SXCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 102

FEDERAL COURT OF AUSTRALIA

SXCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 102 SXCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 228 OF 2004 SELWAY J 20 JANUARY 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 228 of 2004

BETWEEN: SXCB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY

DATE OF ORDER: 20 JANUARY 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application be dismissed. 2. The applicant to pay the respondent's 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 228 of 2004

BETWEEN: SXCB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY

DATE: 20 JANUARY 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application seeking the issue of writs of certiorari, prohibition and mandamus in relation to a decision of the Refugee Review Tribunal ('the Tribunal') made on 31 August 2004. 2 The applicant is a citizen of Albania. He arrived in Australia on 10 August 2003. On 23 September 2003 he lodged an application for a protection visa. That application was refused by a delegate of the respondent ('the Minister') on 2 April 2004 and the applicant sought a review of that decision by the Tribunal. It is the decision of the Tribunal on that review which is the subject of these proceedings. 3 In order to be granted a protection visa, the Minister had to be satisfied that Australia owed protection obligations to the applicant, see section 36(2) of the Migration Act 1958 (Cth) ('the Act'). In general terms, the Minister had to be satisfied that the applicant was a refugee, being 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 his former habitual residence, is unable or, owing to such fear is unwilling to return to it.' 4 The applicant's claims were based upon him being subject to criminal persecution by non-government persons or at least, if they were government persons, persons acting without government authority. The applicant claimed to have been running a shop in the town of Shkoder. He claimed that the town was a 'criminal centre'. Two sorts of criminal activity affecting him were identified by him. First, he said he had been required to pay 'protection money': 'He said that one Saturday morning three people had come to the shop and asked him to pay tax or protection. Those people were from the police and wanted the money for themselves. The Tribunal asked the applicant how he knew that the people were from the police. The applicant replied that they had told him that they were from the police and threatened to close his shop if he did not pay. They were not people he recognised. The Tribunal asked the applicant where the people came from. The applicant said that they were from Shkoder. He had never seen them before. The Tribunal asked why he had not mentioned in his written claims that the people who demanded money from him were police. The applicant said that a simple person could not demand money, only a person from the government or police could demand money. The applicant said he did not know why it had not been mentioned in his written claims but it was a part of his story. He said that he had opened his shop in April 2002 and this incident had occurred two months later. The Tribunal asked whether other people in his village had suffered similar problems. He said that they might have suffered something simple such as problems with people and the surroundings but not such difficult problems as he had suffered. Other people might have suffered from burglaries but not being persecuted like him. The Tribunal asked the applicant whether these people had threatened him. The applicant said that they had threatened to close his shop. His business had been going well and he had been forced to pay to continue doing business. They had said to him that he was a rich person with a boat, a nice house and a shop so he would have to give protection money. He had paid 200,000 Albanian leke initially and then American dollars.' 5 Secondly, the applicant also said that he had been forced to assist various persons in their smuggling activities. 6 In relation to these two different sorts of criminal activities, the applicant claimed that he had not been able to seek protection from state authorities: 'The applicant claimed that the police in Albania was full of corrupt people with links to smuggling. There had been rumours that a local policeman was connected to high places and a ringleader of the local network of suspicious characters. The applicant's aunt had warned him against complaining to this man.' 7 The basis of the applicant's claim for refugee status was not clear to the Tribunal at the hearing. 'The Tribunal raised with the applicant the issue of Convention nexus. The Tribunal spelt out for the applicant the five Convention grounds. It put to the applicant that, even if it were accepted that he had been targeted by criminal groups, it would still be necessary to ask whether the reason they had done this was for any of the Convention grounds. It was suggested to the applicant that, from what he had described, people had targeted him for extortion because he had a successful business and people had been trying to get money from that business. From what he had told about the incident in which a box had been left at his house, it appeared that he had been used as a convenient person because he lived near the river, had a boat and was a local of the area. The Tribunal suggested to the applicant that it was not immediately apparent that he had been picked out for any of the five Convention reasons.' 8 Nevertheless, the Tribunal accepted that there were two Convention reasons put forward by the applicant. The first of these was his religion; specifically that he was of the Catholic religion. The Tribunal dismissed this as a basis for persecution. No issue was taken in relation to that before me. 9 The other basis was that the applicant was persecuted by reason of his membership of a particular social group. Four social groups were identified. They were 'small business people', 'young businessmen', 'shop owners' or 'local shop owners' in each case in Albania. 10 The Tribunal do not find it necessary to make any finding as to whether or not the incidents referred to by the applicant actually occurred or not. The basis of the Tribunal's decision to confirm the previous decision of the delegate was that, 'Even if the Tribunal accepts that [the incidents] did occur, for the reasons given below it does not accept that the applicant suffered harm for any of the five Convention reasons.' 11 The Tribunal rejected a claim based upon the applicant's membership of these particular social groups, without determining whether any of the particular social groups actually existed or not. As the Tribunal put it, 'Even if the Tribunal accepts that such particular social groups exist, it does not accept that the harm directed at the applicant was for reasons of his membership of any particular social group.' 