VNAM v Minister for Immigration
[2003] FMCA 480
•17 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VNAM v MINISTER FOR IMMIGRATION | [2003] FMCA 480 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of Protection Visa – Applicant from India – previous cancellation of Student Visa – whether jurisdictional error established – whether Refugee Review Tribunal erred in finding that the Applicant was not a member of a “social group” – no reviewable error found. Migration Act 1958 (Cth) ss.91R; 474. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 |
| Applicant: | VNAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ336 of 2003 |
| Delivered on: | 17 October 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 14 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf.
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the Respondent's costs of and incidental to this Application in the sum of $6,000.
The Officer in charge of the Immigration Detention Centre at Maribyrnong is requested to:
(a)ensure that the Applicant is assessed by a medical practitioner or a psychologist for the purpose of making a diagnosis on his mental state or psychological well-being; and
(b)take all reasonable steps to ensure that the applicant is kept under observation to avert the possibility that he may harm himself.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 336 of 2003
| VNAM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal handed down on 25 February 2003 confirming the decision of the delegate of the respondent not to grant the applicant a Protection Visa. The applicant is an Indian citizen and is of the Hindu faith. He entered Australia on 26 July 2000 as a holder of a Student Temporary Class TU visa, subclass 560. He obtained a further subclass 560 visa on 4 August 2000, but this visa was cancelled by a delegate of the respondent on 24 January 2002 as the applicant failed to meet the conditions attached to the visa.
The applicant sought the Migration Review Tribunal's review of that decision. However, that application was dismissed. The applicant applied for a Protection Visa and the delegate of the respondent refused to grant that visa. The applicant then applied for review of the delegate's decision to the Refugee Review Tribunal, and a hearing was conducted by that Tribunal on 19 February 2003. The Refugee Review Tribunal affirmed the delegate's decision to refuse the Protection Visa.
The applicant then sought a review of the decision of the Refugee Review Tribunal and made an application to the Federal Court, citing the reasons for review and his Amended Application as having been affected by jurisdictional error, in particular:
That the tribunal erred in finding that the applicant was not a member of a group of a kind which fell within the meaning of a social group in Article 1A of the Refugees Convention.
The applicant seeks orders to the effect
(1)That the decision of the Refugee Review Tribunal dated 25 February 2003 be set aside;
(2)That the matter be remitted to the tribunal for determination according to law.
History
The application came before this court on Tuesday, 14 October 2003. The applicant was unrepresented on that occasion. However, he indicated that he was under the belief that he would have someone appearing for him on that date. I proceeded with the application, as it was clear that he had been given pro bono assistance purely for the purpose of filing an amended application, and that had been done.
The applicant had initially entered Australia on a Student Visa. He undertook a Diploma course in Information Technology at the St George Institute. That visa was cancelled for reasons of the applicant's failure to comply with the conditions attached to the visa, as the St George Institute advised that he had failed to meet attendance and academic requirements.
The applicant informed the court that his family are currently unaware of his being in detention and that they believe he is currently in the process of completing his college course with only two subjects left to complete. The applicant has submitted that a great shame would befall the family should they become aware of his failure to complete his Diploma and that they are expecting him to support the family upon his return to India, having completed his course and obtained his qualifications.
The applicant further submitted that he is in fear of being persecuted if he were made to return to India as he was involved in a fight with Muslim students in his local area. With this evidence the applicant seeks to convince the Court that he has a meritorious claim of refugee status as he belongs to a particular “social group”. However, as became clear through the application of the relevant authorities, the applicant's case is lacking the specific Convention classifications as to the identified group, which is deemed and recognised as according with the necessary basis for the grant of a Protection Visa.
The respondent relied on the contentions of fact and law document filed on 30 September 2003. The respondent argued that the Tribunal's findings were correct and should remain. The respondent seeks that the application should be dismissed, with an order for costs. The grounds put forward by the applicant were addressed by the respondent.
Current Authorities
I now turn to the current authorities as to the direction the court must take in addressing this issue. As was earlier stated, the applicant relied on his membership of a particular “social group” as warranting his claim for refugee status. His position was that the Tribunal had erred in not recognising that he was a member of a “social group”, as defined in Article 1A of the Refugees Convention.
In the case of Applicant A v the Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 the Honourable McHugh J said at page 264:
“The use of that term ‘membership’ in conjunction with a particular social group connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as a particular group.”
The Honourable Dawson J further elaborated on the social group aspect and said at page 241:
“A particular social group, therefore, is a collection of persons who share a characteristic or element which unites them to be set apart from society at large – that is to say, not only must such a person exhibit some common element, the element must unite them, making those who share it a cognisable group within their society”.
