MZMAI v Minister for Immigration
[2003] FMCA 518
•14 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZMAI v MINISTER FOR IMMIGRATION | [2003] FMCA 518 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – whether the Refugee Review Tribunal dealt with the claim as put by the applicant that she was a member of a particular social group of business people and employees of non-Lithuanian origin – no jurisdictional error. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Applicant UP & Minister for Immigration and Multicultural Affairs [2001] FCA 1035
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
RAM v Minister for Immigration and Indigenous and Multicultural Affairs (1995) 57 FCR 565
| Applicant: | MZMAI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ25 of 2003 |
| Delivered on: | 14 November 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 11 November 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | John Gibson |
| Solicitors for the Applicant: | Armstrong Ross |
| Counsel for the Respondent: | Dr. Donaghue |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the respondent’s costs as agreed and in the absence of agreement application to be made to the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ25 of 2003
| MZMAI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application under s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on the 15th November 2002 and handed down on the 6th December 2002 affirming a decision of a delegate of the Respondent who refused to grant a protection visa to the applicant. The applicant applied to this Court on the 14th January 2003. The applicant filed an amended application for judicial review on the 20th May 2003.
The applicant is an ethnically Russian citizen of Lithuania. She arrived in Australia on the 21st April 2001. On the 2nd May 2001 she lodged an application for a Protection (Class XA) visa. On 15th June 2001 a delegate of the Minister refused to grant the applicant a protection visa and in application dated the 15th July 2001 and received by the Tribunal on the 17th July 2001 the applicant applied to the Tribunal for review of that decision.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal determined the applicant therefore did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (Cth ) (the Act) for a Protection visa.
The applicant claims that the decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential precondition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s 65 (of the Act) to grant or refuse the application. The applicant contends the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that:
The Tribunal failed to consider the applicant’s case as put and presented in that it misunderstood and failed to deal with the claim that she was a member of a particular social group of business people and employees of non-Lithuanian ethnicity.
The applicant in effect claimed that the Tribunal made a jurisdictional error in its overlooking the formulation of business people and employees of non-Lithuanian ethnicity as a particular social group.
The first question to consider is whether or not the Tribunal erred in its understanding of the reason that the applicant claimed to fear persecution. If the answer to that is in the affirmative then this Court needs to consider whether that error was material to the decision. If it was then the remaining question is whether the error is reviewable despite the operation of s.474 of the Act.
The Tribunal hearing
The applicant gave oral evidence to the Tribunal on the 14th November 2002. Submissions were made on her behalf by her migration agent and a post-hearing submission was received by the Tribunal on the 7th November 2002. Country information was before the Tribunal and considered by it.
In her Protection visa application the applicant said she was born in Lithuania in 1973 and speaks, reads and writes Russian and Lithuanian. She did not note her ethnicity or her religion. She is a Chef. She claimed to be a Lithuanian citizen who came to Australia on a Russian (sic – Lithuanian) passport issued in July 2000. She had thirteen years of education finishing in 1993 and subsequent employment in Lithuania. She left Lithuania legally via Zilnius airport and had no difficulty obtaining a passport. Her mother and father live in Lithuania. She had previously left Lithuania and travelled to Croatia, Sweden and Spain.
The applicant said she left Lithuania with her then defacto partner because their lives were in great danger. She was afraid of violent people that had been harassing her and her partner every day telling them to pay them money or they would be hurt or killed. The applicant asserted that she was once kidnapped by these violent people and put into a dark room, tied up and given only water and a bit of bread. She was released when her partner paid these persons. She said that it was all happening again however, and that the amount this time demanded by such persons was a greater amount that was impossible for her and her partner to pay. She claimed mafia and corruption was much stronger than the police force and that she was not sure that her kidnappers were not linked to the police. She claimed she would not risk her life by going to the authorities.
The applicant’s defacto partner initially applied with her for a Protection visa but withdrew his application on the 22nd May 2001 and left Australia.
In essence, the applicant claimed that she and her defacto spouse were the victims of extortion by persons linked to the mafia or organised crime groups. She also claimed she had been kidnapped by these persons. She claimed at the time to be working as a manager of a small business in Lithuania.
In her review application the applicant said that she had not understood the refugee criteria when first making her Protection visa application. She claimed that there was a strong nationalist movement against non-Lithuanians in Lithuania and that Lithuanians saw ethnic Russians as their suppressors and invaders. The applicant was ethnically Russian and she claimed the problems described in her application were due to her ethnicity. Non-ethnic Lithuanian owners and employees of small businesses she claimed were subjected to constant extortion and threats. The applicant claimed that her kidnapping took place not because she and her defacto were rich but because extortion from non-ethnic Lithuanians was not considered to be a criminal act and nobody took it seriously. Accompanying the review application were certified copies and certified translations of a police letter responding to her official complaint as to her alleged kidnapping and a hospital record as to her admission to hospital at around the time of the kidnapping. According to the medical certificate the applicant was brought in by ambulance suffering from concussion and a left radial wrist fracture, facial and body injuries and anaemia. The police letter said that criminal action had been suspended because the police had been unsuccessful in locating the guilty persons. In the event such persons could be located the case would be reopened. The written submissions put before the Tribunal by the applicant’s advisers relied on the Convention grounds of ethnicity and imputed political opinion.
The applicant stated that she did not know where her former defacto went when he left Australia. The auto service business in which she worked in Lithuania belonged to him. She claimed to have worked for him taking orders from customers and arranging for those orders to be filled. When asked by the Tribunal what she meant by claiming that she and her defacto were harassed daily the applicant stated that the whole country was dominated by racketeers and that every business had to pay. She claimed her boyfriend to already have been paying the persons demanding monies at the time she commenced to work with him and that she herself personally never paid any money. The applicant claimed to not know the names of the people who were extorting money and said that they were not directed by anyone. She claimed to never have discussed with her defacto partner the identities of the people who were taking money from them because extortion was so normal that people did not even discuss it.
As to her kidnapping the applicant said that she did not know where she was held when she was kidnapped and that shortly after her release she and her defacto were being asked for more money. She claimed that she and her partner had been to the police before the kidnap about extortion but the police had not even taken a statement.
The Tribunal noted to the applicant that she had not mentioned in her Protection visa application that she had been hurt. The applicant’s response was that she supposed the application form did not ask this question. The Tribunal put to the applicant that the wording of her and her former defacto’s answers to Question 40 on the application form clearly indicated that they had not gone to the police to complain either about the extortion or the kidnapping. The applicant responded that they had gone to the police who had done nothing. Because there had been no result she did not mention it. The Tribunal put to the applicant information as contained in country reports which did not specifically support the argument that there would be no adequate police response to a complaint of kidnapping and which did not say anything about discrimination against Russians in Lithuania. She responded that people were always making insulting remarks about Russians and that she had difficulty obtaining a job because employers would see from her passport that she was Russian. The Tribunal noted to the applicant that she was no longer with her former defacto and presumably would not return to the same place of business or residence. She was asked what would happen to her should she return to Lithuania. The applicant responded that they would treat her as they did before. She said they could find her anywhere especially if the police were involved.
The Tribunal’s findings
The Tribunal found that the applicant was ethnically Russian and a Lithuanian citizen. The Tribunal did not accept that the applicant or her partner were the victims of extortion. The Tribunal found her claim to be “implausible”. The Tribunal did not accept that the applicant was abducted in the circumstances she claimed. The Tribunal accepted that the applicant was treated in hospital from the 30th March 2001 but did not accept her injuries occurred in the circumstances she claimed.
The Tribunal did not accept that the applicant challenged government policy on corruption and therefore was at risk of persecution due to imputed political opinion. The Tribunal referred to the vagueness of the applicant’s evidence as to the identity and structure of the local mafia. The Tribunal did not accept that the applicant reported any crimes to the police and found the police letter to have either been fabricated or to not relate to the claims being put before the Tribunal.
Having rejected the applicant’s evidence that she was the victim of extortion the Tribunal found:
Even if the Tribunal were in error in the foregoing findings, and even if it could be established that a real chance of serious harm still existed given the change in her circumstances, the Tribunal does not accept that the harm was or would be directed towards the applicant due to her ethnicity or any other Convention reason. There is no evidence that the extortionists were motivated even in part by anything other than the desire for money. Business people (or their employees) are not a particular social group in Lithuania. The applicant’s gender could have been a factor in her abduction in the sense that her vulnerability made the crime easier to perpetrate, but there is no evidence it was a motive in the Convention sense. The Tribunal does not accept that women are a particular social group in Lithuania, that is, that they are united and perceived as distinct from Lithuanian society in general by their gender. The motive, if the claimed scenario was true, was to put pressure on the defacto partner. Any future harm would be to stop her from causing the criminals any legal problems.
