SZOYL & SZOYM v Minister for Immigration
[2011] FMCA 236
•21 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOYL & SZOYM v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 236 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal failed to address a claim made by the applicants – definition of “particular social group” – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 476 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088 SZNVE v Minister for Immigration and Citizenship [2010] FCA 251 VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39 Applicant A & Anor v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 Morato v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401; (1992) 111 ALR 417 Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 217 CLR 387; 206 ALR 242; 78 ALJR 854 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 |
| Applicants: | SZOYL & SZOYM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 94 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 April 2011 |
| Date of Last Submission: | 5 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant: | Sarom Solicitors |
| Counsel for the Respondents: | Mr HPT Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 20 January 2011, and amended on 17 March 2011, is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 94 of 2011
| SZOYL & SZOYM |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 January 2011, and amended on 17 March 2011, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 December 2010, which affirmed the decision of the delegate of the respondent Minister to refuse protection visas to the applicants.
Background
The applicants are wife and husband. Both are nationals of Fiji. The applicant wife applied for a protection visa on 2 July 2009 (Court Book – “CB” – CB 1 to CB 38). The applicant husband applied for a protection visa as a member of her family unit.
The applicant wife is a registered nurse who first arrived in Australia in November 2005 and returned to Fiji on two subsequent occasions. The applicant husband arrived in April 2008 following their marriage in Fiji (CB 75).
The applicants’ claims (the applicant husband advanced similar claims to fear persecution as his wife at the hearing with the Tribunal) generally arose because of their claimed fear of ill-treatment by the Fijian military who had assumed control of Fiji. The applicant wife also claimed to have been stopped and questioned by soldiers in 2000, although this appears to have been because she was in breach of curfew restrictions imposed during the 2000 coup in Fiji.
The Delegate
The delegate refused to grant the visas. The delegate was of the view that the applicant wife’s “unspecific and very generalised statements”, when considered in light of general country information, would result in no more than a remote chance of persecution if she were to return. The applicant husband’s application was also unsuccessful as a result (CB 56 to CB 57).
The Tribunal
The applicants applied for review to the Tribunal on 21 October 2009 (CB 58 to CB 62). They provided general country information and letters from a law firm in Suva attaching an affidavit from the former Attorney-General in Fiji, who had been ousted by the current regime, and a letter in support signed by the President of the Fiji Democracy and Freedom Movement (CB 150 to CB 151).
The applicants ultimately attended a hearing before the Tribunal on 22 August 2010 (CB 189). The Tribunal’s account of what occurred is set out in its decision record ([31] at CB 198 to [40] at CB 200).
The Tribunal accepted that country information about Fiji supported the applicants’ general claims of occasional intimidation and
ill-treatment by the Fijian regime of perceived government critics ([45] at CB 201).
The Tribunal found that neither applicant left Fiji because they feared harm there. The Tribunal found the applicant wife came to Australia to work and the applicant husband after his marriage to the applicant ([47] at CB 201).
Although the Tribunal accepted the applicant wife’s evidence involving the incident in 2000, it did not accept that either of the applicants feared harm in Fiji, or would be of adverse interest to the authorities, as a result of the incident in 2000 ([48] at CB 202). The reasons for this were because of the nature of the incident itself as described by the applicant wife, the passage of time since the incident, the applicant wife having returned to Fiji on two subsequent occasions and the applicant husband continuing to live in Fiji for some nine years afterwards without incident ([48] at CB 202).
The Tribunal accepted some of the applicants’ factual claims concerning their membership and support for the Fiji Democracy and Freedom Movement in Australia, but found that there was not a real chance that either would be harmed on the basis of their political, or imputed political opinion ([49] at CB 202).
The Tribunal formed the view that the applicant wife applied for a protection visa because her “skilled visa” was about to expire, not because she feared harm ([150] at CB 202).
The Tribunal allowed that the applicants would face some economic hardship if they returned to Fiji, but that this would not amount to “serious harm”. This was with obvious reference to s.91R(1) and (2) of the Act ([51] at CB 202 to CB 203).
The Tribunal was of the view that there was no plausible evidence before it that either of the applicants had suffered, or that there was a real chance, they would suffer persecution from the authorities or anyone else in Fiji for a Convention reason ([52] at CB 203). It affirmed the delegate’s decision accordingly ([53] at CB 203).
Before the Court
Before the Court the applicants were represented by Mr A Kumar of counsel. Mr HPT Bevan of counsel appeared for the first respondent. Both parties provided written outlines of submissions.
By way of amended application and pleading, the applicants pressed two grounds. After commencing submissions in relation to ground two, Mr Kumar then submitted that the applicants no longer pressed ground two in any form. I understood therefore, that to the extent that the written submissions sought to relate ground two to a part of ground one, that also, was no longer pressed.
Consideration
In ground one the applicants complain that the Tribunal failed to address a claim made by them. This was said to be a claim based on membership of a “particular social group”.
