"VAM" v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1951-07-28|Before: Marshall J

REASONS FOR JUDGMENT 1 On 22 October 2001, the applicant filed an application in the Court seeking judicial review of a decision of the Regugee Review Tribunal ("the Tribunal"). The Tribunal had earlier affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant. At the time of the filing of the application the applicant represented himself. On 2 November 2001, consent orders were made in preparation for the trial of the proceeding. Order 2 of those orders provided that: "The applicant file and serve an amended application for an order of review with proper particulars of the grounds relied upon by 14 November 2001." 2 On 20 November 2001, pro bono counsel representing the applicant filed and served an amended application for an order of review. The amended application purported to add the Tribunal as the first respondent and make the respondent Minister the second respondent. No leave was sought or given for the Tribunal to be added as a party. The Court will treat the Minister as the only proper respondent before it.

Factual Background 3 The applicant is a thirty-five year old male. He is a Malaysian national of Punjabi ethnicity who is a Sikh by religion. The applicant worked in Malaysia as a policeman from 1986 to 1992. After he left the police force he worked as a driver. In June 1997, the applicant came to Australia on a tourist visa and stayed for one month. He then travelled to New Zealand where he lived for about a year. The applicant returned to Malaysia in about September 1998 and stayed there until 31 December 1998 when he once again departed for Australia on a tourist visa. The applicant subsequently obtained a student visa which he over-stayed. When the applicant was placed in migration detention for over-staying his student visa, he made an application for a protection visa.

legislative context of tribunal's decision 4 Section 65 of the Migration Act 1958 ("the Act") provides, inter alia, that a visa may be granted only if the Minister is satisfied that the prescribed criteria for the visa have been satisfied. Section 36(1) of the Act provides for a class of visa known as a protection visa. Pursuant to s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under 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 31 January 1967 ("the Convention"). Australia is a signatory and party to the Convention. 5 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to 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." (Emphasis added).

applicant's claims before the tribunal 6 The applicant claimed he faced persecution in Malaysia as a result of information he had given to anti-narcotic police during his employ as a policeman, regarding a gangster named Ringo. The applicant claimed that Ringo, who had close contacts in the Malaysian government and police force, was aware the applicant had given information against him. The applicant claimed: "All my partners who worked as cops alongside me and who gave information about Ringo have been transferred or sacked by the police force." 7 The applicant gave information about Ringo in 1989. Following this, the applicant alleged he was transferred from Sentul District police station to the Kuala Lumper station. Later the same year when visiting Kelang, the applicant claimed that he was beaten up by Kelang police and detained for a night in the Kelang gaol. The applicant claimed to have reported the incident at the Kuala Lumper station. However, investigation into the matter was dropped and the applicant was put on a six month probation period for allegedly insulting a senior member of the Kelang police. The applicant provided a certificate to the Tribunal relating to this disciplinary action. 8 Some time later the applicant was asked for a urine sample. Subsequently, he was suspended on half salary as his urine allegedly contained illicit drugs. Again, the applicant provided a certificate to the Tribunal regarding his suspension. The applicant claimed that he was eventually dismissed from the police force as a result of this matter. 9 The applicant claimed that during his suspension from the police force, he told a man called Apu that Ringo was dangerous. The applicant alleged that Apu had ignored his warning and was later killed by Ringo. 10 The applicant claimed that the persecution he faced as a result of giving information about Ringo continued after he left the police force and commenced work as a driver. In particular, the applicant claimed that there were numerous attempts on his life. He also claimed he received numerous death threats. 11 The applicant further claimed that he was arrested on trumped up drug charges and consequently forced to serve two years in Tampoi Rehabilitation Centre. 12 The applicant returned to Malaysia from New Zealand in 1998 because he believed he would now be safe in Malaysia. However, once back in Malaysia, the applicant claimed a man ambushed him with a contaminated syringe. The tip of the syringe broke off in his arm.

