FEDERAL COURT OF AUSTRALIA

MZYAP v Minister for Immigration & Citizenship [2009] FCA 1188

MIGRATION – judicial review – protection visa – whether error in assessing claim on basis of membership of a particular social group.

Migration Act 1958 (Cth):  s 65 

SZBJH v Minister for Immigration and Citizenship [2008] FCA 501, followed

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, followed

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited

MZYAP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 1075 of 2008

GOLDBERG J

19 OCTOBER 2009

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

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

3.         Liberty is reserved to all parties to apply to the court for further orders and directions as to the costs of this appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                          This is an appeal against a judgment of a Federal Magistrate on 9 December 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 April 2008.  The Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant a Protection (Class XA) Visa (“the visa”) to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”). 

BACKGROUND

2                          The appellant is a citizen of Sri Lanka and a Muslim Tamil born in Negombo on 13 December 1966.  He speaks Tamil.  Prior to leaving Sri Lanka he owned and ran a grocery shop in Pottuvil.  He arrived in Australia on 8 July 2007, travelling on a false passport issued in the name of another person.  On 22 August 2007, he lodged an application for the visa in a name said to be his real name (and so found by the Tribunal).  A delegate of the Minister refused the application for the visa on 6 December 2007 and on 4 January 2008, he applied to the Tribunal for a review of that decision.

3                          Before the Tribunal, the appellant claimed that he had a well-founded fear of persecution from Sri Lankan government forces and the Karuna group on the basis of his Tamil ethnicity and Muslim religion, and possibly his imputed political opinion due to his perceived support of the Liberation Tigers of Tamil Eelam (“LTTE”).  It is an issue whether he also made a claim on the basis of being a member of a particular social group, namely Muslim businessmen in Sri Lanka.  The appellant’s claims were based upon three separate and distinct claims or sequences of events. 

4                          The first was that he was forced to pay money in Pottuvil to the LTTE prior to April 2004, and after that to the Karuna group which was backed by the army.  The appellant was abducted by the Karuna group in 2005 and was released after a ransom was paid (“the Karuna group extortion incident”).

5                          The second claim arose out of an incident in September 2006 when a number of people were massacred.  It was believed that the army Special Task Force (“the STF”) commander was involved although there were attempts to put the blame on the LTTE.  Since that incident the appellant’s brother has been missing.  There was a protest against the massacre and the army accused the appellant of organising the protest and threatened to kill him.  The appellant claimed that on 15 June 2007 he was taken to a camp by the STF, beaten for participating in the protest and accused of supporting the LTTE.  The appellant claims he was forced to sign a statement written in Sinhalese and was told that his brother had joined the LTTE.  He then left for Negombo (“the protest incident”).

6                          The third claim arose out of a bomb explosion in Negombo in June 2007 when the police mounted a cordon and search operation.  The police went to the place where the appellant was living.  When the police found he was from Pottuvil, the appellant claims he was detained, beaten and his identity card retained by the police.  The appellant was only released the next day following the payment of a bribe by his brother-in-law to a police officer who was a body guard to a Muslim Minister (“the Negombo incident”).

THE TRIBUNAL’S FINDINGS

7                          The Tribunal accepted that the appellant was subject to extortion by the Karuna group but found that he had not been targeted in the past, and would not be targeted in the reasonably foreseeable future for a Convention reason.  The Tribunal found that the extortion was directed at the appellant based upon a perception of his wealth and was aimed at him individually. 

8                          The Tribunal accepted that the appellant participated in the protest march, but it did not accept that he had led the march or had organised it.  The Tribunal found that the appellant had been vague about what he had done to organise the march and did not accept the claim because of its vagueness and implausibility.

9                          The Tribunal accepted that the appellant was questioned by police following a bomb explosion in Negombo but did not accept that he was detained or beaten.  The Tribunal found that had the appellant been suspected of being involved in the bomb explosion, he would not have been released upon the payment of any bribe.  The Tribunal did not accept that the appellant’s brother‑in‑law, in the space of twenty four hours and living on the other side of Sri Lanka, was informed about the appellant’s detention and was able to organise his release through the payment of a bribe.  In any event, the Tribunal found that the Negombo incident did not constitute persecution for a Convention reason as the appellant was not targeted individually, but was rather detained as part of a sweep of the area following the bomb explosion.

THE FEDERAL MAGISTRATE’S DECISION

10                        The appellant claimed that the Tribunal fell into jurisdictional error in its findings relating to each of the three incidents.  In relation to the Karuna group extortion incident, the appellant submitted that the Tribunal had failed to analyse the appellant’s case as he had articulated it and had failed to assess the appellant’s claim for refugee status on the basis that the appellant was a member of a particular social group.

11                        In relation to the Negombo incident, the appellant submitted that the Tribunal failed to examine the appellant’s claims from a Convention perspective.

12                        In relation to the protest incident, the Tribunal erred in failing to clarify the appellant’s claims.

