M41 of 2002 v Minister for Immigration

[2004] FMCA 576

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M41 of 2002 v MINISTER FOR IMMIGRATION & ANOR [2004] FMCA 576

MIGRATION – Application for protection visa – application to High Court for order nisi – transferred to Federal Magistrates Court – application to High Court out of time – whether decision privative clause decision – whether application should be dismissed as incompetent if a privative clause decision.

Migration Act1958

Plaintiff S157 v the Commonwealth (2003) 195 ALR 24
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA30, 206 CLR 323

Applicant: APPLICANT M41 OF 2002

Respondents: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ANOR

File No: MZ 1126 of 2003

Delivered on: 30 August 2004

Delivered at: Melbourne

Hearing Date: 30 August 2004

Judgment of: Phipps FM

REPRESENTATION

Counsel for the Applicant: Mr J. Belbruno

Solicitors for the Applicant: Joseph Belbruno

Counsel for the Respondents: Dr S. Donaghue

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent's costs fixed at $8000.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1126 of 2003

APPLICANT M41 of 2002

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and ANOTHER

Respondents

REASONS FOR JUDGMENT

1. This is an application concerning a decision of the Refugee Review Tribunal given on 21 November 2001.  The applicants who are husband and wife are citizens of India.  Each seeks a visa on convention grounds.  The applicant wife is the only who advances any basis for a finding that she is a refugee within the meaning of the Refugee Convention.  The husband's application depends upon the success of his wife’s application.

2. For convenience, I will refer to the wife as the applicant.  She first arrived in Australia on 2 August 1996 on a student visa.  She returned to India on 5 August 1998 and then arrived in Australia again on 8 September 1998.  In evidence to the Tribunal, she said that she was visiting her mother who was unwell.  The applicant husband arrived in Australia on 15 February 1999.  The applicant wife and the applicant husband married on 20 May 2000 having met in Australia.  They both applied for protection visas on 23 May 2000.  On 19 June 2000, their applications were refused by a delegate of the first respondent.  They then applied to the Refugee Review Tribunal.  On 21 November 2001, the Tribunal affirmed the delegate's decision.  

3. On 12 April 2002, they commenced proceedings in the High Court pursuant to s.75(5) of the Constitution seeking order nisis in respect of that decision. That application was remitted to the Federal Court and then transferred to the Federal Magistrates Court.

4. The application was not within the 35 day time limit required by s.486A Migration Act1958.  That requires an application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision to be made within 35 days of the notification of the decision.  As a consequence of the interpretation given to “privative clause decision” by the High Court in Plaintiff S157 v the Commonwealth (2003) 195 ALR 24, if there has been jurisdictional error by the Tribunal, the decision is not a privative clause decision. In such a case, s.486A does not apply.

5. In this case, if there was no jurisdictional error, the decision is a privative clause decision. The application should have been made to the High Court within 35 days. By s.486A(2), the High Court cannot extend time for the making of the application. The submission by Dr Donaghue, who appears for the first respondent, is that the application is incompetent and should be dismissed. There should not be a refusal to grant an order nisi. It should be a final decision and not an interlocutory decision.

6. The claim which the applicant made is this:  she is a 26‑year‑old Sikh woman.  She was born in Madhya Pradesh before moving with her family to Chandigarh not long before her departure for Australia in August 1996.  The applicant's father had been employed in government service in Madhya Pradesh and the family moved to Punjab after his retirement.  They had a house on some land there.  The applicant said that her mother had land holdings.  In her application, the applicant said her mother was involved in a long and protracted battle with the Indian authorities over a large amount of land.  At the hearing, she explained that her father had been one of five brothers.  One of his brothers lived with the applicant's family and they enjoyed good relations.

7. The other three brothers had acted to divide the applicant's grandparents' land between them excluding the applicant's father and the brother who lived with the applicant's family.  There had been an acrimonious dispute, but that was eventually decided by a court order.  The applicant then claimed that the three uncles who had divided the land between them were Congress Party supporters.  The applicant said that her mother actively supported Akali Dal, an opposition party, and the applicant stated that she would help her mother in her support of the Akali Dal party.

