Case: SZBJH v Minister for Immigration and Citizenship [2008] FCA 501
Outcome: followed
appellant submitted that the Tribunal would fall into jurisdictional error if it did not assess the appellant's claim as it was presented to the Tribunal. The appellant relied on the observations of Lander J in SZBJH v Minister for Immigration and Citizenship [2008] FCA 501 , particular at [40]-[42]. As Lander J pointed out at [40]: "... The appellant claimed refugee status by reason of being a member of a particular social group. He was entitled to have his application assessed as against that claim, not as against some other claim." I would, with respect, adopt and follow and apply that observation. But in order to find jurisdictional error in respect of the particular social group identified by the Tribunal it is necessary to determine what was the appellant's claim and evidence as to his membership of a particular social group. The Federal Magistrate said at [26]: "The applicant had never articulated a social group of which he was said to be a member and therefore at risk of persecution." In my opinion, that observation is correct. I have read the transcript of the hearing before the Tribunal and in the context of the first ground of appeal, the relevant passages are found at pp7 and 8 of the transcript. The appellant's answers to the questions put to him by the Tribunal are set out in par [18] of the reasons for judgment of the Federal Magistrate. Although the appellant did not articulate a specific or particular social group of which he claimed to be a member it was appropriate for the Tribunal to determine whether it could distil out of the appellant's claims and evidence a particular social group of which he was a member which was the subject of persecution. The Federal Magistrate was correct in par [20] of his reasons when he said that the appellant did not say that he was a member of a social group "businessman in Sri Lanka". The key to the appellant's claim in relation to the Karuna group extortion incident is found in his answer to the Tribunal that: "The main purpose that they abducted me was because I am a Muslim and they didn't like the Muslim person growing his business in that area". The Tribunal found that the appellant: "... Has not been targeted in the past and that he would not be targeted in the reasonably foreseeable future for the essential and significant reason ... of his race, religion or his membership of a particular social group, namely businessmen in Sri Lanka, or his political opinion. The Tribunal finds that the extortion was directed at the applicant based on a perception of the applicant's person [sic] wealth and aimed at him individually". It can therefore be seen that the Tribunal found in relation to the Karuna group extortion incident that there was material before the Tribunal upon which it was open to the Tribunal to make these findings. Although the Tribunal may have been in error in identifying the particular social group as it did, it made a specific finding that the appellant had not been persecuted by reason of his religion, that is to say because he was a Muslim. These findings were responses by the Tribunal to the claims made by the appellant. Consistently with the principles enunciated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 19 and SZBJH v Minister for Immigration and Citizenship (supra) at [40]-[42] the Tribunal responded to, and dealt with, the claims which the appellant had articulated and which also arose on the materials before it.