VLAX v Minister for Immigration
[2003] FMCA 608
•23 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VLAX v MINISTER FOR IMMIGRATION | [2003] FMCA 608 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth)
Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184
SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
| Applicant: | VLAX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 277 of 2003 |
| Delivered on: | 23 December 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 December 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Patrick F. Sabelberg |
| Solicitors for the Applicant: | Frank Sabelberg Lawyers |
| Counsel for the Respondent: | Dr Stephen P. Donoghue |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application is dismissed.
The applicant pay the respondent's costs as agreed and failing agreement as determined by this court upon application made to it.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 277 of 2003
| VLAX |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment.
The applicant filed an application for an order of review on 8 January 2003 in the Federal Court of Australia, Victoria District Registry. That application was transferred to the Federal Magistrates Court by order of North J on 17 March 2003. It was amended by the filing of an amended application on 27 May 2003. The applicant brings his application pursuant to section 39B of the Judiciary Act 1903 (Cth) and sections 475A and 483A of the Migration Act 1958 (Cth) (“the Act”) and section 32AB of the Federal Court of Australia Act 1976 (Cth).
History
The applicant is a citizen of Sri Lanka. He is of Sinhalese ethnicity and Buddhist religion. He was born in the district of Tincomalee on 22 January 1977.
On or about 26 October 1996 he departed Sri Lanka and arrived in Australia on 27 October 1996 on a passport issued in Colombo in his own name.
On or about 5 February 2001 the applicant applied for a Protection (Class XA) visa. The apparent delay in making application for this visa was not a matter that was addressed by the tribunal and is not an issue in this court. The applicant had arrived in Australia on a Subclass 421 (Sport) visa. He was sponsored by his cousin to visit Australia and play cricket.
On 5 April 2001 a delegate of the respondent refused the grant of a protection visa to the applicant. On 2 May 2001 the applicant applied to the Refugee Review Tribunal to review the decision of the delegate of the respondent. On 6 August 2002 a hearing was conducted by the tribunal at which the applicant was assisted by an interpreter. The applicant put various material before the tribunal and he gave oral evidence. The tribunal in its reasons noted the conduct of the hearing was assisted by an interpreter in the Sinhalese language although the applicant spoke good English.
The tribunal determined that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The tribunal affirmed the decision of the Minister's delegate to refuse to grant the applicant a protection visa. That decision was handed down on 23 August 2002. On 8 January 2003 the applicant applied to the Federal Court to review the decision and the matter proceeded in the Federal Magistrates Court this day, 23 December 2003.
Applicant's claims before the Tribunal
In essence the applicant claimed to fear persecution at the hands of or instigated by his brother‑in‑law, a major in the Sri Lankan army. He claimed his brother‑in‑law to have been physically and verbally abusive of his wife. The applicant claimed to have gone with his sister to a police station to lay a complaint against her husband but instead of being helped, his sister was insulted and her complaint dismissed. The applicant stated that he believed his treatment was because his brother‑in‑law was a respected major in the army and had used his influence in the matter.
The applicant claimed that his sister left her husband and returned to the family home. However, her husband would come to the home often drunk, and abuse and insult members of the family. The applicant claimed the husband also threatened to kill the applicant. The applicant said his own sporting career suffered as he was under considerable stress and that he had missed some training and club games because he was frightened to venture out. He claimed that whilst returning home on one occasion he was approached by some unidentified men who warned him to stay out of his sister's marital dispute. He reported the matter to the police but again no action was taken to investigate this. As a consequence he determined to leave Sri Lanka.
Following his departure from Sri Lanka and arrival in Australia, he had been in touch with his family. He claimed that his sister had finally decided to take action for a divorce but that her husband was being extremely difficult and said he would refuse the divorce. He claimed that his brother‑in‑law had threatened to his sister to kidnap their child and leave the country. He claimed that recently his father had been taken to court for traffic offences; that the police had come looking for his father whilst he was at work and the next day his father went to the police station to see what the problem was. He was told he had not paid a traffic fine, which was false, but he had to prove it in court. The family believed that the army officer had put this train of events into place. The applicant stated that his brother‑in‑law was a ruthless man and that he feared for his life if he had to return to Sri Lanka.
The tribunal received a submission from the applicant which included an affidavit from his parents who confirmed that there had been marital problems between their daughter and the army officer she married. The submission stated that the parents had decided to send their son to Australia to escape harassment from the army officer. Also submitted were statements purportedly used in the divorce court proceedings between the applicant's sister and her husband.
