Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZDNO v Minister for Immigration [2004] FMCA 815 (25 November 2004)

SZDNO v Minister for Immigration [2004] FMCA 815 (25 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDNO v MINISTER FOR IMMIGRATION
[2004] FMCA 815




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Minister for Immigration & Multicultural Affairs v Zamora (1998) 85 FCR 458

Applicant A v Minister for Immigration & Ethnic Affairs (1990) 190 CLR 225, 256-257

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1319

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:
SZDNO




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1359 of 2004




Delivered on:


25 November 2004




Delivered at:


Sydney




Hearing date:


11 November 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr R Beech-Jones




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1359 of 2004

SZDNO



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 10 December 2002 and handed down on 14 January 2003. The Tribunal affirmed a decision of a delegate of the respondent ("the delegate") made on 30 May 2001 to refuse to grant the applicant a protection (Class XA) visa.

Background

2. The applicant, who was born on 8 May 1977 (Court Book p.2) ("CB") and claims to be a citizen of India, arrived in Australia on 29 March 2001. On 9 May 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act") (CB pp.1-36).

3. On 30 May 2001 the delegate refused to grant the applicant a protection visa (CB pp.40-41) and on 27 June 2001 the applicant applied for a review of that decision (CB pp.49-52). The Tribunal decided on 10 December 2002 to affirm the delegate's decision (CB pp.75-86) and that decision was handed down on 14 January 2003.

4. The applicant claimed that he had a well-founded fear of persecution upon his return to India but did not articulate any Convention based reason for that fear. The particulars of his claim were set out in his protection visa application (CB pp.18-21) and supported by an affidavit by his wife (CB pp.34-35). The Tribunal wrote to the applicant on 29 June 2002 acknowledging receipt of his application and inviting him to lodge any new documents or written evidence in support of his case. On 1 October 2002 the Tribunal forwarded the applicant a letter inviting him to a hearing on 9 December 2002.

The Tribunal's findings and reasons

5. At the hearing before the Tribunal, the applicant expanded upon the details in his written application and made the following claims:

a) He was a qualified commercial diver and was employed as a diver in India up to December 1996 and from then until March 2001 in the United Arab Emirates (CB p.78 [9]).

b) While working in India he found property belonging to international smugglers who had connections with officials in the Indian government. The smugglers tried to force the applicant to work for them but he left and went to work in Dubai (CB p.78 [10] - p.79[1]).

c) He worked in the UAE until 1998 when he returned to India for a two month visit in September 1998 (CB p.80 [6]).

d) While in the UAE in December 1998 he learned of the death of his father and returned to India (CB p.80 [7]).

e) His father had died under mysterious circumstances (CB p.80 [8]).

f) Upon his return to the UAE the applicant received threatening telephone calls in reference to his father being killed (CB p.80 [10]).

g) The smugglers wanted the applicant to work for them in the UAE (CB p.79 [3]).

h) He feared he might be killed by the international smugglers if he returned to India (CB p.79 [4]).

6. The Tribunal, in its decision, set out the constituent elements of the definition of "refugee" (CB pp.76-77). It summarised the applicant's claim and evidence before it and then set out the findings and reasons for its decision. The Tribunal accepted most of the factual claims put forward by the applicant (CB p.81[6]-[10]). However, it did not accept that the applicant's father was killed by criminals in retaliation for his refusal to assist the smugglers (CB p.81[8]) nor that the deaths of his fellow divers in India were connected to any trouble the applicant had experienced when he lived in India (CB p.82[1]).

