A49 of 2003 v Minister for Immigration - [2004] FMCA 506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A49 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 506

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether applicant should have been told that Tribunal did not accept expertise of report writer.

Migration Act 1958 (Cth), s.36(2)

Moldrich v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1010

Applicant V346/2000 v MIMIA [2001] FCA 1197
Chan Yee Kin v Minister for Immigration and Multicultural and Indigenous Affairs (1989) 169 CLR 379

Applicant:

APPLICANT A49 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 976 of 2003

Delivered on:

20 August 2004

Delivered at:

Melbourne

Hearing date:

16 August 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Ms Ellyard

Solicitors for the Applicant:

Mark Clisby

Counsel for the Respondent:

Dr Donaghue

Ms O’Regan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The applicant’s application be dismissed.
The applicant pay the respondent’s costs fixed at $5, 230.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 976 of 2003

APPLICANT A49 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This Judgment arises from an application filed by the applicant on

3 February 2003 to the High Court, seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) on 5 December 2002 affirming the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant a protection visa (“the Decision”). The application was transferred to the Federal Court of Australia on 1 July 2003. The matter was transferred to this Court on 4 September 2003.

History

The applicant is a citizen of India and a Sikh. He came to Australia on 30 August 2001 and lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs on 24 September 2001.
The applicant claims that he cannot return to India as he fears that he will suffer harm due to persecution.
On 27 February 2002, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa. The applicant applied for review of that decision by the RRT on

8 April 2002.

The RRT’s decision

In the decision made by the RRT on 5 December 2002, the RRT affirmed the decision of the delegate not to grant a protection visa. The RRT found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently the applicant did not satisfy the criterion under s.36(2) of the Migration Act 1958 (Cth) for the purposes of a protection visa. Specifically the RRT found that:
a)there were discrepancies between the applicant’s written and oral testimony;
b)the applicant’s evidence was contradictory to all the independent evidence about Punjab in the last decade;
c)“… it is implausible that the police had an active, ongoing, adverse interest in the applicant or told him two years later that they would kill him if he did not leave his home area” (at page 11);
d)no weight could be put on a letter from a foot clinic stating that the applicant’s ankle injury was derived from injuries caused by torture;
e)some instances of discrimination by individuals in New Delhi and an attendance by the police at the restaurant where the applicant was working to inquire after him were not persecution within the meaning of the convention as “the odd random incident cannot be considered harm of a type of gravity that would come within the understanding of convention or persecution” (at page 12); and
f)the applicant has not suffered harm amounting to persecution in the past and that the chance of such harm befalling him in the reasonably foreseeable future is remote.

Grounds for review

The first ground of review relied upon by the applicant in his statement of contentions is that the RRT was under a duty to disclose to the applicant that it did not intend to put any weight on the letter with respect to his ankle as it was not written by an appropriately qualified medical practitioner. It is useful in this case to set out the terms of the letter in full. This was a letter by a podiatrist in the following terms:
“[the applicant] has significant arthritis in his ankles associated with injuries sustained under torture three years ago. This causes pain in his ankles when he walks up and down ladders. He will require some time to recover from his current symptoms in a work position which does not require stepping up and down.