findings of fact by the Tribunal 13 The Tribunal made the following important findings regarding whether the applicant had a well-founded fear of persecution: · when the applicant left the police force in 1992 it was most likely that the charges against him were not trumped up as the applicant was able to gain work as a truck driver. · the applicant obtained a livelihood on leaving the police force and his leaving the police force did not threaten his capacity to subsist. Accordingly, it did not amount to serious harm or persecution. · considering the length of time since the applicant left the police force (9 years), the Tribunal did not accept that Ringo or anyone else would have an interest in the applicant "as a result of information he learned during his time in the police force". Further the Tribunal held: "the applicant stated that the last time he gave information about Ringo was in 1989 over twelve years ago. The applicant has had ample time in the ensuing years to provided whatever information he has, and the Tribunal does not accept that anyone would be pursuing him from those years, when the applicant has not to date caused them any ongoing problems." · none of the incidents which occurred when the applicant was working as a truck driver stemmed from his time as a policeman. · the applicant was not convicted of trumped up heroin charges because of what he knew of Ringo or corrupt politicians. · if the incident with the syringe occurred, it was unrelated to the applicant's work as a policeman or knowledge of the activity of Ringo. 14 The Tribunal also considered whether the applicant was a member of 'a particular social group' for the purposes of Art 1A(2) of the Convention (see above at [5]). The Tribunal held: "The Tribunal does not accept that he is a member of a particular social group of former policeman [sic] or disgraced policeman [sic]. The meaning of the expression "for reasons of … membership of a particular social group" was considered by the High Court in Applicant A's case. In Minister for Immigration & Multicultural Affairs v Zamora (1998 -99) 85 FCR 458 the Full Court of the Federal Court said at 464 that Applicant A's case is authority for the following propositions: 'To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals;… Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.' Whether a supposed group is a 'particular social group' in a society will depend upon all of the evidence. 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 because of the person's membership or perceived membership of the particular social group: Applicant A per Dawson J(at 240); and Gummow J (at 285) agreeing with the statement of Burchett J in Ram v Minister for Immigratioin & Ethnic Affairs & Anor (1995) 57 FCR 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 in the eyes of their persectutors, so that it is a fitting use of language to say that it is 'for reasons of' his membership of that group.' There is no evidence that people with the applicant's former occupation are considered or perceived to be a particular social group in Malaysian society. In the Tribunal's view his occupation as a former policeman is no more than an occupation. The Tribunal notes that the applicant has claimed that some of his work colleagues have been targeted. However the Tribunal does not accept that such targeting if it occurred would be because of membership of a particular social group of ex-policeman [sic]. Even if there were such a group as ex-policeman [sic] the Tribunal does not accept that Ringo or any politicians condemn members of such a group such that it could be said that they are jointly condemned in the eyes of the persecutors. If any of the applicant's colleagues are targeted by Ringo or others it would in the Tribunal's view be as a result of their own actions and not because of any group membership. As a result even if the Tribunal is wrong and the applicant is targeted by Ringo it is not because he is a member of any particular social group." 15 The Tribunal also found that no political opinion had been imputed to the applicant by Ringo or any politicians in Malaysia. 16 In conclusion, the Tribunal found: "… given the lapse of time, the Tribunal does not accept that Ringo or anyone else would be after him because of information he has stemming from his time as a policeman. As a result the Tribunal does not accept that there is any real chance that he will be targeted or face harm for a Convention reason should he now return."

Jurisdiction 17 Counsel for the respondent submitted that the Court has no jurisdiction to review the decision of the Tribunal because it is a "privative clause decision" within the meaning of s 474(2) of the Act. Counsel for the applicant submitted that s 474 of the Act should be understood, "not as denying the possibility of judicial review of a decision purporting to be made under the Act, but as restricting the grounds on which such a decision may be reviewed to grounds that conform to the principles set out in the judgment of Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598." In particular, the applicant contended that s 474 did not remove the possibility of judicial review in respect of jurisdictional error. The applicant submitted that in this matter, the Tribunal was in jurisdictional error because it failed to ask the proper question required under the Act in respect of determining a 'particular social group' for the purpose of the Convention.

