SZRIR v Minister for Immigration
[2012] FMCA 1006
•1 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRIR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1006 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Pakistan for reasons unrelated to his health – applicant diagnosed in Australia as hepatitis C positive – Tribunal considering whether the circumstances might support a particular social group claim but finding such a group did not exist – whether the Tribunal erred in considering the existence of a particular social group considered – observations on the potential availability of complementary protection. |
| Migration Act 1958 (Cth), ss.48B, 417 |
| Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 AC (Syria) [2011] NZIPT 800035 B34 of 2010 v Minister for Immigration (2005) FCA 871 BG (Fiji) [2012] NZIPT 800091 D v United Kingdom (146/1996/767/964, European Court of Human Rights, 2 May 1997) Lo, Fu Shuang v Minister for Immigration (1995) 134 ALR 73 Minister for Immigration v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 N v United Kingdom [2008] INLR 335 Pretty v United Kingdom (2002) 35 EHRR Sufi and Elmi v United Kingdom (European Court of Human Rights, 28 June 2011) |
| Applicant: | SZRIR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 781 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 1 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Milestone Legal Lawyers |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 781 of 2012
| SZRIR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision is dated on its face 13 March 2012 and was certified on behalf of the Tribunal’s district registrar the following day. For reasons which I will return to later, the date of the Tribunal’s decision is a matter of some significance.
The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a male citizen of Pakistan who claimed to be a Shia Muslim and to have been engaged to a Sunni woman (a Ms Khan). The applicant claimed to fear harm from the family of the woman as a result of the relationship and claimed that the police in Pakistan would not protect him.
The applicant arrived in Australia on 1 January 2011 and applied for a protection visa on 25 March 2011. A delegate of the Minister refused the application on 14 June 2011.
The applicant’s medical examination, conducted in Australia on 28 April 2011, diagnosed the applicant as being hepatitis “C” positive. No claims were made in relation to this before the delegate or at the Tribunal hearing.
On 3 January 2012 the Tribunal sent the applicant an invitation to comment or respond to information[1]. The applicant responded by a statement dated 14 February 2012[2]. At the end of that statement the applicant said:
Since arriving in Australia I have been diagnosed (recently) with Hepatitis C which would require treatment for a long time. I am not able to pay for this expensive medical treatment and may not survive without the treatment
If I were to go back to Pakistan it is highly likely that I will not survive this disease and lose my life. i am only 30 years old and wish to live my life and if my application is rejected, i will have to go back and as explained, I will not be able to get expensive treatment in Pakistan.
I ask you consider all the above circumstances including my current health and consider my application with compassion.
[1] court book (CB) 145-154
[2] CB 162-163
The Tribunal made adverse credibility findings on the applicant’s protection visa claims at [167][3] based upon the following concerns:
·inconsistent evidence as to how Ms Khan’s family learned of the relationship;
·implausible evidence in that the applicant said he did not fear harm from Ms Khan’s brother when he first threatened him;
·an assertion to the Tribunal that his father had complained to police in November 2010 had not been made in his written statement; and
·the documents submitted in support of an earlier subclass 456 visa application by the applicant were not consistent with the applicant’s claimed timeline of events and they also stated he was married rather than engaged.
[3] CB 190
The Tribunal did not accept that the applicant was ever in a relationship with a Sunni woman and rejected all his claims stemming from this[4].
[4] CB 190 [168], 191 [180], [181]
The Tribunal accepted that there was sectarian violence between Sunni and Shia Muslims in Pakistan, but it found there to be less than a real chance that the applicant would be harmed based on the relatively small number of persons affected by the violence compared to the size of the Shia population[5].
[5] CB 192 [185]
The judicial review application
These proceedings began with a show cause application filed on 11 April 2012. That application contains four grounds:
1. The Second Respondent made jurisdictional error in that it failed to comply with the requirements of section 425 of the Migration Act 1958.
Particulars
(a) The Second Respondent conducted the hearing on the basis that the applicant had been in a relationship with a Miss K but that it had concerns about the details of aspects of the relationship. At no point was it ever apparent to the applicant that the Second Respondent might find that the relationship did not happen.
2. The Second Respondent made jurisdictional error by making a positive finding that the applicant had given a (totally) false account of events on which his refugee claim was based thereby shutting out consideration of his claims and the evidence submitted in support of the claims.
