SZNVE v Minister for Immigration and Citizenship

[2010] FCA 251

FEDERAL COURT OF AUSTRALIA

SZNVE v Minister for Immigration and Citizenship [2010] FCA 251

Citation:		SZNVE v Minister for Immigration and Citizenship [2010] FCA 251
Appeal from:		SZNVE & Ors v Minister for Immigration & Anor [2009] FMCA 1157
Parties:		SZNVE, SZNLF, SZNLG, SZNLH and SZNLI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1411 of 2009
Judge:		LOGAN J
Date of judgment:		22 March 2010
Catchwords:		MIGRATION – Appeal – Application for protection visa – Fear of persecution for reason of membership of a particular “social group” – Whether Refugee Review Tribunal failed to consider claim as made by appellant – Whether Refugee Review Tribunal failed to address the particular “social group” propounded in the claim – Held Refugee Review Tribunal committed jurisdictional error by failing to consider the claim as made
Legislation:		Migration Act 1958 (Cth)
Cases cited:		SZNVE v Minister for Immigration and Citizenship [2009] FMCA 1157, cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, followed Syan v Refugee Review Tribunal (1995) 61 FCR 284, cited VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39, considered Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, cited NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, cited Minister for Immigration and Multicultural Affairs v Iraselian (2001) 206 CLR 323, cited Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, cited
Date of hearing:	16 February 2010
Date of last written submissions:	23 February 2010
Place:	Brisbane (Via video link to Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Appellants:	Mr A Kumar
Solicitor for the Appellants:	Sarom Solicitors
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1411 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNVE
First Appellant

SZNLF
Second Appellant

SZNLG
Third Appellant

SZNLH
Fourth Appellant

SZNLI
Fifth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	22 MARCH 2010
WHERE MADE:	BRISBANE (VIA VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made by the Federal Magistrates Court on 23 November 2009 are set aside.

3.In lieu thereof, it is ordered that the decision of the Refugee Review Tribunal dated 16 July 2008 is quashed and the matter is remitted to that Tribunal for hearing and determination according to law.

4.The first respondent pay the appellants’ costs of and incidental to the appeal and the application to the Federal Magistrates Court to be taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1411 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNVE
First Appellant

SZNLF
Second Appellant

SZNLG
Third Appellant

SZNLH
Fourth Appellant

SZNLI
Fifth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	22 MARCH 2010
PLACE:	BRISBANE (VIA VIDEOLINK TO SYDNEY)

REASONS FOR JUDGMENT

1. The Appellants are each citizens of the Republic of Fiji.  They arrived in Australia on 21 December 2007.  The following month, on 22 January 2008, they lodged with the Department of the Immigration and Citizenship an application under the Migration Act 1958 (Cth) (the Migration Act) for that class of visa known as a protection visa. The basis for the visa application which they made was the claim advanced by the First Appellant. The Second Appellant is his wife and the Third, Fourth and Fifth Appellants are the daughters of the First and Second Appellants. The Second to Fifth Appellants advanced no separate claim for a protection visa. Rather, their claims were derivative in the sense that their entitlement to a protection visa depended upon acceptance of the claim made by the First Appellant.

2. On 16 April 2008, a Delegate of the Minister for Immigration and Citizenship (the Minister) refused the application for a protection visa which the Appellants had made.  The Minister is the only active party Respondent in the present appeal.

3. On 5 May 2008, the Appellants sought the review of the Minister’s refusal decision by the Refugee Review Tribunal (the Tribunal).  On 16 July 2008, the Tribunal decided to affirm the decision of the Minister not to grant protection visas to the Appellants.  That decision was communicated by the Tribunal to the Appellants’ Migration Agent under cover of a letter dated 29 July 2008.  The Tribunal’s reasons for decision were also enclosed with that letter. 

4. The Appellants then sought judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 23 November 2009, for reasons given that day, the Federal Magistrates Court dismissed the judicial review application with costs: see SZNVE v Minister for Immigration and Citizenship [2009] FMCA 1157.

5. There are two grounds of appeal namely:

   1.The Refugee Review Tribunal committed jurisdictional error by failing to consider the first appellant’s particular social group of when he was a member.  The correct identification of the first appellant’s social group was misconceived by the Tribunal.