Later on that same page and following the Tribunal stated:
The Tribunal does not accept that the applicant faces persecution on the grounds of her ethnicity or any other Convention ground. The country information indicates the situation for Russians is benign in Lithuania … the chance of the applicant suffering serious harm as a result of her ethnicity, given the degree of her assimilation and her fluency in Lithuanian, is remote. The fact that the applicant did not perceive her Russian ethnicity as worth mentioning in her Protection visa application is a clear enough indication that she did not fear being seriously harmed in Lithuania for that reason.
Consideration
In her initial application for a protection visa no reference to any Convention ground appears. The applicant simply claimed to fear persecution by criminals. Later before the Tribunal her claim was characterised in a variety of ways but never put in the way that it is now suggested before this Court namely a particular social group of business people and employees of non-Lithuanian ethnicity. Instead the applicant claimed to fear persecution by reason of her ethnicity and apparently by reason of her sex. The submissions advanced by her adviser referred to her fear of persecution for another reason, namely imputed political opinion said to arise from reporting the alleged crime to the police.
In her written submission to the Tribunal the applicant focussed on her plan to fear persecution by reason of her Russian ethnicity. In the context of developing that claim she gave as an example that non-ethnic Lithuanian owners and employees of small businesses were subject to constant extortion and threats. It has been held that extortionists are not implementing a policy, but are simply extracting money from a suitable victim. Their forays are disinterestedly individual, and their victims not members of a particular social group, even if the argument had been put which it was not (see RAM v Minister for Immigration and Indigenous and Multicultural Affairs (1995) 57 FCR 565 per Burchett J at 569). It was not put that she feared persecution by reason of her membership of the particular social group described as non-ethnic Lithuanian owners and employees of small businesses. At the conclusion of the applicant’s letter to the Tribunal wherein the referred to statement was made the applicant wrote:
What had happened to me took place exclusively because of my ethnicity.
The applicant’s initial application for judicial review identified the error committed by the Tribunal as one in which the Tribunal made a finding that women were not a particular social group in Lithuania. Nowhere before the Tribunal did the applicant advance the claim that she feared persecution by reason of her membership of a particular social group being “business persons or employees of non-Lithuanian ethnicity”. Indeed her evidence was inconsistent with this claim. She claimed every business in the country had to pay money to racketeers and that extortion was so normal that people did not even discuss it. The applicant relied upon the decision in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26. In particular that the Tribunal should have firstly determined whether the group or class to which an applicant claimed to belong was capable of constituting a social group for the purposes of the Convention. What would then follow was whether the applicant was a member of that class and then questions as to whether the applicant has a fear whether that fear is well founded and if it is whether it is for a Convention reason. That decision was premised upon a claim having been advanced by an applicant in a particular way being a substantial and clearly articulated argument and in the context of established facts. In the proceedings before the Tribunal the applicant did not claim to be a member of the social group upon which she relies in these judicial review proceedings. Quite clearly the Tribunal is not under any duty to consider a case that a visa applicant has not made which might have been put on another basis (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 195 ALR 1 at 8 (31-32)).
The core reason for the applicant failing before the Tribunal was that the Tribunal did not accept her evidence. Findings of fact are a matter for the Tribunal. Those findings were expressed in emphatic terms. The Tribunal found that no conduct that could constitute persecution on any grounds had occurred. Nowhere in the reasons and on a fair reading of the reasons as a whole is it apparent that the Tribunal itself had any real doubt as to its findings. Its findings which commenced “Even if the Tribunal were in error in the foregoing findings” appeared to have been included in the reasons as a device for the introduction of additional reasons as to why the Tribunal found the applicant’s claim to fail. It is quite clear that the earlier findings of fact of the Tribunal were not subject to any later consideration and were not provisional. The language used by the Tribunal is similar to that which Weinberg J in Applicant UP & Minister for Immigration and Multicultural Affairs [2001] FCA 1035 held to not constitute an invocation of the “what if I am wrong” test (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291-293 per Kirby J; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 235-236 and 239-241).
The decision was open on the facts before the Tribunal and no jurisdictional error is apparent. The application must be dismissed. As the applicant has been wholly unsuccessful it is appropriate that he meet the respondent’s costs.
I Sophie Killen certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 14 November, 2003
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