SWSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1563

FEDERAL COURT OF AUSTRALIA

SWSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1563 Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) Minister for Immigration and Multicultural Affairs v Shtjefni [2001] FCA 1323 NABE v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) [2004] FCAFC 263 SWSB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 169 OF 2004 SELWAY J 15 NOVEMBER 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 169 OF 2004

BETWEEN: SWSB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 15 NOVEMBER 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The decision of the Tribunal made on 21 June 2004 be set aside. 2. The matter be remitted to the Tribunal for further consideration according to law. 3. No order for costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 169 OF 2004

BETWEEN: SWSB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 15 NOVEMBER 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for review purportedly made under Part 8 of the Migration Act 1958 (Cth) ('the Act'). Part 8 does not confer jurisdiction. It purports to limit it. Such jurisdiction the Court has is granted by s 39B of the Judiciary Act 1903 (Cth) and enables this Court to grant writs of mandamus, prohibition or certiorari where the decision is not a privative clause decision. It will not be a privative clause decision if the decision is invalid by reason of jurisdictional error. I propose to treat the application as one made under s 39B of the Judiciary Act seeking mandamus, prohibition or certiorari by reason of a jurisdictional error in the process, reasons or decision of the Refugee Review Tribunal ('the Tribunal') given on 21 June 2004. 2 The applicant is a citizen of Albania. She arrived in Australia on 1 May 2003. On 12 June 2003 she applied for a protection visa. In order to obtain such a visa the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') had to be satisfied as to the criterion specified in s 36(2) of the Act: 'A criterion for a protection visa is that the applicant for the visa is (a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non‑citizen in Australia who is the spouse or dependent of a non‑citizen who (i) is mentioned in paragraph (a) and (2) holds a protection visa.' 3 In relation to the question under par (a) of whether Australia had protection obligations under the Refugees Convention, in general terms the Minister had to be satisfied that the applicant was a person who: 'Owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, "is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of former habitual residence is unable or, owing to such fear, is unwilling to return to it.' 4 I note that the applicant's husband and children had previously come to Australia and had been granted interim protection visas. I will return to this in due course. 5 The applicant claimed a fear of persecution by criminals in Albania who had demanded payment of money from her and her family, because her family was perceived as wealthy. The applicant claimed that her husband had regularly received demands for payment of money from criminals and that her daughter was previously kidnapped and released upon payment of a ransom by the family. The applicant claimed that should she return to Albania these demands would continue, and if the demands were not met she would be harmed by the criminal extortionists. 6 The applicant claimed a fear of persecution on the basis of her religion, which was Catholic, on the basis that Catholics were targeted for extortion threats. She also claimed to fear persecution by reason of membership of the following particular social groups: her family, women in Albania and wealthy people in Albania. The Tribunal dealt with the claim based upon religion as follows: '… the applicant was clearly unable to identify the religious denomination of the extortionists who kidnapped her daughter and who demanded payments from the family. The applicant also clearly indicated at the hearing that by Albanian standards she and her family had been very successful and the material wealth they had managed to accumulate had been the reason why they were targeted by these extortionists. The applicant also agreed with the country information put to her at the hearing about religious tolerance and acceptance in Albania … I accept that the applicant and her family are in fact of the Catholic faith but based on all of the above I find that the demands for money and the kidnapping of her daughter were not in any way motivated by religious beliefs of the applicant or her family or for any other Convention related reason. I also find that the essential and significant reason for the demands for money and the kidnapping of her daughter were for the purposes of personal enrichment of the extortionists involved as they have identified the applicant's family as wealthy.' 7 As to the claims based on membership of a particular social group comprising her family the Tribunal said: 'I have accepted that the applicant's family has been targeted for extortion demands in the past by criminals in Albania. Therefore this claim needs to be considered against the Convention ground of the applicant's membership of a particular social group and the particular social group that the applicant claims she belongs to is her family. The Migration Act was amended with effect from 1 October 2001 so that in situations where an applicant claimed to fear persecution for reason of his or her membership of a particular social group comprised of their family, the Tribunal was required to take into account Section 91S of the Act, … I am satisfied that in the Albanian context the applicant's family can be considered to be a particular social group under the Convention. However I have already found that the essential and significant reason for the extortion demands made against the family was for the enrichment of the criminals involved in the extortion demands and not for any Convention related reason. What