   2.The Refugee Review Tribunal’s decision was illogical and irrational, unsupported by probative material and the inference of fact upon which it based its decision could not be reasonably drawn, when it concluded that the appellant did not claim to have organised the strike or that he had a high profile in the strike action.

6. Of these grounds, ground 2 was abandoned at the commencement of the hearing by Mr Kumar of Counsel who appeared on behalf of the Appellants.  Ground 1 was pressed.

7. The Appellants’ submission was that the First Appellant had made it clear in his visa application that he was of interest to the military in Fiji because of his long standing employment and senior role as an employee in a particular department of the Fijian Government.  The Appellants submitted that the proper social group on the material before the Tribunal was a social group with the following attributes:

   (i)indigenous Fijians;

   (ii)members of the union;

   (iii)long standing civil servants/government employees;

   (iv)holding supervisory/senior roles;

   (v)holding views opposed to the reform of the civil service by the unelected military government of Fiji including the reduction of the wages of the civil servants;

   (vi)government employees with readiness to express opposition/opinions including imputed political opinion.

   (vii)willingness to participate in union activities. [sic]

8. It was then further submitted on behalf of the Appellants that the Tribunal had proceeded to make a general assessment against the general population in Fiji rather than against the First Appellant’s particular social group.  The vice evident was submitted to be the same as that identified in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, particularly at [24]. Put shortly the submission was that the Tribunal, contrary to the obligation which it had under the Migration Act, had not dealt with the protection visa claim which had been put forward.

9. It was then further submitted on behalf of the Appellants that the learned federal magistrate had erred in failing to accept that the decision of the Tribunal was tainted by this jurisdictional error.

10. The initial response of the Minister to this submission was that it failed because, as it was contended that the learned federal magistrate had found, the issue of the First Appellant’s membership of a social group was irrelevant.  This was so, it was submitted, because “the Tribunal found the [First] Appellant’s fears were not well founded regardless of whether there was a Convention nexus to their claims or not”. Thus, it was submitted, it did not matter whether the First Appellant feared harm for reason of his imputed political opinion, membership of a particular social group, or any other convention ground.

11. The Appellants’ riposte to this was, in effect, to reiterate a proposition already made in submissions namely, that the Tribunal’s obligation was to deal with the claim as made.  I understood the Appellants to submit that whether a fear of his persecution was well founded had to be measured as against the claim as made. 

12. Late in the hearing of the appeal, Mr Reilly of Counsel, who appeared on behalf of the Minister, advanced a further submission as to why the appeal ought to be dismissed. By analogy with cases touching upon whether it was permissible for the Tribunal to make a finding that it was reasonable for a visa applicant to relocate without first considering the other elements of the definition of refugee, it was submitted that it was permissible for the Tribunal to have determined the fate of the review application in respect of the visa refusal decision just by reaching a conclusion that the First Appellants’ claimed fears were not well founded.  Such a finding, it was submitted “necessarily comprehended any risk arising from his activities viewed as an expression of political opinion or as a manifestation of his membership of a social group”. 

13. Because this submission was made late and not then fully developed it seemed to me in the interests of justice that the Appellants not then be required immediately to respond to it by way of oral submissions.  Rather, I made directions for the filing and service of a supplementary submission on behalf of the Minister with provision then for a submission in reply by the Appellants.  In that supplementary submission the Minister pressed the argument already mentioned as to the relevance by analogy of cases concerning the Tribunal’s first consideration of relocation.  The Appellants in reply noted that a decision principally relied upon by the Minister, Syan v Refugee Review Tribunal (1995) 61 FCR 284 had been decided prior to the Dranichnikov case.  Later authority and in particular, VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39, underscored, so it was submitted, that a failure on the part of the Tribunal to consider the visa application as made could not be remedied by an independent finding on the part of the Tribunal that the claimed fear was not well founded.

14. A convenient starting point for an assessment of the merits of the appeal is a consideration of what was put forward as the basis for the claim by the First Appellant in the visa application.  That is to be found in a letter of 17 January 2008 from the Appellants’ migration agent directed to the protection visa section in the department.  It is there stated, materially:

    It is suggested that it may be recognised that there are sufficient innate characteristics to enable the Applicant to be regarded as a member of a particular social group in accordance with Section 91 S of the Migration Act.

    The Applicant has been a long-term employee of the public works service division of the Department of Water and Sewerage.  He has been employed as water fitter on the western side of Fiji in the Lautoka area.  During this period he has also been active in his union, a position that has placed him in increasing opposition to the growing militancy of the Military Government.