13                        The Federal Magistrate considered that there was force in the criticism that the Tribunal’s description of the appellant’s particular social group namely, “businessmen in Sri Lanka” was wrong.  He found that the appellant never asserted that he faced persecution arising out of membership of any defined social group.  The appellant had claimed and had told the Tribunal that the main purpose for which he had been abducted was because he was a Muslim and that the Karuna group did not like a Muslim person growing his business in that area.  The Federal Magistrate analysed this claim as one that claimed that as a Muslim he faced prejudice and concluded that the Tribunal expressly found that the appellant would not face persecution because of his religion and that the extortion was directed at him because of a perception of his wealth and was aimed at him individually.

14                        The Federal Magistrate found that the claim in relation to the Negombo incident fell “squarely within the area of merits review”.  The appellant asserted in his written submissions that the Tribunal had failed to consider the appellant’s claims from a “Convention perspective.”  The Federal Magistrate found that the Tribunal’s findings were open to it on the evidence and particularly that the Tribunal reached its decision on the basis that the appellant was “roundly disbelieved”.

15                        The Federal Magistrate found as misconceived the appellant’s claim that the Tribunal failed to clarify what the appellant was saying given its view that the appellant’s explanations about the protest incident were vague.  The Federal Magistrate considered the transcript of the hearing before the Tribunal and concluded that it showed that the Tribunal properly explored with the appellant apparent inconsistencies put forward by him and the protest incident.  The Federal Magistrate concluded that the Tribunal’s finding in relation to this claim was well open to it on the material before it and did not give rise to jurisdictional error.

THE APPEAL

16                        The notice of appeal claimed that the Federal Magistrate fell into error in relation to each of the three incidents.  In relation to the Karuna group extortion incident, it was contended in substance that the Federal Magistrate fell into error in not finding that the Tribunal had not addressed the appellant’s claim to be a refugee on the basis that he had been persecuted because he was a member of a particular social group namely Muslim businessmen in Sri Lanka and that the Tribunal had erred in finding that the extortion was directed at the appellant because of his personal wealth, in respect of which finding there was no evidence.

17                        In relation to the protest incident, it was contended that the Federal Magistrate erred in finding that it was open to the Tribunal to reject the appellant’s explanations on the grounds of vagueness and that the Federal Magistrate should have found that the Tribunal should have clarified any aspects of the appellant’s claims or evidence which it considered to be vague or implausible.

18                        In relation to the Negombo incident, it was contended that the Federal Magistrate erred in finding that the Tribunal’s findings in relation to this incident was open to it on the material before it and the Tribunal made no jurisdictional error in the manner in which it dealt with the application.

19                        At the hearing of the appeal the appellant developed the Karuna group extortion incident ground and submitted that the appellant had claimed before the Tribunal that he had been persecuted on the ground that he was a Muslim businessman.  It was submitted that the social group which was the subject of persecution was Muslim businessmen but the Tribunal proceeded on the basis that the appellant’s claim of persecution was based upon his membership of a particular social group “namely businessmen in Sri Lanka”.  The Federal Magistrate considered that this description by the Tribunal was wrong. 

20                        The appellant submitted that the Tribunal would fall into jurisdictional error if it did not assess the appellant’s claim as it was presented to the Tribunal.  The appellant relied on the observations of Lander J in SZBJH v Minister for Immigration and Citizenship [2008] FCA 501, particular at [40]‑[42].  As Lander J pointed out at [40]:

“… The appellant claimed refugee status by reason of being a member of a particular social group.  He was entitled to have his application assessed as against that claim, not as against some other claim.”

I would, with respect, adopt and follow and apply that observation.  But in order to find jurisdictional error in respect of the particular social group identified by the Tribunal it is necessary to determine what was the appellant’s claim and evidence as to his membership of a particular social group.  The Federal Magistrate said at [26]:

“The applicant had never articulated a social group of which he was said to be a member and therefore at risk of persecution.”

In my opinion, that observation is correct.  I have read the transcript of the hearing before the Tribunal and in the context of the first ground of appeal, the relevant passages are found at pp7 and 8 of the transcript.  The appellant’s answers to the questions put to him by the Tribunal are set out in par [18] of the reasons for judgment of the Federal Magistrate. 

21                        Although the appellant did not articulate a specific or particular social group of which he claimed to be a member it was appropriate for the Tribunal to determine whether it could distil out of the appellant’s claims and evidence a particular social group of which he was a member which was the subject of persecution.  The Federal Magistrate was correct in par [20] of his reasons when he said that the appellant did not say that he was a member of a social group “businessman in Sri Lanka”.  The key to the appellant’s claim in relation to the Karuna group extortion incident is found in his answer to the Tribunal that:

“The main purpose that they abducted me was because I am a Muslim and they didn’t like the Muslim person growing his business in that area”.