3. The Second Respondent failed to take in to account a relevant consideration namely the distress and possible depression of the applicant on discovering he had Hepatitis C.
4. The Second Respondent made jurisdictional error by finding that persons within a country who have a particular disease cannot constitute a particular social group.
Counsel for the applicant properly did not press grounds 1, 2 and 3 in the absence of a transcript of the hearing before the Tribunal. Ground 4 was pressed.
I have before me as evidence the court book filed on 22 May 2012.
Both parties made oral and written submissions. Those of the applicant relevantly are:
The Tribunal itself determined that the question of a particular social group was capable of arising from the materials before it. It however effectively adversely decided the issue of whether there was a relevant particular social group on the basis that it was not articulated in terms as a claim. This, it is submitted, is jurisdictional error.
Even giving a beneficial construction to the first sentence of [195] at CB193, it appears that the RRT resorted to assertion rather than any process of reasoning in determining that persons in Pakistan who had Hepatitis C were not a particular social group. The next sentence (“In the Tribunal’s view ....Shi’a”) is something of a non sequitur. Having a particular disease is not specifically related to Australia’s protection obligations; rather Australia’s protection obligations are related to whether a person is a member of a particular social group within their country of nationality and thereby has a well-founded fear of persecution.
The reasoning of the RRT is in fact quite odd. On the one hand it plainly discerned that notwithstanding that it was not in terms articulated as a claim, there was an issue relating to whether the Applicant having Hepatitis C raised the question of whether he was a member of a particular social group. On the other hand, notwithstanding that it plainly saw the issue; it dismissed it on the grounds that the Applicant had not raised the issue as a claim.
The case is therefore very different to B34 of 2003 v MIMA [2005] FCA 871, a decision of French J as he then was.
In that case there was before the Department an internal facsimile which included a statement which indicated that the applicant was HIV positive. Before the Court, evidence was sought to be adduced as to the stigma associated with HIV in Ethiopia. However, this information post-dated the RRT’s decision.
However, it is important to note that the RRT in that case did not state that persons suffering from HIV/Aids were not members of a particular social group as did the RRT in this case. The issue for determination was whether there was an issue before the RRT in relation to membership of a particular social group.
It is submitted that it is virtually beyond argument that the status or condition of being HIV/Aids positive or having Hepatitis C or any other infectious disease is capable of amounting to membership of a particular social group. The critical question is whether the matter has arisen as an issue before the Tribunal.
Here, that issue is decided by the RRT itself stating that it considers the issue does arise. However, its determination on the question was that having a disease by itself does not designate membership of a particular social group and that it could determine that no such particular social group existed because the Applicant had not claimed it to exist.
It is submitted that once the RRT itself discerned that the issue arose, it had to decide whether the Applicant was a member of a particular social group of sufferers from Hepatitis C in Pakistan. It did not do so and this constituted jurisdictional error.
The Minister relevantly submits as follows:
The single ground being pressed by the applicant is ground 4. That ground alleges that the RRT found that persons within a country who have a particular disease cannot constitute a particular social group. This ground must fail as the RRT made no such finding.
The applicant in his submissions contends that the RRT made a different error- that it found that it was not required to find whether a social group existed unless the applicant expressly made that claim.
No amendment to the application has been foreshadowed to enable this assertion to be considered. Nevertheless, the grant of leave to make such an amendment should not be given if sought, as there is no merit in the applicant’s argument.
The RRT makes an express finding that people with Hepatitis C in Pakistan do not constitute a particular social group. The RRT points to the applicant’s failure to establish the existence of such a social group. The Tribunal points out the applicant did not even claim that such a social group existed.
The applicant’s argument is that it is impermissible for the RRT to rely upon the applicant’s failure to make a claim. However, the claims that the applicant makes are part of the evidentiary material before the RRT. The RRT is simply saying that there was no material before it to establish the existence of such a social group. The applicant has not pointed to any such material.
The RRT is an inquisitorial process in respect of which there is no formal onus of proof:[6] In Abebe v Commonwealth[7] the Court pointed out that, in a practical sense, responsibility lies upon a visa applicant to satisfy the Tribunal as to matters necessary to be eligible for a protection visa under the Act. The RRT in this case is saying no more than that the applicant had failed to do this. It did not say it did not have to consider whether the social group existed because the applicant made no claim- rather it made an express finding that no such social group existed as there was no material before it which would support such a finding-including any claim by the applicant.