The husband was suing for divorce on the grounds of malicious desertion and for custody of the child from the marriage. In her own statement to the court the applicant's sister alleged that she had been ill treated by her husband's parents and had told her husband so and returned to her parents' home. She then received a summons informing her that her husband had sued for divorce. The matter was settled in the Family Court and she had returned to live with her husband. She had then found he had become friendly with another woman. She went to her husband's commanding officer, who advised her and her husband to live in army quarters. Her husband agreed but told her she should go to live with her parents until the accommodation was ready. She did so but learnt her husband was continuing his affair with the other woman. She then asked for help from the police in the matter. Other documents were submitted to the tribunal in relation to the alleged ill-treatment of the applicant's sister by both her parents‑in‑law and husband.
At the hearing the tribunal asked the applicant whether he had any claims to make for reasons of his political opinion, religion, race and/or nationality and he replied in the negative. The only other possible ground under the Convention was that of membership of a particular social group, which the tribunal determined in this case to be his family. The tribunal told the applicant that it could be difficult to place his claim even within that ground as the situation he described was one between families and one common to most countries of the world, including Australia - that is, a marital dispute or marital abuse which required intervention by family and/or the State.
The tribunal discussed with the applicant his reasons for being fearful now that six years had passed since he left Sri Lanka and now that the parties were divorced. The applicant said that he was in touch with his parents and that they had told him the ex‑husband still harassed the applicant's sister and threatened his parents. He believed the man was still angry. He did not know if the man had remarried but had heard he had a mistress. The applicant claimed that:
His brother‑in‑law is a ruthless and arrogant man and he is capable of causing any problems. My parents cautioned me not to come to Sri Lanka as my life would be in danger. I too fear that since the problems have not been resolved, this would cause me severe trauma and possibly endanger my life.
That claim made by the applicant was made in his initial application for a protection visa.
Tribunal's reasons
The tribunal gave its reasons in writing. It accepted that the applicant had a subjective fear of returning to Sri Lanka, his country of nationality. It accepted the factual claims made by the applicant. It noted that whilst communal and ethnic conflict had been the main feature of the past decade for observers of Sri Lanka, the applicant's claims did not arise out of that but from a family matter.
In assessing whether the applicant had a well‑founded fear on an objective basis the tribunal considered the account the applicant gave of his circumstances and whether there was a well‑founded fear of persecution for a Convention reason. The tribunal concluded that the harm feared by the applicant was not persecution for a Convention ground. It accepted the claims made by the applicant that his sister married into a family where she was ill-treated and that her husband abused her. It accepted that the abuse was of a kind and level which led her to return to her own family home. It accepted that the marriage had broken down and the husband obtained a divorce. It accepted that the applicant was caught up in these matters and that he was threatened by his then brother‑in‑law. It accepted that on one occasion he was assaulted by some men as he returned from cricket practice. It accepted that the applicant himself firmly believed that his brother‑in‑law was behind that assault.
The tribunal, however, considered whether the account given by the applicant was grounded in a Convention reason and concluded that it was not. It considered the fact that the harm done by the former husband was not motivated by any of the reasons stipulated in the Convention. It grew out of the circumstances of the people involved, the couple and their families. The motivation on the part of the applicant’s brother‑in‑law was not for any of the five Convention reasons. The grounds on which the divorce was sought was that of malicious desertion. The tribunal considered that it was plausible that the motivation behind the brother‑in‑law's threat of harm and actual alleged harm to the applicant was for reasons of his membership of his wife's family and for reasons of his attempts to protect his sister.
The tribunal considered whether the fact that the brother‑in‑law was an army officer shifted the issue toward a Convention ground but found that it did not. The tribunal did not find that the alleged failure to act on the complaints made to the police was indicative that the applicant was without protection in his Country or that there were reasons other than the particular circumstances of the marriage which led him to being unprotected in the future.
The tribunal then went on to consider the effect of section 91S of the Act. It stated:
The tribunal has considered whether a recent amendment to the Migration Act section 91S applies in this particular matter. This concerns the situation where a person seeks asylum for reason of their membership of a particular social group, namely, the family.
Having quoted the section, the tribunal then stated:
The reasons for the harm and threatened harm to the applicant's sister and members of her family are not reasons that engage the Refugees Convention. The applicant himself was threatened and remained fearful for reasons which are personal and arise only out of his relationship with his sister and his attempt to help resolve the marriage crisis. In these circumstances and in the absence of any other Convention‑related claims, the tribunal must find that the applicant is not a person who has a well‑founded fear of persecution for reasons as stated in the Refugees Convention.
