Case: SZJRU v Minister for Immigration and Citizenship [2009] FCA 315
Outcome: followed
response the respondent submitted in summary: The Tribunal did consider the claim of the appellants concerning their membership of a particular social group, namely wealthy middle class businessmen, but it was in the context of the primary submission of the appellants before the Tribunal which was that the male appellant was being persecuted due to his perceived association and support for various Tamil groups. The issue whether a particular social group needs to be considered if there has been no persecution was recently considered by Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315. The Tribunal found, as a finding of fact, a lack of credibility in the appellants' account of events which formed the basis for the claim of a well-founded fear of persecution. In short, the Tribunal did not accept that the appellants left Sri Lanka in the circumstances claimed, nor that they had been targeted by the Sri Lankan security forces, the army, the paramilitary, the Karuna nor anyone else. No jurisdictional error or error in the decision of the Federal Magistrate was apparent in this ground of appeal. Consideration Article 1A(2) of the Refugees Convention provides that a "refugee" is 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. In applying Art 1A(2) of the Convention and the concept of "persecution" in the context of the Migration Act , s 91R of the Migration Act 1958 (Cth) relevantly provides: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. I accept Ms McWilliam's submission that this case is not out of the ordinary, so that as a general proposition the Tribunal must consider the appellants' case by reference to the particular social group articulated by them (cf Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315). However, the appellants' case is (and must be in order to satisfy the requirements of the Migration Act and the definition of "refugee" for the purposes of the Convention), that they had a well-founded fear of persecution by reason of their membership of a particular social group. As submitted by the Minister, in essence the Tribunal made a factual finding that the appellants did not have a well-founded fear of persecution for any reason, because the Tribunal did not accept that the appellants had previously been the subject of abduction, assault, harassment or other forms of serious harm which complaints formed the basis of the appellants' claims of their well-founded fear of persecution before the Tribunal. If the appellants did not have a well-founded fear of persecution as contemplated by s 91R(1) of the Migration Act , as the Tribunal found, the Tribunal was entitled to affirm the decision of the Minister not to grant the appellants Protection (Class XA) visas. Ms Wheatley for the first respondent also directed my attention to recent comments of Besanko J in SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [50] where, after referring to Dranichnikov [2003] HCA 26 ; (2003) 197 ALR 389 , his Honour said: Notwithstanding these principles, it is not necessarily an error for the Tribunal not to begin with (or even to deal with) the question of whether there is a particular social group ... If the serious harm results from the application of a law of general application and there is no discrimination and therefore no persecution, the claim must fail ...