SZJDH v Minister for Immigration & Citizenship [2008] FCA 133 (20 February 2008)

Last Updated: 26 February 2008

FEDERAL COURT OF AUSTRALIA

SZJDH v Minister for Immigration & Citizenship [2008] FCA 133

Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 cited
Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 cited
SZJDH v Minister for Immigration & Citizenship [2007] FMCA 1561 considered































SZJDH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1964 OF 2007

BENNETT J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1964 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJDH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs in the amount of $2,300.00.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1964 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJDH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant is a citizen of Malaysia of Tamil ethnicity. The appellant applied for a Protection (Class XA) visa (‘a protection visa’). His claims arose from his operation of a small business in Malaysia. In relation to the operation of that business, he obtained a number of loans from money lenders or loan sharks. As he was unable to pay his debts, the appellant was subjected to threats from the loan sharks. He claimed that the police were linked to the loan sharks and that he could not relocate within Malaysia as the loan sharks were everywhere. The Refugee Review Tribunal (‘the Tribunal’) affirmed a decision of the delegate of the Minister to refuse the appellant a protection visa.

PARTICULAR SOCIAL GROUP

2 The Tribunal’s reasons set out in some detail the claims of the appellant and the material it considered in coming to its decision. The appeal to the Federal Magistrates Court (SZJDH v Minister for Immigration & Citizenship [2007] FMCA 1561) and to this Court raises the issue of the Tribunal’s determination of the particular social group to which the appellant claimed he belonged. In his notice of appeal the appellant says that the Federal Magistrate erred by failing to hold that the Tribunal failed to take into account a relevant consideration being the failure, ‘to discern convention reason with that convention reason being a particular social group’.

3 The way this ground has been framed in the appellant’s written submissions is that he says that the Tribunal failed to discern the relevant Convention reason for his application. The appellant says that he belonged to a particular social group with that social group ‘being group of persons who had dealings with loan sharks in Malaysia and who have been threatened by those loan sharks’. In his further written submissions the appellant characterised it as ‘a person who had dealings with the loan sharks in who was unable to pay back the debts to the loan sharks’.

4 The Tribunal did consider in some detail the question of the alleged membership of a particular social group. The Tribunal set out the tests to be applied in consideration of the determination and membership of a particular social group. It cited and applied the tests set out in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 and Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387. It identified the claimed group as being ‘Tamil persons who borrow monies from loan sharks in Malaysia’ or ‘persons who borrow money from loan sharks’ or ‘persons who are unable to repay debts to loan sharks’.

5 It cannot be said that the Tribunal failed to attempt to identify a particular social group, nor that it failed to identify the particular social group to which the appellant claimed to belong. The particular social group identified by the appellant equates with that identified by the Tribunal. Before the Tribunal, the appellant also raised the question of his fear of persecution for reason of his Tamil ethnicity. The Tribunal dealt with that claim as well and there is no issue in this appeal with respect to that part of the Tribunal’s decision and reasons.

6 It follows that the Tribunal did deal with all of the potential particular social groups raised by the appellant’s claims.

7 The second issue raised by the appellant is whether the Tribunal formulated the correct test in determining whether there was in existence the claimed particular social group and whether the appellant feared persecution for that reason. It is not suggested that the Tribunal applied the wrong test in principle in its application of the test set out in Applicant S at [36] per Gleeson CJ, Gummow and Kirby JJ. The Tribunal took into account the High Court’s characterisation of a particular social group and relevant country information. It found nothing to enable it to be satisfied that the activities complained of by the appellant would be other than one of many such criminal activities causing concern to the Malaysian authorities, as such activities cause concern in many countries.

8 The Tribunal concluded that none of the country information satisfied it that a social group similar to that suggested by the appellant would be ‘identifiable by a characteristic or attribute common to all members of the group’ or that the relevant ‘characteristic or attribute would distinguish the group from society at large’ in order for them to be a social group for the purposes of the Convention. Accordingly, the Tribunal was not satisfied that the appellant would be persecuted for reason of his membership of a particular social group.

9 The appellant has not demonstrated that the Tribunal applied the wrong test.

10 Many of the matters raised by the appellant relate to the fact finding by the Tribunal including whether a group is a particular social group. Federal Magistrate Lloyd-Jones concluded at [16] that, to his satisfaction, the Tribunal fully explored the appellant’s claim of persecution because of his claimed membership of a particular social group and that its findings were open to it for the reasons set out in its decision. Nothing has been put before me, nor can I see any basis for disagreeing with his Honour’s conclusion.

MATERIAL PROVIDED BY THE APPELLANT

11 In his written submissions, the appellant refers to an additional matter which was also raised before the Federal Magistrate. This was whether or not the Malaysian authorities would withhold State protection of the appellant for any Convention related reason. The appellant refers to the matters at [9] of the decision of Federal Magistrate Lloyd-Jones which in turn refers to news reports provided by the appellant to the Tribunal. Before his Honour the appellant suggested that the Tribunal had erred in failing to accept the contents of those reports.

12 As his Honour noted, the Tribunal made reference to and clearly considered the material provided by the appellant but found that it could not be satisfied that the Malaysian authorities would withhold State protection for a Convention reason (at [14]). That conclusion was open to the Tribunal on the material before it and constituted part of the fact finding function of the Tribunal.

13 Other matters raised by the appellant in his written submissions refer to other aspects of the fact finding exercise by the Tribunal and as such are not open to review in this Court. Those conclusions by the Tribunal were open to it on the material before it. The appellant has not demonstrated that the Tribunal failed in its obligation to consider the claims raised in a proper fashion.

CONCLUSION

14 It follows that the appellant has not demonstrated jurisdictional error on the part of the Tribunal. The issue of the particular social group which formed the basis of the grounds of appeal was carefully considered by the Tribunal and also by the Federal Magistrate. The Tribunal’s findings were clearly open to it on the evidence before it and Lloyd-Jones FM did not err in finding that the Tribunal’s decisions were not affected by jurisdictional error. It follows that the appeal must be dismissed.

15 The Minister seeks an order for fixed costs. I am satisfied with the basis and with the quantum sought by the Minister. The appellant is to pay the first respondent’s costs in the amount sought, being $2,300.00.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 22 February 2008

The Appellant was self represented.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 February 2008
Date of Judgment:	20 February 2008