    The Dept. Is no doubt aware that the previous Government was effectively displaced by the threat of violence imposed by the military.  The current head of state, who is, as I understand is referred to as both Prime Minister and Commodore, is Frank Bainimara.  It is asserted that the basis of power is dependant on the veiled threat of violence.  If there is any perceived opposing the military attend and can take any citizen to the local army barracks where it is alleged such persons may be subject to torture and extreme intimidation.  There is considerable irony in the claim that indigenous Fijians appear to be more likely to be subject to this arbitrary mistreatment than the Indian minority, who appear to have accepted the situation insofar as recognising their own political impotence. This group primarily seeks to participate in commerce to the exclusion of political expression.

    The Applicant played a prominent role in a recent widely publicised strike which prompted the attention of the military.  The strike took place over a period of approx. five days in August 2007.  It was precipitated by the arbitrary decrease of wages for public servants.  During 2007 there were two pay cuts, totalling approx. 10 per cent.  The protests and strike took place in Lautoka city around the public employment union office.  At times there were groups of up to three hundred.  Army personnel attended and threats were issued that if they did not desist the soldiers would take action.  The clear inference of such threats was that some strikers would be taken back to army barracks where they could face torture, beatings, etc.

    To corroborate such concern there has been a regular level of publicity from persons who have been mistreated in such a similar fashion.  Indeed there have been reports of persons who have died as a result of their injuries and I emphasise that the principal demographic that has been subjected to this type of abuse has been the indigenous Fijians.

    The impact of the threats was such that after a five day period the strike finished without obtaining benefit.  What was particularly alarming and which served to act as a catalyst for the Applicants departure was the fact that the Applicant received a number of threatening phone calls indicating to the effect that he has been recognised as a troublemaker.  I am also instructed that Army personnel attended the public works office and issued threats against the Applicant, albeit in his absence.

    The Applicant is in charge of a 15 person work gang and is a long established employee.  It is his belief, and that shared by his wife, that if they are obliged to return to Fiji either he or members of his family would be subject to the type of arbitrary arrest and intimidation, the character of which is becoming increasingly well-established.  It is a real and credible threat that can be directed to persons who may even be seen as “low-level” regarding their political activity.

    I have omitted from this extract of the Migration Agent’s letter identifying particulars in respect of the First Appellant. 

15. The First Appellant made no different claim when the review application was heard by the Tribunal. 

16. The following passage from the Tribunal’s reasons under the heading “Findings and Reasons” seems to me to contain the Tribunal’s perception of the claim for a protection visa:

    46.The applicant claims, that the Tribunal accepts, that he was a long time worker in the Ministry for Local Government, Urban Development and Public Utilities, Department of Water and Sewerage and that over 15 years he rose to the position of being a leading hand in the metering section of the Lautoka office having responsibility for 15 people.  The Tribunal also accepts that he participated in a five-day strike in the second week of August 2007, during which the military took his name and following which they came to his office several times to threaten him when he was not there, and also made threats to him on his work mobile phone, notwithstanding a number of minor discrepancies including the actual date that the strike was held and the dates when threats were made to his workmates when he was absent (variously described as being the first week of August 2007, as it supported by the letter from Mr Tomasi Ratakele, or the second week of August 2007 as he claimed at the hearing).  The Tribunal also accepts that, at the time, this scared him and so he started to work irregular hours and returned home late at night as was confirmed by his wife who appeared at the Tribunal hearing as a witness.

    47.However, and while accepting these claims, the Tribunal also accepts that the applicant was only one of some 500 people to participate in this particular strike that lasted only five days in the second week of August 2007.  The Tribunal also accepts that he had a limited involvement in the strike which emanated from his being a leading hand and a union member, and his tasks were a very menial in nature such as to inform the members of his work unit about the motivation for the strike and strike activities, as well as arranging for them to receive food while on strike.  Moreover, the applicant does not claim that he was a member of the executive committee of the union or an office holder in it, but rather that he was only a financial member (as is confirmed by the undated letter from the Public Employees Union provided to the Department on 18 February 2008).  And while claiming at the hearing that he was a spokesman, when this claim was investigated at the hearing it was made clear that what the applicant was saying was that he spoke to people in his work unit about the strike, both in the period leading up to its being called and during the actual strike itself, rather than being a union spokesman or leader in the strike itself.  Indeed, the applicant does not claim that he organised the strike, led any demonstrations, wrote the banners or protest slogans, made speeches, or that for any other reason he had a high profile in the strike action. Accordingly, from the claims made by the applicant, and the information he has provided, the Tribunal accepts that the applicant was an ordinary participant in this five-day strike for better conditions in the second week of August 2007, along with some 500 other people, but does not accept that he had a high profile of any sort, or that his role was anything other than that of an ordinary strike participant.

