MZKAO v Minister for Immigration - [2003] FMCA 284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZKAO v MINISTER FOR IMMIGRATION

[2003] FMCA 284

MIGRATION – Application to review decision of Refugee Review Tribunal – protection visa – no jurisdictional error – application dismissed.

Migration Act 1958

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 37
S157 v Commonwealth of Australia (2003) 195 ALR 25

Applicant:

MZKAO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1165 of 2002

Delivered on:

23 June 2003

Delivered at:

Melbourne

Hearing Date:

23 June 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr R. Hamilton

Solicitors for the Applicant:

Di Mauro Solicitors

Counsel for the Respondent:

Ms H. Riley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed 15 November 2002 be dismissed.
The Applicant pay the costs of the Respondent fixed at $4852.44 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
Certify for counsel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1165 of 2002

MZKAO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application by the applicant in relation to a decision by the Refugee Review Tribunal (the RRT) made on 4 October 2002 (the decision). The applicant seeks review of the decision before this court. The decision dealt with an application lodged by the applicant for a protection visa on 13 March 2001.
By way of background, it is not in issue that the applicant who claims to be a citizen of India last arrived in Australia on 18 January 2000. As indicated, on 13 March 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). On 18 May 2001 a delegate of the Minister refused to grant a protection visa. It was on 12 June 2001 that the applicant applied to the Refugee Review Tribunal for review of that decision. The decision of the Refugee Review Tribunal affirmed the earlier decision not to grant a protection visa.
It is clear that in the application, which is part of the court book, for a protection visa that the applicant has claimed a number of matters.

