SZOPN v Minister for Immigration

[2010] FMCA 891

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPN v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 891

MIGRATION – Review of RRT decision – applicant a citizen of Cambodia who was convicted of drug smuggling in Australia and applied for refugee protection upon expiration of his gaol sentence – where applicant feared recriminations from co-accused whom he had informed on to Australian authorities – where Tribunal did not accept that applicant faced persecution on account of his membership of a social group or that his fear of persecution was for a Convention reason – whether that conclusion open to the Tribunal on the evidence.

Migration Act 1958 (Cth), s.424A

Applicant A v Minister for Immigration (1997) 190 CLR 225
Applicant Sv Minister for Immigration (2004) 217 CLR 387
Minister for Immigration v Abdi [1999] FCA 299
Morato v Ministerfor Immigration (1992) 39 FCR 401
Applicant S469 of 2002 v Minister for Immigration [2004] FCAFC 214

Applicant: SZOPN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1967 of 2010

Judgment of: Raphael FM

Hearing date: 8 November 2010

Date of Last Submission: 8 November 2010

Delivered at: Sydney

Delivered on: 8 November 2010

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant must pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1967 of 2010

SZOPN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Cambodia who arrived in Australia on 10 October 2006.  Upon his arrival, he informed the Customs officials that he was carrying narcotics (or that is what he has advised the Tribunal).  He was arrested and received what appears to be a rather lengthy sentence of imprisonment for a person who had admitted his offence, allegedly gave assistance to the police and against whom no previous convictions would have been recorded.  It is possible that the sentencing remarks by the judge might have shed some light upon what really occurred, but they were neither before the Tribunal, nor in the court book. 

2. In any event, when the applicant was released on parole, he was placed into immigration detention and there, on 27 April 2010, he applied for a protection (Class XA) visa. On 1 June 2010, a delegate of the Minister refused to grant him a protection visa and on 2 June 2010 he applied for a review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal and responded to a letter under s.424A. He was represented by a migration agent. On 20 August 2010 the Tribunal determined to affirm the decision under review and published the decision on the same day.

3. The Tribunal at [54] [CB 214] read to the applicant a précis of his claims, with which he agreed.  He stated:

   “You were a member of the Funcinpec party in Cambodia and served in their paramilitary force in the late 1990s, though not in a combat role.  After the relationship between Funcinpec and the CPP improved in late 1998, the Funcinpec paramilitary joined forces with the government military.  As a result, you occupied a number of official positions over the years as a police officer, as a district deputy governor, and as the person in charge of a border crossing.  You continued, in this time, to work for Funcinpec.

   Because of a dispute with the provincial Governor, you were relieved of your position as the controller of the border post, and you were effectively unemployed.  Because of your shortage of money, you elected to attempt to make some money by smuggling drugs into Australia, but were arrested on arrival here.  You cooperated with the Australian authorities.

   You feel that if you return to Cambodia, your co-accused will seek to harm you because you informed on them in Australia.  You fear that you will not be protected against your co-accused by the authorities because of your past involvement in Funcinpec.  You also fear harm at the hands of the CPP because of your past conflict with the premier of Mondulkiri Province.  You also fear that you may be harmed by the authorities because of your conviction in Australia for drug smuggling.”

4. The applicant accepted the statement as a fair summary of his situation and claims.  During the course of the Tribunal hearing, the Tribunal questioned him upon those claims, and also upon the fact that the visa with which he obtained entrance into Australia was a business visa, listing him as a shoe shop owner.  The applicant denied this, saying that all details connected with his obtaining a visa for Australia were in the hands of an agent.

5. After giving the matter due consideration, the Tribunal accepted at [102] [CB 222] that, for the purposes of the decision, the applicant was a former police official, a former Deputy Governor, and a member of Funcinpec.  It also accepted that he had fallen out with the Governor on the grounds that he had prevented a shipment of illegal logs passing through the border into Vietnam.  However, the Tribunal came to the view that insofar as he had been a member of Funcinpec for some time, he was not subject to persecution after 1998 and, therefore, it could not be said that he was a person to whom Australia owed protection obligations purely because of his political opinion. 

6. The Tribunal did not accept that the applicant had any reason to fear harm or economic hardship if he returned to Cambodia.  The Tribunal also considered the incident relating to the stopping of the illegal shipment and the applicant’s concerns about the Governor.  The Tribunal noted that after the illegal shipment had been discovered the applicant was relieved of his position on the border, but he was not relieved of his general position as Deputy Governor.  He continued in that position for some time after the incident, and was paid.  The Tribunal came to the view that the loss of position did not amount to “serious harm” and, therefore, persecution. It found that the loss of position would not give rise to serious economic harm in the future if the applicant were to return to Cambodia. 

7. The Tribunal encapsulated its views at [109] [CB 223]:

   “It is clear from the applicant’s oral evidence at the hearing that his dominant fear is that people associated with him in the attempted drug smuggling into Australia will harm him because he cooperated with the Australian authorities.  The Tribunal accepts that he has such a fear, but finds that that fear is unrelated to the Convention.  It arises because of his actions, and not because of any Convention reasons.  The Tribunal has considered the submissions made by the applicant’s agent and the country material to which he has referred and accepts that corrupt officials may tolerate the drug trade, that some of the leaders of the drug smuggling enterprise have political power in Cambodia, and that some are even government officials themselves. Even accepting that, however, does not bring the applicant’s fear within the scope of the Convention. 