the applicant fears is that if she returned to Albania today or in the reasonably foreseeable future she would again be subject to extortion demands from these criminals who have identified her family as being wealthy and therefore appropriate targets for their criminal activities. This is not a reason for harm which comes under the Refugees Convention. The effect of s 91S is that I must disregard the fear of persecution of a person such as the applicant whose fear arises because he or she is the relative of a person targeted for a non-Convention reason whose fear of persecution must be disregarded …' 8 As to the social groups of women in Albania or wealthy people in Albania, the Tribunal said: 'The applicant has made some claims that she fears harm if she were to return to Albania today or in the reasonably foreseeable future because she is a member of a particular social group that being a woman in Albania and also a member of a particular social group that being "wealthy people in Albania". … Whether a supposed group is a "particular social group" in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person's membership of the particular social group. However I have already found that the essential and significant reason for the extortion demands made against the applicant and her family was for the enrichment of the criminals involved in the extortion demands and not for any Convention related reason. Even if it is accepted that either or both groups – "women in Albania" and "wealthy people in Albania" – are found to be particular social groups it does not alter my finding that the essential and significant reason motivating the extortionists targeting the applicant and her family would be for the enrichment of the criminals involved in the extortion demands and not because of the applicant's membership of either of these claimed social groups or for any other Convention related reason.' 9 The claim by the applicant also involved an allegation that the Albanian state and/or its agencies did not have the capacity to protect the applicant from persecution to which she might be subject by these criminal groups. She expressed the general view that Albania was relatively lawless. The Tribunal seems to have accepted that description of the situation in Albania. However, having found that the reason for any persecution by criminals was a non‑convention reason, the Tribunal went on to find that any inadequacy of state protection was not itself based upon any convention‑related reason: 'It therefore needs to be considered whether, if she returned to Albania today or in the reasonably foreseeable future and if she was at risk of such serious harm in the future, State protection would be denied to the applicant because of a Convention related reason. No such claim has been made by the applicant or her adviser and the applicant has expressly stated that she does not have any subjective fear of being kidnapped or trafficked if she were to return to Albania. The applicant has claimed that in the past her husband was not assisted by the police either because of a lack of resources or because some police were corrupt and were involved with criminal gangs. Neither the lack of resources or low level police corruption lead to a denial of State protection for a Convention related reason. I therefore find that if she were to return to Albania today or in the reasonably foreseeable future the applicant would not be denied State protection from serious harm for any Convention related reason.' 10 The result was that the Tribunal affirmed the decision not to grant a protection visa: 'Based on all of the above, I find that if the applicant were to return to Albania now or in the reasonably foreseeable future, there is not a real chance that she would be persecuted because of her religious beliefs, because she belongs to a particular social group or for any other reason which comes under the Refugees Convention. I find that the applicant's fears are not well-founded.' 11 The applicant argues that the reasoning of the Tribunal reveals various jurisdictional errors. First, the applicant argues that the Tribunal was in error in applying s 91S of the Act to the social group, wealthy people in Albania. However, it is clear that the Tribunal only applied s 91S of the act to the claimed social group of her family. It is also clear from the above quotation that s 91S of the Act, was only referred to by the Tribunal for the purpose of reiterating its conclusion that the reason for persecution must be a convention reason. That conclusion follows, in any event, from the definition of 'refugee' in the Refugee Convention. 12 It may be that another rationale for mention by the Tribunal of s 91S may have been to distinguish the decision made by the Tribunal in relation to this application from that previously made in relation to the application by the applicant's daughter. Even in that context, s 91S may not have been particularly relevant. Nevertheless, the conclusion by the Tribunal that the reason for persecution was not a convention‑based reason seems a conclusive determination of the issue, no matter what the Tribunal thought s 91S provided. In my view there was no jurisdictional error in the analysis in that regard. 13 The applicant also argued that the Tribunal's decision was irrational or illogical. Presumably this was a reference to 'Wednesbury' unreasonableness. In any event the ground was not made out. The Tribunal accepted that all of the various social groups identified by the applicant in her claim were capable of being particular social groups for the purpose of the convention. However, the Tribunal held that the reasons for persecution were not by reason of the applicant's membership of that social group. It found that the reasons for any criminal acts against the applicant were the unlawful enrichment of the criminals involved. That was a matter of fact, which is was for the Tribunal to determine. The Tribunal addressed the claims that had been made by the applicant under s 36(2)(a) of the Act. It reached conclusions that were available to it on the material before it. In my view there was no jurisdictional error in that regard. 