I should note that page 1 of the court book by letter dated 9 March 2001 agents then acting for and on behalf of the applicant claim in support of the application for a protection visa that the applicant was then a student visa holder. It states that he is … “an Anglo-Indian of British descent, being a very minority community, he is discriminated against other Indian communities". The letter goes on to say he also holds different political opinions with the Indian government. I take the letter to then assert that the applicant has a well-founded fear of persecution should he return to India.
That in a sense is the start of the process, that letter being accompanied by a formal application by the applicant. At court book page 19 it is noteworthy that the applicant in the part of the document asking the question, "Why did you leave that country?" states essentially that he is an Anglo-Indian of British descent, that he was discriminated against over other communities and that he held different political opinions to the Indian government. In that same paragraph the applicant states:
“I have a well-found that when I return India, I could be persecuted”.
The Applicant further indicates in other parts of the material which were before the initial decision-maker and the RRT that he in fact holds different political opinions to the Indian government. For example, in a letter which is found at court book page 30 the applicant states in lodging his application for a protection visa that he is an Anglo-Indian of British descent living in India and:
“… being a very minority community we have no prospects for job opportunities and other facilities in India. Often we are discriminated against other Indian communities. That is why I am holding the different political opinions with the Indian Government.
After being given the opportunity to study and work in Australia, I am more adapted to the life style of living here in Australia …”.
The Applicant goes on to refer to the bright future that may be available to him if given the opportunity to remain in this country.
It is further noted at page 43 of the court book again that the migration agent acting for and on behalf of the applicant refers significantly to the following:
“The applicant has a strong Roman Catholic faith, which made a big contrary to others in his country, hence, he is discriminated against other Indian communities”.
Despite the obvious error in that passage, I take it to mean that reliance is placed upon the applicant's religion as a further basis upon which he claims to be discriminated against and indeed a further basis upon which it might be said he has a well-founded fear of persecution.
It is clear to me that there are a number of other documents which are referred to in the court book before the RRT which simply recite those factors which can be gleaned from the documents to which I have referred; that is, those factors are repeated along with other details concerning the applicant's employment and both past history and future prospects.
In its decision, in my view, the RRT recites the relevant legislation correctly and otherwise recites what are often now well-known definitions of what is meant by "refugee". It is relevant to set out, however, the material which appears under the heading “Claims and Evidence” in the RRT decision where it states:
“The applicant is a national of India. He is an Anglo-Indian Christian of the Roman Catholic denomination. He is aged 35 years and single. He undertook a tertiary education in India and worked there in accountancy and other administrative occupations. He last arrived in Australia in early 2000 on a student visa.
The Tribunal has had regard to material on the Tribunal and Departmental files, including that referred to in the delegate's decision, and the country information referred to below”.
The RRT then goes on to deal with the claims of discrimination by the applicant and further deals with those matters to which I have already referred. In its findings the RRT states that it accepts that the applicant is an Anglo-Indian Christian of Indian nationality. It goes on to say:
“In weighing the material before it the Tribunal concludes that the applicant does not face persecution now or in the foreseeable future by reason of his political opinion”.
After drawing that conclusion the RRT refers to the issue of when discriminatory treatment amounts to persecution and in particular notes the material canvassed by the Office of the United Nations High Commissioner for Refugees in the Handbook on Procedures and Criteria for Determining Refugee Status, January 1992. Part of that extract has been referred to during the course of submissions on behalf of the respondent and in particular the following passage:
“Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution”.
In the same part of the findings of the RRT reference is made to the decision of the High Court in the matter of Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. At page 431 the RRT cites the following extract from the judgment of His Honour McHugh J where His Honour states:
“ … the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedom traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.
In my view, the RRT was correct to cite that passage from the judgment of His Honour McHugh J. Further, it is clear that in certain circumstances the denial of access to employment and to the profession, the matters referred to by His Honour, may constitute persecution if imposed for a Convention reason. Whilst there were some submissions about that extract, it seems to me that it was an entirely appropriate matter for the RRT to cite and it does properly represent the correct legal position.
A great deal of criticism was levelled at the RRT's further findings which appear at page 110 of the court book. At page 110 the RRT after referring to the United States Department of State Country Reports on Human Rights Practices 2001 goes on to state that it makes no reference to any problems faced by Anglo-Indians by reason of their race. The RRT goes on to say:
“Nor does any other material before the tribunal indicate the existence of any serious harm to Anglo-Indians in India. While accepting that the applicant might have limited job prospects in India due to his racial origins, the tribunal notes and gives weight to the fact that he has a lengthy history of remunerative employment there including in a job where he held at least some degree of seniority. His capacity to complete a tertiary degree and then to enrol in a higher degree indicates that he has not faced consequences of any serious adverse nature in terms of his educational opportunities. In light of the absence of country information indicating persecution of Anglo-Indians and bearing in mind the applicant's employment and educational history, the tribunal finds that he does not face a real chance of persecution by reason of his race”.
Significantly the RRT goes on to state the following:
“The applicant has not made any claim of persecution in relation to religion”.
It then goes on to consider the USA report to which I have referred and cites extensive extracts from that report. In that report it is clear that there are a number of events referred to as reflecting tensions and incidents amongst various religious groups in India. After referring in detail to that extract the RRT then goes on to refer to other country information reports, including a DFAT country report dated 14 July 1998 which refers to events of sporadic violence.
The RRT then considers in relation to the situation of Christians in India other reports, including a report by DFAT dated 15 June 2000 which in part states:
“ … Catholic church leaders have voiced their concerns publicly on the propagation of anti-Christian and hate publications in the states of Uttar Pradesh, Gujarat and Orissa.”
In that same report the author states in relation to other claims which had been referred to by the applicant:
“But such claims have not been supported with any concrete evidence – indeed, they have attracted a good deal of public ridicule – and nor is there any objective reasons at present to explain this supposed Moslem-Christian hostility.”
The RRT further refers to another report dated 17 January 2001 from DFAT and after considering all those reports states in its conclusions the following:
“Aforementioned information indicates there have been occasional attacks on some prominent Christians, in particular, apparently by Hindu fundamentalists. Some church buildings away from the applicant's home State were destroyed in violent attacks, apparently in late 1999 or early 2000. Some church leaders attributed the attacks against Christians to political motives arising out of the tendency of Christian teachers to develop political awareness among adherents, usually drawn from the lower castes in Indian society in remote, rural areas. In a quite recent investigation the Minorities Commission found no evidence of any increase in communal tensions and has promoted dialogue in order to increase tolerance between Christians and Hindus. The Bharatiya Janata Party (BJP) prime minister has also made public statements following isolated outbreaks of communal violence in an endeavour to ease communal and religious tensions, and to affirm the rule of law.