Particular Social Group 18 It was contended on behalf of the applicant that "…in deciding whether the applicant was a person with a 'well founded fear of being persecuted for reasons of … membership of a particular social group', the Tribunal failed to consider whether the applicant belonged to a group with a common uniting element - whether attributed to the group by members of the group or by outsiders: see Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 241-242." 19 The applicant submitted that the Tribunal concentrated on the question of whether ex-policemen or disgraced former policemen constituted a 'particular social group'. The applicant submitted this constituted a failure to consider the question whether the "applicant belonged to a group with common uniting elements" by overlooking that the common uniting element of the group referred to by the applicant was the fact that members of the group had given information about Ringo. The applicant contended: "It would have been open to the Tribunal to find that the applicant belonged to a group of persons who had provided information to the authorities on the criminal activities of the gangster, Ringo; that the group was a particular social group because that characteristic set the members of the group apart from society at large; and that, by reason of his membership of that group, the applicant had a well-founded fear of persecution." 20 At the hearing of the matter, counsel for the applicant contended that the Tribunal failed to identify a particular social group as defined by both: · A shared occupation (The applicant relied on comments by the Full Court in Minister for Immigration & Multicultural Affairs v Zamora (1998) 85 FCR 458 ("Zamora") at 464 to the effect that a shared occupation may in some matters form a "cognisable group in their society"); and · Particular activity (The applicant relied on comments by Chief Justice Black in Morato v Minister for Immigration and Multicultural Affairs (1992) 39 FCR 401 ("Morato") at 405, where his Honour states: "The doing of an act or acts of a particular character may, in some circumstances and together with other factors, point to the existence of a particular social group…."). 21 In response, the respondent contended that the applicant's claim before the tribunal was based on an assertion that he was a member of a particular social group of ex-policemen. The Tribunal considered and rejected this specific claim. The respondent submitted that the applicant's contention before the Court that the applicant was a member of a social group defined by specific actions (namely giving information about Ringo), was not presented to the Tribunal. The respondent submitted that, in any event, such a social group was not a particular social group for the purposes of the Convention in that the only uniting feature of such a group would be a fear of persecution. 22 Centrally, the respondent contended that even if the applicant was a member of a 'particular social group' for the purposes of the Convention, the Tribunal had found that the applicant did not have a well-founded fear of persecution. In reply, counsel for the applicant contended that in this matter the question of fear of persecution could not be separated from the Tribunal's alleged failure to find that the applicant was a member of a 'particular social group'. The applicant submitted that the Tribunal should have determined whether the applicant was a member of the 'particular social group' identified by the applicant, and then asked whether in this context, the applicant's claims were credible.

Jurisdiction 23 It is appropriate to consider the issue of jurisdiction first. The decision under challenge is a privative clause decision within the meaning of s 474(2) of the Act. In VBA v Minister for Immigration and Multicultural Affairs [2001] FCA 1797, Weinberg J at [19] made the following comments regarding judicial review of a s 474(2) privative clause decision: "Judicial review [of a privative clause decision] may nevertheless take place, albeit in limited circumstances. The scope of such review is discussed in the judgment of Dixon J in R v Hickman; Ex Parte Fox and Clinto (1945) 70 CLR 598 at 615 - 616. See also R v Murray; Ex Parte Proctor (1949) 77 CLR 387 at 399-400. It is necessary for the applicant to demonstrate something at least akin to 'jurisdictional error' on the part of the Tribunal (see for example Re Minister of Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 per McHugh J)." 24 I respectfully agree with his Honour's comments. I am prepared to assume, without deciding, that the Court has jurisdiction to deal with the application. I do so because it is my view that the application, if open to be dealt with by the Court, clearly lacks merit. Consequently, I do not consider that this application is the appropriate vehicle to consider the complex issues concerning the extent of operation of the s 474 privative clause provisions. See also Sheejo v Minister for Immigration and Multicultural Affairs [2001] FCA 1708 at [8], per Conti J.