It is not clear whether both the applicants were said to be members of this “particular social group”. In the ground as asserted the use of the plural “applicants’” (with “s” apostrophe) would suggest that both were said to be members.
However in submissions Mr Kumar confirmed that the assertion before the Court was that the Tribunal failed to address the applicant wife’s membership of a “particular social group”.
Mr Kumar pointed to three parts of the material before the Tribunal to argue, as I subsequently construed it, that that Tribunal was obliged to consider the applicant wife’s claim to belong to a group that was capable of constituting a “particular social group” for the purposes of the Refugee Convention.
These were:
1)The applicant wife claimed to have been mistreated by her past employer ([22] at CB 197). In terms of the claim to fear harm in the future, this was characterised that, as a nurse employed in a government hospital, she would be persecuted as a civil servant who had left her employment.
2)There was evidence that both applicants were members of the Fiji Democracy and Freedom Movement (CB 150).
3)The applicant wife had been “picked up” by soldiers during the 2000 coup ([28] at CB 198).
There appeared to be some difficulty before the Court in articulating the “particular social group” which was said to have emerged from the circumstances presented before the Tribunal.
The ground as stated, the particulars, different parts of the applicants’ written submissions and the initial oral submissions all presented different “social groups” with different characteristics.
Ultimately the submission was that, on the material before the Tribunal, the “proper social group” contained the attributes listed at [10] of the applicants’ written submissions (items (i) to (viii), item (ix) – “a person that has been previously persecuted by the military” was withdrawn).
The attributes of the group therefore are said to be:
“(i) Indigenous Fijians;
(ii) former government employees;
(iii) holding views opposed to the governance by the unelected military government of Fiji;
(iv) former government employees with readiness to express opposition/opinions including imputed political opinion;
(v) a person previously taken into the military camp;
(vi) female members of the group;
(vii) members of Fiji Democracy and Freedom Movement;
(viii) willingness to participate in FDFM meeting/activities;
[(ix) a person that has been previously persecuted by the military].”
Mr Kumar submitted that the Tribunal did address the existence of a “particular social group”, but did not look at the “particular social group” as articulated now before the Court. This was a reference to the Tribunal’s finding that the applicants would not face a real chance of harm in Fiji because of their membership of the Fiji Democracy and Freedom Movement ([49] at CB 202. See also: “… member of a particular social group…” at [52] at CB 203).
Mr Kumar referred the Court to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088 (“Dranichnikov”) at [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. There 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.”
The Tribunal’s error therefore was said to be that, as in Dranichnikov, it failed to take the “first step” set out above. It answered another question consisting of a different “social group”.
Further, that the Tribunal’s failure in this regard could not be saved by the “general” finding that there was not a real chance that the applicants will suffer persecution in Fiji for, amongst other reasons, their membership of a particular social group (as set out at [52] of its decision record).
Mr Kumar relied on SZNVE v Minister for Immigration and Citizenship [2010] FCA 251 (“SZNVE”), per Logan J, for the proposition, in particular, that the Tribunal’s failure to address the “correct” social group could not be “cured” by the Tribunal simply addressing the issue of a well-founded fear in a general way. (See SZNVE at [27], and the reference to VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39 at [9].)
SZNVE was a matter on appeal from this Court in which Mr Kumar successfully represented another Fijian national in a matter involving an unsuccessful application to the Tribunal. I understood that the submission in this case was also that the circumstances in SZNVE mirrored the current circumstances, and the Court should therefore follow the reasoning set out there, and particularly his Honour’s application of what was relevantly said in Dranichnikov.
It goes without saying that this Court is bound by the ratio of what was said in SZNVE on appeal. However the difficulty for these applicants, and indeed the short answer to the complaint posed in the ground, is that the current circumstances are not those found in SZNVE such as to have obliged the Tribunal to have considered the “first step” set out in Dranichnikov in relation to the “social group” now advanced by Mr Kumar.
A number of preliminary matters. First, as Mr Bevan submitted, and as probably alluded to in the applicant’s written submission (see at [21]), the complaint is one of a constructive failure by the Tribunal to exercise jurisdiction (see Dranichnikov at [25]).
Second, again as properly conceded by Mr Bevan, any “general” finding by the Tribunal in relation to “particular social group” (as set out at [52] in its decision record) would not otherwise “save” the Tribunal’s decision if there was a claim which the Tribunal was otherwise obliged to deal with (this Court would follow SZNVE at [27]).
I agree with Mr Bevan that a Convention ground or claim as propounded by Mr Kumar now did not arise from the material before the Tribunal. The particular “social group” advanced in submissions now before this Court is a list of attributes and characteristics relevant to the applicant wife. It is not a presentation of a “particular social group”, or more particularly, with the “first step” in Dranichnikov in mind, a “social group” for the purposes of the Convention.
The artificiality and the self-serving nature of the presentation of this “list” was exemplified during the course of the hearing when item (ix) was said to be now removed from the attributes of the claimed “social group”. That “attribute”, with its reference to a person previously persecuted by the military, falls foul of the requirement that whatever the elements which unite the group, it cannot contain an element which is a common fear of persecution as part of its definition (see Applicant A & Anor v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”) at 242 per Dawson J, and at 263 per McHugh J.