12 In that regard, the Tribunal made the following findings in relation to the extortion claim: 'The Tribunal accepts that the applicant is not the only person who has been identified as a suitable target for crime and that a number of other businesspeople in Albania have also been victims of criminality and extortion at the hands of various criminal groups as suggested by the applicant's adviser. Nevertheless, the nature of the demands and threats directed at the applicant reflects a desire by the particular criminals involved to extract money from an individual whom they perceived as a suitable victim. The Tribunal does not accept that the applicant's membership of any "particular social group", such as small businessmen, local businessmen, farmers, young Albanian businessmen or shop owners constitutes the essential and significant reason for the persecution he claims to fear as required by s 91R(1)(a) of the Act. It considers that, as Burchett J (with whom O'Loughlin and R.D. Nicholson JJ agreed) observed in Ram v Minister for Immigration and Multicultural and Indigenous Affairs (1995) 57 FCR 565 at 569 (Ram) with regard to extortionists in Punjab, the criminals in Albania "are simply extracting money from a suitable victim" and their activities are "disinterestedly individual". It finds this to be the case regardless of whether the people targeting the applicant were police or other criminals pretending to be police.' 13 In relation to the smuggling matters, the Tribunal expressly stated that the reason why he had been targeted was not by reason of his membership of a particular social group but rather his individual characteristics: 'He as an individual had a particular set of characteristics that made him of interest. The Tribunal does not accept that his membership of a particular social group such as small businessmen, young businessmen or local businessmen constituted the reason for the harm he claims to have suffered in relation to this matter …' 14 As it has concluded in relation to the earlier incident, the Tribunal found that 'the essential and significant reason the applicant was targeted in this way was because he, as an individual, had a number of characteristics which made him a useful tool for the criminals.' He was again identified and targeted due to his particular suitability for transporting goods as a person who: '… lived close to the border, owned land transport and regularly transported goods to the city and back … The Tribunal does not accept that his membership of a particular social group such as small businessmen, young businessmen or local businessmen constituted the essential and significant reason for the harm he claimed to have suffered in relation to this matter.' 15 The Tribunal also considered whether the failure of state authorities to protect the applicant was for a Convention reason. It concluded that it was not. As the Tribunal said, '… the state's lack of determination and capacity are widely applicable factors that affect the state's ability to provide protection against organised crime generally.' 16 The applicant complains that the decision of the Tribunal was affected by jurisdictional error. Two grounds of error are identified. First, the applicant says that the Tribunal erred in failing to make a finding of the existence or otherwise of the claimed particular social groups. Plainly, if a decision is to be made that a person is a refugee by reason of his or her membership of a particular social group, then it is a necessary precondition of that finding that the decision‑maker determine whether or not the particular social group exists. It may be advisable to answer that question first, as was suggested by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394, [26]. 17 One obvious advantage in answering that question first is that it will alert the decision‑maker to the possibility that other social groups may need to be considered. It will also assist in the subsequent factual inquiry. However, desirable as that course may be in a particular case, it is not a jurisdictional error for the decision‑maker to proceed to answer the factual question of causation first. This was properly conceded by Mr Ower in his submissions before me. Indeed, in some cases there may be obvious advantages in doing so. 18 In this case the particular social groups identified by the applicant were all capable of being particular social groups, as that term has been understood by the High Court and by this court, see the discussion in STXB v the Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 860, at [26-27]. There are many historical cases where members of social groups defined by their economic role or status have been persecuted. The persecution of Kulaks in Stalinist Russia is an obvious example. I refer in this regard to the comments of Nicholson J in Ram at 570. 19 In this case the Tribunal found as a fact that the reason why the applicant was subjected to the treatment of which he complained in relation, at least, to smuggling, was not by reason of the membership of the social group he identified but the obvious one that he had a vehicle that could be used for smuggling and he was close to the border. The applicant accepts that that finding was open and no argument is made before me as to jurisdictional error in relation to that issue. 20 However, in relation to the issue of extortion, the applicant says that the relevant factual finding is not clear on the Tribunal's reasons. The applicant says that the failure of the Tribunal to analyse whether the reason for persecution was the applicant's membership of the social group or some other reason means that the Tribunal has failed to exercise its jurisdiction. The applicant points to the use of the word 'suitable' in the Tribunal's reasons and says that the Tribunal should have proceeded to determine whether the persecutors were treating the applicant as being suitable merely because the applicant had money and assets or because the applicant was a member of one or more of the designated social groups. 21 I am afraid I cannot agree with this submission. It seems to me that the decision of the Tribunal is abundantly clear. It has made a factual finding that the reason why the applicant was subject to the claimed extortion was for the same reason why the applicant, in the case of Ram at 565, received similar treatment. He was picked out not because of his membership of a group but for the individual and personal reason that he was a person from whom money could be extracted. Not only does this seem to me to be clear from the reference in the Tribunal's reasons to Ram and the adoption of the reasoning in that case by analogy, but in particular by the use of the words 'disinterestedly individual' in the Tribunal's reasons. 22 In the overall context of the Tribunal's reasons, in particular its comment as to the concerns it had whether the claim was for a Convention reason and the analysis by the Tribunal in relation to the smuggling offences (which the applicant accepts are correct), I can see no reason to draw any adverse inference as to the reasoning of the Tribunal in relation to extortion. In my view, the Tribunal's reasons show that the Tribunal reached the conclusion that the reason why money was being extorted from the applicant was for reasons personal to the applicant and not by reason of his membership of a social group. 23 As a matter of law, that is a proper factual finding. I refer for example to the comments of Burchett J in Ram 565 at 569: 'When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned [now perhaps "identified"] in the eyes of their persecutors, so that it is a fitting use of language to say that it is "for reasons of" his membership of that group.' 24 Whether or not the Tribunal was correct in its factual conclusion is not a matter for me to determine. Such an error of fact is not a jurisdictional error, assuming it occurred. On the other hand there is nothing at all surprising about the conclusion reached by the Tribunal in this case. In my view the application must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.