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MIGRATION REVIEW - Protection visa refused - applicant not member of social group within meaning of convention - only unifying factor fear of criminal violence - no jurisdictional error.

VEAX v Minister for Immigration [2003] FMCA 53 (24 February 2003)

VEAX v Minister for Immigration [2003] FMCA 53 (24 February 2003)
Last Updated: 5 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VEAX v MINISTER FOR IMMIGRATION
[2003] FMCA 53



MIGRATION REVIEW - Protection visa refused - applicant not member of social group within meaning of convention - only unifying factor fear of criminal violence - no jurisdictional error.



Applicant:
VEAX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 884 of 2002



Delivered on:


24 February 2003



Delivered at:


Melbourne



Hearing Date:


24 February 2003



Judgment of:


Phipps FM



REPRESENTATION

The applicant appearing in person.



Counsel for the Respondent:
Mr C. Horan



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs fixed at $4500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 884 of 2002

VEAX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application in relation to a decision of the Migration Review Tribunal given on 20 May 2002 in which a decision to refuse the applicant a protection visa was affirmed.

2. The applicant appears in person assisted by an interpreter. The application was originally made to the Federal Court. The grounds of review contained in the application are largely pro forma grounds of review. Little was said by the applicant in support of the application.

3. It is necessary to look at the application to see if there is any basis on which this court could interfere.

4. The background is contained in the delegate's decision dated 9 April 2002. The applicant is now 38. He is an Italian citizen who arrived in Australia on 9 December 1990. He held a visitor's visa which authorised his stay until 13 June 1991. He was granted a further temporary visa until 9 September 1991. He applied to remain permanently in Australia on spouse grounds and he had a number of temporary processing visas and then a temporary spouse visa which ceased on 13 April 2000 when the application for permanent residence was rejected.

5. He was detained as an unlawful non-citizen on 24 May 2001. He made application for the minister to exercise his discretionary powers under section 351 of the Migration Act. The minister determined not to exercise his discretionary powers. A further application was made and eventually he applied for a protection visa.

6. The basis of his application is a fear of the Mafia. His evidence to the tribunal was that in 1995 he stole a car which contained a driver's license which he burned. There was also a shotgun in the car. He now believes that people are searching for him because of the stealing of the car, the shotgun and the driver's licence.

7. The tribunal member set out the various statutory provisions governing the application and in particular article 1(a)(ii) of the Refugees Convention, that is, the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

8. Having set out the evidence, the tribunal concluded that clearly the conventions reasons of race, religion, nationality or political opinion were not factors. The tribunal member then considered whether the applicant was part of a particular social group within the meaning of the definition and applied High Court decisions which state that there must be some characteristic other than persecution or fear of persecution which unites the social group.

9. The only group to which the applicant might belong was something such as a victims of crime group, but the only unifying element would be fear of the Mafia. So the only unifying element is the fear of persecution. On that basis, the tribunal concluded that the applicant did not belong to a particular social group within the meaning of the convention.

10. The court's jurisdiction is with respect to any matter in which a writ of mandamus or prohibition or injunction is sought against an officer or officers of the Commonwealth - Migration Act 1958 section 483A, Judiciary Act 1903 section 39B. The court's jurisdiction is limited by the privative clause in section 474 of the Migration Act. In order to exercise jurisdiction the court must be able to find a jurisdictional error. Breach of the rules of natural justice is a jurisdictional error, as may certain other serious errors. See: Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2.

11. The applicant has said that he could not explain himself properly to the tribunal. He has said that he needed a solicitor. The tribunal has set out in some detail what it is that the applicant told the tribunal and why it is that he has a fear of returning to Italy. The Tribunal accepted the applicant's story.

12. I can see no basis for finding jurisdictional error. The tribunal clearly understood what the applicant was saying. The tribunal has set out all the relevant considerations and applied them. There is no basis for saying that the tribunal made an error much less jurisdictional error. There is no basis for saying that the tribunal did not understand what it was that the applicant was saying so that there might have been a mistake made. It follows that the application must be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date:
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