BRGAA v Minister for Immigration
[2007] FMCA 1182
•25 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1182 |
| MIGRATION – Administrative review – visa – protection Visa. |
| Migration Act1958 |
| Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Craig v South Australia (1995) 184 CLR 163 VBAO v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 544 Mandavi v Minister for Immigration & Multicultural Affairs [2002] FCA 70 Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 VBAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 435 |
| Applicant: | BRGAA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File number: | BRG 006 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 29 May 2007 |
| Date of last submission: | 29 May 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 25 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. D. Rangiah |
| Solicitors for the Applicant: | Refugee & Immigration Legal Services Inc. |
| Counsel for the Respondent: | Mr. M. Brady |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Application is dismissed.
That the Applicant pay the Respondents’ costs of and incidental to the Application to be assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRGAA of 2007
| BRGAA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the Applicant applies for an order that the Minister for Immigration and Citizenship (the Minister) and the Refugee Review Tribunal (the Second Respondent) (the Tribunal) show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act1958 (the Act). The Tribunal’s decision of 5 December 2006 was notified by it to the Applicant on 8 December 2006. It affirmed the decision of the Minister’s delegate to refuse the Applicant a Protection (Class XA) visa.
In its amended application filed by leave on 29 May 2007 the Applicant abandoned three grounds earlier advanced and confined his review to the remaining two grounds. The first ground contended:
a)the Tribunal failed to deal with or understand that part of the Applicant’s case that the Israeli Government had failed or was unable to protect the Applicant from persecution, whether such persecution resulted from the Applicant’s criminal record or his status as an Arab Israeli; and
b)the Tribunal committed a jurisdictional error by failing to consider whether threats of disappearance and death made to the Applicant and the physical ill treatment by an officer of the Israeli Special Forces could by themselves amount to serious harm and give rise to real chance of persecution in circumstances where such treatment was designed to frighten and intimidate the Applicant even if such threats were not intended to be acted upon.
Background Facts
The Applicant is a citizen of Israel. He was born in and lived in Haifa and is of Arab ethnicity and is a practising Catholic. He arrived in Australia on 5 May 2006 and applied for a Protection (Class XA) visa on 16 June 2006. The Applicant’s application was considered and refused by a delegate of the Minister on 4 August 2006. On 23 August 2006 the Applicant made an application for review to the Tribunal.
The decision of the Tribunal to affirm the Minister’s delegate decision was made on 23 November 2006. That decision was provided to the Applicant by letter dated 5 December 2006. The Applicant then filed the present application in the Court on 4 January 2007.
In the proceeding before the Tribunal the Applicant gave evidence of a number of incidents and events which he claims gave rise to a well founded fear of being persecuted for reasons of his race, religion or nationality. He alleged that he was an Arab-Israeli who had grown up in a predominantly Jewish area. He claimed he was persecuted by individuals, police and members of the Israeli Special Forces. In particular concerning those matters of harassment and assault by members of the Israeli Police and Israeli Special Forces he gave evidence of the following incidents:
a)He says he was questioned by police almost every month and assaulted on a number of occasions by, for example, being pushed into a police car so that his head hit the roof and being struck by sticks and microphones being carried by police.
b)He was assaulted by a police officer in 1999 or 2000 during a search.
c)In 2001 his car was pulled over by Israeli Special Forces, a gun was pointed at him and he was detained for an hour or so. He was told that his place was not in Israel and that if he remained in Israel he would “get a bullet in his head”. He was called a “filthy Arab”. He was told that he had “better go” or he “wouldn’t be around for too long”.
d)In 2002 he was again stopped by members of the Israeli Special Forces, including one of the men from the previous incidence (whose name he believed to be ‘Heem”.). The Applicant says he was asked, “why are you still here?”. The Applicant also says he was told that the police were working with the Special Forces in keeping an eye on him. He was told that if he did not “go from here” that “something will happen to you”.
e)In 2003 the Applicant’s apartment was raided by police who damaged a number of items and made a mess of his apartment.
f)In 2004 the Applicant’s apartment was again raided by police who said they were looking for drugs and bombs. He alleges they made a mess of his apartment and broke items.
g)In 2004 the Applicant’s car was again stopped by Israeli Special Forces. The same person as previously (Heem) was there. He was again told that he should “leave Israel”. The Applicant says he attempted to make a compliant at the police station but was told to go away.
h)In 2005 the Applicant was assaulted by police. He attempted to complain at the police station, but was again then told to go away.
i)In 2005 the Applicant’s apartment was raided by police again.