I suggest two weeks of altered work load should suffice.”
The RRT’s findings in this regard are as follows (at page 12):
“The RRT does not put weight on a letter from a foot clinic that the arthritis in the applicant’s ankles is derived form injuries caused by torture. The staff at this clinic, according to the letterhead, have bachelor degrees and/or diplomas in podiatry. They are not medical personnel. In any case, while the relationship between a current condition and an old injury may be perceived, the likelihood of the cause of that particular injury requires more than simply the applicant’s assertion (particularly when the applicant gives varying accounts of when the injury was sustained).”
The RRT clearly did not accept that the author of the letter (whoever it may have been from those listed on the letterhead) was of sufficient expertise to give evidence that the injuries were the result of torture. Indeed, the letter on the face of it does not make plain that that is in fact the opinion that is being expressed by the author. A fair reading of the letter leads one to the conclusion that it recounts the version of events by the applicant as an explanation for the suggestion that he receive two weeks of altered workload. It does not appear to me that the evidence contained in that letter would be useful to the decision maker either as medical opinion (due to the lack of expertise of the author), nor in fact to actually be the opinion evidence of the author as opposed to a recounting of the version of the applicant. In these circumstances for the reasons stated by the RRT (and the further compelling reason that the letter does not carry any weight) the letter does not have any significant evidentiary value.
To the extent that the recounting of events by the applicant to the author of the letter is inconsistent with evidence that he placed before the RRT, the RRT states (at page 10):
“Recently, he told the foot clinic treating his sore ankles that he had been tortured three years ago (that is, late 1999). It would seem to the RRT that a period of torture as horrific as the applicant claims would be an indelible memory and one that could be placed correctly in time, especially as the applicant’s life at that time was very regimented by a timetable of academic term beginnings and endings.”
The complaint of the applicant, however, is that because the foot injuries are the only lasting injuries to which the applicant could point to support his torture claim the RRT ought to have advised him that they did not intend to place any weight to the letter and given him an opportunity to produce a report from an appropriate expert. In this regard the applicant relies upon the decision of Moldrich v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1010 (“Moldrich’s case”).
Moldrich’s case provides little assistance to the applicant. In that case the applicant sought an adjournment of a hearing until such time as an appropriate medical report could be provided to the decision maker. There was evidence that the request for time to obtain an appropriate report was set out in a letter from the applicant’s solicitors (see paragraph 14 of the Judgment). The Minister’s delegate in that case proceeded to consider the application and refuse it. The decision by Lander J in Moldrich’s case was that “the applicant was entitled, in my opinion, to a short delay (which was all that was sought) to furnish a medical report in support of the application.” As a result Lander J considered that there had been a denial of procedural fairness in that case. That is, the denial of a right to be heard in the sense of the right to be able to properly put the evidence in support of the application.
In this case there is no suggestion that further medical evidence was sought by the applicant or intended to be provided. There is no suggestion that the RRT indicated to the applicant that they accepted the report writer was an expert and caused him to not pursue placing further evidence on this topic before the RRT.
Counsel for the applicant developed an argument that the RRT ought to have notified the applicant that it rejected the expertise of the report writer, as this is a preliminary step to accepting the evidence of the putative expert. Whilst expertise is a necessary matter to be established as a precondition to accepting expert evidence, it remains a question of fact. The RRT is not required to signal to the applicant its doubts or hesitations in relation to the sufficiency of the evidence that the applicant is putting forward before the RRT: see Applicant V346/2000 v MIMIA [2001] FCA 1197.
There is no reason in principle why the RRT ought to be required to deal differently with a finding of fact as to expertise of a witness or report writer from any other finding of fact that it must make.
In the circumstances the applicant’s first ground of review is not made out.
The applicant’s second ground of review relies upon the finding of the RRT (at page 12) that:
“However, the odd random incident cannot be considered harm or a type or gravity that would come within the understanding of Convention persecution.”
The applicant’s argument takes as its starting point an interpretation of the term “odd random incident” used by the RRT in its reasons as meaning a single act, and then proceeds to draw the conclusion that the RRT is wrong as the RRT concluded that a single act could not be sufficient to amount to persecution in the convention sense.
When the RRT discussed the incident in New Delhi it was not considering a singe incident, but clearly talking about random incidents of discrimination from other residents of New Delhi, as appears clear from its earlier recounting of the evidence on the topic, as quoted above.
Ultimately, however, The RRT concluded that these random incidents were not sufficient discrimination to satisfy the meaning of persecution under the convention. The RRT has correctly set out the test in the early part of its reasons. The findings of the RRT are findings of fact: whether the random incidents amount to Convention persecution. The findings are based upon the evidence after a correct statement of the test to be applied. I can find no error of law in this regard.
No jurisdictional error has been established by the applicant nor is a jurisdictional error apparent in the RRT decision.
The application must be dismissed.
The parties agreed that costs ought to follow as agreed and failing agreement as assessed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the Reasons for Judgment of Riethmuller FM

Associate:

Date: