FEDERAL COURT OF AUSTRALIA

VNAM v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 893

Migration Act 1976 s 91R(1)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

NACV v the Minister for Immigration and Multicultural Affairs [2002] FCA 411 cited

NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 28 cited

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 cited

VNAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1036 OF 2003

SUNDBERG J

9 JULY 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The appellant is a Hindu of Indian nationality who entered Australia on 26 July 2000 on a Student Temporary Class TU visa, subclass 560. He obtained a further subclass 560 visa on 4 August 2000, but this was cancelled by a delegate of the respondent on 24 January 2002 for failure to meet the conditions attached to the visa. The Migration Review Tribunal dismissed an application to review that decision. The appellant then applied for a protection visa. A delegate of the respondent refused to grant the visa. That refusal was affirmed by the Refugee Review Tribunal. The appellant then sought review of the Tribunal’s decision by the Federal Court alleging jurisdictional error, namely that the Tribunal erred in finding that he was not a member of a group of a kind which fell within the meaning of a “particular social group” in article 1A of the Refugees Convention. The application was transferred to the Federal Magistrates Court which dismissed it. The present appeal is from that decision. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 the Chief Justice determined that the appeal should be heard by a single judge.

2                     The appellant’s principal claim to refugee status was based on the possible reaction of his family and friends to his lack of educational achievement in Australia. He said he was ashamed to return home without the qualifications it was anticipated he would obtain there. The appellant also claimed he had had some problems consequent upon a fight with some Muslim students in 1996.

3                     As to the principal claim, the Tribunal noted that the appellant had not identified any particular social group the membership of which would give rise to a well‑founded fear of persecution. The Tribunal postulated a group such as persons who have come to Australia to study and returned home without a degree, or persons who have gone overseas to study and returned home without a degree. It referred to authorities establishing that a social group must be a cognisable group within society and be identifiable as a social unit. It 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 sub‑section (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.”

4                     The Tribunal also rejected the claim based on the fight with Muslim students in 1996. It found there was no real chance of persecution arising from this incident, or that the appellant had a well‑founded fear of persecution on the grounds of religion generally or on any other Convention basis.

5                     The Federal Magistrate referred to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 241 and 264 on the meaning of a “particular social group”, and said the appellant had not produced any evidence of connection to or association with such a group. After setting out the second passage quoted in [3], the Magistrate adopted the observation of Conti J in NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411 at [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.”

6                     The Magistrate also dismissed the claim of religious persecution based on the fight in 1996, on the ground that there was no evidence to support it.

7                     The grounds in the Notice of Appeal are that:

(a)                the Magistrate’s decision was made without jurisdiction or is affected by an “error of jurisdiction”;

(b)               the decision is affected by error of law and facts;

(c)                the Magistrate failed to take relevant considerations into account;

(d)               the Magistrate took into account irrelevant considerations, and

(e)                the Magistrate failed to accord the appellant natural justice.

No particulars of these grounds are provided. The manner in which the appellant was denied natural justice is not disclosed. I will treat ground (b) as enabling the appellant to raise on appeal the grounds he propounded before the Magistrate.

8                     The appellant appeared in person, as he had before the Magistrate, though he was assisted by a friend who made submissions in support of an application for an adjournment, which I refused. I will take the appellant to have repeated the matters he had put below. Nothing he said casts any doubt on the decision of the Magistrate. His Honour correctly stated the law about the meaning of “particular social group”, consistent with the High Court’s recent decision in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 (handed down after the Magistrate’s decision). He correctly concluded that there was no evidence that a social group such as that apparently relied upon by the appellant existed in India. Even if the Magistrate had found some error in the Tribunal’s treatment of the particular social group issue, his Honour would have been bound to dismiss the application for review because the Tribunal did not err in concluding that the harm the appellant fears is not serious harm within s 91R(1) of the Migration Act 1958. The error would have been irrelevant: NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 28. It is not clear from his Honour’s reasons (see [5]) whether his adoption of Conti J’s observation in NACV, which was made in connection with s 91R(1), is an acknowledgment of this.

9                     The appellant has shown no error on the part of the Magistrate in dismissing the claim of persecution on the basis of his religion arising out of the incident in 1996 involving the Muslim youths.

10                  The appeal must be dismissed.

Associate:

Dated:              9 July 2004