was refused.
The Applicant confirmed that he relied upon the ground stated in his application as follows:
“That the Tribunal misstated and failed to deal with the case presented to it and therefore committed jurisdictional error.”
The Applicant’s affidavit in support of his application appears to particularise the Tribunal’s failure in Ground 1 as a failure to consider the Applicant’s claim of a fear of persecution by reason of his membership of a particular social group of persons who were unable to register themselves and therefore be unable to participate in Dutch society and would be subjected to physical violence.
Counsel for the First Respondent correctly submitted that membership of a particular social group must be a reason for the harm feared and that the harm feared cannot be for the reason of the existence of the particular social group. In support of his submission, counsel for the First Respondent referred the Court to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”) per McHugh J at 226 – 267. McHugh J stated that one cannot rely upon a particular social group that is “impermissibly defined by reference to persecutory conduct.” (at 266). McHugh J stated that:
“It follows that, once a reasonably large group of individuals is perceived in a society as linked or unified by some common characteristic, attribute, activity, belief, interest or goal which itself does not constitute persecution and is known in but not shared by the society as a whole, there is no textual, historical or policy reason for denying these individuals the right to be classified as “a particular social group” for Convention purposes.”
A particular social group that has, as part of its definition, the persecutory conduct feared is not “a particular social group” for the purposes of the Convention (Applicant A at 267).
In the circumstances, the particular social group identified by the Applicant is not capable of being “a particular social group” for the purposes of the Convention because it has in its definition the physical violence which is the claimed fear.
If the fear of physical harm was to be excised from the Applicant’s particular social group, such that the Tribunal might have considered if the Applicant would be targeted by illegal immigrants, the Tribunal found there was no Convention related reason for any harm that the Applicant may face in Holland if he were forced to live on the streets.
The Tribunal also considered the issue of state protection and found that any failure to provide state protection would not be for any Convention related reason. As McHugh J stated in Applicant A at 258:
“Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge to those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to their countries of nationality.”
The physical harm claimed to be feared by the Applicant was from illegal migrants and not the state or any of its instrumentalities. Accordingly, I accept the submissions of counsel for the First Respondent that, in those circumstances the Tribunal’s finding that any failure by the state to protect the Applicant from harm would not be Convention related, “means that the applicant could not be a refugee even if the physical harm would be suffered by him as a result of his membership of some particular social group.”
I also accept the submission by counsel for the First Respondent that the real difficulty with the Applicant’s case is that what he feared was economic harm because of deregistration. That economic harm was a necessary consequence of the Applicant’s deregistration. The Applicant’s deregistration and its economic consequences was not brought about for any Convention reason. Rather, it was because the Applicant had left Holland for more than 12 months. A fair reading of the Tribunal’s decision makes clear that this issue was explored by the Tribunal with the Applicant at the hearing.
Accordingly, Ground 1 is not made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support; and, made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 July 2008
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