The concept of “membership of a particular social group” is not amenable to some precise or exact definition (for example see Applicant A at 259 per McHugh J). It is not possible to define for the purposes of the Convention some abstract or absolute construct of “particular social groups”. Differences between societies and changes over time mean that what is required in each case is whether a “particular social group” exists in the society relevant to that case and at the relevant times (see for example Applicant A at 259 per McHugh J).
In the current case therefore, the question is to be addressed with a focus on Fiji at the relevant times, and as to whether a “particular social group” exists in that locational, temporal and societal context.
What needs to be emphasised, given the way that the applicants have chosen to present their case before the Court, is that while the words “particular social group” should be the subject of wide interpretation, and indeed application, this Convention ground was not in my view intended to provide an avenue for applicants to argue some “if all else fails I am a member of a particular social group” claim. That is, a catch-all safety net. (See for example Morato v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401; (1992) 111 ALR 417 at [63] to [66] per Lockhart J for the former proposition, and Applicant A at 241 per Dawson J and 260 per McHugh J for support for the latter.)
It must be said that before the Court the applicants have sought to construct a “social group” with reference to characteristics common only to the applicant wife. As Mr Bevan correctly submitted, there is no evidence in any of the material before the Tribunal that the “social group” propounded now at [10] of the applicant’s submissions existed in Fiji at the relevant times.
What the High Court said in Dranichnikov, and Logan J’s consideration and application of it to the facts in SZNVE, does not assist the applicants before the Court now.
Mr Kumar relied on Dranichnikov at [26]. But, as arose from Mr Bevan’s submissions, the “steps” set out at [26] need to be understood in the entire context of the circumstances of that case.
First, what the applicants now, in essence, really argue is that the Tribunal’s error was a constructive failure to exercise jurisdiction, as was the case in Dranichnikov. However, as the High Court said (at [26]), the: “… question remains however whether what occurred… entitles Mr Dranichnikov to relief…”. That is, what occurred in the circumstances of that case.
Those circumstances included a failure by the Tribunal in that case: “… to respond to a substantial, clearly articulated argument relying upon established facts…” (at [24]). While that was directed to a consideration of error, given the language of the relevant parts of the Migration Act as it then was, it was also said to apply to the consideration of the question of a constructive failure to exercise jurisdiction (at [25]).
Second, Mr Bevan took the Court to Dranichnikov at [68] to [72] per Kirby J as a further explanation of the reason for proceeding along the “steps” set out at [26] of Dranichnikov.
That part of his Honour’s judgment, in my respectful view, focussed on the difficulties inherent in defining the “particular social group” either too narrowly or too broadly, and therefore explained the need for a Tribunal to proceed with care. In effect, to follow the “steps” set out so as to avoid the error that the Tribunal fell into in Dranichnikov.
But as I have set out above, in the current case the circumstances presented did not oblige the Tribunal to embark on these “steps” in the way asserted by the applicant now. As Kirby J said (at [68] in Dranichnikov):
“… Specifying with precision the ‘social group’ that an applicant propounds as the one applicable to his or her case is important for at least two reasons. First, it ensures that the decision-maker addresses accurately the case that is put in respect of which the relevant jurisdiction and powers are invoked…”.
Further direction on this matter was provided in Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 217 CLR 387; 206 ALR 242; 78 ALJR 854 at [36] per Gleeson CJ, Gummow and Kirby JJ:
“Therefore, the determination of whether a group falls within the definition of ‘particular social group’ in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a ‘social group’ and not a ‘particular social group’. As this Court has repeatedly emphasised, identifying accurately the ‘particular social group’ alleged is vital for the accurate application of the applicable law to the case in hand.”
Finally, the emphasis on the need for a clearly articulated case or claims, including cases involving “particular social group”, needs to arise from the circumstances presented before a charge can be made that a Tribunal has fallen into legal error in not considering such an issue. This can be seen in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [68] per Black CJ, French and Selway JJ:
“Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred…”.
The difficulty for the applicants in articulating such a case now (that is, the characteristics of the claimed “particular social group”) is illustrative and supportive of the conclusion that the circumstances presented to the Tribunal did not give rise to any such group.
The applicants put forward a number of claims specific and individual to them. In essence these claims were as set out at [21] above. When regard is had to the Tribunal’s analysis, and in particular [48] (at CB 202) to [51] (at CB 203) of its decision record, it is clear that it dealt with these claims.
I cannot see that the remaining sole ground of the application is made out. There was no constructive failure by the Tribunal to exercise its jurisdiction by failing to consider the membership of a “particular social group” as asserted now by the applicant. The circumstances presented did not give rise for the need for any such consideration in the way argued by the applicants now.
Conclusion
In these circumstances it is appropriate that an order be made dismissing the application as amended.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 21 April 2011
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