SZODF v Minister for Immigration

[2010] FMCA 214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZODF v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 214

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed whether the applicant was a member of a particular social group – whether the applicant would be able to access adequate state protection.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65(1)(b); 189; 424A(1); 424A(3)(a); 424A(3)(b); 474; 501; pt.8 div.2

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152

Applicant: SZODF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 201 of 2010

Judgment of: Emmett FM

Hearing date: 18 March 2010

Date of Last Submission: 18 March 2010

Delivered at: Sydney

Delivered on: 29 March 2010

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent: Mr P. Reynolds

Solicitors for the Respondent: Mr R. Baird, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 201 of 2010

SZODF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. 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 6 January 2010 and handed down the same day.

2. The applicant claims to be a New Zealand citizen from the Cook Islands and of Maori ethnicity (“the Applicant”).

3. On 27 January 1987, the Applicant arrived in Australia for the first time from New Zealand. Between 27 January 1987 and 25 December 1995, the Applicant travelled between Australia and New Zealand on four separate occasions.

4. On 25 December 1995, the Applicant arrived in Australia from Auckland on a passport in his own name and a subclass 444 visa.

5. On 5 February 1999, the Applicant was convicted of attempted murder by the Supreme Court of Victoria and sentenced to imprisonment for 14 years. On 26 August 1999, the Applicant was convicted of false imprisonment and assault and sentenced to 12 months imprisonment for each charge arising out of offences committed 2 years earlier.

6. On 23 May 2009, the Applicant’s subclass 444 visa was cancelled pursuant to s.501 of the Act. On 2 June 2009, the Applicant lodged an application for review of the cancellation of his visa with the Administrative Appeals Tribunal.

7. On 3 June 2009, the Applicant was released on parole from prison and detained pursuant to s.189 of the Act at Villawood Immigration Detention Centre.

8. On 14 August 2009, the Administrative Appeals Tribunal affirmed the Department OF Immigration and Citizenship’s (“the Department”) decision to cancel the Applicant’s visa.

The Applicant’s protection visa application

1. On 4 November 2009, the Applicant lodged an application for a protection visa with the Department. In support of his protection visa application the Applicant provided a statutory declaration, dated 10 November 2009. The Applicant claimed to be a Catholic Cook Islander and Maori New Zealander. The Applicant claimed to experience “occasional memory loss” and “hearing impairment in both ears”.

2. The Applicant claimed that in 1987 two rival gangs were involved in violence in Auckland New Zealand and that the Applicant witnessed a gang attack from members of the “Tribesmen” gang upon some tourists. The Applicant stated that he ran over and pulled the gang members off the tourists resulting in the gang members turning on him and beating him unconscious. The Applicant stated that the police arrived and the gang members fled. The Applicant stated the police did not arrest any of the gang members who tried to kill him. Rather, the police suspected that the Applicant was a member of the gang and took him to the police station in Auckland for questioning. The Applicant stated that the police did not protect him from harm because they are associated with gangs in New Zealand. The Applicant stated that he left New Zealand in 1987 for Australia.

3. The Applicant stated that whilst he was in prison in Australia between 1997 and June 2009, prisoners belonging to the Maori gang, the Tribesmen, harmed him and tried to kill him. The Applicant stated that in an incident prior to 2004 in Fulham prison in Victoria he disarmed a prisoner who was attacking a female prison officer.

4. The Applicant stated that he was then transferred to Bowen prison in Victoria later in 2004 and half an hour after his arrival he was attacked by several prisoners. The Applicant stated that the attack was retribution for his involvement in intervening in the fight in Fulham prison.

5. The Applicant stated that, in April 2009, he was attacked at Bowen prison by a prisoner whilst eating breakfast and had boiling milk thrown at him injuring his right eye, right shoulder and stomach. The Applicant stated that he was not sure who the prisoner was, but that the attack may have been “directed by the Tribesmen”.

6. The Applicant claimed that members of the Tribesmen continued to threaten him, harm him and try to kill him when he was in prison in Victoria because he intervened in a fight between members of the gang and other people inside the prison. The Applicant stated that he was known to the Maori Tribesmen in New Zealand and in Australia and would be targeted by members if he returned to New Zealand or the surrounding islands. The Applicant stated that the Tribesmen knew that the Applicant had “become involved in their affairs and tried to prevent violence between them and other gangs in New Zealand and Australia.”

7. The Applicant stated that the New Zealand police would not protect him because he is a Maori and Cook Islander and associated him with being involved with violent gangs. The Applicant stated that the police and government in New Zealand could not protect him because “gang members know the police and the police know the gang members.” The Applicant stated that the police did not arrest and charge the gang members for the crimes they had committed against him and did not protect Maoris and Islanders.