[6] Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [40]
[7] [1999] HCA 14; (1999) 197 CLR 510 at [28]
Consideration
The Tribunal, having been put on notice of the applicant’s illness and his concerns about that illness, clearly felt the need to deal with those concerns in its reasons. The Tribunal dealt with the issue of the applicant’s medical condition from [188]-[197][8] of its reasons:
[8] CB 192-193
188In his submissions of 14 February 2012, the applicant claimed he would be unable to afford treatment for this condition in Pakistan and may not survive without it. In the submissions of 17 January 2012 the representative claimed that the applicant had been recently diagnosed with this condition and was distressed about it.
189On the question of the applicant being a distressed or depressed about having Hepatitis C, the Tribunal notes that he was able to meaningfully take part in the hearing and give evidence.
190While the representative claims that the applicant was recently diagnosed with this condition, the medical record on the department file mentioned earlier in this decision records the applicant as being Hepatitis C positive and that record is dated 28 April 2011. Further, the medical records submitted with the representative’s letter confirming this diagnosis were issued before the Tribunal hearing.
191At any rate, the claim that the applicant would not be able to afford medical treatment for that condition in Pakistan has not been raised with the Tribunal until the applicant’s submissions of 14 February 2012. Throughout the processing and determination of his protection visa application, the sole ground on which the applicant has claimed to suffer persecution is the harm he fears from the family of Miss Khan.
192While the applicant makes the claim that he would not be able to afford medical treatment for this condition in Pakistan, as stated above, the Tribunal finds that the applicant is not a witness of truth and there is no credible evidence before the Tribunal as to his financial means. In addition, the applicant, at any rate, would need to show that any inability to obtain treatment for his condition in Pakistan is for the essential and significant reason of one of the five [C]onvention grounds.
193As stated above, there is no credible evidence as to why the applicant left Pakistan and no credible evidence that he is being pursued by family and relatives of a Sunni woman who wish to harm him and which (if those claims were true) could have affected his ability to access medical treatment.
194The applicant has made no specific claim that he would be denied medical treatment for the essential and significant reason of one of the five [C]onvention grounds. In particular, he has not claimed that he would be denied medical treatment for the essential and significant reason of his religion being Shi’a. Rather, he submits that treatment for the condition in Pakistan is expensive and he cannot afford it. As stated above, there is no credible evidence before the Tribunal as to his financial means and therefore that he cannot afford medical treatment in Pakistan for his condition.
195While no such claim was made by the applicant, the Tribunal also states that nationals of Pakistan who have Hepatitis C whatever their religion, including if they are Shi’a, are not a particular social group. In the Tribunal’s view, simply having a particular disease, by itself does not create or designate membership of a particular social group within the context of Australia’s protection obligations and that is so whether or not the person who has the disease is Shi’a. Certainly, the applicant has not advanced any claim to establish the existence of a particular social group of persons (or more specifically Shi’as) with Hepatitis C and the Tribunal considers that no such particular social group exists.
196For these reasons, the Tribunal finds that there is not a real chance that the applicant will suffer persecution based on any [C]onvention ground because of his medical condition.
197Overall, the Tribunal finds that, on the evidence it considers to be credible, there is not a real chance the applicant will suffer persecution on any [C]onvention ground if he returns to Pakistan. Accordingly, on the evidence the Tribunal accepts as credible, his fear of persecution based on any [C]onvention ground is not well founded.
The question of the applicant’s capacity to participate in the Tribunal hearing and the review generally is not currently material. What is material is whether the Tribunal erred in dealing with the proposition it itself framed that the applicant was not a member of a particular social group of hepatitis C sufferers in Pakistan. That particular element of the Tribunal’s reasoning is addressed at [195][9].
[9] CB 193
The Minister sought to rely upon the decision of the Federal Court in B34 of 2003[10], in particular at [32]. I do not find that decision of great assistance given that the issue in that case was whether the Tribunal fell into error by failing to consider a claim. The facts in that case were that there was no clearly articulated claim and no claim clearly arising from the materials. In the present case, on the basis of the Tribunal’s reasoning, it appears to me that the Tribunal considered that, although no particular social group claim was articulated by the applicant, it did sufficiently clearly arise from the materials to necessitate a decision by the Tribunal on it.