In assessing the applicant's claims based on his Christianity and weighing aforementioned country information the Tribunal finds that he does not face a real chance of persecution for any Convention reason. Looking at the present situation and to the foreseeable future, available information indicates that any chance a person such as the applicant would face consequences amounting to persecution by reason of his race or religion or for any other Convention ground is remote and the Tribunal finds accordingly.
In reaching its ultimate conclusion that the applicant is not a refugee the Tribunal also notes and gives weight to his voluntary return to India on three occasions. The Tribunal concludes that the applicant's voluntary return visits to India indicate the absence of a strong subjective fear for his well-being there.
During the course of submissions both the applicant and the respondent relied upon written contentions of fact and law. Both quite properly referred the court to the recent High Court decision of S157 v Commonwealth of Australia (2003) 195 ALR 25. Both parties referred me to paragraph 37 of the decision of Gleeson CJ in that case where his Honour states the following:
“The principles of statutory construction stated above lead to the conclusion that parliament has not evinced an intention that a decision by the tribunal to confirm a refusal of a protection visa made unfairly and in contravention of the requirements of natural justice should stand so long as it was a bona fide attempt to decide whether or not such a visa would be granted. Decision‑makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If parliament intends to provide the decisions of the tribunal although reached by an unfair procedure are valid and binding and that the law does not require fairness on the part of the tribunal in order for its decisions to be effective under the act, then section 474 does not suffice to manifest such an intention”
His Honour goes on to say:
“It follows that, in my view, if the tribunal's decision in relation to the plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by section 474.”
In my view the consequence of the High Court decision in S157 is that this court is entitled to consider, at least as a first step, whether or not there has been what might be described as jurisdictional error. I am prepared to accept in the present case that jurisdictional error may be said to have occurred in circumstances where a decision can be said to contravene the rules of natural justice.
In the present case what has been argued for and on behalf of the applicant is that the decision to which I have just referred can be criticised on a number of grounds. A great deal of time was devoted to criticising the finding in relation to the claimed perception or fear of persecution based upon the applicant's opportunity to be gainfully employed and seek remuneration in his chosen profession should he return to India. Some criticism was made about the tribunal's finding, the fact which I have referred at page 110 of the court book. It is clear to me that in making its finding that the applicant has a lengthy history of remunerative employment, including a job where he held at least some degree of seniority, the RRT was doing no more than relying upon material then available to it and material which would at least provide the RRT with an opportunity to reach such a conclusion.
During the course of the submissions made for and on behalf of the applicant I was referred to a number of items of correspondence. In particular, there are items of correspondence from former employers of the applicant. One of those items is a letter from a person purporting to be regional manager of Air Freight Ltd who on 15 November 1997 states that:
“This is to certify that the Applicant was employed in our DHL division from 1 August 1992 to 30 June 1997. His last designation was senior assistant Erocks”.
There are other similar items of correspondence which appear in the material which was then available to the RRT. In addition, the applicant himself provided a comprehensive list of his employment history which appears at page 18 of the court book and commences with an employment history in 1983 up to and including 1997.
Whilst during the course of submissions it was suggested that in the absence of any reference to specific remuneration that it does not necessarily mean that was remunerative employment, it is my view that the ordinary use of the language about employment and the like is sufficient to entitle the RRT to reach the conclusion it did reach which I have referred to at page 110; namely, that there is a lengthy history of remunerative employment and it includes a job where it can be said the applicant held a position of seniority.
Whilst a great deal of the time taken in the submissions refers to the lack of fairness and indeed what might be described as reaching a conclusion that is glaringly improbable, reliance was also placed upon the suggestion that the RRT did not take into account the issue of the applicant's religion as a basis for his perceived fear of persecution. In my view, that submission cannot be accepted. There is a difficulty in the RRT's reasoning when, on the one hand, it states at page 110 that the applicant has not made any claim for persecution in relation to religion, when clearly, as I have indicated earlier, there is at least a reference to that factor in the correspondence that I referred to which appears at court book page 43; that is, the letter from the agent dated 5 June 2001. The fact remains that the RRT then proceeds to consider what I regard as relevant country information concerning the very issue which is claimed the RRT had not made any specific claim for; namely, persecution in relation to religion.
Unlike the decision in the Federal Court in the matter of NACP v Minister for Immigration, Multicultural and Indigenous Affairs, which is a decision of Hill J delivered 23 May 2003, this cannot be said to be a case where an applicant has resiled from and/or not pursued a particular aspect of his claim. He has pursued it. It is just that the RRT in this case, for reasons that I do not fully understand, seems to suggest that in fact there has been no claim of persecution made in relation to religion.
In any event, the fact remains that the RRT proceeded to consider that issue and did so in what I would regard as an entirely appropriate manner having regard to relevant and recent country information. It was suggested that that country information was not recent enough. But given that it refers to information up to and including 2001 and the applicant's decision was October 2002, in my view, that is information which is clearly open to the RRT to consider and is clearly recent enough so that it would not be considered to be totally irrelevant or outdated material. It is not necessary for me, therefore, to consider what may flow from circumstances where it could be considered the material is outdated. I am satisfied the material was reasonably up to date, relevant and properly considered.
When considering the issue of jurisdictional error it is important to note that does not entitle the court to undertake what might be described as a merits review. In this application having considered all the materials being placed before this court I am unable to conclude that there is any or any proper basis upon which the court can find jurisdictional error. In my view, the RRT has indeed considered all relevant matters, it has relied upon relevant information and the conclusions reached by the RRT are conclusions reasonably open to it. I can see no other basis upon which the decision of the RRT in this case can be challenged. I cannot find on the material before me any material which would justify reaching a conclusion that there has been a lack of good faith or indeed that the RRT has otherwise attracted the attention of the court arising out of the proviso that is often referred to as the Hickman proviso. In my view, the decision sought to be reviewed is a decision which does not attract on any basis the intervention of this court.

I think it is appropriate to make an order for costs. I can see nothing unusual about this case that would encourage the court to depart from the usual principle that costs follow the event. In concluding that the application be dismissed, I am not suggesting for one moment it had no merit at all. For the reasons I have given the applicant has been unsuccessful. In the exercise of my discretion the costs should follow the event.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 23 June 2003