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1 This is an appeal from the decision of Marshall J dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

VAM v Minister for Immigration & Multicultural Affairs [2002] FCAFC 125 (10

VAM v Minister for Immigration & Multicultural Affairs [2002] FCAFC 125 (10 May 2002)
Last Updated: 10 May 2002


FEDERAL COURT OF AUSTRALIA
"VAM" v Minister for Immigration & Multicultural Affairs [2002] FCAFC 125


"VAM" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1284 OF 2001

BLACK CJ, DRUMMOND AND KENNY JJ

MELBOURNE

10 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 1284 OF 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
"VAM"

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
BLACK CJ, DRUMMOND AND KENNY JJ


DATE OF ORDER:
10 MAY 2002


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 1284 OF 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
"VAM"

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
BLACK CJ, DRUMMOND AND KENNY JJ


DATE:
10 MAY 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
1 This is an appeal from the decision of Marshall J dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2 The decision of the Tribunal was "a privative clause decision" within s 474 the Migration Act 1958 (Cth) as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). As is noted by the Minister in his written submissions, judges of this Court, sitting at first instance, have expressed differing views on the extent to which s 474 restricts judicial review by this Court of decisions of the Tribunal. The learned primary judge did not find it necessary to express a concluded view on the extent of this Court's jurisdiction to review decisions of the Tribunal of the kind now in question because he considered that the appellant's application so lacked merit that whatever be the precise scope of this Court's powers of review, the application could not succeed.

3 In the proceedings before the learned primary judge, the appellant was represented on a pro bono basis by senior and junior counsel. The appellant appeared for himself on the appeal. His notice of appeal is confined to seeking "review of the decision made by the Federal Court hence the review of the decision made by the RRT in regards to my `protection visa' application". It does not identify any grounds for appealing the decision of the learned primary judge. But the appellant has had assistance in preparing his written contentions of fact and law. In essence, he contends that the learned primary judge erred in not upholding the complaints the appellant made about the Tribunal's decision.

4 The appellant in oral submissions to this Court said that the Tribunal had made some factual errors in the reasons it gave. But, this Court's jurisdiction to review the decision of the Tribunal would permit it to intervene only where errors of law are established, not errors of fact.

5 The appellant is a Malaysian national. He worked in Malaysia as a policeman from 1986 to 1992. After he left the police force he worked as a driver. In June 1997, he came to Australia on a tourist visa and stayed for one month. He then travelled to New Zealand where he lived for about a year. He returned to Malaysia in about September 1998 and stayed there until 31 December 1998, when he once again departed for Australia on a tourist visa. He subsequently obtained a student visa, which he overstayed. When he was placed in migration detention for overstaying his student visa, he made an application for a protection visa.

6 The appellant sought a protection visa, claiming he faced persecution in Malaysia because, while serving as a policeman there, he gave information to the anti-narcotic police about a gangster named "Ringo" who he said had close contacts in the Malaysian government and police force. In summarising the claims the appellant made to the Tribunal, the learned primary judge referred to the ill-treatment he said he suffered at the hands of other police after he provided this information about "Ringo" in 1989, to the unjustified disciplinary action he said was taken against him and to his dismissal from the police force in 1992. The learned primary judge also referred to his claim that he had served two years in a rehabilitation centre on trumped up drug charges and to the numerous death threats the appellant said he received and the numerous attempts made on his life while he lived in Malaysia between 1992 and mid 1997, when he came first to Australia and then to New Zealand. The learned primary judge also noted the appellant's account of his return to Malaysia in about September 1998, the attack he said was made on him and his ultimate flight to Australia in December 1998.

7 A major issue litigated at first instance was whether the Tribunal's decision was flawed with error in so far as it rejected the appellant's claim that the persecution he feared if returned to Malaysia was "for reasons of ... membership of a particular social group" within Art 1A(2) of the Convention relating to the Status of Refugees of 28 July 1951, as amended by the Protocol relating to the Status of Refugees of 31 January 1967 ("the Convention"). In his written submissions, the appellant contends that the learned primary judge fell into error in rejecting the appellant's complaints about the Tribunal's conclusion on this issue.

8 In the proceedings before the learned primary judge, counsel for the appellant contended that the Tribunal erred in not holding that "a particular social group" within Art 1A(2) of the Convention could be defined by a shared occupation, coupled with engagement in a particular activity by those sharing that occupation. It was said that the Tribunal erred in concentrating on whether ex-policemen or disgraced former policemen constituted a particular social group without taking into account that each of those persons had also engaged in the particular activity of providing information to the authorities about the gangster "Ringo". The learned primary judge rejected this argument. His Honour said:

"Not only did the Tribunal reject the proposition that the applicant was a member of a particular social group of former policemen or disgraced policemen, it rejected the view that the applicant was a member of a social group based on ex-policemen targeted for giving information about Ringo."
9 His Honour here referred to relevant passages in the Tribunal's reasons that supported his conclusion. In addition to rejecting the appellant's complaint for this reason, his Honour also said:

"However, even if the Tribunal did not specifically consider the group identified by the applicant as being defined by occupation and activity, I do not consider that this constitutes a material and/or a reviewable error in this matter."
10 His Honour then explained why he considered that, contrary to the appellant's submissions, a group defined by occupation (former policemen or disgraced policemen) and a shared activity (the provision by each member of that group of information to the authorities about the gangster "Ringo") could not constitute "a particular social group" for the purposes of Art 1A(2) of the Convention. His Honour said:

"31. However, even when these factors are combined, it is difficult to see how a group identified as `policemen or ex-policemen who have provided information to the authorities on the criminal activities of Ringo' are united by any feature other than fear of persecution. As Kirby J held in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, (2000) 201 CLR 293 at [67]:
`The membership of a particular social group must precede the persecution and not solely be the result of it.'