The Delegate’s decision

1. On 8 December 2009, the Applicant attended an interview with a delegate of the Department of Immigration and Citizenship (“the Delegate”), during which the Applicant’s representative sought an adjournment in order to receive further instructions from the Applicant. The Applicant was interviewed again on 18 December 2009 and provided further written claims at that time.

2. The Delegate found that the Applicant had not advanced any claims that he would be targeted by members of the Tribesmen gang in New Zealand for any Convention related reason.

3. However, the Delegate noted that the Applicant’s written claims stated that he would not be afforded an adequate level of state protection in New Zealand because of his ethnicity as a Maori and Cook Islander.  The Delegate noted that the Applicant’s claim that he would not be afforded an adequate level of state protection on account of his ethnicity was not consistent with available country information. When the Applicant’s claim was read to him by the Delegate at the interview and the Applicant was invited to comment, the Delegate noted that the Applicant did not affirm his written claim about the lack of state protection. The Applicant told the Tribunal that police in New Zealand were good and that he did not claim that the police would discriminate against him because of his ethnicity or for any other reason. However, the Applicant confirmed that the police did not have the ability to protect him from members of the Tribesmen gang.

4. Further, the Delegate noted that the Applicant told him that, following his attack in 1987 by members of the Tribesmen gang, the Applicant chose not to pursue charges against his attackers as he feared the gang may retaliate against his family.

5. The Delegate found there was no Convention ground that was the essential and significant reason for the harm the Applicant claims to fear and that the Applicant’s claim has no Convention nexus.

6. The Delegate noted that because it found no Convention nexus, it was not required to make a finding regarding persecution or whether or not the Applicant’s alleged claimed fear was well-founded.

7. The Delegate refused the Applicant a protection visa on the basis that he was not a person to whom Australia has protection obligations.

The Tribunal review

1. On 21 December 2009, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal. The Applicant was represented by an adviser from Craddock Murray Neumann Lawyers.

2. On 24 December 2009, 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 information alone. The letter invited the Applicant to come to a hearing before the Tribunal on 5 January 2010 and to send to the Tribunal any further documents, written arguments or any new information he wished the Tribunal to consider.

3. On 4 January 2010, the Applicant’s adviser wrote to the Tribunal confirming that the Applicant believed that New Zealand police would not protect him because they were powerless against gangs in New Zealand. The letter contained extracts of country information relating to the prevalence of criminal gangs throughout New Zealand and their willingness to attack members of opposing gangs. The letter stated that “those who are perceived to be associated with such criminal gangs constitute a recognisable particular social group in New Zealand society.” The letter went on to state that the Applicant was a member of such a particular social group.

4. The Applicant attended a hearing before the Tribunal at which he gave evidence. The Tribunal referred to the Applicant’s written claims and his oral evidence at each of the two interviews with the Delegate. The Tribunal then explored the Applicant’s claims with him, including asking what he believed would happen to him if he returned to New Zealand. The Tribunal noted the Applicant’s response that he would be killed in New Zealand by members of the Tribesmen gang because they had not managed to “finish him off in prison in Australia.”

5. The Tribunal also explored with the Applicant the issue of state protection and noted his inconsistent evidence in relation to his claims about whether or not the police would not protect him because he is a Maori and Cook Islander. The Tribunal noted that it asked the Applicant why he thought New Zealand police would not be able to protect him and noted the Applicant’s response that “it had become too personal”. The Tribunal noted that the Applicant said that the New Zealand police were doing all they could to reduce gang warfare, but that it had become “personal and very deadly”. The Applicant then confirmed that he was not intending to assert that New Zealand police would not try to protect him, rather, that they would be unable to guarantee his safety to the constant threats.

6. The Tribunal also noted that when it asked the Applicant if he had ever been a gang member or associated with a gang, he responded, no.

7. The Tribunal then had regard to country information before it which it identified with some specificity about police in New Zealand seeking to control gang violence. The Tribunal noted that it discussed the country information with the Applicant including confirming with the Applicant that it accepted there is gang related violence in New Zealand. However, the Tribunal noted that it also told the Applicant that country information indicated that New Zealand is a country which respects the human rights of its citizens and is taking steps to reduce the socio-economic disparities between the Maori New Zealand population and the broader New Zealand population, including attempting to recruit Maori members into the police force. The Tribunal noted that it referred to the New Zealand police force currently having a significant level of control over the criminal activities of gang members and that many gang members, including from the Tribesmen gang, had been arrested in recent years. The Tribunal noted that it told the Applicant that there could never be a 100% guarantee of protection, but that that is not what is required under refugee law. The Tribunal noted the Applicant’s responses to these matters.