8. The Tribunal notes, in its reporting of the applicant's claims, that the applicant appeared to have little knowledge of the Akali Dal party.  The applicant claimed that she and her mother became the target of Congress supporters.  She said that in late 1993 or early 1994, her family home was attacked and her sister assaulted by Congress Party supporters.  She described the damage to the home.  She said that her sister and her sister's children had been badly injured.  She said that after this, people tried to damage the house again but her uncle had managed to scare them off.  She described another incident where she said that during the resulting court proceedings about the division of land between the brothers, Congress supporters tried to kill her.  This had occurred not long after the family's house had been damaged.  She said that the uncles and the Congress Party people wanted the applicant's family to leave the area.  The Tribunal then recorded detail of what the applicant said about events and the claim she made about the attacks on her and her family by the uncles and the Congress Party.

9. The Tribunal found that the dispute between the applicant's father and his brothers was not a matter that engaged the provisions of the Refugee Convention.  It was purely a private struggle over the distribution of an inheritance.  The different political affiliations of the members of the applicant's family, that is, the uncles who supported the Congress Party and her mother and her who supported the Akali Dal party, were no more than a coincidence and not the cause of conflict within the family.

10. The Tribunal found that the applicant's claims about her involvement in the Akali Dal were unconvincing.  The Tribunal found that at most she and her family voted for Akali Dal and might have talked about Congress not being a good party.  The Tribunal was not satisfied from the evidence that they had any greater association than that.  The Tribunal found that none of the claims about harassment by Congress supporters, even if accepted, gave rise to a real chance that the applicant would face persecution if she returned to Punjab, either because the events occurred some seven years ago and had not been followed by any further harassment or because they were motivated by family disputes, not convention reasons, or they were insufficiently serious to constitute persecution.

11. In addition to the matters I have already referred to, the applicant claimed that militant Sikhs had threatened her family at the behest of her uncles.  That was part of the material she put before the Tribunal.  The Tribunal found that the applicant's evidence about militant Sikhs threatening her family at the behest of her uncles was very unconvincing.  As part of that evidence, the applicant had said that people lurked around her area every two or three days for a period which must have been two years.  The Tribunal found that was quite implausible and this led the Tribunal to reject all of what she said about Sikh militants coming to her home and threatening her family, particularly in light of country information that showed that Sikh militancy had been all but eliminated.

12. So far as credibility is concerned, one significant matter was the period of time which had elapsed between the applicant arriving in Australia and when she had made her application for refugee status, that being a period of about four years.

13. Mr Belbruno, who appeared for the applicant, submitted that there are three jurisdictional errors.  The first attacks the finding that the experiences related by the applicant were connected to a private feud between members of her family and that these could not amount to persecution.  The error which is alleged is that the Tribunal has failed to take into account a relevant matter; that is, that the evidence of the applicant that the attacks on her, her family and her home were not just by members of the family but by other people as well.

14. The Tribunal said:

    I note that the applicant claims that her uncles were supporters of the Congress Party, but it was plain to me at the hearing that their political affiliation and the different political affiliation of the applicant's mother was not more than a coincidence and not the reason for conflict which occurred.  The conflict which has happened within the applicant's extended family recently or in past generations is not, in my view, a matter which engages the provisions of the Refugees Convention.  The episode which she described was purely a private struggle over the distribution of an inheritance.  I am not satisfied that the reason for what has occurred can be accommodated within the reasons specified in the Refugees Convention.

15. The Tribunal has clearly taken into account all of the evidence that the applicant gave and that encompassed evidence about the dispute within the family, evidence about the different political affiliations and evidence about attacks on the family home and attacks on the family itself.  The Tribunal has taken into account the evidence that people other than the family members were involved in these attacks.  Even if the Tribunal had ignored the evidence of other people involved in the attacks it would not be a jurisdictional error.  At best, it would constitute a fault in the fact-finding process but not a failure to take into account a relevant matter as that is described in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA30, 206CLR323.

16. From the extracts I have quoted from the Tribunal's decisions, and a reading of the Tribunal's decision, the Tribunal has, in any event, taken into account all of the evidence that the applicant put forward about the attacks, including the evidence of attacks by other people and including the political affiliations of the other people. 

17. The next jurisdictional error which is alleged by Mr Belbruno is that the Tribunal has looked at each of the incidents or matters that the applicant has alleged and has found that none of them took place for a reason as defined by the Refugees Convention and not looked at them cumulatively.  There are two answers to that question.  First of all, the Tribunal says in its conclusion:

    Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant wife is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. 