   Though his co-accused and their leaders may have political power, the singular significant reason for the harm he fears is because he informed on them to the Australian authorities; it does not arise because of who he is.  There is nothing before the Tribunal to suggest that the applicant’s co-accused or their leaders seek to harm any other person who may have cooperated with Australian authorities in relation to any matter involving drugs.  It is clear that they may wish to harm him only because his actions adversely impacted upon their enterprise.”

8. The Tribunal considered the claim that the applicant was a member of a particular social group which had been identified by his agent as either:

   a)A small official involved in drug related offences overseas;

   b)Funcinpec member involved in drug related offences overseas;

   c)Former police officer involved in drug related offences overseas;

   d)Deputy Governor involved in drug related offences overseas;

   e)Men involved in drug related offences overseas.

9. The Tribunal took note of the decision of the High Court in Applicant A v Minister for Immigration (1997) 190 CLR 225 and also Applicant Sv Minister for Immigration (2004) 217 CLR 387. It noted that the group must be identifiable by characteristic or attribute common to all members of the group. But the characteristic or attribute common to all members cannot be the shared fear of persecution. The Tribunal concluded at [115] [CB 224]:

   “In the present case, the Tribunal is not satisfied that the groups, as defined, possess an attribute which distinguishes them from society at large.  Each of the formulations suggested on the applicant’s behalf involves people, “involved in drug related offences overseas.”  This refers to the applicant’s actions, not his personal characteristics.  Again, the essential and significant reason for the harm the applicant fears is not his membership of any group, but what he has done – namely involved himself in drug trafficking.”

   The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations.

10. On 7 September 2010, the applicant filed an application for review in this Court.  The only ground noted was:

    “The RRT erred in law because it failed to see my situation as a human situation.”

    This is not a ground that would indicate jurisdictional error on the part of the Tribunal.

11. This is not one of those cases where the Tribunal has disbelieved everything an applicant has said.  It gave the applicant the benefit of the doubt and accepted not only that he was who he said he was, and had worked as he said he had worked, and had done what he said he had done, but also that he did have a genuine fear of returning to Cambodia. The issue which the Tribunal was required to consider was whether the reason for that fear was a Convention reason.  It concluded that it was not.

12. In Minister for Immigration v Abdi [1999] FCA 299, the Federal Court considered at [44] the effect of a fear of revenge upon an applicant. It said:

    “Fear of revenge, without more, will normally not be sufficient to amount to persecution for a Convention reason. For example, a fear of revenge for the killing of a member of another group will usually not be sufficient unless it can be shown that the retaliation is linked with a racial, religious or other Convention reason. Of course, if it can be shown to be related to such a purpose then the fear of revenge may well come within the definition.”

13. In this case, the fear of revenge did not come about because of one of those reasons, according to the Tribunal.  It was the Tribunal’s responsibility to consider this matter and its finding upon it was available to it from the evidence that it heard.  There can, therefore, be no jurisdictional error in the Tribunal coming to the conclusion, which it did, about the applicant’s fear of revenge.

14. In regard to the matter of the membership of the social group, the Full Bench considered that matter in Morato v Ministerfor Immigration (1992) 39 FCR 401 (“Morato”), where Black CJ said:

    “Each element of the definition must be considered.  A critical element in the present case is that the fear of persecution relied upon must be a fear for reasons of membership of a particular social group.  It is not enough to establish only the persecution is feared by reason of some act that the person has done, or is perceived to have done, and that others who have done an act of the same nature, are also likely to be persecuted for that reason. …

    It may well be that an act or acts attributed to members of a group that is, in truth, a particular social group provide the reason for the persecution that members of such a group fear.  But they must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group. 

    The need to show that persecution is for reasons of membership of a group, rather than for an act or acts done, tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character …  The doing of an act or acts of a particular character may, in some circumstances, and together with other factors, point to the existence of a particular social group, but in this case, it is only the common action of turning Queen’s evidence that is said to define the group.”

    The remarks made by the Chief Justice in Morato strike a particular chord with the facts as revealed in this case. 

15. Finally, it is clear from the views expressed by the Full Bench, Kiefel, Allsop and Crennan JJ, in applicant Applicant S469 of 2002 v Minister for Immigration [2004] FCAFC 214 at [14] and the authorities there cited that the identification of the social group is a matter of fact to be determined by the Tribunal.

16. In the instant case, the Tribunal did make a determination as to the applicant’s membership of the social group.  It also determined that the groups that he identified could not be considered to be social groups for the purposes of the Migration Act 1958 or the Convention and, therefore, concluded that the real ground for the applicant’s fear was not one that was Convention related.  Those conclusions seem to me, from my reading of the decision record, to have been open to the Tribunal on the evidence and, in those circumstances, it cannot be said that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.

17. The application must, therefore, be dismissed. The applicant must pay the first respondent’s costs, which I assess in the sum of $5,000.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  16 November 2010