In its reasons the Tribunal accepted the truth of the Applicant’s evidence. Relevantly the Tribunal found:
“The Tribunal accepts that the Applicant was stopped by the Israeli Special Forces on three separate occasions in 2001, 2002 and 2004; searched and threatened by an officer called Heem. The Tribunal has little doubt that these threats which warned him of death and disappearance were unsettling and upsetting for the Applicant. However, according to his oral evidence Heem was aware of his place of residence and had ample opportunity to harm the Applicant if he genuinely intended to do so. The fact that the Applicant suffered no other harm at the hands of Heem throughout this period is indicative of the fact that the threats were designed to frighten and intimidate him and that Heem or the Israeli Special Forces did not seriously intend to act upon them. The Tribunal, therefore, finds that the threats in this case do not fall within section 91R(1)(b) and do not give rise to any real chance of persecution in the reasonably foreseeable future.”[1]
[1] Respondent’s bundle of relevant documents page 185.
In the circumstances the Tribunal concluded it was not satisfied the Applicant was someone to whom Australia had protection obligations and accordingly did not satisfy the criteria set out in s36(2) for a protection visa. It affirmed the delegate’s decision.
The Legislation
Section 65(1) of the Act relevantly provides,
“1. After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
…
is to grant the visa; or
(b) if not so satisfied is to refuse to grant the visa.”
Concerning criteria for the granting of a Protection visa section 36(2) of the Act provides,
“(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
…”
Article 1A(2) of the Refugees Convention, relevantly defines a refugee as a person who:
a)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 nationality and is unable, or, owing to such fear, is unwilling to avail himself of a protection of that country.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) of the Convention for the purpose of the application the Act and regulations to a particular person.
Concerning refugees section 91R of the Act expressly 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.”
The Tribunal Decision
The Tribunal commenced its consideration of the application by setting out the relevant law including the definition of refugee for these purposes. The Tribunal set out the four key elements to the convention definition and in particular discussed the second element, being that the Applicant must fear persecution and the fourth element that the fear of persecution must be well-founded:
In respect of the second element, fear of persecution, the Tribunal set out the requirements of section 91R of the Act. That is the persecution feared must involve serious harm which includes for example a threat to the person’s life or liberty;
Concerning the fourth element, that fear of persecution must be well-founded the tribunal noted that a person would have a well-founded fear of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a convention stipulated reason. The Tribunal noted that a fear is well-founded where there is a real substantial basis for it but not merely if it is assumed or based on mere speculation;
In its reasons the Tribunal detailed the claims made by the Applicant in both his written application for a visa, his application for review and at the hearing. The Tribunal also fully summarised the evidence available from other sources in respect of the allegations made by the Applicant;
The Tribunal’s principle findings and reasons as set out at pages 183 to 187 of the Respondents’ bundle and summarised in the written submissions made by the Respondents were that the Tribunal:
a)was prepared to accept the Applicant’s account of being falsely accused, forced to confess and wrongly convicted in 1992 of a crime he had not committed;
b)accepted that in 1993 the Applicant was involved in a scuffle with a militant Jewish man in his neighbourhood and that he was severely beaten and was hospitalised. It was further accepted that whilst the Jewish man was not charged or punished the Applicant was arrested and psychologically coerced into confessing that he had assaulted the Jewish man and that he was subsequently convicted and forced to spend time in a juvenile hostel;
c)accepted that the Applicant was subjected to regular and petty acts of discrimination which were most unpleasant and undesirable. However it was not satisfied that the discrimination the Applicant faced assessed accumulatively reached the standard of persecution within the meaning of the Convention;
d)accepted the Applicant was at a friend’s house in 1999 or 2000 when the house was raided by police who were looking for stolen goods. It also accepted the Applicant was slapped and briefly held down by police on that occasion;
e)accepted that the Applicant was stopped by Israeli Special Forces on three separate occasions in 2001, 2002 and 2004 and that he was searched and threatened by an officer called Heem. It did not find that the threats fell within section 91R(1)(b) and that they did not give rise to any real chance of persecution in the reasonably foreseeable future;
f)accepted that the Applicant’s apartment was the subject of three separate police raids without warrant in 2003, 2004 and 2005 where the police were looking for drugs, stolen goods or bombs and that damage was caused to the Applicant’s apartment;
g)accepted that the Applicant was travelling in his friend’s car when they were pulled over for a traffic infringement in 2005 in Tel Aviv. The police asked the Applicant for his ID and asked where he was from. He was told to get out of the car and when he protested his innocence the policeman twisted his ear with such force that it was hurt. The police left a short time later without issuing a traffic fine;
h)accepted that the Applicant was stopped and questioned regularly by the authorities although the implicit racism in Israeli authorities’ attitude toward the Applicant did not amount to serious harm within section 91R(1)(b); and
i)accepted that the Applicant was questioned and searched before boarding his departing flight from Israel although the Second Respondent was not satisfied that the Applicant’s experience on this occasion amounted to serious harm or that it gave rise to a real chance of serious harm in the reasonably foreseeable future.