18. In addition to that statement by the Tribunal, the Tribunal has related all of the evidence which the applicant gave and then in its findings and reasonings has again referred to each of the matters that the applicant claims.  I consider that a fair reading of the Tribunal's reasons is that it has dealt with them cumulatively and has looked at the overall picture which has been put by the applicant.  In order to look at incidents cumulatively to decide whether or no things had occurred for a convention reason, the Tribunal needed to make findings about these individual incidents and whether motivated by convention reasons. 

19. So far as the attacks on the family home are concerned, the Tribunal has made specific findings that they were not.  The Tribunal has made a specific finding that they were concerned with the private dispute within the family over the land.  Even if there was some conflict between family members over political matters, the attacks which occurred, the Tribunal found, were not related to those political matters but were related to the private dispute. 

20. So far as evidence about militant Sikhs is concerned, the Tribunal has rejected that evidence.  So there is nothing which can be put together to form a cumulative consideration.  On that basis, there has been no jurisdictional error by the Tribunal.

21. The third matter put by Mr Belbruno is the application of the definition of "serious harm".  The Tribunal having said that it is not satisfied that the reasons for the attacks were convention reasons said this:

    Nor do I consider that the harm suffered by the applicant because her father was initially denied his rightful inheritance amounts to serious harm.  There is no evidence that it led to hardship which threaten the applicant's or her family's capacity to subsist.  On the contrary, her father's circumstances were later such as to enable her to come to Australia to study.  In any event, the injustice about the inheritance was rectified as a result of the legal action initiated by the applicant's mother.

22. It was submitted to the Tribunal that the police did nothing in relation to reports about damage to the applicant’s family property.  These incidents occurred in late 1993 or the early part of 1994.  So far as authority protection is concerned, there is within the convention definitions of "serious harm" no right to an absolute protection by local authorities against attacks.  The Tribunal said:

    It is important to state that absolute protection of an individual is not required before a conclusion that adequate state protection is available and can be reached.

23. The Tribunal then referred to texts and decisions and then said:

    These kinds of criticisms can be levelled at law enforcement and human rights systems in countries all over the world.  I consider the infrastructure of laws and processes which exist in India may be far from perfect but they undoubtedly function.

24. The criticism which was made of the Tribunal's finding was that all it looked at was that there was no evidence that the attacks led to hardship which threatened the applicants or her family's capacity to subsist.  While the Tribunal undoubtedly directed its attention to the question of capacity to subsist, I do not read what the Tribunal says as being related solely to that.  Overall, the Tribunal said it did not consider that the harm suffered by the applicant because her father was initially denied his rightful inheritance amounted to serious harm. 

25. The definition of "persecution" is dealt with in s.91R Migration Act 1958.  By sub-s.(1) the Refugee Protocol does not apply in relation to persecution for one or more of the reasons mentioned in article 1A(2) of the convention unless that reason is the essential and significant reason or the reasons are the essential and significant reasons for the persecution, the persecution involves serious harm to the person and the persecution involves systematic and discriminatory conduct.  Subsection 91R(2) sets out instances of serious harm.  They are a threat to the person's life or liberty, a significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person's capacity to subsist, denial of access to basic services where the denial threatens the person's capacity to subsist, denial of capacity to earn a livelihood of any kind where the denial threatens the person's capacity to subsist.

26. The Tribunal had to apply s.91R in its consideration of whether there was serious harm. I do not consider the Tribunal confined itself to evidence of hardship which threatened the applicant's or her family's capacity to subsist. But even if it did, that would not amount to jurisdictional error. In the circumstances of this case, the Tribunal would be entitled to conclude that the proper application of s.91R involved looking at whether there had been a denial of the capacity to subsist. That would at most be an error in fact-finding. It would not amount to a jurisdictional error. I do not consider that is what has occurred here. The Tribunal has looked at the evidence as a whole and has reached the conclusion that it did not amount to serious harm. Its reference to hardship which threatened the applicant or her family's capacity to subsist is an example of that. Perhaps what the Tribunal is referring to is that this is the most significant of the factors to be taken into account. There has been no jurisdictional error shown in relation to the application of the definition of "serious harm".

27. In those circumstances, no jurisdictional error has been shown. The decision by the Tribunal is therefore a privative clause decision as defined by s.474 Migration Act. Section 486A applied to this application. It is out of time. There is no power to extend the time. The application is bound to fail. It should be dismissed and not dealt with on an interlocutory basis by refusing to grant an order nisi.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:  Sherryn Kwong

Date:  15^th October 2004