32. Identification of a group as being `policemen and ex-policemen who have provided information to the authorities about Ringo' is necessarily defined by reference to alleged persecution by Ringo and/or those who protect or work for him. Any persecution suffered by such a group occurs primarily because of the actions of individuals, not by virtue of being a member of a particular group. I accept the respondent's submission that the only uniting feature of the group would be a fear of persecution, and therefore the group identified by the applicant cannot be considered a `particular social group' for the purposes of the Convention."

11 It may not be right to say that a group constituted of policemen and ex-policemen who have provided information to the authorities about "Ringo" is necessarily defined by a common fear of persecution by "Ringo" and his protectors. The characteristic of being a policeman or an ex-policeman and the further characteristic of being such a person who has provided information to the authorities about "Ringo" might be possessed by a number of people without those two characteristics necessarily attracting persecution by "Ringo" or his protectors. That such persons might be exposed to persecution relevant to a claim to refugee status depends upon "Ringo" possessing sufficient influence with the authorities to persuade them to take action against members of the group or to allow him or his associates to take action against those persons without intervention by the authorities. Being a police or ex-police informant against "Ringo", if capable of setting such persons apart as an identifiable group in society are, in our opinion, separate characteristics from the persecution that was said by the appellant to be attracted to those persons.

12 But the learned primary judge considered that there was another basis for refusing to find error in the Tribunal's conclusion that the appellant was not a member of "a particular social group" within the Convention. His Honour said:

"33. In addition there was no evidence before the Tribunal that such a group was recognised within Malaysian society as `a group that is set apart from the rest of the community'. See Zamora at 464."
13 In Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458, the Full Court, after observing that the members of the High Court who constituted the majority in Applicant A's case did not adopt an entirely common approach to the issue of what constitutes a particular social group for the purposes of the Refugees' Convention (p 462), analysed the judgments in that case and concluded, at 464:

"In our view Applicant A's case is authority for the following propositions. To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community."
14 The appellant did not challenge what the learned primary judge had to say about there being no evidence before the Tribunal that the group identified by the appellant by reference to this particular occupation and this particular activity, was recognised within Malaysian society as such a group. It is not surprising that there was no such evidence. All that the members of the group identified by the appellant have in common is that each is a former policeman or disgraced former policeman and each has provided information to the authorities about the gangster "Ringo". It would seem unlikely in the extreme that possession by each of a number of people of those two characteristics could give rise to a perception within Malaysian society that those people were a group set apart, as a social group, from the rest of the community in which they lived.

15 There is therefore no error in the learned primary judge's conclusion that, if the Tribunal's decision was open to judicial review in this Court, there was nevertheless no reviewable error in its refusal to accept that the appellant was a member of "a particular social group" within the meaning of that term in Art 1A(2) of the Convention.

16 The learned primary judge was also said to have erred in accepting the respondent's submission that the Tribunal's finding that any fear of persecution held by the appellant was not well-founded. The appellant, in his written submissions, repeated the argument put to the learned primary judge that the issue of whether there is a well-founded fear of persecution and whether this is for a Convention reason are not to be considered separately. His Honour said:

"... I reject the applicant's argument that the Tribunal's alleged failure to find the applicant is a member of a particular social group infects its finding regarding fear of persecution. I consider that there is no reason why the Tribunal in this matter was not entitled to examine separately whether there is a well founded fear of persecution, and then consider whether it is held for a Convention reason. Once concluding that the applicant did not have a well-founded fear of persecution, the Tribunal was entitled to uphold the Minister's decision not to grant the applicant a protection visa."
17 We doubt that the appellant's complaint about this aspect of the learned primary judge's decision is well-founded. But once it is seen that the learned primary judge was correct in concluding that the group identified by the appellant could not constitute "a particular social group" within the meaning of that expression in the Convention, the learned primary judge's conclusion on the issue of whether the appellant's fear of persecution was well-founded, even if incorrect, cannot constitute an error sufficient to require the setting aside of his decision.

18 In oral submissions, the appellant also said that the Tribunal had given him two weeks after the hearing within which to provide it with certain information concerning the gangster "Ringo" upon which he wished to rely. The appellant did not receive this material from Malaysia until two months after the Tribunal hearing and it appears that, in consequence, the Tribunal did not consider it. From what the appellant told this Court, it seems that this information could be relevant only to the question whether the appellant had a well-founded fear of persecution. Even if the Tribunal were open to criticism for not taking this information into account, that could not amount to a material error justifying intervention by this Court since the appellant has been unable to show error on the part of either the Tribunal or the learned primary judge in rejecting his claim to membership of "a particular social group" within the Convention meaning of that term.

19 Whatever be the extent of this Court's power to review a privative clause decision like that now the subject of appeal, there is no substance in the complaints made by the appellant of errors by the learned primary judge. We would dismiss the appeal with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 10 May 2002

Counsel for the Appellant:
The appellant appeared in person.






Counsel for the Respondent:
Mr W Mosley






Solicitor for the Respondent:
Clayton Utz






Date of Hearing:
9 May 2002






Date of Judgment:
10 May 2002


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