17. Against this background and following an assessment and the reaching of conclusions in respect of the position in Fiji, the Tribunal remarked (reasons, para 56):

    Given all the above, it follows that while the Tribunal accepts that the applicant may have initially been threatened at the time of the August 2007 strike also received threats immediately following it, the Tribunal is not satisfied that this situation continued for very long after the strike in which the applicant was involved in early 2007 ended, and finds that the applicant does not have a well founded fear of serious harm amounting to persecution on this basis. [sic]

18. At para 57, the Tribunal continued:

    In short, the Tribunal accepts that the applicant received a number of threats made to both his work colleagues in his absence and on the telephone during, and in the immediate post strike period, in the first two weeks of August 2007.  However, the Tribunal is satisfied that these threats were made in the immediate context of the strike itself and there were no further threats made against him once the strike and its immediate aftermath settled down or that any concerns he may have had even two months after the strike ended were well founded.

19. In disposing of the ground which has come to be pressed on appeal, the learned federal magistrate observed (reasons for judgment, [42]), “ultimately, the Tribunal was not satisfied that the applicant’s fear remains well founded”.  Her Honour accepted a submission which had been made by counsel then appearing on behalf of the Minister that the ground of review concerned, now the only ground of appeal pressed, reflected a misconception on the part of the Appellants as to the basis upon which the Tribunal had made its decision.  Her Honour stated (reasons for judgment, [44]):

    The identification of the applicant’s social group played no part in the Tribunal’s ultimate conclusion that the applicant’s fear was not well founded.  The Tribunal did not base its decision on a rejection that the applicant belonged to a particular social group or had an actual or imputed political opinion.  Rather, the Tribunal found, based on the applicant’s own evidence, there was not a real chance that is the applicant returned to Fiji he was at any real risk of experiencing harm at the hands of the military for any convention related reason.

1. Her Honour expressed the opinion that the Tribunal’s findings and conclusions as to an absence of real chance of persecution were open to it on the evidence and materials which were before it. 

2. In their joint judgment in Dranichnikov (at [24]), Gummow and Callinan JJ, with whom Hayne J agreed, stated:

   To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

3. Their Honours further stated (at [26] and [27]):

   26.At the outset it should be pointed out that the task of the Tribunal involves a number of steps.  First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.  That determination in part at least involves a question of law.  If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class.  They then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a convention reason. 

   27.The Tribunal failed to decide the first question.  It decided another question, whether Mr Dranichnikov’s membership of a social group, namely of ‘businessmen in Russia’ was a reason for his persecution and relevantly nothing more.  The Tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessman who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

   In a separate judgment, Kirby J also reached the conclusion that the Tribunal had misstated the social group relied upon by Mr Dranichnikov and that this misstatement had affected the Tribunal’s decision.  The Chief Justice, Gleeson CJ, dissented on the basis of a different understanding of the reasons of the Tribunal having regard to, in particular, the way in which Mr Dranichnikov’s case had been presented to the Tribunal.

4. Both before and after the High Court’s decision in Dranichnikov the Full Court of this Court has held that the Tribunal will commit a jurisdictional error if it has failed to address the claim for a protection visa which has been put forward by the visa applicant in the material before the Tribunal, providing that claim is one which emerges clearly on that material:  Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13]-[14] per Merkel J; at [41]-[42] per Allsop J; at [1] per Spender J; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68].

5. These authorities acknowledge that the definition of refugee, though a compound concept, consists of a number of elements. If the Minister or the Tribunal is not satisfied as to even one of these elements, that would form a lawful basis upon which not to be satisfied that the visa applicant was a person to whom Australia owed a protection obligation for the purposes of the Migration Act. Thus, for example, if the fear of persecution results from the application to the visa applicant of a law of general application and there is no discrimination there can no be persecution and hence a claim must fail: see Minister for Immigration and Multicultural Affairs v Iraselian (2001) 206 CLR 323. This though assumes that the administrative decision maker, be that person the Minister, a delegate or the Tribunal, has assessed the claim as made.

