SZLBB v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The matter presently before the Court is an appeal from a judgment of a Federal Magistrate handed down on 23 June 2008 following the hearing of an Application for constitutional writ relief filed in the Federal Magistrates Court of Australia on 10 December 2007. The learned Federal Magistrate ordered that the Application be dismissed and that the appellant pay the respondent Minister's costs assessed in the sum of $4,000.00. It would appear that an application for adjournment was also made to the learned Federal Magistrate on 23 June 2008, and that such application was declined. 2 On the hearing before the learned Federal Magistrate, the appellant appeared in person and the respondent Minister was represented by Mr James Mitchell of counsel. The proceedings in the Federal Magistrates Court of Australia sought the constitutional writ relief mentioned in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 28 November 2007 which was handed down on that day. If I may say so, the reasons for decision of the Tribunal were comprehensively recorded, clearly defining the issues and recording the decision of the Tribunal thereon. The reasons for decision were recorded on some 24 pages. In the circumstances I will not set them out extensively. 3 When the appeal was called for hearing this morning, both inside and outside the Court, the appellant did not appear. The hearing of the appeal had originally been fixed for 28 November 2008. The appellant approached the Court with a view to having the hearing adjourned to a later date in circumstances where a de facto partner of the appellant was apparently expected to give birth to a child on, or about, 29 November 2008. The Court was able to bring forward the date for the hearing of the appeal to today, so as to limit the likelihood of the birth of the child coinciding with the appellant's court hearing. 4 I am informed from the bar table, and accept, that following the non-attendance of the appellant at Court today, Mr Mitchell's instructing solicitor made telephone contact with the appellant and was informed that the de facto partner had not given birth to the anticipated child, and that the de facto partner had been hospitalised but subsequently discharged pending the arrival of the child. It is said that the appellant is at home caring for his de facto partner. 5 The appellant has chosen not to appear on the hearing of the appeal or to seek an adjournment. In the circumstances the respondent Minister has asked the Court to proceed with the hearing of the appeal generally in accordance with Order 52 rule 38A(1)(d) of the Federal Court Rules and I am disposed to do so. 6 The case is quite unusual. The appellant was born in Singapore on 19 October 1968. Accordingly, he is 40 years of age. On 10 May 2003, he travelled to Australia with his then wife and two children on tourist visas. They overstayed those visas. Towards the end of 2003, the wife and two children returned to Singapore. It would appear that the appellant and his wife have since been divorced. 7 The appellant is highly educated. He attended St Andrew's High School in Singapore from 1982 to 1984. Later he attended St Joseph's College in Singapore from 1985 to 1986. In 1989 he travelled to Canada where he studied medicine for about three years at the University of British Columbia. He did not like his course and transferred to a bachelor's degree course in psychology, which he took in 1993. Thereafter he studied for and obtained a master's degree, his focus being upon clinical psychology. The appellant has travelled extensively throughout the United States of America, Canada, Malaysia and Australia. In May to July 1997 he enjoyed a holiday in Australia. The appellant lived outside Singapore between 1989 and 2000. 8 It would appear that on 20 October 2004 the appellant was arrested in Australia and charged with offences of credit card fraud, money laundering and obtaining money by deception. The appellant was refused bail and was held in the remand section of the Silverwater Correction Centre. 9 The appellant claimed to have become an informer, on or about 21 October 2004, offering to assist the Australian Crime Commission with their inquiries in respect of criminal activity. The Tribunal found that the appellant had offered assistance to the Australian Crime Commission. It would appear that such assistance was taken into account in determining the sentences that were imposed upon him, following his pleas of guilty in respect of the offence with which he was charged. 10 Following his conviction he was incarcerated in the Goulburn Correction Centre. When he had, I assume, completed his sentence he was transferred to the Villawood Immigration Detention Centre. 11 The appellant claims that there are a number of warrants for his arrest outstanding against him in Singapore. In a statutory declaration, made by the appellant on 31 October 2007, he recorded his understanding that the warrants were issued firstly, for a traffic violation; secondly, for a failure to complete required military service; and thirdly because he had become a bankrupt and had left Singapore in 2003 without the permission of his trustee in bankruptcy. 12 Plainly, none of these offences have any relevance for present purposes beyond this, that there is said to be a 30 per cent chance that he may end up being imprisoned in Singapore for failing to complete his military service and there is a possibility that he may be imprisoned for what was said to be a bankruptcy offence. Were he to be imprisoned in Singapore it is said that he would be incarcerated in a military prison for failing to complete his military service and in a normal civilian prison, were he to be convicted of a bankruptcy offence. 13 It is at this stage of the appellant's story that issues arise under the Migration Act 1958 (Cth). The appellant claimed that he had been involved with Triads since about 1994, while he was in Canada. He claimed that he was recruited to join a Triad in Australia. He claimed that the prisons in Singapore are controlled by Triad members and that were he to find himself in a Singaporean prison, he would be exposed to harm, indeed killed, for having informed on Triad members in Australia. 14 The Tribunal, in its Statement of Decision and Reasons of 28 November 2007, referred extensively to country information in relation to Singapore. The information included reports which indicated that Triads still exist in Singapore, albeit in a very diminished form. The reports indicated that not only had the number of Triads and Triad members decreased, but that respect for Triad traditions had also fallen. It was noted that the Singapore Police had a 'Secret Society Branch' which dealt with Triads. It would appear from a survey in 2000 that Singapore was seen to be the country which was least affected by organised crime syndicates. 