22                        The Tribunal found that the appellant:

“… Has not been targeted in the past and that he would not be targeted in the reasonably foreseeable future for the essential and significant reason … of his race, religion or his membership of a particular social group, namely businessmen in Sri Lanka, or his political opinion.  The Tribunal finds that the extortion was directed at the applicant based on a perception of the applicant’s person [sic] wealth and aimed at him individually”.

It can therefore be seen that the Tribunal found in relation to the Karuna group extortion incident that there was material before the Tribunal upon which it was open to the Tribunal to make these findings.  Although the Tribunal may have been in error in identifying the particular social group as it did, it made a specific finding that the appellant had not been persecuted by reason of his religion, that is to say because he was a Muslim.  These findings were responses by the Tribunal to the claims made by the appellant.

23                        The Federal Magistrate did not err either jurisdictionally or otherwise when he said at par [25]:

“It follows that the Tribunal did not fall into jurisdictional error in dealing with the issue of the Karuna extortion in the way that it did, albeit that the Tribunal’s articulation of a particular social group did not accurately reflect the Applicant’s claim”.

Further, the Federal Magistrate did not fall into error when he said at par [23] that the claims made by the appellant in his evidence referred to in par [13] were “as a matter of analysis, simply claims that as a Muslim, he faced prejudice”. 

24                        I consider that the Tribunal assessed the appellant’s application against the claims he made albeit that it also considered a claim which he did not make, namely one based on membership of a social group being businessmen in Sri Lanka.  What is relevant is that the Tribunal specifically referred to and addressed the claim of the appellant that he had been persecuted and feared persecution in the future by reason of the fact that he was a Muslim. 

25                        Consistently with the principles enunciated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 19 and SZBJH v Minister for Immigration and Citizenship (supra) at [40]‑[42] the Tribunal responded to, and dealt with, the claims which the appellant had articulated and which also arose on the materials before it. 

26                        Even if the Tribunal had addressed the question whether the appellant was a member of a social group, namely Muslim businessmen in Sri Lanka, its reasoning discloses that it would have rejected that claim having regard to its findings that the appellant had not been targeted in the past and would not be targeted in the reasonably foreseeable future for the reason of his race or his religion or his political opinion and that the extortion was directed at him based on a perception of his personal wealth and aimed at him individually in respect of which there was material upon which it was open to the Tribunal to make these findings:  see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394‑395. 

27                        The ground of appeal based upon the Negombo incident does not disclose, in its terms, any jurisdictional error.  In substance it challenges the Tribunal’s fact finding process and conclusions.  At the hearing of the appeal the appellant developed this ground by submitting that there was a constructive non‑exercise of jurisdiction in that the Tribunal failed to consider the appellant’s claim and instead looked at the Negombo incident in isolation.  In short, the appellant submitted that the Tribunal did not address the substance of the appellant’s case in relation to this incident.  I reject that submission.  The Tribunal articulated clearly the circumstances out of which the appellant’s claim in relation to this incident arose.  The appellant submitted that the Tribunal did not consider the incident in the context of the appellant’s claim to be a refugee.  That is not a correct analysis of the Tribunal’s reasoning.  In its reasoning, the Tribunal set out in some detail the claims made by the appellant in relation to this incident.  The Tribunal also canvassed the incident with the appellant in the hearing as the transcript discloses.  The Tribunal did not accept the appellant’s evidence as to the circumstances involved with the incident as credible and did not accept his evidence.  It was open to the Tribunal so to find on the material before it.  The Tribunal then reasoned that even if it were to accept all the claims made by the appellant in relation to this incident it found that there was not an instance of “Convention persecution” since the appellant was detained as part of a sweep of the area following an explosion and was not targeted specifically, nor for any Convention reason. 

28                        The Federal Magistrate found that the claim in relation to this incident fell squarely within the area of merits of review, and in my opinion, the Federal Magistrate did not err.

29                        The ground of appeal in relation to the protest march incident is predicated on the Tribunal’s finding that it did not accept the appellant’s claims in relation to this incident because of “the vagueness and implausibility” of the claim.  The appellant submitted that this disclosed jurisdictional error because it was open to the Tribunal to clarify the claims which were vague and implausible according to it which it failed to undertake.  The Tribunal explained in its reasons specifically why it did not accept the appellant’s evidence and claims in relation to this incident.  It was open to the Tribunal on the material before it to find that it did not accept those claims.  Further, I am satisfied, as was the Federal Magistrate, that a reading of the transcript of the hearing in relation to the Tribunal’s questioning and the appellant’s answers in relation to this incident demonstrates that the Tribunal explored with the appellant aspects of the claims in relation to this incident which troubled the Tribunal. 

30                        The reasoning of the Tribunal and the reasoning of the Federal Magistrate did not disclose any jurisdictional error in relation to the Tribunal’s findings and the Federal Magistrate’s conclusion in relation to this incident.

31                        The appeal should be dismissed with costs.

Associate:

Dated:         19 October 2009