[10] (2005) FCA 871
The Tribunal, in stating that there was no particular social group of hepatitis C sufferers in Pakistan, did not refer to any authority. Counsel for the Minister took me to the decision of Tamberlin J in Lo, Fu Shuang v Minister for Immigration[11]. It is apparent from what his Honour says in that case at pages 82 and 83 that the applicant would have had substantial hurdles to clear in order to establish that a particular social group of hepatitis or hepatitis C sufferers in Pakistan existed.
[11] (1995) 134 ALR 73
While Tamberlin J in Lo, Fu Shuang makes some general statements as to whether suffering from an illness can place a person in a particular social group for the purposes of the Refugees Convention, I do not read his Honour’s reasons as establishing that suffering an illness could never place a person within a particular social group. His Honour himself appears to concede at page 83 that lepers in certain societies may constitute a particular social group.
His Honour stresses that suffering a common illness may be a chance circumstance potentially afflicting all members of a society. That may be so, but it depends upon the illness. Some illnesses, such as HIV/AIDS, while they may hypothetically afflict a general population, do not because transmission depends upon particular factors. It is known that HIV/AIDS suffers commonly contract the disease through intravenous drug use or homosexual relations. Those attributes and the attitudes of a society to persons with the illness will determine whether a particular social group is cognisable within a particular society.
On my reading of Tamberlin J’s reasons in Lo, Fu Shuang, that is an essential element of his Honour’s reasoning in relation to hepatitis B. Other illnesses may be inherited, such as the sickle cell trait, and different considerations would apply. It may be that, in a particular society, the level of discrimination against persons carrying the sickle cell trait may be sufficiently severe as to constitute persecution. That illustrates, to my mind, that where a claim is made of membership of a particular social group based upon an illness or disease, the claim must be considered on its merits by reference to the attributes of the disease and the sufferers and the way in which the class of persons with the illness or disease are regarded within a particular society.
While those issues could certainly have been more clearly expressed in the Tribunal’s reasons, in my view, the reasons at [195] say no more than that, on the information available to the Tribunal, it could not be satisfied that a particular social group of hepatitis C sufferers in Pakistan was cognisable.
I see no error in that reasoning by the Tribunal because of the very limited material before it. The Tribunal was not required to conduct its own investigations into the possibility of the existence of a particular social group of hepatitis C sufferers in Pakistan. The issue had not been expressly raised by the applicant. The Tribunal, having decided that it nevertheless needed to consider the issue on the basis of the available material, was entitled to reach a conclusion on that available material. That available material did not permit the Tribunal to conclude that such a group existed in Pakistan.
The Tribunal’s decision was made 10 days before the commencement of amendments to the Migration Act 1958 (Cth) (the Migration Act) to introduce the complementary protection criteria for a protection visa. Had the decision been made after that date, the Tribunal would have had to address potentially difficult issues concerning whether the availability of medical treatment in Pakistan for the applicant, or his ability to afford that treatment, or whether his return to a country where such treatment would be withheld or was unavailable for economic reasons, would constitute degrading treatment.
There is European and New Zealand authority that the unavailability of treatment for a particular medical condition, or even the return of someone to a country where such treatment is unavailable, may constitute degrading treatment[12]. That is a matter which the applicant could raise with the Minister pursuant to s.417 of the Migration Act. Hypothetically, it is a matter which could be addressed in a fresh protection visa application. It is at present unclear whether the Minister’s consent pursuant to s.48B of the Migration Act would be necessary for such an application to be considered.
[12] See AC (Syria) [2011] NZIPT 800035; BG (Fiji) [2012] NZIPT 800091; D v United Kingdom (146/1996/767/964, European Court of Human Rights, 2 May 1997); Pretty v United Kingdom (2002) 35 EHRR at [52]; N v United Kingdom [2008] INLR 335 at [29] and [42]-[45] Sufi and Elmi v United Kingdom (European Court of Human Rights, 28 June 2011)
I conclude that the applicant has failed to establish jurisdictional error on the part of the Tribunal. The decision is therefore a privative clause decision, and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,000. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $6,000.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 1 November 2012