15 The Tribunal found that the appellant was a national of Singapore, that he was an undischarged bankrupt and that he had failed to fulfil his National Service obligations in Singapore. It further found that he had provided information to the Australian authorities that led to the arrest and prosecution of some criminals. The findings which are of most relevance for present purposes, are that the appellant was not aware of anyone knowing that he had provided information to the Australian authorities. The Tribunal found that: '… He [referring to the appellant] has given evidence that he would not make it generally known that he is a member of a Triad and he has also given evidence that the Singaporean authorities do not know that he is a Triad member. …' 16 The Tribunal found that the appellant was not known as a Triad member or associate to the Singaporean authorities and the information he gave to the Australian authorities was in relation to Triads in Australia, not Singapore. The appellant, however, claimed before the Tribunal that he would become known because the organisation was interlinked throughout the world. Given the appellant's evidence that he was unaware of anyone knowing that he had provided information to the Australian authorities, it is difficult to see how the interlinking of Triad organisations throughout the world would have any bearing. Indeed, if there was such an interlinking, one would have thought that the appellant was exposed to a like risk of harm in Australia as any that he might experience in any other part of the world. The appellant claimed that there was no such thing as protective custody in Singaporean correctional institutions but this submission was rejected by the Tribunal, which noted: 'There is no evidence that Singaporean correctional facilities are not controlled by the authorities in every sense of that word …' 17 The Tribunal was not satisfied that if the appellant was gaoled in Singapore, the authorities would not be able to provide him with effective protection. The Tribunal rightly pointed out that what was required of a State such as Singapore was not an absolute guarantee of protection. 18 The Tribunal made a number of other important findings. Firstly, the Tribunal was not satisfied that the appellant had any involvement with any Triad group or that information which he gave to the Australian authorities was information about Triad group members. Accordingly, the Tribunal was not satisfied that the appellant would be targeted by Triad members or a Triad organisation if he were returned to Singapore and gaoled for unrelated matters. The Tribunal also held that if the appellant had a fear of persecution it was not a well-founded fear of being persecuted 'for reasons of membership of a particular social group'. The Tribunal said: '… The Tribunal does not accept that, even if the State is unable to provide the applicant with effective protection, it would be for the essential and significant reason that the applicant was or is a member of a particular social group of "Triad informers" or for (sic) any other particular social group or Convention related reason but rather finds that any such threats or attacks against him would be non-Convention related criminal behaviour.' 19 I agree with the observations of the Tribunal in that regard and draw attention to what I said about a particular social group in SZLAN v Minister for Immigration and Citizenship [2008] FCA 904, in particular at [43]-[46]. There may be numerous individuals who could be identified as Triad betrayers but in my opinion, that does not make them a cognisable group in society. There is nothing to unite such individuals as a social group of the kind contemplated by the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 21 January 1967 (the 'Refugees Convention'). 20 The grounds relied upon by the appellant in his Application to the Federal Magistrates Court of Australia were as follows: '1. Exceeded jurisdiction in making the decision to affirm the respondent's decision not to grant the applicant a protection visa; and 2. Erred in law in arriving at the decision to affirm the respondent's decision not to grant the applicant a protection visa.' 21 The learned Federal Magistrate, in my view, correctly determined that the Tribunal did not fall into jurisdictional error in the appellant's case. 22 The grounds of appeal relied upon in the Notice of Appeal filed 14 July 2008 in this Court were: '1. His Honour erred by failing to consider that under the double jeopardy act that the applicant maybe (sic) imprisoned again for the crime that the applicant has already been sentence and server (sic) in Australia. 2. His Honour erred by failing to take into account a relevant consideration for the applicant has numerous outstanding warrants that may led to the persecution [presumably the appellant meant 'prosecution'] of the same crime that the applicant have been convicted (sic). 3. His Honour erred by failing to take into account the legislative intention of the subpoena was made, and it is difficult for the applicant to subpoena further as due to the sensitiveness document to be subpoena.' 23 The appellant appears to have been under some misapprehension as to the function to be performed by a Court hearing an application for constitutional writ relief. Ground 3 appears to contemplate the securing of fresh evidence which could have been advanced, but was not, before the Tribunal. In relation to grounds 1 and 2, it is apparent that questions of double jeopardy were never raised before the Tribunal or before the learned Federal Magistrate. They have no bearing upon the question of whether or not the Tribunal committed jurisdictional error in reaching the decision which it did, namely that it was not satisfied that the appellant had a well-founded fear of persecution for reason of his membership of a particular social group and further that owing to such a fear he was unwilling to avail himself of the protection of his country of nationality. 24 It seems to me that the Tribunal committed no relevant error in affirming the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa. 25 Given the nature of the warrants for the arrest of the appellant in Singapore on the one hand and the convictions of the appellant in Australia for credit card fraud, money laundering and obtaining money by deception on the other, it is difficult to see how any questions of double jeopardy could arise in any event. 26 In my opinion, the appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.