6. In Dranichnikov  and by reference to the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 256 – 257, Kirby J observed (at [69]):

   An applicant faces a paradox in identifying the ‘particular social group’ that he or she relies on in cases of this kind.  Defining the group widely increases the ease of establishing membership of that group and, to that extent, or fulfilling a requirement of the convention definition. However, the wider the definition of the ‘group’ propounded, the more difficult it may be for the applicant to show that the suggested fear is one of ‘persecution’ which is ‘well-founded’ and exists ‘for reasons of’ membership of that social group.  If the category is defined too narrowly, the decision-maker might be justified in considering that the ‘particular social group’ claim is not a ‘social group’ at all when that phrase is read as an element of an international treaty intended to have operation of the level of the obligations imposed upon nation states.

7. Here, the First Appellant faced just such a paradox.  His Migration Agent in the accompanying letter cast the claim by reference to a particular asserted social group to which it was said that the First Appellant belonged.  One feature of that asserted particular social group was the supervisory role which the First Appellant had in the Fijian Public Service.  The claim was not put forward, as the Tribunal apparently apprehended, on the basis that the First Appellant was but one of some 500 members of a union covering the civil service who had engaged in protest.  Nor was the claim put forward on the basis that the First Appellant had any particular prominence in the union.  Rather, the claim for prominence and social group membership was asserted to be on the basis of the supervisory role which the First Appellant had in the Fijian Public Service.  The Tribunal never in terms addressed the particular social group propounded in the claim.  Rather, as in Dranichnikov, a different claim was considered. That the holding of a supervisory position in the Fijian Public Service was a particular feature of the First Appellant’s claim does, in my opinion, emerge clearly enough from a fair reading of the Migration Agent’s letter. Accompanying the protection visa application.  Also as in Dranichnikov, the Tribunal seems to have accepted the First Appellant’s evidence as to his position in the public service and involvement in union protest activity.  It also seems to have accepted that, thereafter, threats were made against him. 

8. The answer to the Minister’s reliance by analogy, upon cases where there has been a finding of an ability to relocate is, in my opinion, supplied by Merkel J in VWBU at [9]. His Honour there dismissed the alternative submission that, even if the claim as made had not been addressed, the appeal must fail because the Tribunal had made an independent finding of adequate state protection. As His Honour there observed, the failure to deal with the specific claim was plainly relevant to the issue of adequate state protection for the Appellant. Here, the reaching of a conclusion as to whether or not a fear was “well-founded” necessarily involved an understanding of the basis upon which that fear was said to be held. To fail to address the claim as made is to fail to exercise the jurisdiction consigned to the Tribunal in reviewing the Minister’s decision.

9. None of this is to deny that the clarity with which membership of a particular social group is regarded as having been claimed may to some seem more obvious in hindsight than in prospect. With respect, the dissent of Gleeson CJ in Dranichnikov is eloquent in that regard. It is for an applicant to identify the basis of a claim for a protection visa both at the time of making the original application and, as the case may be, on review by the Tribunal and not to engage, after a claim as made has been dealt with on the merits, in the promotion, as a jurisdictional error, of some artificial construct of a claim never hitherto advanced. A Migration Agent acting for an applicant for a protection visa assumes a heavy responsibility to identify from the instructions received the basis for the claim and accurately to specify the same in an application or supplementary document. Equally, given the very basis upon which the Migration Act provides for the granting of a protection visa, it behoves an administrative decision-maker to understand and decide the claim as made and not an artificial construct. I do not underestimate the difficulty that task may sometimes entail in respect of a person whose first language may not be English or whose level of formal education may be limited. If though, making due allowance for all of these factors, a fair reading of the claim as made and the reasons of the administrative decision-maker discloses that the claim as made has never been addressed a jurisdictional error will thereby be revealed. As it happens, and contrary to the conclusion of the learned federal magistrate, my opinion is that just such an error is present in this case.

10. For these reasons, the appeal must be allowed and the matter remitted to the Tribunal for hearing and determination according to law.  There is no reason why costs should not follow the event.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        22 March  2010