It was evident from the Tribunal’s decision that it individually assessed each of the Applicant’s experiences and considered whether each incident of harm amounted to “serious harm”. Further it considered the incidents cumulatively and despite that matter was not satisfied that the Applicant’s experiences amounted to persecution for a convention reason.
Grounds of Application
Ground 3(a): Failure to consider whether the threats by Israeli Special Forces could by themselves amount to serious harm
In his submission the Applicant contended that given the Tribunal accepted the truth of his evidence and in particular in relation to the various incidents which were identified at paragraph 17 above and despite the express finding of the Tribunal that “the threats were designed to frighten and intimidate” the Second Respondent failed to consider whether the threats themselves, which included having a gun pointed at him and having been warned that he would be shot if he did not leave Israel, amounted to serious harm. In that respect it was submitted that the Tribunal erred by focussing solely on the question of whether the Israeli Special Forces intended to act upon the threats. It was submitted that the Tribunal did not consider whether the threats themselves would amount to serious harm. Accordingly it was submitted that the Tribunal asked itself the wrong question or failed to take into account a relevant consideration.
It is well settled that by operation of section 474(1) of the Act and the decision of the High Court in Plaintiff S 157/2002 v Commonwealth of Australia[2] that the Court will only have jurisdiction to grant relief where there has been a jurisdictional error made by the Tribunal. As was submitted by the Respondents the concept of jurisdictional error has been addressed in cases such as MIMIA v Yusuf[3] and Craig v South Australia[4]. The concept was succinctly summarised by McHugh, Gummow and Hayne JJ in Yusuf with referral to a passage from a judgment of the Court in Craig which held that when an administrative tribunal falls into error of law:
“…which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on in relevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”[5]
[2] (2003) 211 CLR 476.
[3] (2001) 206 CLR 323.
[4] (1995) 184 CLR 163.
[5] At page 179.
Accepting that principle it was submitted by the Respondents that, for example, ignoring relevant material or taking into account irrelevant material, unless caused by an error of law, is of no legal significance. Equally falling into an error of law which does not in turn cause the Tribunal to identify a wrong issue, ask itself a wrong question, ignore relevant material or rely on irrelevant material does not lead to jurisdictional error.
Specifically the Respondents referred to further comments by McHugh, Gummow and Hayne JJ in Yusuf where they said,
“This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision making relevant considerations for the decision maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision maker acts.”[6]
[6] At page 348.
It follows that for the Applicant to overcome the privitative clause provision of the Act he must demonstrate that the Tribunal’s:
a)failure to consider whether the threats themselves amounted to “serious harm”;
b)the Tribunal focussing solely on the question of whether the Israeli Special Forces intended to act upon the threats, or either
c)did not consider whether the threats themselves could amount to serious harm was
caused by an error of law.
In that regard the Respondents contended that the recent decision of the High Court in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs[7] is of assistance. In VBAO the High Court considered the meaning of the word “threat” in the context of section 91R(2)(a). In that context the Court held that the word “threat” in section 91R(2)(a) is a reference to the likelihood of suffering harm in the future and is not merely a reference to a past communication of an intention to harm. In particular reliance was placed upon the judgment of Gleeson CJ and Kirby J who decided at 545,
“A past communication of an intention to harm a person may, or may not, be some evidence that there is a likelihood of future harm to the person’s life or liberty, but the question for the decision-maker is whether there is such a likelihood. The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life or liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications. This accords with the view of section 91R(2)(a) that was taken by Marshall J in a present case and Crennan J in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs.”[8]
[7] (2006) 231 ALR 544.
[8] (2005) 141 FCR 435.
Other members of the Court reached similar conclusions.[9]
[9] See Gummow at [18] – [20]; and Callinan & Heydon JJ [50].
In VBAS v Minister for Immigration and Multicultural and Indigenous Affairs Crennan J (then of the Federal Court of Australia) held that having regard to the context from the purpose and language of section 91R “threat” is used in section 91R(2)(a) in the expression “a threat to the person’s life or liberty” is used in the sense of “danger” or “risk” rather than used in the narrower sense of “a declaration of intention or determination to cause harm or to take some hostile action.”[10]
[10] At paragraph [22].