7. Although the Tribunal accepted the applicant had been intimidated by threats from criminals in the past, it did not accept that he had been persecuted for a Convention based reason (CB p.82[2]). Further, as he had not been harmed in the past, although threatened, the Tribunal did not consider there was a real chance that the applicant would face serious harm if he returned to India but if he did any such harm would be inflicted on him by "criminals" rather than for a Convention reasons (CB p.82[3]). The Tribunal, in its findings and reasons, made the following statement summarising their issues:

"The applicant did not claim that he was threatened for reasons of his ethnicity, his religion or his political views, and the Tribunal is not satisfied the applicant is a member of any recognisable social group or that he might be harmed for such a reason." (CB p.82[3])

8. The Tribunal affirmed the decision of the delegate not to grant a protection visa.

The application for review of the Tribunal's decision

9. On 10 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following ground:

1. The Tribunal failed to consider the application under the particular social group and thus made jurisdictional error.

Particulars

On any one of the following bases:

(a) Indian citizens who refuse to co-operate with international smugglers who are connected with top officials;

(b) Law-abiding professionals who refuse to co-operate with internationally connected powerful criminals;

(c) divers who refuse to help international smugglers who operate with impunity; and

(d) people who refuse to help internationally connected smugglers with connections to police and other security agencies.

10. The applicant appeared at a directions hearing on 17 August 2004 and consented to Short Minutes of Order requiring the applicant to file and serve an amended application giving full particulars of each ground to be relied upon and to file and serve any written submissions five (5) working days prior to the hearing date. No amended application or written submissions have been filed.

The law

11. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

12. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

13. The applicant appeared self represented with the aid of an interpreter. When the applicant was invited to make oral submissions, this was limited to making a very brief statement that the Tribunal did not accept the circumstances in which his father had been killed. However, the applicant was unable to make any further submissions which referred to material that the Tribunal had not considered in making its decision. With the assistance of the interpreter, the applicant was referred to the passage of the Tribunal's decision which referred to its finding in relation to the death of the applicant's father. The Tribunal states:

"While the applicant claims that his father was killed by these criminals in retaliation for his refusal to work for them, the Tribunal finds that there is not sufficient evidence for it to be satisfied that the applicant's father was killed for this reason, especially as his death took place some two years after the applicant's refusal."

14. Despite being given every opportunity to raise other issues, the applicant declined the further invitation to address the Court on his submissions.

15. Mr R Beech-Jones of Counsel, appearing for the respondent, filed written submissions prior to the hearing. In those written submissions it was contended that the application under the Judiciary Act 1903 (Cth) asserts that the Tribunal committed jurisdictional error in failing to consider whether the applicant was a member of a particular social group. Four permutations of such a social group are provided, namely: "Indian citizens who refuse to co-operate with international smugglers who are connected with top officials"; "law-abiding professionals who refuse to co-operate with internationally connected powerful cirminals"; "divers who refuse to help international smugglers who operate with impunity" and "people who refuse to help internationally connected smugglers with connections to police and other security agencies". It was submitted that there was no basis for a finding of any such error. The Tribunal expressly considered whether the applicant was a member of a particular social group, but, quite understandably, concluded that he was not a member of any such group.

Such a conclusion was clearly open on the material before the Tribunal see Minister for Immigration & Multicultural Affairs v Zamora ("Zamora").

16. It was submitted that the Tribunal was not satisfied that the harm feared by the applicant did not arise from his "membership" of any social group but purely due to his individual circumstances. Again, such a conclusion was open to the Tribunal: see Applicant A v Minister for Immigration & Ethnic Affairs ("Applicant A").

17. It was further submitted that the Tribunal's decision was handed down on 14 January 2003. An application for review in respect of the decision was not filed until 10 May 2004. No explanation has been provided by the applicant for the delay in filing these proceedings. Thus, even if there was some argument basis for establishing a jurisdictional error, it is submitted that the Court should refuse to grant relief: see Re Refugee Review Tribunal; Ex parte Aala per Gaudron and Gummow JJ at [53]; NAUV v Minister for Immigration & Multicultural & Indigenous Affairs per Hely J at [50]-[55].