The applicant does not provide any evidence of connection to or association with a particular social group. The tribunal at page 64 of the Case Book commented that the applicant had not formulated what social group he claimed to be a member of. The tribunal said:
“In his evidence to the Tribunal, he did not indicate that there were other people in a similar situation to him in India who had been treated badly because they had not obtained a degree when they went to study in Australia or other places overseas. There is no evidence before the Tribunal that his is a cognisable social group within Indian society. The Tribunal finds that the applicant is not a member of a particular social group and consequently does not have a fear of persecution for this Convention ground”.
The Tribunal went on to say:
“Further, even if the applicant was to be a member of a particular social group, the harm that he fears is ostracism and disappointment from his family and peers. Pursuant to section 91R subsection (1) of the Act, persecution must involve ‘serious harm’ to the applicant and systematic and discriminatory conduct. The harm the applicant fears is not of sufficient seriousness as to amount to persecution within the meaning of the convention. The applicant does not have a fear of persecution within the meaning of the convention”.
The applicant cites his membership of his family as the cause of his fear, such that his failure to complete his degree in Australia will cause his family to ostracise him and thus constitute a “social group” which deems his falling within the convention reasons. In the decision of NACV v the Minister for Immigration and Multicultural Affairs (2002) FCA 411, the Honourable Conti J said at paragraph 3:
“As to whether a particular conduct such as rejection or disinheritance by one's family or otherwise is sufficiently serious to amount to persecution, this is also a factual issue over which the Tribunal is the final arbiter”.
The applicant's evidence simply suggests that he was a member of a social group but he did not identify the group to which he belongs, nor was there evidence of such a group existing. It is for this reason that I find that there was no error in the reasoning of the Tribunal with respect to this claim. The applicant indicated that he had had a fight with some Muslim students in 1996 and that he has a well‑founded fear of persecution on the grounds of religion which arose from that incident. However, there was no evidence to support that claim.
Conclusion
The finding made by the Tribunal that:
“there was no real chance of persecution arising from that incident or that he had a well-founded fear of persecution on the grounds of religion,”
does not disclose any reviewable error. This application must fail.
The applicant has been held in Immigration Detention for eight (8) months, he told the Court. When he attended court on 14 October 2003, the applicant appeared to be confused and depressed. He indicated that he did not wish to return to Court today to hear the decision, so I excused him from attending today. I was sufficiently concerned about the applicant's mental state that I informed his escorts who were returning him to the Immigration Detention Centre that the applicant needed to be observed closely as I had concerns about his state of well-being.
I note that on page 33 of the Court Book the applicant is recorded as having said to the delegate on 24 January 2002 that if his Student Visa were to be cancelled he would commit suicide. The applicant was detained and a health assessment was conducted on 29 January 2002. As the applicant was found not to have any underlying health or medical concerns, he was released from detention on a bridging visa.
In his application for a Protection Visa, I refer to page 11 of the Case Book, the applicant says:
“I will be ostracised, and in my gloom I will again think of suicide. For this reason my future safety depends on my being granted protection so I can regain my mental health and find ways out of this impossible situation. I cannot see a way out at this time. There may not be one, hence my need for protection”.
From my observation of his demeanour on 14 October I still have concerns about the applicant's mental or emotional health. The fact that he said in court that he telephones his family in India every two months and maintains the fiction that he is still studying at college is troubling. Apparently the applicant's family are unaware that he is being held in Immigration Detention. My concern for his well-being is such that I propose to request that he be assessed by a medical practitioner or a psychologist and that he be kept under observation for fear that he may harm himself.
The application, as I have said, will be dismissed. I note that in the decision of NAEH v the Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 186 the Honourable Moore J referred, at paragraph 16, to the general principle that costs should follow the event. In that case the court referred to the impecuniosity of the applicant, but even in a case where someone is in Immigration Detention, that does not warrant in my mind a departure from the general principle that costs should follow the event.
I would comment that the application brought by this applicant was entirely without merit and I propose to order that the applicant pay the respondent's costs of this application. In my view the estimate of costs in the circumstances is an appropriate one. I note the steps that were needed to be taken to bring this otherwise unmeritorious application to the attention of the court. I propose, therefore, to make the order that appear at the commencement of this decision.
I require a transcript of my reasons for this decision and the transcript, when edited, will form the basis of the written record of this judgment which will be made available in due course.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 30 October 2003.
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