Consideration
The applicant contended in this matter in essence that the tribunal had made a jurisdictional error because (1) it had failed to give any or any proper consideration to the applicant's contention that because of his membership of a particular social group, in this case his family, he was liable to be persecuted by his brother‑in‑law; and (2) that the tribunal erred in its interpretation of section 91S of the Act. I find the tribunal did not fall into jurisdictional error in finding that no Convention ground applied to the facts asserted by the applicant.
In this case the applicant claimed to fear persecution based upon his family membership and in particular his relationship with his sister. It is not clear from the facts whether his family membership is in fact "an essential and significant" reason for his fear of persecution as is required by section 91R(1) of the Act as it does not appear that other family members have the same fear.
I accept the respondent's submission that it may be that it was the applicant's attempts to intervene in the marital dispute between his sister and her husband rather than his family membership that is the cause of his possible future persecution. If that was so, then the applicant would not fall within the Convention definition because persecution must occur by reason of family membership (Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184).
For the purposes of the Refugees Convention, a particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. A family can be a particular social group However, where the claimed social group is a family, it is necessary to have regard to section 91S. That section was introduced into the Act by the Migration Legislation Amendment Act (No.6) 2001 (Commonwealth). It was introduced in response to the decision in Sarrazola referred to previously, wherein a Full Federal Court held that the sister of a person who was persecuted by criminals for failing to pay her brother's drug‑related debts may have a well‑founded fear of persecution as a member of a particular social group, namely, her family. The amending Act came into force on 1 October 2001. By reason of section 7 of that Act, section 91S applies to all cases finalised by the tribunal after 1 October 2001. It therefore applies in this case despite the fact that the application was made to the tribunal on 2 May 2001. Section 91S of the Act provides that:
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b)disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
The explanatory memorandum that accompanied the enactment of section 91S provided in part that:
(33) The above provisions do not prevent a family per se being a particular social group for the purpose of establishing a Convention reason for persecution. However, they prevent the family being used as a vehicle to bring within the scope of the Convention persecution motivated for non‑Convention reasons.
In SDAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1102 at 19 to 24 Merkel J, having considered the legislative history just outlined, explained (at 24) that:
It is my view that, properly construed, the fear of persecution and persecution referred to in s 91S is a fear and persecution for the reason that the person is a member of the particular family, another member of which fears persecution or has been or may be targeted for persecution for a non‑convention reason. As a consequence of that non‑convention fear or persecution, the fear or persecution of other family members by reason of their family membership is to be disregarded. Thus, where a family member's fear of persecution has arisen because another family member's criminal debts have not been paid, or because a blood feud has arisen from or been associated with the unlawful act of another family member, that fear of persecution and persecution is to be disregarded.
In the circumstances of this case and as put by Counsel for the respondent in submissions I find that section 91S operates so that the applicant's fear of persecution which is grounded solely in his involvement in attempting to resolve the marital problems experienced by his sister and her husband cannot be taken into account unless the mistreatment of his sister took place for a Convention reason. The applicant claimed that the mistreatment of his sister may be seen as persecution for a Convention reason in the contentions put before the court. The applicant said that it was arguably persecution for reason of membership of a particular social group ie, wives or abused wives in Sri Lanka. No authority was cited in support of this proposition. Moreover, this argument was not one advanced before the tribunal and the tribunal had no obligation to deal with it. The tribunal cannot have erred in failing to consider whether the applicant's sister was persecuted for a Convention reason. The tribunal was not asked to consider this matter and did not make any factual findings in relation to it. In any event, the social group claimed, abused wives, cannot constitute a social group for Convention purposes. The High Court has held that the uniting characteristic or element of a social group cannot include a common fear of persecution (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 241 to 242 per Dawson J, 263 per McHugh J and 285 per Gummow J).
The applicant's alternative contention that the relevant social group was wives equally must fail. It cannot be established that the treatment of the applicant sister occurred for the essential and significant reason that she was a wife. It was not the sister's status as a wife that accounted for her fear. The sister's fear was directly related to her personal circumstances. Any mistreatment she experienced occurred for personal reasons associated with the people involved.
I accept the argument of the respondent. Section 91S mandates in these circumstances that the applicant's claim must fail because the reason that the family may experience persecution is not a Convention reason. Accordingly, I propose to dismiss the application and order that the applicant pay the respondent's costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 23 December 2003
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