Particular Social Group 25 I do not consider that the Tribunal failed to consider whether the applicant belonged to a group with a 'common uniting element'. The Tribunal considered this issue in some detail (see above at [13]). Not only did the Tribunal reject the proposition that the applicant was a member of a particular social group of former policemen or disgraced policemen, it rejected the view that the applicant was a member of a social group based on ex-policemen targeted for giving information about Ringo. The Tribunal found: "If any of the applicant's colleagues are targeted by Ringo or others it would in the Tribunal's view be as a result of their own actions and not because of any group membership. As a result even if the Tribunal is wrong and the applicant is targeted by Ringo it is not because he is a member of any particular social group."

26 However, even if the Tribunal did not specifically consider the group identified by the applicant as being defined by occupation and activity, I do not consider that this constitutes a material and/or a reviewable error in this matter. For reasons expressed below, I agree with the respondent that the group identified by the applicant in this matter does not constitute a 'particular social group' for the purposes of Art 1A(2) of the Convention. 27 The applicant relied on Zamora and Morato to support the claim that the Tribunal should have found the applicant a member of a social group identified by occupation and specific activity (see above at [20]). 28 In Zamora the Full Court makes it clear that only in very exceptional cases will an occupation form the basis for a particular social group. At 464 the Full Court held: "… one should be cautious in characterising an occupational group as a particular social group. Quite apart from the risk of using persecution or the fear of persecution as a defining feature, in many cases an occupational group will not satisfy the requirement that it be recognised within the society as a group, even though it may fairly be said that the members of an occupational group have common characteristics not shared by their society. Indeed, members of an occupational group will have characteristics in common simply by reason of the fact that they all follow the same occupation, but this does not of itself make those who follow the same occupation members of a particular social group." 29 Similarly, in Morato, Chief Justice Black warned against defining a particular social group by an act or actions. At 405 his Honour held: "It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group. The need to show that persecution is for reasons of membership of a group, rather than for an act or acts done, tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character…." 30 I recognise that the applicant did not submit that a 'particular social group' should be defined "solely" on occupation or the act of giving information to the authorities about Ringo. Rather, the applicant has urged the Court to find that the Tribunal should have held that the applicant is a member of a particular social group defined by both occupation and actions. 31 However, even when these factors are combined, it is difficult to see how a group identified as "policemen or ex-policemen who have provided information to the authorities on the criminal activities of Ringo" are united by any feature other than fear of persecution. As Kirby J held in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, (2000) 201 CLR 293 at [67]: "The membership of a particular social group must precede the persecution and not solely be the result of it." 32 Identification of a group as being "policemen and ex-policemen who have provided information to the authorities about Ringo" is necessarily defined by reference to alleged persecution by Ringo and/or those who protect or work for him. Any persecution suffered by such a group occurs primarily because of the actions of individuals, not by virtue of being a member of a particular group. I accept the respondent's submission that the only uniting feature of the group would be a fear of persecution, and therefore the group identified by the applicant cannot be considered a 'particular social group' for the purposes of the Convention. 33 In addition there was no evidence before the Tribunal that such a group was recognised within Malaysian society as "a group that is set apart from the rest of the community". See Zamora at 464. 34 In any event, I agree with the respondent's submission that the Tribunal's finding that any fear of persecution held by the applicant was not well-founded presents a fundamental hurdle for the applicant in this proceeding. I reject the applicant's argument that the Tribunal's alleged failure to find the applicant is a member of a particular social group infects its finding regarding fear of persecution. I consider that there is no reason why the Tribunal in this matter was not entitled to examine separately whether there is a well founded fear of persecution, and then consider whether it is held for a Convention reason. Once concluding that the applicant did not have a well-founded fear of persecution, the Tribunal was entitled to uphold the Minister's decision not to grant the applicant a protection visa. 35 Consequently, in light of the foregoing, I do not consider that the Tribunal exceeded it jurisdiction in this matter.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 18 December 2001 Counsel for the Applicant: Mr P Hanks QC with Mr J Serong (who both appeared pro bono)

Counsel for the Respondent: Mr A Cavanough QC with Mr W Mosley

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