14 The applicant also claims that the Tribunal should have determined that the applicant was entitled to a protection visa under s 36(2)(b) of the Act. It is apparent that the applicant did not claim a visa on that basis. However, the facts upon which such a claim could have been made would seem to have been before the Tribunal. The application filed by the applicant revealed that her husband and children did have temporary protection visas. There was annexed to that application not only copies of those temporary protection visas, but also the decision of the Tribunal in relation to them (see RRT reference V01/12707 given on 21 June 2001). Indeed, the reasons for that decision seem to have been annexed to the application. 15 In part B of the delegate's decision, reference is made to that application and the supporting documentation submitted by the applicant, (although for reasons unexplained there seems to be some reference to a business (short stay) visa, which of course was not the visa the applicant was seeking). In the Tribunal's decision the Tribunal notes that it had before it the department's file, including the protection visa application and the delegate's decision record. The Tribunal also noted that it had regard to the material referred to in the delegate's decision, presumably including the previous decision of the Tribunal in relation to the applicant's husband and children. 16 The reasoning of the Tribunal in relation to s 91S of the Act appears to be for the purpose of distinguishing the applicant's case from that of the applicant's daughter. It seems to me that the material before the Tribunal was sufficient to have put the Tribunal on notice that the applicant's husband and children each had protection visas. The respondent submits that even so, if the Tribunal had regard to the decision of the previous Tribunal with respect to the applicant's husband and children, it would have perceived that the previous Tribunal concluded that the applicant's spouse was not a 'refugee'. In that decision the Tribunal reached the following conclusion: 'The Tribunal is satisfied that the applicant daughter is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore, the applicant daughter satisfied the criterion set out in s 36(2) of the Act for a protection visa. However, the Tribunal is not satisfied that the applicant father and applicant son are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The fate of their application depends upon the outcome of the applicant daughter's application. If the applicant daughter's visa is granted, the applicant father and son will be entitled to a protection visa providing they satisfy the remaining criteria for the visa. Decision: The Tribunal remits the matter for reconsideration, with the direction that the applicants are persons to whom Australia has protection obligations under the Refugee Convention.' 17 It is readily apparent that the reasons and the decision seem inconsistent. The reasons state that the daughter is a refugee, but that the daughter's father and brother are only persons who may be entitled to a protection visa if they fall within the derivative provisions of the migration regulations. On the other hand the decision is that each of them are persons to whom Australia has protection obligations. It is noted that the Minister appealed that decision. The reasons of Finkelstein J in relation to that appeal are set out in the Minister for Immigration and Multicultural Affairs v Shtjefni [2001] FCA 1323. 18 His Honour affirmed the decision of the Tribunal in relation to the applicant's daughter, but did vary the decision by making it clear that Australia only had protection obligations to the daughter, not to the father and brother. There is no evidence before me suggesting that Finkelstein J's order was before the Tribunal. 19 The result of all this, it seems to me, is that the Tribunal did not consider a claim under s 36(2)(b) of the Act. 20 In my view, the material before the Tribunal was sufficient for the Tribunal to be on notice that it needed to inquire into that matter: see NABE v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) [2004] FCAFC 263 at [58]-[61]. One can be critical of course of the migration agents who assisted the applicant. They too had an obligation to identify this claim and to pursue it. Nevertheless it seems to me that there was a jurisdictional error in the Tribunal not having identified and dealt with this claim. 21 The Minister submits that it would be futile to forward the matter back to the Tribunal, because it is plain, particularly following the decision of Finkelstein J, that the claim cannot be made out, because the applicant's spouse is not a person to whom Australia owed protection obligations. It is also submitted that in relation to the applicant's daughter a derivative claim cannot be made, because the daughter was not named on the applicant's application for a protection visa. It is submitted that cl 866.211(b) of sch 2 of the Migration Regulations has that effect. 22 It seems to me that if those advising the Minister wish to argue that the applicant must be separated from her family and returned to Albania because the applicant did not name the child on the application form, then that is a matter for them. 23 In my view there is a jurisdictional error here. It clearly affected the result on the information that was before the Tribunal. The question of the merit of the review of that is not a matter for this Court, but a matter for the Tribunal, and whatever the result might be the appropriate course is to remit the matter back to the Tribunal for reconsideration. I make the following orders: 1. The decision of the Tribunal made on 21 June 2004 be set aside. 2. The matter be remitted to the Tribunal for further consideration according to law. 3. No order for costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.