In the instant case it is clear that the Tribunal considered the question of whether there was truly a future threat to the Applicant’s life or liberty. In its findings, which are summarised at paragraph 15 above, the Tribunal expressly determined “…that threats were designed to frighten and intimidate (the Applicant) and that Heem or the Israeli Special Forces did not seriously intend to act upon them … and, (therefore), finds that the threats within this case did not fall within section 91R(1)(b) and do not give rise to any real chance of persecution in the reasonably foreseeable future.”
The task for the Tribunal was to determine whether there was a danger or risk of serious harm in the future giving rise to a “real chance of persecution.” The issue is whether the Tribunal applied the correct test in focussing on the risk of danger to the Applicant in the future rather than focussing on whether past threats themselves constituted “a threat to (the Applicant’s) life or liberty”.
Given the state of authority the Tribunal did apply the correct test consistent with authority and it follows there was no error of law associated with its determination.
It is not the task of the Court in this proceeding to review the merits of the Tribunal’s decision nor to substitute for the Tribunal’s views of the evidence before it this Court’s views.[11] In the absence of a jurisdictional error this ground fails.
[11] Mandavi v Minister for Immigration & Multicultural Affairs [2002] FCA 70 at 25.
Ground 2: Failure of State protection
The second ground advanced by the Applicant was that there was a failure of State protection in that the Israeli authorities had failed to protect the Applicant from harm at the hands of the individuals, police and Israeli Special Forces. The Applicant relied upon:
a)the event when the Applicant was fifteen years old when a Jewish man assaulted him fracturing his skull and ribs but where the police took no action against the Jewish man;
b)the refusal of the Haifa Police in 2004 to investigate the Applicant’s complaint against the Israeli Special Forces; and
c)the refusal of police to investigate the Applicant’s complaint in 2005 that he had been assaulted by police.
It was contended for the Applicant that a person that came within Article 1A(1) of the Convention if there is a failure of a State protection not merely persecution by the State: Minister for Immigration and Multicultural Affairs v Khawar[12]. In response the Respondent contended that the Applicant misunderstood the effect of the authority and the significance of State Protection in the circumstances.
[12] (2002) 210 CLR 1 at [22], [84-87], [112 – 114].
In Khawar Gleeson CJ observed,
“Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.”
These observations were expanded upon by McHugh and Gummow JJ where their Honours noted,
“Whilst the Tribunal appears to have treated the violence of non-State actors of which [the Appellant] complained as sufficiently severe to amount to "persecution", that classification is not determinative for several reasons. First, in any event, there would be the further requirement of a Convention reason; victims of domestic violence would meet the Convention definition only by showing more than the harm of which they complain.
Secondly, and this is crucial for the basis propounded above, the persecution in question lies in the discriminatory inactivity of State authorities in not responding to the violence of non-State actors. Thus, the harm is related to, but not constituted by, the violence.”[13]
[13] [85] – [86].
It follows from the reasons in Khawar that there must first be a well founded fear for a Convention reason before any obligation can arise to provide State protection.
The Tribunal was clear in its finding that the Applicant’s experiences before his departure from Israel did not amount to persecution for a Convention reason.
Clearly the entitlement for State protection only arises where there has first been a finding that the Applicant has a well founded fear of being persecuted for convention reasons. It was submitted that until such a finding was made there is no need to proceed to the next question of whether the Applicant is unable or unwilling to avail himself of the protection of a foreign country. I accept as correct the Respondents’ submissions that there was no need in the instant case for the Tribunal to turn to the question of whether there had been a failure of State protection until the Tribunal had first concluded that the Applicant had a well founded fear of being persecuted for a Convention reason and that the requirements of section 91R of the Act had been met. It follows that the Tribunal was not obliged to make any determination about the availability of State protection, it having earlier decided that the Applicant did not have a well founded fear for a Convention reason.
This ground too must fail.
Summary
The Applicant in this proceeding has sought to review a decision of the Tribunal affirming a decision of a delegate of the Minister not to grant a Protection (Class XA) visa. Two grounds were advanced. The first ground contended that the Tribunal failed to consider whether threats by Israeli Special Forces could by themselves amount to serious harm. In its decision it is apparent that the Tribunal adopted a correct approach at law in concluding that the threats did not give rise to a well grounded fear of being persecuted for a Convention reason. The second ground contended for was that there was a failure of State protection in that the Israeli authorities had failed to protect the Applicant from harm at the hands of individuals, police and Israeli Special Forces. This ground fails in limine because the Tribunal did not accept that the Applicant had a well grounded fear of being persecuted for a Convention reason as no basis arose for State Protection.
The application is dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 25 July 2007
0