8. The Tribunal then referred to the written submission from the Applicant’s representative, including the country information on gang violence in New Zealand and government control.

9. The Tribunal explored with the Applicant his claims of going to the assistance of an attack on a female prison officer. The Applicant said that, as a result, he had become “one of the most hated men in the Victorian prison system because he protected the female prison officer.” The Tribunal noted that it asked the Applicant if that meant he would be in more trouble in Australia than New Zealand and noted the Applicant’s response that “they have more members in New Zealand.”

10. The Tribunal noted that it discussed with the Applicant and his representative the Applicant’s claim to belong to a particular social group of people who are perceived to be associated with criminal gangs. The Tribunal noted that it put to the Applicant that his membership of that group was not the reason for his claimed fear of harm from the Tribesmen. The Tribunal noted that it put to the Applicant that the motive of the members of the Tribesmen gang for harming him was because he became involved in their fights and business and that the Applicant did not feel harm from them for a Convention related reason. The Applicant responded that gang members believed he was a member of another gang as he talks to friends who are members of gangs.

11. The Tribunal noted that it explained to the Applicant that this was a new claim and that the Tribunal may find that the essential and significant reason for the harm claimed was because he became involved in the business and fights of the Tribesmen. The Tribunal noted the Applicant’s response that other gangs, including the Tribesmen gang, believed he was a member of a gang.

12. The Tribunal noted that it explained to the Applicant that, even if the Tribunal found that there was a Convention nexus because the Applicant is a member of a particular social group, the Tribunal considered that the Applicant would get adequate state protection to an international standard.

13. Ultimately, the Tribunal found the Applicant’s new claim to be perceived as a member of a gang contrary to his earlier evidence that he had never been associated with a gang. For that reason, the Tribunal did not accept that the Applicant feared harm from members of the Tribesmen gang because of his membership of a particular social group. The Tribunal found that the Tribesmen had harmed the Applicant because he became involved in their business or fights and not because he was a member of another gang.

14. The Tribunal also was not satisfied that the Applicant would be discriminated against when accessing state protection in New Zealand because he was a Maori and Cook Islander, having regard to country information before it. The Tribunal was satisfied that the Applicant would be able to access adequate state protection from the New Zealand authorities in accordance with international standards.

15. The Tribunal also noted that the Applicant made a general claim before the Delegate that because he had a criminal record in Australia it would affect his chance of obtaining employment. However, in light of country information before it indicating that the New Zealand government was taking steps to reduce the socio-economic disparities between the Maori New Zealand population and the broader New Zealand population, the Tribunal was not satisfied that there was a real chance that the Applicant would suffer serious harm due to his criminal record if he were to return to New Zealand. The Tribunal noted that the Applicant’s claim that his criminal record would affect his chance of obtaining employment “did not have much detail and the applicant confirmed the Delegate’s question about obtaining employment without providing any detail.”

16. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court and had no need of an interpreter. The Applicant confirmed that he relied on the grounds of the application filed by him on 1 February 2010. Those grounds are as follows:

   “1. The Decision is affected by jurisdictional error.

   The Tribunal erred in finding that I was not a member of a particular social group, namely “those who are perceived by members of one gang to be a member of another gang”.

   At the hearing I gave evidence that during my employment as a bouncer I was involved in fights and that some of the fights involved gang members who had threatened me that I would be killed if I returned to New Zealand. Although I stated I had not been involved with gangs myself, on the basis of the foregoing evidence given it was open to the Tribunal to find that I would be perceived “by members of those gangs (with whom I had been involved in fights), as a member of another gang”.

   2. The Tribunal erred in concluding on the basis of country evidence available that in New Zealand I would get adequate protection from the State authorities.

   The Tribunal failed to take account of the evidence I gave and my repeated statements to the Tribunal that my situation had escalated to a very personal level whereby no level of State protection would be able to ensure my safety in New Zealand. This is because I was well known to gang members through the gaol system and these gang members had links to others outside and I had been personally targeted and threatened and several times had been attacked even whilst in gaol.”

2. The Applicant attended a directions hearing before a Registrar of the Court on 24 February 2010 on which occasion he was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon and any further evidence by way of affidavit upon which he intended to rely, including any transcript of the Tribunal hearing by 12 March 2010. The Applicant was also directed to give notice to the Court and the First Respondent if he intended to rely on recordings of the Tribunal hearing and to file and serve written submissions in support of his application by 12 March 2010. The Applicant confirmed at the commencement of the hearing that he had not filed any further documents either in accordance with those directions or otherwise.

Ground 1

1. The Court read to the Applicant ground 1 and invited him to say whatever he wished in support of that ground. Other than stating that he was a member of a gang and that he feared for his life, the Applicant made no relevant or meaningful submission in support of ground 1.

2. The Applicant stated that he had had a lot of memory problems for the last 4 years. The Court asked the Applicant if he had any medical evidence to suggest that he was not well enough to attend the hearing before this Court. The Applicant responded that he did not have any such evidence and that he would do the best that he could. He did not seek an adjournment to provide such evidence, or for any other reason.

3. Ground 1 appears to be a disagreement with the finding and conclusion of the Tribunal that the Applicant was not a member of a particular social group, namely those who are perceived by members of one gang to be a member of another gang, whether or not there is such a particular social group recognised in New Zealand.

1. However, as is clear from the analysis above, the Tribunal did not accept that the Applicant would be perceived by members of the Tribesmen gang as a member of another gang. The Tribunal had regard to the Applicant’s evidence that he had never been a member of a gang or been associated with a gang.

2. As stated above, the Tribunal was not satisfied that the essential and significant reason for the harm the Applicant claimed to fear was because of membership of the particular social group identified by the Applicant. The Tribunal found that the Tribesmen gang members attacked the Applicant because he interfered in their business and fights. Further, I accept the submission of counsel for the First Respondent that “even if the claimed particular social group existed, the Tribunal nevertheless found that the claimed fear was for reason of what the Applicant had done (interfered with the Tribesmen’s business and fights), rather than for who he was (a person perceived as being a gang member).” The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

3. In the circumstances, there is no error in the Tribunal’s finding that the Applicant was not a member of a particular social group, namely those who are perceived by one gang to be a member of another gang.

4. It is for the Applicant to satisfy the Tribunal that he meets the criteria for being a refugee. The Tribunal was not so satisfied. In the circumstances, s.65(1)(b) of the Act mandates that a decision maker such as the Tribunal must refuse the application.

Ground 2

1. The Court read ground 2 to the Applicant and invited him to say whatever he wished in support of that ground. The Court also invited the Applicant to say anything further in support of his application generally. The Applicant declined to say anything further at all.

2. Ground 2 also appears to be no more than a disagreement with the finding of the Tribunal that the Applicant would get adequate protection from state authorities in New Zealand.

3. However, the Tribunal was entitled to give such weight as it saw fit to the country information before it (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ) and to prefer it over the Applicant’s evidence that he would not be protected.

4. The Tribunal correctly had regard to the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 (“S152/2003”) in considering the appropriate level of protection. The Tribunal correctly noted that it was to be determined by “international standards” and observe that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence” (at [26]). The Tribunal noted that Kirby J stated that the Convention did not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one” (at [117]). The Tribunal noted that the joint judgment in S152/2003 referred to the obligation of the state to take “reasonable measures” to protect the lives and safety of its citizens, including “an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system” (at [26]) or a “reasonably effective police force and a reasonably impartial system of justice” (at [28]).

5. The Tribunal’s findings were open to it on the evidence and material before it that the state protection offered available by authorities in New Zealand was to international standards and that, in the circumstances, the Applicant would be able to access adequate state protection in accordance with those standards. The Tribunal did not accept that the Applicant would be discriminated against when accessing state protection because he was a Maori and Cook Islander.

6. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

7. Accordingly, ground 2 is not made out.

8. In the circumstances, the grounds of the Applicant’s application do no more than invite merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).

9. Otherwise, the issues raised in both grounds 1 and 2 were issues before the Delegate. In the circumstances, they were issues in respect of which the Applicant is taken to have been on notice. The Applicant’s adviser specifically addressed the issue of the Applicant’s membership of a particular social group and the issue of state protection in the written submission, dated 4 January 2010. In the circumstances, there was no issue decided by the Tribunal of which the Applicant was either not on notice or had not been raised with him by the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ AT [35], [37] and [42]).

10. Otherwise, the only information to which the Tribunal had regard in affirming the decision under review was either information given to it by the Applicant for the purpose of his review or independent country information. There was no information that otherwise enlivened the obligations of s.424A(1) of the Act. The information provided by the Applicant was excluded from the obligations of s.424A(1) by reason of s.424(3)(b) of the Act. The country information was not specifically about the Applicant and was just about a class of persons of which the Applicant claimed to be one. It was therefore excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a).

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard and put that information to the Applicant and noted his responses. The Tribunal then 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 the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. 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.

3. 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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  29 March 2010