Conclusion

18. The applicant in these proceedings was self represented. He has made no written submissions and only very limited oral submissions in the form of a comment, rather than any structured argument. It is acknowledged that the applicant is hampered by the problems of language, although he is assisted by an interpreter. Despite being given every assistance and encouragement in relation to the comments regarding his father's death, the applicant did not have any material to present to the Court. The grounds in the original application are vague and, although there was an attempt to particularise, the structure of the particulars do not really complement or assist the ground pleaded. However, where an applicant is self represented, the Court must independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors.

19. I have reproduced the submissions made by Mr Beech-Jones of Counsel and I adopt his approach. The passage in Zamora quite clearly establishes the criteria of determining the social group and the danger of defining the group parameters too narrowly. Where the Full Court held:

"The particular social group identified by Ms Zamora is �professionally accredited tourist industry workers' or �certified tourist guides with the Ecuadorian Tourist Commission', that is a group constituted by her and her professional colleagues in Ecuador. A group so identified would be one the members of which share a distinguishing attribute in the sense described by the Chief Justice in Applicant A's case. However, it is doubtful that such a group would be one recognisable in Ecuadorian society as one whose members share something which unites them. There will no doubt be cases in which persons who have in common no more than a shared occupation do form a cognisable group in their society. This may well come about, as McHugh J recognised in Applicant A's case, when persons who follow a particular occupation are persecuted by reason of the occupation that they follow. The persecution for following a particular occupation may well create a public perception that those who follow the occupation are a particular social group. Human rights workers in certain nations subject to totalitarian rule come to mind as a possible example. Ordinarily however, persons who have in common no more than a shared occupation are not recognisable as a particular social group in their society. That is, they are not defined as individuals in any meaningful way by reason of their occupation. In the words of Gummow J in Applicant A's case, they are simply a "broadly defined segment of those sharing a particular country of nationality."

20. The definition of the group when narrowed is highlighted by the decision of his Honour McHugh J in Applicant A.

"Where the claim is one of a "well-founded fear of being persecuted for reasons of ... membership of a particular social group", the interaction between the concepts of "persecuted", "for reasons of" and "membership of a particular social group" is particularly important. Defining the group widely increases the difficulty of proving that a particular act is persecution "for reasons of ... membership" of that group. Thus, if the social group in the present case is defined to mean parents with one child, any involuntary sterilisation of the appellants (which is the relevant persecutory act) would not be "for reasons of ... membership" of that group because, even on the most favourable view of the appellants' case, it would be the particular refusal of the appellants to undergo voluntary sterilisation or to comply with government policy ..."

21. His Honour continues:

"Paradoxically, defining the group narrowly may take it outside the concept of "a particular social group" and increase the difficulty of proving that the act relied on is persecution "for reasons of ... membership" of the group. If the definition of a group has to be hedged with qualifications to relate it an alleged persecutory act, the proper conclusion may be that the reason for the act was not membership of the group but the conduct of the individual. Prisoners, for example, are arguably a particular social group. If they are routinely beaten because they are prisoners, they may well qualify for refugee status. But narrow the group to prisoners who refuse to obey prison regulations and the case for an applicant becomes so much harder of proof."

22. The Tribunal, in its findings, was not satisfied that the applicant had been persecuted for Convention reasons although it accepted that he may have been intimidated by threats from criminals for refusing to work for them. The Tribunal states that should the applicant face harm on his return to India, such harm would be the result of criminal activities rather than for any Convention reason. This conclusion is quite clearly summarised in the extract of the decision reproduced above in paragraph 13. The Tribunal was not satisfied the applicant would face Convention based persecution if he returned to India in the foreseeable future. That conclusion was clearly open to the Tribunal on the material before it.

23. Consequently, I am not able to identify any ground that the Tribunal has committed any jurisdictional error and the applicant's claim should be dismissed.

24. The respondent Counsel also draws my attention to the delay of the applicant in filing his application being outside the specified period in which to lodge an appeal against a decision of the Tribunal. In the circumstances, I do not believe that I am required to address that issue because of my findings above.

25. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 25 November 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia